From the evidence detailed in the case, it seems quite clear that the only consideration for the note upon which the action is brought, was the difference between the price, or purchase money paid and secured to be paid by the defendant, for the interest of the plaintiff, Eliza Ann Archer, in the land conveyed by her to the defendant, and the amount the said Eliza Ann supposed the land, or her interest in it, was worth, and which she supposed she was receiving at *424a certain sum per acre. The proof is entirely satisfactory to my mind, that the execution of the deed and the bonds and mortgage was a full and fair consummation of the land transaction between the parties, unaccompanied by fraud or concealment. The land was conveyed, the bond and mortgage executed, to secure the purchase money agreed upon, and a further bond executed by Pratt and King to the plaintiff, securing her against ever being called upon for any part of the judgment against John Archer, deceased, and containing the further provision, that in case of a foreclosure of the mortgage, if there should be a deficiency, the obligors would pay it. The plaintiff, Eliza Ann, and the late husband of the defendant, were the children and heirs at law of John Archer, deceased, and as such claimed the land, which was encumbered by the judgment, for a considerable amount. This judgment, the witness, Pratt, as executor of the defendant’s husband, had purchased with the moneys of the estate, at a discount of about twenty-five per cent. The defendant proposed to buy the interest of the plaintiff, Eliza Ann, which she was willing to sell, and offered her $2000, besides what had been paid from her husband’s estate, for the judgment, and to give her the bond of indemnity mentioned ; which was accepted by the plaintiff, and the papers prepared and executed accordingly. Some three or four weeks after this, the note in question was given by the defendant, to quiet the complaints of the plaintiff, Eliza Ann, in relation to the price of the land. The only witness on the subject, swears that “ the plaintiff did not claim that she had been deceived, or that the defendant had misrepresented any thing.” The main question is, whether there was a sufficient consideration to support the promise contained in the note.
There is a class of cases where it has been said that a moral obligation is sufficient to support an express promise; such, for instance, as the obligation to pay a debt barred by the statute of limitations, or an insolvent’s discharge, or to pay a debt contracted during infancy, or coverture, and the like. But a mere moral or conscientious obligation, unconnected with a prior legal or equitable claim, is not enough. The result of all the *425cases on this head is summed up in a note to 3 Bos. Bull. 249, in these words: “An express promise, therefore, as it should, seem, 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 copld have been enforced at law, though not barred by any legal maxim or statute provision.” The rule as thus stated received the emphatic approbation of Justice Spencer in the case of Smith v. Ward, (13 John. 257.) The same doctrine is substantially asserted by Bronson, J., in Ehle v. Judson, (24 Wend. 97;) and such I believe to be the settled rule. It forms a criterion at once safe, certain, and easy to be understood and applied. Testing the present case by that rule, it is apparent that the promise cannot be upheld. The supposed obligation which is invoked for its support most clearly never could have been enforced in any tribunal known to our law. The case of Bently v. Morse, (14 John. Rep. 468,) cited by the plaintiff's counsel, was a case of moral obligation sufficient to support an express promise within the rule above referred to. There money had been paid and a receipt taken, and afterwards the party to whom it was paid brought an action for the same money, and recovered, through the omission of the defendant to produce the receipt in evidence in his defence. A subsequent promise by the plaintiff in that action, that if the defendant had the receipt he would refund the money, was held to be valid, and supported by the moral obligation to pay the money. The court likened it to a case of a promise by an infant, to pay a debt contracted during his non-age, or of an insolvent or bankrupt to pay a debt from which he is discharged by his certificate. We hold that it is not in all cases necessary that the moral obligation in order to be a good foundation for an express assumpsit should be such as that, without the express promise, an action could once have been sustained upon it; but that if it could have been made available in a defence, it is equally within the rule. The test is, could it have been enforced before *426it was barred by the legal maxim or statute provision ? Upon this ground the case of Bently v. Morse is within the rule stated.
The cases of Seaman v. Seaman, (12 Wend. 383,) and Mussel v. Cook, (3 Hill, 504,) also cited by the plaintiff’s counsel, were both decided upon a different principle. In the first, the consideration of the promise was the withdrawing a caveat by an heir at law to proving the will of the ancestor; in the other, it was the settlement of a doubtful claim. In both cases the consideration was held good, upon the ground of advantage to the promissor, or damage or inconvenience to the promisee. Clearly the present does not come within that class of cases, which rests upon an entirely different principle from the cases of moral obligation.
The judge, at the trial, among other things, charged the jury that if they believed, from the evidence, that the amount paid for the judgment was designedly kept secret from the plaintiff, and she was induced to sell her interest for a less price on that account, then the note was valid if given to settle the deficiency occasioned thereby. Waiving the question as to what would be the effect upon the rights of the parties, on the assumption that there was proof in the case to authorize the jury to find the affirmative of the proposition submitted to them, we think the judge was led into an error in this respect; for the reason that the case is utterly destitute of evidence to prove a fraudulent concealment, which the jury could with any propriety have taken into consideration. So far from it, the plaintiff expressly disavows the imputation; and the case abundantly shows that the note was given simply to appease the querulousness of the plaintiff, and was the merest gratuity. The question, it is true, was submitted with great caution, and I should infer from the language of the charge, that his honor would have decided the question adversely to what the jury have done; nevertheless, as I think there was no evidence to go to the jury, on that question, it should not have been submitted to them.
On a motion for a new trial upon a case, for the misdirection *427of the judge in his charge to the jury, it is not necessary that the charge should be excepted to. The rule is otherwise on a bill of exceptions. Besides, I think the defendant’s motion for a nonsuit should have been granted.
For the foregoing reasons there should be a new trial, with costs to abide the event.
New trial granted.