against the pledgor, and have a decree for foreclosure and sale, or

2. He may sell without judicial process, by demanding payment of the debt, and giving the pledgor reasonable previous notice of the time and place of the sale, or

3. If the pledgor is absent, or can not be found, the pledge must proceed to a judicial sale by bill and decree in equity.

II. In cases where the parties have agreed upon the mode of foreclosure:

1. The pledgee must follow that method where it is imperative; or,

2. He may follow it, or pursue either of the above modes, when it is optional.

3

It is now a well settled general rule that a mere moral obligation is not a sufficient consideration to support an express promise.1 For many years the contrary doctrine prevailed in England,2 and was sanctioned to some extent in America; but, as is well shown by Mr. Chitty in his work on Contracts, the older English cases apparently supporting it were, with almost the single exception of Lee v. Muggeridge, not authoritative, the expres sions to that fact being mere dicta, and the decisions sustainable on other grounds. The rule laid down in these cases was often criticised, and gradually limited in its application. In 1840 it was completely overthrown, and the rule as it exists to-day was adopted as the law of the land.5 The statement of the rule made by the reporter in the note to Wennall v. Adney, was then approved, as it has often been since, and no clearer

11 Parson's on Cont., 434; 1 Add. on Cont., sec. 13; 1 Dan. on Negot. Instr., sec. 182; Bishop on Cont., sec. 453; Wennall v. Adney, 3 Bos. & Pul., 247; Cook v. Bradley, 7 Conn. 57; Dodge v. Adams, 19 Pick. 429; Freeman v. Robinson, 9 Vroom, 383; s. c., 20 Am. Rep. 399; Greenabaum v. Elliott, 60 Mo. 25; Wills v. Ross, 77 Ind. 1.

2 See Hawkes v. Saunders, Cowp. 290-294; Lee v. Muggeridge, 5 Taunt. 36; Atkins v. Barnwell, 2 East, 506; Suffield v. Bruce, 2 Stark. Rep. 175.

3 Montgomery v. Lampton, 3 Metc. (Ky.) 519; Musser v. Ferguson, 55 Pa. St. 475; Glass v. Beach, 5 Vt. 173.

It

statement of the law can well be made. was said: "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 could never have been forced at law, though not barred by any legal maxim or statute provision." 6

This principle applies only where the original cause of action is barred by act of law. Where it has been extinguished by the act of the parties, a new promise founded on no other consideration may be binding in morals, but is not in law. A distinction is also to be made between the cases where the obligation is one founded on a natural right or duty merely, and not enforceable at law, and those where it is supported by an antecedent valuable consideration. In the former, the consideration is insufficient to support a promise; in the latter, it is sufficient.8

In some of the cases the term "equitable consideration" is used instead of the usual expression, "moral consideration," and I think this should be encouraged. Had this distinction been made earlier, it would have prevented much confusion and seeming conflict in the authorities. The term "moral consideration" is, at best, a very vague one; and, as used in many cases to include consideration founded on both moral and legal obligation, is often misleading. It is submitted that a moral consideration is one founded on a duty which one owes, and which, in good morals, one ought to perform, but which is not legally binding. An equitable consideration may be defined to be a valuable consideration once existing, but incapable of enforcement because of some positive rule of law, or some provision of statute. The subsequent promise made after the right to en

6 See Chitty on Cont.. 46; Wiggins v. Keizer, 6 Ind. 252; Ehle v. Judson, 24 Wend. 97; 2 Langd. Cas. on Cont., 1025, note 71, et seq.

7 Shepard v. Rhodes, 7 R. I. 470; Ingersoll v. Martin, (Md. Ct. App.) 14 Cent. L. J. 397; Warren v. Whitney, 24 Me. 561; Valentine v. Foster, 1 Metc. 520; Snevely v. Read, 9 Watts. 396. But see Willing v. Peters, 12 Serg. & R. 188; Stafford v. Bacon, 25Wend. 384.

81 Bouv. on Inst., 241, sec. 623; Loomis v. Newhall, 15 Pick. 159; Updike v. True, 13 N. J. Eq. 151; Lonsdale v. Brown, 4 Wash. C. C. 86.

9 Wills v. Ross, 77 Ind. 1, Flight v. Reed, 1 Hurl. & C. 702.

force the original one has been lost by operation of law, reaches back to and revives the original consideration. When this takes place, there is more than a moral obligation; there is a valuable consideration as well.

If this distinction be made, and the above definitions be accepted as correct, the general rule on this subject will then be: An equitable consideration will support a promise, but a mere moral obligation will not.

An examination of the cases will show the scope and practical operation of our rule. If a debt is barred by a discharge in bankruptcy, and a promise is afterwards made to pay it, the consideration growing out of the debt existing before the bankruptcy, is an equitable consideration, and the promise is supported by it.10 It is sufcient in such cases if the promise be made after the adjudication, even though no certificate of discharge has been obtained; 11 and it has been held under the Bankrupt Law of 1867, that if made any time after the filing of the petition, a new promise is binding. 12

So, a claim once founded on a valuable consideration, but not enforceable because of the bar created by the Statute of Limitations, will constitute an equitable consideration which will support a subsequent promise to pay the original debt. It is to be remarked, however, that the promise must be distinct and unequivocal, and made to the party interested, and not to a stranger.

13

An action may be maintained on a contract voidable by the Statute of Frauds, where a new promise is made in writing;14 so, where a subsequent guaranty of payment was made in writing for goods furnished under a previ

10 Evans v. Carey, 29 Ala. 109: Dusenbury v.]Hoyt, 53 N. Y. 521; Giddings v. Giddings,51 Vt. 227, Shockey v. Mills, 71 Ind. 288; s. C., 36 Am. Rep. 196 and note; Dewey v. Moyer, 72 N. Y. 70; Turner v. Chrisman, 20 Ohio, 332; Maxim v. Morse, 8 Mass. 127; Allen v. Ferguson, 18 Wall. 1.

11 Roberts v. Morgan, 2 Esp. 736; Otis v. Gazlin, 31 Me. 567; Hornthal v. McRae, 67 N. C. 21; Cook v. Shearman, 103 Mass. 21; Hill v. Trainor, 49 Wis. 537. 12 Katz v. Moessinger, 7 Ill. App. 536. Stebbins v. Sherman, 1 Sandf. (Sup. Ct.) 510; Thornberg v. Dils, (Ky.) 14 Cent. L. J. 396.

But see,

13 Pierce v. Seymour, 52 Wis. 272; Kisler v. Saunders, 40 Ind. 78; Sibert v. Wilder, 16 Kan. 176; S. C., 22 Am. Rep. 280; Wacheler v. Albee, 80 Ill. 47; Allen v. Collins, 70 Mo. 138; s. c., 35 Am. Rep. 416, and note 417, where many authorities are collected and reviewed.

14 De Colyar Guaranties, 37.

Upon the same principle, it is held that a verbal contract will support a conveyance made by an insolvent debtor as against creditors who attack it on the ground of fraud. 16

There are other cases that might be cited as illustrating this rule, as where one on coming of age promised to pay a debt contracted during his infancy;17 or where a county treasurer's accounts were settled and became a judgment, and subsequently an innocent error was discovered in favor of the county, which he promised to correct; 18 but perhaps the strongest illustration is afforded by the case of Flight v. Read, cited above. It was there held that although a contract was void at the time it was executed, under the provisions of the Statute of Usury then in force, a subsequent promise made after the repeal of the statute, was supported by a sufficient consideration and might be enforced. 19 As showing what are mere moral considerations, may be cited the case of Mills v. Wyman,20 where a son who was of age was taken sick among strangers, and his father wrote a letter to them promising to pay them for taking care of him; or the case of Cook v. Bradley, 21 where necessaries were furnished the father for which his son afterwards promised to pay. So, a promise to pay an annuity in compensation for the injury caused by past seduction or cohabitation, is founded on a mere moral consideration and is not enforceable 22 Without multiplying citations, it may be said generally, that in all cases where the original contract is merely voidable, but otherwise founded on a valuable consideration, a promise to discharge it will be valid; but if

15 Wills v. Ross, 77 Ind. 1; Wilson v. Marshall, 15 Ir. C. L. 466.

16 Brown v. Rawlings, 72 Ind. 505; Livermore v. Worthrup, 44 N. Y. 107; Hyde v. Chapman, 33 Wis. 391; Bump. Fraud. Convey. 220.

17 Hawkes v. Saunders, Cowp. 289.

18 Stebbins v. County of Crawford, 92 Pa. St. 289; s. C., 37 Am. Rep. 687.

9 See, also, Jones v. Jones, 6 M. & W. 84; Doyle v. Reilly, 18 Ia. 108; Little Rock v. Bank, 98 U. S. 308; s. C., 18 Am. Law Reg. 390.

20 Wills v. Wyman, 3 Pick. (Mass.) 207. And see, Friar v. Hardenbough, 5 Johns. 272; Story on Cont., secs. 134, 135, and 159, 160.

21 Cook v. Bradley, 7 Conn. 57. Also, Parker v. Carter, 4 Munf. 273.

22 Binnington v. Wallis, 4 B. & Ald. 650; Beaumont v. Reeve, 8 Q. B. 487.

Supreme Court of Michigan, October 11, 1882.

The owner of a mine contracted with certain persons to work it, but stipulated that the contractors and not the owner should be responsible for any injuries to workmen and the responsibility was assumed by the contractors. The mine was in proper condition when the contractors took possession, and there is nothing in the contract to lead workmen to suppose that the owner retained control of it or was responsible for their protection unless it were a stipulation that when the contractors repaired the mine the work should be done under the supervision of a person designated by the owner. Held, in an action against the owner for an injury to a workman, that this stipulation was not that the owner should supervise but that he should have the right to supervise, and was for the protection of the owner; that the neglect of his own interests was not a legal wrong to others, and that plaintiff has no right of action.

Error to Marquette.

Geo. W. Hayden, for plaintiff in error; W. P. Healy, for defendant in error.

COOLEY, J. delivered the opinion of the court: This action was instituted to recover damages of the defendant for negligently causing the death of John P. Samuelson, the plaintiff's intestate. The declaration avers that defendant, on June 10, 1879, and for a long time prior thereto, was owner of an iron mine in Ishpeming, in which was a certain underground pit called No. 5; that the intestate on the day named, and for a few preceding days, was employed therein as a common miner under Selwood & Williams, who, under and by the direction of defendant, were working said pit and employing men for the purpose; that the defendant assumed and had entire charge and control over all safety arrangements in said pit and

in the mine, directing the placing of all pillars, had the care of timbering and bracing therein when necessary, and the determination of all questions relating to the safe condition of said pit, and the duty devolved upon said company to said intestate in his said employment to see at all times that said pit was safe, and that examinations were made for that purpose from time to time, and that defendant assumed all risks to said intestate in his said employment arising from dangers occurring in said pit which might be remedied by care and skill; that the roof of said pit was of soap-stone, which was a dangerous rock for roof support, of slight cohesiveness, liable at all times to crumble and fall, and that the roof in question required constant care, attention and examination in order to keep the same in a reasonably safe condition, and to prevent the same from falling on the workmen below, and that supports and timbers ought to have been placed under it to make it safe, but defendant neglected and refused to place them; that on the day named, while intestate was at work in said pit, a large quantity of rock fell from said roof without any fault or negligence of said intestate, but by and through the fault and negligence of defendant, which struck and killed the intestate. And plaintiff avers that the death was caused by the wrongful conduct, carelessness, negligenceand default of defendant, and she claims damages therefor.

The circuit judge was of opinion that no case was made for the jury, and accordingly directed a verdict for the defendant.

Liability on the part of defendant is claimed on two grounds: First, that defendant being the owner of real estate which it was unsafe to venture upon, invited the intestate and others upon it without apprising them of the danger, and that the death occurred in consequence; and, second, that the defendant owed a duty to all persons employed in the mine to be vigilant in guarding against dangers and that this duty was wholly neglected.

The declaration states that the mine at the time was being worked by Selwood & Williams. It appears that this was under a written contract bearing date May 1, 1878, made by defendant with E. A. Johnson & Co., to whom Selwood & Williams succeeded, whereby the contractors were to have the working of the mine, and deliver the ore to the defendant for a certain specified price per ton. The material parts of the contract, so far as they are important to this controversy, are following the parties of the first part mentioned therein being E. A. Johnson & Co. and the party of the second part the mining company:

"The quality of such ore shall be satisfactory to the superintendent (for the time being) of said second party, and shall be delivered in shipping cars on the railroad track at the mine during the shipping season, and at such other times as said second party may designate, and shall also be dumped into carts and sleighs, or stock piled at

the option of said superintendent of said second party. Such mine shall be worked in a careful, prudent and workmanlike manner, to the entire satisfaction of said superintendent; and in case it is not so worked, and left in a bad condition at the termination of this contract, then said second party shall have the right and is hereby authorized to put the said mine in the condition it should and would be if so worked in a good workmanlike manner, at the expense of said first parties, and retain the costs thereof out of any moneys in its hands belonging to said first parties; and whereas, iron mining in Marquette county, including said mine, is essentially a dangerous business, where accidents and injuries to the miners and their employees are likely to occur at any time, it is therefore hereby agreed that the relationship hereby created between the parties hereto is that of contractor and contractee, and not that of master and servant. It is the duty of the said first parties to be on watch for danger at all times, either from slides, falls of rock, derangement of the skips, or of the machinery, and any and all other causes of danger in the mine. And in case said first parties regard any place as dangerous, they shall not be compelled to carry on any mining at such place. It shall be their duty to take down all rock or ore making any place where they are working dangerous; and when they find any dangerous ground it shall be their duty instantly to report such dangerous place to said superintendent, to the end that he may supervise the removal of the dangerous rock, or take such other steps to make such place safe; that is to say, as safe as a mine can be expected to be, as there can be no absolute safety in an iron or other underground mine. The parties of the first part, in consideration of the letting to them this contract, and for the price to be paid them for the ore mined, hereby agree to assume for themselves and their employees all risks of danger or accident, no matter from what cause the same may arise, and all precautions taken against the danger or accident in said mine shall be done by said first parties, the said second party only furnishing the place to mine the making of it safe hereby devolving on said first parties under the supervision, advice and direction of said superintendent, for which no charge will be made by said second party.

"Nothing herein shall be construed as creating any liability on the part of said second party for any debts, damages or other liabilities incurred by said first parties hereunder; and in case said second party is made liable for any act, omission, misfeasance, or negligence of said first parties, or any or either of them, in the working of said mine, then said first parties shall reimburse and save harmless said second party, and said second party may retain enough of said earnings of said first parties in its hands to pay any such liability."

The defendant insists that so long as the mine was being worked under this contract all respon

sibility for the care and safety of the mine was upon the contractors, and that they alone were charged with auy duty for the protection of the workmen. If the mine were in an unsafe condition when it was handed over to the contractors, and this was known to defendant, or by the exercise of proper care ought to have been known, and if in consequence a miner who was brought there in ignorance of the danger was killed, the defendant should be held responsible. Every man who expressly or by implication invites others to come upon his premises, assumes to all who accept the invitation the duty to warn them of any danger in coming, which he knows of, or ought to know of, and of which they are not aware. This is a very just and very familiar principle. Southcote v. Stanley, 1 Hurl. & N. 247; s. c., 38 Eng. L. & Eq. 295; Indermaur v. Dames, L. R. 1 C. P. 274, and L. R., 2C. P. 181: Francis v. Cockerell, L. R. 5 Q. B. 184; Elliott v. Pray, 10 Allen, 378; Coughty v. Woolen Co., 56 N. Y. 124; s. c., 15 Am. Rep. 387; Tobin v. Portland, etc., R. Co., 59 Me. 183; Latham v. Roach, 72 Ill. 179; Gillis v. Pennsylvania R. Co., 59 Pa. St. 120; Malone v. Hawley, 26 Cal. 409; Deford v. Keyser, 30 Md. 179; Pierce v. Whitcomb,48 Vt. 127; s. c., 21 Am. Rep. 120. But we search in vain in this record for any evidence that the defendant is chargeable with negligence in inviting miners into a dangerous mine. That the mine was at no time a place of absolute safety is conceded; but the danger was not peculiar to this mine, and by itself raised no presumption of negligence. The contract with Johnson & Co. truly affirmed that mining was intrinsically a dangerous occupation.

The question is whether defendant at the time of delivering possession to the contractors had neglected any precaution which ought to have been taken to guard against danger. We find no evidence of such neglect. The roof remained in place during the season of 1878, and the tendency of the plaintiff's evidence is to show that the freezing of the following winter and the filtration of the water through it were chargeable with the disintregation and ultimate fall of the rock. The negligence, if any, must on this showing have consisted in the failure to inspect the roof frequently, and to bar down any rock that seemed likely to detach itself fall,and or to erect timbers to prevent the fall. But plaintiff insists further that this duty of supervision and care at all times rested upon the mining company, and was not devolved upon the contractors by the agreement made with them. This is the point on which the plaintiff chiefly relies. It is not pretended that the mere ownership of real estate upon which there are dangers will render the owner liable to those who may receive injury in consequence. Some personal fault must be involved, or neglect of duty, before there can be a personal liability. As between landlord and tenant the party presumptively responsible for a nuisance upon the leased premises is the tenant. Todd v. Flight, 9 C. B. (N. S.) 377; Swords v. Enger, 59 N. Y. 28;