The opinion of the court was delivered by
Gibson, C. J.
— It seems to be agreed that a debt discharged by a certificate of bankruptcy, is a valid consideration for a promise. How this opinion came to be adopted, I am at a loss to imagine. Contracts are made in reference to the existing laws which tacitly become a part of the stipulations of the parties; so that the creditor, looking to the possibility of the debtor’s bankruptcy, indemnifies himself for the risk in the enhanced price of his commodity; and standing his own insurer, he cannot, even in conscience, object to bearing the loss. Beside, having taken the benefit of the commission, at the expense of all the bankrupt’s remaining prospects, he elects to receive in full satisfaction exactly what the law allows him, *357and absolves the bankrupt from further obligation, either in honour or conscience. The only debt to which this is inapplicable, is that of a loan, originating in pure benevolence. But a promise to pay an antecedent debt, would be a positive breach of faith to those who had given credit on the foot of the certificate. But, whatever we may suppose the law ought to have been, it is settled by a train of decisions not now to be questioned, that a debt discharged by a certificate of bankruptcy, is an available consideration for a new promise. Still the new promise, and not the old debt, is substantially the meritoriobs cause of action, although it may be treated differently in the pleadings. The form of the declaration was doubtless produced by a notion which long prevailed, that a debt, although barred, might nevertheless be revived, by any acknowledgment which amounted to a waiver of the bar. This notion is now exploded, both here and in England; it being held almost universally, that a recovery can be had only on a new promise, of which an acknowledgment of indebtedness may be evidence. Still the anomaly of declaring on the old promise remains. There is, however, but one case in the English books in which an opinion was intimated that a specialty might be revived by parol. The question could not arise on the statute of limitations, which has no effect on specialties; and eases of presumption, from length of time, are not to the purpose. There, an acknowledgment of the debt operates as evidence, not of a new promise, but to rebut an inference of payment; consequently, the recovery is of the old debt, the remedy having never been barred, or even suspended. But had the notion now pressed on us received countenance, it would have given rise to frequent litigation, in cases of bankruptcy;; yet we find, in the English books, the solitary case of Alsop v. Brown, Dougl. 192, in which Lord Mansfield undoubtedly intimated that a bankrupt’s acknowledgment of the debt might render him liable on his bond, as on a new contract. This, however, was said with apparent hesitation, and at a time when the doctrine of revival under the statute of limitations was at its meridian.
Such, then, being the state of the English decisions, how stands the matter nearer home? In Jones v. Moore, 5 Binn. 573, our own court, I believe, led the way in returning to a rational construction of the statute of limitations, by holding that the acknowledgment of debt barred by it is not a revival of the debt, but evidence of a new promise. I pretend not to speak with certainty, but I am not aware that any court of a sister state had preceded it. It is more to the purpose, that the doctrine now prevails generally, if not universally; and thus it stands as to debts by simple contract, under the statute of limitations. In Ludlow v. Vancamp, 2 Halsted, 113, the Supreme Court of New Jersey was divided in opinion on the question whether a bond barred by their statute of limitations, was even a consideration for an express promise to pay it, no doubt being entertained by any of the judges, that the plaintiff was *358without remedy, on the bond itself. I have found no other case where the debt was originally due by specialty, and but the case of Maxim v. Morse, 8 Mass. 127, where it was by record; and there it was held that a judgment from which the defendant had been discharged by a certifícate of bankruptcy, might, by a subsequent promise, be made the foundation of an action of debt. Thus we see that, against this case and Alsop v. Brown, are arrayed all the decisions in England and this country; and how does the question stand on principle? A bond is not the debt itself, but evidence of it; and, although there may be a duty independent of the instrument, yet a subsequent promise ought not, one would think, to preclude the party from showing an original want of consideration, even at law. Beside, it is impossible to conceive how an instrument can regain its properties, once lost, except by a repetition of the solemnities from which it originally derived them; and nothing is clearer than that a promise to pay, is not a new delivery. The argument is, that a waiver of the bar estops the obligor from taking advantage of it, so that the bond necessarily stands before the court on original grounds. There undoubtedly is such a thing as an estoppel in pais; but it is always by an act done, such as partition, entry, livery, acceptance of rent, or of an estate. Beside, no estoppel is to be taken by inference or argument, even in pleading. It ought to be a precise affirmation of that which makes the estoppel, which this promise is not; and the doctrine, although beneficial in many respects, is not to be extended to new cases. I am, therefore, of opinion that the debt in question is not entitled to rank as a specialty.
Huston, J. dissented. Smith, J. concurred with Gibson, C. J. Rogers, J. and Tod, J. did not hear the argument, and took no part in the judgment.