. The opinion of the Court was delivered by
Black:, J.The counsel for the plaintiff in error think that parol evidence of what ■ a written document contained ought not to be received without fuller proof of its loss than was given imthis case. When the judge, who presided at the trial, appears to have been satisfied that the paper is not produced only because it cannot be found after a faithful effort, a court' of error, as a general rule, will accept it as an established fact. He who hears the living voice of the witnesses, and sees the demeanor of the parties or their representatives, while the investigation is going on, has means of coming to a correct conclusion, which we cannot have, who see nothing but a naked statement on paper. Still we are bound to reverse if the evidence is manifestly insufficient. Was it so here ? The defendant in error, years ago, gave the paper in question to his attorney, and that attorney gave it to his colleague. The latter gentleman swore that he had sought it diligently in the places where it ought to be, without finding it. A third counsel was concerned, but there is nothing to show that he ever had it; and therefore it was not necessary to call him. When the. evidence follows a paper from hand to hand as far as it can be traced, and concludes with proof of a careful search among the papers of the last person known to have had it, nothing more can fairly be required. Other persons, however, connected with, or related to the party, need not answer upon their oaths every suggestion of a mere possibility that they may have it. .We think the loss of this agreement was well proved, and parol evidence of its contents properly received.
The suit was brought in 1847, and no declaration was filed until 1854. • The statute of limitations cannot be made out by counting any portion of the time which elapsed after issuing the original writ. But it is insisted that the judge ought to have charged against .the plaintiff’s right to recover on some principle of equity which should punish negligence, after suit brought, as the statute *371punishes it before. Certainly there is no such rule. The law is otherwise, and if we had the power to change it we ought not to do so. The delay may have been for good reasons. It may have been caused by the defendant herself, for aught we know. Certainly it is some degree imputable to her; for she as well as her adversary could have forced the case to a trial. A very long delay, after the issuing of a summons, may sometimes be taken as evidence that the cause has been abandoned; and in an abandoned cause, if the defendant would refuse to plead, the Court might refuse to compel him. But he gives up that advantage when he goes to issue and to trial.
We come now to a question of greater interest. In 1841 the defendant, then a married woman, with a considerable separate income of her own, induced the plaintiff to expend his time, labor, and money, in putting up a saw-mill for her son, by promising that she would pay for the work. It is very clear that the plaintiff acted on the faith of her undertaking, and did not in any wise rely upon the son for compensation. Afterwards, during her coverture, she frequently acknowledged the debt as her own. After her marriage was dissolved by a divorce, she renewed her promise again. The suit is brought on this last promiáe, and the defence is, that it is void for want of a consideration to support it.
When the plaintiff made the original bargain, he knew the defendant to be a married woman, and he was bound to know that in law her contract was good for nothing. He trusted to her own justice. If that failed him, he had nothing else to depend on. She had it in her power to cheat him. But the legal disability was gone when she made her last promise. That too was worthless, if there was no consideration to ground it upon. But the rule is a very familiar one, that an existing moral duty, not enforceable by law, is a sufficient consideration for an express promise to perform that duty. On this principle it has always been held that a promise to pay a debt barred by the statute of limitations, or by a discharge under the bankrupt law, or a debt contracted in infancy, though not for necessaries, is legally binding on the pro-missor. The question whether a widow, or a divorcee, is bound by a promise to pay a debt contracted while she was a wife, has been somewhat perplexed by subtle distinctions between disabilities which make the original contract void, and those which make it merely voidable. It is not very easy to see why one class of persons should be protected against their own acts, by declaring them void, while those of another, which needs protection just as much, should be held only voidable. But allowing that there is, and ought to. be, this legal difference between a married woman and an infant, how can that make any difference in the morality of their conduct ? The law may say what it will about void and voidable contracts, but there is no code of ethics which says that *372the duty of not abusing the confidence of one who has honestly served you, is a void obligation upon the conscience. This is not a question to be settled by metaphysics. All judicial casuistry upon such subjects must be pernicious. We would be very sorry to tell the defendant that the sense of justice which impelled her to promise payment was all a mistake. There is no decision on the point in this state. Abroad the cases differ. There is no authority anywhere which requires us to mar the simplicity of the plain rule, which says that a moral obligation is a sufficient consideration for a direct promise, and we affirm this to be a moral obligation, because the common sense of all mankind affirms that it cannot be violated without moral ¿ilt.
When the legal validity of a contract is questioned on account of something in its own nature, or in the conduct of the party who seeks to enforce it, the distinction of void and voidable is important and necessary. A contract forbidden by the law, or tainted with actual fraud, is wholly void; while one, in which fraud is implied by law from the relation of the parties, is voidable only. I do not therefore mean to say that these terms have no meaning.
Nor is it intended now to decide that a widow may bind herself to pay for necessaries furnished to herself or her family during the coverture. That was a debt of her husband, and, after his death, she is under no greater moral obligation to pay his debts than those of a stranger; unless, indeed, she got the goods, not on the credit of her husband, but by means of a distinct promise that she would pay for them out of her separate property.
Judgment affirmed.
Lewis, C. J.,dissented from so much of the opinion as may hold that a married woman is under a moral obligation to pay for work done at the instance and on the credit of another, and not on the faith of her promise.