19 Md. 509 | Md. | 1863
delivered tiro opinion of this Court:
The appeal in this caso is taken from the ruling of the Court below, admitting tho deposition and testimony of Frederick C. Crowley, a witness examined on the part of the plaintiff, under the circumstances sot out in the first and second hills of exceptions; and from the refusal of the Court to grant the defendant’s first and fourth prayers, and the qualification of the fourth prayer by the Court, entitled “plaintiff’s prayer.”
The questions on the exceptions going only to the admissibility of the testimony, and those arising on the refusal and qualification of the prayers, involving the competency of that testimony when admitted, the decision of the latter may render the examination of the former unnecessary.
The prayers referred to are as follows:
Defendant’s 1 si Prayer.—“If the jury shall find from the evidence that Patrick Crowley, the defendant, applied for the benefit of the insolvent laws of the State of Maryland, on the 2nd April 1849, and was, on said application, finally discharged, then the plaintiff is not entitled to recover, notwithstanding they may believe the testimony of Frederick C. Crowley, as detailed in his deposition read in evidence by the plaintiff.”
Defendant’s 4th Prayer.-—“That to entitle the plaintifF'tO' recover upon a new promise made by P. Crowley, after his, application, the jury must find that such promise was made-to the plaintiff himself, or to some agent of the plaintiff in-that behalf, and the mere recognition of the existense of' such debt, accompanied with the expression of a desire to. pay it, and of an intention to pay it, is not, of itself, and: without a distinct promise to pay, sufficient to entitle the plaintiff to recover.”
Plaintiff's Prayer.—“That the jury are at liberty to find that an express promise was made by the defendant, Crow-to the nlaintiff, from the facts (if the jury find such
The deposition of F. G. Crowley was the only evidence in the cause to show such an express promise, and therefore the garnishees, by their first prayer, ask the Court to instruct the jury, if they shall find from the evidence, that Patrick Crowley, the defendant, applied for the benefit of the insolvent laws of the State of Maryland, on the 2nd April 1849, and was on said application finally discharged, then the plaintiff is not entitled to recover, notwithstanding they may believe the testimony of said Frederick C. Crowley, as detailed in his deposition, read in evidence by the plaintiff.
The authorities cited by the appellants, sustain the position assumed by them, that insolvents and bankrupts stand upon different ground with respect to debts from which they are discharged, from persons whose debts are barred by the statutes of limitations; those statutes do not discharge the debt, but only affect the remedy.
.In Lynbuy vs. Weightman, 5 Esp. Rep., 198, the plaintiff meant to rely on a new promise to pay, made by the bankrupt since his bankruptcy, and for that purpose was giving evidence of general declarations by the bankrupt, that he would pay everybody, and that his effects would pay twenty shillings in the pound; but there was no specific joromise whatever, proved to have been made to the plaintiff. Lord Ellenborough said, “that in order to bind a bankrupt by a new promise, he should expect a positive and precise promise to pay, not given in such general terms as it was offered here.”
In Massachusetts, the part payment of principal and interest of a debt by a discharged bankrupt or insolvent, have been held insufficient to support an action, or raise a new promise to pay. Merriam vs. Bayley, 1 Cush., 77. 5 Cush., 484. 6 Cush., 210. In Mississippi, the High Court of Errors and Appeals said: “The English authorities hold that the promise to pay will not make a bankrupt liable, unless it he distinct and unequivocal. We are not prepared to hold that a mere vague or conditional promise will bo sufficient; on the contrary, we are rather inclined to exact more than the English decisions have done. If a. subsequent promise will bind at all, it must be of tbe most unequivocal character. We do not say whether any promise will be sufficient.”
In 11 Penn. Rep., 365, the discharged bankrupt declared that ho was “going to pay” the particular debt which was1 the cause of action, “as quick as he was able,” and that he was “going to pay all Ms honest debts, except some in the city.” It was held that this language, although expressive of an intention, did not constitute an engagement to' pay, which is necessary to give legal effect to the moral obligation,
In this State, as far back as 1821, in the case of Yates' Admrs. vs. Hollingsworth, Earle, J., in delivering the opinion of the Court, said: “A promise to pay, after bankruptcy, waives the discharge, and the prior debt is a sufficient consideration for the new promise. But the new promise thus made to charge the party, must be an express-promise, and must be absolute and unconditional.” 5 H.. & J., 211.
Without adopting the extreme views of some of the authorities above cited, it may be remarked that the policy indicated by the general current, has been adopted and inscribed in the recent legislation of Great Britain, requiring promises to revive a debt barred by a discharge in bankruptcy, to be evidenced by writing. Eden on Bankruptcy,, sec. 15, p. 429. The decision in this State, last cited, has; our full concurrence, and is conclusive.
The appellee contends, that though the promise must be positive, express and specific, yet it may be inferred by the-jury from circumstances, and need not be proved by direct proof. We are not prepared to admit this proposition. It. is difficult to' see the difference between allowing an implied promise to remove the effect of the insolvent’s discharge, and admitting circumstances from which, in the-absence of direct and positive proof, an express promise is-to be found or inferred.
An express promise, established by implication or inference from circumstantial evidence, is an implied promise in affect, All the evils which would result from the one, are
The testimony of Crowley, contained in his deposition, being incompetent and insufficient, in tbe opinion of a majority of the Court, it is unnecessary to review tbe action of the Court below on the first and second exceptions. The judgment below must be reversed.
Judgment reversed.