The first objection on the part of the defendant is, that the note in question was taken by Stewart, the deputy sheriff, by color of his oflice, and for ease and favor, and is void under the statute. (2 R. S. 286, § 59; 3d ed. p. 384.)
The note was given after the sheriff had been attached, and after Stewart had paid the amount of the execution to the plaintiffs, therein. In my opinion, therefore, the case is not within the statute referred to. (Doty v. Wilson, 14 John. 378. Given v. Driggs, 1 C. R. 450. Baker v. Martin, 3 Barb. S. C. R. 634.)
It is also objected that-there was no sufficient legal consideration to uphold the note. It is a general rule that a moral obligation constitutes a valid consideration to support an express promise. The application of this rule, however, is limited by the authorities to cases where the moral obligation is connected with a prior legal or equitable liability, which is suspended or *369barred by some legal maxim or statutory provision. (Wennall v. Adney, 3 Bos. & Pull. 249, note. Smith v. Ware, 13 John. 257. Ehle v. Judson, 24 Wend. 97. Geer v. Archer, 2 Barb. S. C. R. 420.)
Where the obligation rests merely in conscience, in an ethical sense, and is not founded upon a liability, which might at some time have been enforced in a court of law or equity, or by, some proceeding authorized by law, it is not of a character to bo a sufficient consideration for a promise. It is claimed by the defendant, that the consideration of the note in question was, at best, of the last mentioned description. I am inclined, however, to think the consideration was sufficient, so far as this particular point is concerned. Here had been a legal liability on the part of the defendant to pay the execution to the sheriff. It was the duty of the defendant to pay it to him. The law had given the sheriff the power to compel payment. He had neglected to exercise that power until he became liable for the debt, and Stewart, the deputy, whose neglect produced the liability of the sheriff to the plaintiffs in the execution, paid them the amount of the judgment. By this process the judgment became virtually satisfied, and could never thereafter be enforced against the defendant. There was then a suspension of a legal liability on the part of the defendant, which had once been perfect. If the sheriff had held the execution in his own hands, instead of giving it to Stewart to be executed, until he became liable by reason of his laches, and had paid the money himself to the plaintiffs therein, I think there is authority for holding that a promise made afterwards by the defendant to the sheriff to pay the amount of the execution, would have been valid and binding. (Given v. Driggs, 1 Caines’ Rep. 460. Doty v. Wilson, 14 John. 381. Baker v. Martin, 3 Barb. S. C. Rep. 641, before cited.) I cannot perceive that the fact that the promise was made to the deputy varies the principle. It was the duty of the deputy to pay the money, as it was his neglect that produced the liability of the sheriff. The sheriff had no further concern with the matter after the plaintiffs in the execution were paid; and a promise to him might well be liable to *370the objection of want of consideration. If the defendant should pay to any one, it should be to Stewart, who had been compelled to pay the judgment, and he thereupon promises to pay to him. But it is said that the money was paid by Stewart to the plaintiffs in the execution without the defendant’s request, and the subsequent promise based upon such payment was a nude pact.. It is a maxim of law that if the consideration is wholly past and executed, it will not support a subsequent promise, unless the consideration was executed, either at the express or implied request of the' party promising. This, like most other rules, has its exceptions and qualifications. The reason of the rule is that a man should not be permitted to do another a kindness and then charge him with a recompense; as it would be obliging him whether he would or not, and bringing him under an obligation without his concurrence. But if the service rendered or money paid was at the request of the party promising, the promisee is not a volunteer, and the reason of the rule does not apply. So too, as in the case at bar, if the party to whom the promise is made, paid the money, or incurred the obligation, by compulsion of law, which is the consideration of the subsequent express promise, he should not be treated as a volunteer. I think also that if necessary to uphold the promise in this case, the law will imply a request on the part of the defendant, to Stewart, to pay the money to the plaintiffs in the execution. The proof on the subject of a request, merely negatives an express request. The law never implies a request, where an express one is proved. That would be supererogation, and an absurdity.
It is only upon this ground, or that of a compulsory payment, that the cases holding that a promise by a defendant in a ca. sa. to indemnify the sheriff for a previous voluntary escape is valid, can be sustained. The attachment against the sheriff in the case at bar, did not operate to discharge the judgment: until Stewart paid the money, the liability of the defendant on the judgment continued. A recovery of judgment by the plaintiffs in the execution against the sheriff for not collecting or not returning the execution, would not before pay*371ment, have had the effect to extinguish the judgment against the defendant. (Baker v. Martin, supra.)
[Monroe General Term, June 3, 1851.Welles, Selden and Johnson, Justices.]
It is also contended that the note was given without the knowledge that the deputy sheriff, Stewart, had paid the judgment, and that by the authority of the case of Mills v. Young, (23 Wend. 315,) the note is void. It is a sufficient answer to this position that the bill of exceptions is entirely silent on the question of the defendant’s knowledge. Stewart paid the judgment on the 23d day of July, 1839, and on the 17th day of October following the note was given. The bill of exceptions merely states that on the latter day “ the said deputy sheriff Stewart called upon the defendant in this suit and took from the said defendant the note upon which this suit is brought, and gave the said defendant the following receipt,” die. The receipt admits the giving of the note, states on what account taken, and states that if paid, it was to be applied on the execution, which it appears was then in his hands. What conversation took place at the time, does not appear. It is not to be presumed that none was held. Neither is it to be presumed that the defendant would have given the note to Stewart unless he knew what had been done. The agreement in the receipt respecting the application of the note if paid, cannot change the legal position of the parties. It was substantially an agreement to discharge the defendant upon payment of the note. This was all the defendant needed, if indeed, any thing of the kind was necessary, as at that time there was no liability on his part which could be enforced. In the case of Mills v. Young the note was held invalid, on the ground that it was obtained by fraud and unauthorized coercion. Nothing of the kind can be alledged in the present case.
Upon the whole I am satisfied that there are no legal obstacles in the way of the plaintiffs’ recovery.
New trial denied.