the wife, by falsely holding herself out to be unmarried and doing business as a trader in her own name, and for her own personal benefit and advantage; and I will not say but an action on the case for damages for the fraud would have lain against the husband and wife jointly. KENT says: "The husband is liable for the torts and frauds of the wife committed during coverture. If committed in his company, or by his order, he alone is liable. If not, they are jointly liable, and the wife must be joined with the husband." 2 Kent's Com., 9th ed., 138; see also 2 Bright on Husband and Wife 79 and 80; 1 Story on Con., 4th ed., § 109; Reeve's Dom. Rel., 2d ed., 72 and 73. By reason of the fraud of the wife the title to the goods remained in the vendors, and the possession or conversion thereof by the wife was wrongful. Cary vs. Holaiting, 1 Hill 311; Nichols vs. Michael, 23 N. Y. Reps. 264. Hence the right of the vendors to maintain either of the actions formerly called replevin and trover for the goods.

When the wife commits a tort by order of her husband, or in company with him, he alone is liable; and in case of his death they do not survive against the wife. Reeve's Dom. Rel., 2d ed., 72. But if the tort be not committed in the presence of the husband, or by his order or request, the wife is also liable, and must be joined in the suit with her husband. The wrong is in such a case considered as her wrong; and the husband is answerable with the wife for similar reasons for his liability for her contracts before marriage. Reeve's Dom. Rel., 2d ed., 72. And I am of the opinion a cause of action for such a wrong survives against the wife on the death of her husband. It was held by Lord ELLENBOROUGH, in Woodman vs. Chapman, (1 Camp. 189,) that a debt contracted by the wife before marriage survives against her upon the death of her husband, and such holding was undoubtedly correct. It is laid down by Macqueen on Husband and Wife, (Law Library, 4th series, vol. 34, p. 123,) that "causes of action survive against the wife, which accrued during the coverture, in respect of the real estate, or for any personal wrongs done by her when sole." The only authority cited by him for this rule is the note by Lord CAMPBELL to the above case of Woodman vs. Chapman; and the language of

that is, that "causes of action survive to the wife which accrued during the coverture, in respect of her real estate, or for any personal wrongs done her." But whether the doctrine laid down by Macqueen is or is not supported by the authority cited by him, it rests upon the same principle that makes the debts of the wife contracted before her marriage, which are not recovered of the husband and wife during the life of the former, survive against the latter, and therefore is good law. The personal representatives of the husband cannot be charged with such debts; and on similar principles they must be exempted from liability for torts of the wife committed in the absence of her husband, and not in his business, and without his concurrence or knowledge; for such torts, as has already been seen, are considered her torts. See Cox vs. Kitchin, 1 Bos. & Puller 338.

The only authority I have found which seems to militate against any of the foregoing conclusions, is the decision of the Court of Exchequer in Fairhurst and Wife vs. The Liverpool Adelphi Loan Association, 26 Eng. Law and Equity Reps. 393, where it was held that an action will not lie against a husband and wife for a false and fraudulent representation by the wife to the plaintiffs, that she was sole and unmarried at the time of her signing a promissory note as surety to them for a third person, whereby they were induced to advance a sum of money to that person. The opinion of Judge REEVE is to the contrary. Reeve's Dom. Rel., 2d ed., 72 and 73. But if the decision of the Court of Exchequer be correct, it is placed on the same ground that an infant is exempted from liability for damages in actions for wrongs, when founded on contract; and when goods are sold to an infant on credit, and he avails himself of his infancy to avoid payment, the vendor may reclaim the goods as having never parted with his property in them. Badger vs. Phinney, 15 Mass. Reps. 359. Either what was formerly called trover or replevin may be maintained for the goods in such a case. See Wallace vs. Morss, 5 Hill 391. In such a case the action is brought in disaffirmance of the contract, and on the ground that the vendor still retains the title to the goods. Upon the same principle either an action to recover possession, or one for conversion, could have

been maintained against the defendant and her husband for the goods sold to the former in this case. And should we concede that the vendors could not have recovered in an action against them for damages merely, for the fraud of the wife in obtaining the goods there still remained two kinds of action, either of which could have been maintained against her as well as her husband; and the cause therefor survived against the defendant on the death of her husband.

If these views are correct the promise of the defendant, after the death of her husband, to pay for the goods, and to pay the notes given for them, was an undertaking by her to pay a demand for which a cause of action existed against her from the time she purchased the goods, and therefore was founded on a good and sufficient consideration, and is clearly obligatory upon her.

There is another view of the case which shows that the promise of the defendant to pay for the goods, and pay the notes she gave therefor, was founded upon a sufficient consideration.

I am aware the general rule is that a moral obligation is not alone a sufficient legal consideration to support a promise. See 1 Story on Con., 4th ed., § 465 to § 469; Chitty on Con., 9th Am. ed., 48 and 49; 24 Wend. 97; 1 Hill 532; 5 Id. 306.

And the Superior Court of New York City went so far in Watkins vs. Halstead, 2 Sand. S. C. Reps. 311, which case was followed by the Supreme Court in this, as to adopt the language of a note to Wennall vs. Adney, 3 Bos. & Pul. 252, where it was said that "an express promise can only revive a precedent good consideration which might have been enforced at law through the medium of an implied promise, had it not been suspended by some positive rule of law; but can give no original right of action, if the obligation on which it is founded never could have been enforced at law, though not barred by any legal maxim or statute provision." But this rule is too broad, or at least there are exceptions to it. where a moral obligation that is founded upon an antecedent valuable consideration is sufficient to sustain a promise, though the obligation, on which it is founded, never could have been enforced at law. In other words, a moral obligation is sometimes a sufficient

For there are cases

consideration for an express promise, if, at some time or other, a good or valuable consideration has existed, although there never was a time prior to such express promise when any portion of the precedent consideration could have been enforced at law or in equity through the medium of any promise. To illustrate: If money be loaned upon usury, and usurious security taken therefor, such security is absolutely void, and no action can be maintained upon it; nor is it evidence of an indebtedness, upon the strength of which the law will imply a promise on the part of the borrower, to repay the amount actually received by him. The express contract being absolutely void, no implied obligation can spring from it. The lender cannot waive or abandon the usurious agreement so far as it is illegal, and enforce it for the residue. The contract is one; no matter what the nature or number of the securities may be, all are void. The contract cannot be broken up and resolved into its original parts or elements, so as to get rid of the illegal taint without the consent of both parties. But if it is mutually abandoned, and the securities are cancelled or destroyed, so that they can never be made the foundation of an action, and the borrower subsequently promises to pay the amount actually received by him, such promise is legal and binding. It is founded upon an equitable and moral obligation, which is sufficient to support an express promise. The money actually lent, when legally separated from the usurious premium, is a debt in equity and conscience, and ought to be repaid. Per SUTHERLAND, J., in Hammond vs. Hopping, 13 Wend. 511 and 512; also Miller vs. Hull, 4 Denio 104; Chitty on Con., 9th Am. ed., 712 and 713; 2 Parsons on Con., 3d ed. 397; Parsons' Mercantile Law 257; 1 Story on Con., 4th ed., §603; Barnes vs. Hedley, 2 Taunton 184.

In Lee vs. Muggeridge, 5 Taunton 35, a feme covert, having an estate, settled to her separate use, gave a bond for repayment of money by her executors, of money advanced at her request, on security of that bond, to her son-in-law, and after her husband's decease, she wrote, promising that her executors should settle the bond, and it was held that assumpsit would lie against the executors on such promise of the testatrix. That case was not over

ruled by the decision in Meyer vs. Haworth, 8 Adol. & Ellis 467, though it must be conceded, it was very much weakened as an authority in England, by Eastwood vs. Kenyon, 11 Adol. & Ellis 438; and Littlefield, executrix, &c., vs. Shee, 2 Barn. & Adol. 811, was put mainly upon the ground that the price of the goods originally constituted a debt from the husband, though Lord TENTERDEN in deciding it said he must also observe "that the doctrine that a moral obligation is a sufficient consideration for a subsequent promise, is one which should be received with some limitation." Lee vs. Muggeridge has never been overruled in this State. Smith vs. Ware, 13 Johns. 257, does not do it. For that was a case to recover back money the plaintiff had paid the defendant for land, the former claiming there was a deficiency in the number of acres, and Judge SPENCER, in delivering the opinion of the court, said: "It cannot be pretended that the defendant was under any moral obligation to pay for the deficiency in quantity of land sold and conveyed to the plaintiff." All that was decided in Ehle vs. Judson, 24 Wend. 97, was that a mere moral or conscientious obligation, unconnected with a prior legal or equitable claim, is not a sufficient consideration to support a promise; and Judge BRONSON, who gave the opinion of the court, said: "The moral obligation to pay a debt barred by the statute of limitations, or an insolvent discharge, or to pay a debt contracted during infancy or coverture and the like, will be a good consideration for an express promise." In Wilson vs. Burr, 25 Wend. 386, it was held the plaintiff could recover his claim of $200, counsel fees; and the court said: "It is true at the time of the retainer, the defendant was a feme covert; but she was soon after divorced, and it is to be presumed subsequently recognised the services rendered."

There are some, perhaps many, broad assertions in our reports going to show that the promise of the defendant in this case is not obligatory; and the reasoning tends that way in the following cases: Geer and Wife vs. Archer, 2 Barb. 420; Nash vs. Russell, 5 Id. 556, and Ingraham vs. Gilbert, 20 Id. 151. But there are equally broad expressions in our reports the other way; and the reasoning in such cases as Doty vs. Wilson, 14 Johns. 378, and