The opinion of the court was delivered by
Gibson, C. J.—A release in consideration of present embarrassment, is necessarily on an implied condition in morals,- that advantage'be not taken of it, after the embarrassment has ceased. A remission, which has in view an immediate relief from pecuniary pressure and not an ultimate gift of the money, gives no moral right to an extension of the creditor’s generosity beyond the object originally contemplated. A release for value or perhaps even pure good will, would extinguish the debt both in honour and conscience, such being the purpose of the creditor at the time; but what has been conceded to a debtor’s necessities, may be justly and honorably retracted on the principle of failure of consideration, when he no longer has necessities to be relieved. All that is wanting to that end, is a legal means which thq creditor may con-scionably use when it is put into his hands by the debtor himself. It seems to me, therefore, the decision in Willing v. Peters is founded in the plainest principles of reason and justice. On, ground less secure in point of reason, seems to rest the morality of the obligation imputed to a debtor who has been discharged by a statute of bankruptcy, as I attempted to show in the case of Field’s Estate, 2 Rawle, 351, without, however, at all questioning the authority of cases in which it has been held to be a sufficient consideration for a promise. The case here depending, as it docs, entirely on principle, is of a different stamp. The' supposed natural obligation which was made the consideration of the promise, was taken to be an original liability of the defendant’s intestate for mismanagement as an executor. .Now a trustee is answerable in equity, and consequently in conscience and morality, only for negligence, without which he is not bound to make good a loss suffered by the cestuy que trust; and how was the existence of negligence thought to be established? Only by rejudging the judgment of a court of competent jurisdiction directly on the point. The propriety of that seems questionable at the first blush. No one will pretend that an obligor who had thought proper to prom*524ise payment notwithstanding a verdict .in his favour, would be bound in an action on the promise, to show want of consideration, or, in other words, the absence of a moral obligation, by giving proof of actual payment, and thus trying the matter of the former defence all over again. If the plaintiff were not estopped by the verdict from inquiring into the fact, on which the existence of the alleged moral obligation is supposed to depend, a promise to pay would be but an agreement to waive the estoppel, for which, a supposition that the verdict was unjust, would be no consideration, because an obligation to waive the benefit of, it, could arise only from a certainty of the fact; and to permit the'parties to go behind the judgment, to ascertain what they had ample opportunity to ascertain before, would be against sound policy, which requires, that a final judgment on full hearing should put a stop to further litigation. That an agreement on sufficient consideration, to waive the advantage of an estopppl will be executed, is not to be denied; but it is an assumption of the whole matter, to say there is a moral obligation and consequently a valid consideration, because it maybe unconscionable to insist on the estoppel. That would be the very matter to be tried, after the defendant had been let into the whole benefit of the agreement, by being permitted to reiterate his original demand; and thus the defendant would be subjected without an equivalent, to the hazard and vexation of a second trial,, Surely a promise to do that, would be without consideration. Here the defendant’s intestate, had stated a separate administration account, and the court below erred in supposing that the question of negligence, and consequently the existence of a consideration, had not been put at rest by the decree of confirmation.
,Tudgment reversed.