| Me. | Jun 15, 1848
The opinion of the Court, Shepley, Tenney and Wells Justices, was drawn up by
— This case comes before us, by exceptions to the ruling of the Judge of the District Court. The question arising in this case is, whether the action can be maintained against the defendant, upon a new promise, made by him after he was decreed to be a bankrupt, but before his discharge. If the promise had been made, after the discharge, the action is maintainable, the defendant being bound in equity and conscience to pay the debt. This obligation is a sufficient consideration for the new promise. Besford v. Saunders, 2 H. Black. 116 ; Maxim v. Morse, 8 Mass. 127" court="Mass." date_filed="1851-10-15" href="https://app.midpage.ai/document/lowell-v-middlesex-mutual-fire-insurance-8319772?utm_source=webapp" opinion_id="8319772">8 Mass. R. 127.
In the case of Thompson v. Hewitt, 6 Hill, 254, and Groule v. Gridley, ib. 250, it is said, that the bankrupt is discharged from all debts, which he owed, at the time he presented his petition. From which we understand that debts, contracted afterwards; would not be embraced in the discharge.-
If then a party would be liable, upon a new debt, arising after the petition, he.'would also be, upon one, accruing after bankruptcy, and neither of them would be proveable, and thereby not discharged. ’
A promise, to pay. an existing debt, adds no new obligation, imparts no new vitality to it, but may prevent, by its recognition, any limitation from attaching to it. ,
But the defendant, when his promise was made, had been declared a bankrupt, and by the consummation of the proceedings, already in progress, obtained a discharge from this debt. A suit at that time by the plaintiff, to recover his debt, would have been, in all probability, unavailing. Had the promise been made before the petition was‘filed, it would have added nothing to the debt, or if it did, it would have been discharged with the debt. But the defendant’s promise was not discharged nor was he then discharged from the original debt, but was expecting to be, and was so eventually.
The bankrupt act of 1841, allows the bankrupt the property acquired by him, after he has been decreed to be a bankrupt. Ex parte Newhall, 2 Story’s R. 360. He may, therefore, have the means of redeeming, his promises, made after bankruptcy.
■ 1 By the English statutes of bankruptcy, the assignee takes all the property, which the bankrupt may acquire, before he obtains his certificate. Still he is liable, upon a new promise, made before or after his certificate is obtained, although the debt was proveable under the commission. Chitty on Con. 11, 52, 267.
A debt due by the bankrupt before bankruptcy, is a good consideration for a subsequent promise, whether made before the certificate or afterwards, and that in the former case, it would not be barred by the certificate, and in both, the debt is revived, and is available against the bankrupt. Eden’s Bankruptcy, 429. Lord Mansfield says, in Trueman v. Fenton, Cowp. 544, “ a bankrupt may undoubtedly contract new debts, therefore if there is an objection to his reviving an old debt by a new promise, it must be founded on the ground of its being nudum pactum.”
As to that, all the debts of a bankrupt are due in conscience,, notwithstanding he has obtained his certificate, and there is no. honest man who does not discharge them, if he afterwards has, it in his power to do so.
The defendant, not having been discharged from a new promise, and the pre-existing debt being a sufficient consideration for it, is liable in this action. When the new promise was-made, the ability of the creditor to collect his debt, so far depended upon the will of the debtor, as to render the probability of success, very remote. But the case does not disclose the precise nature of the new promise. We must suppose, that it was potential in its character, as all such promises must necessarily be, to have effect, if the defendant was finally discharged. For if there were no discharge, then there could be no need of a new promise. The promise then must have been intended, to be operative only, after the discharge.
It results, that the consideration is perfected by the discharge.
The Judge of the District Court, having instructed the jury, that no promise, made prior to the discharge, would be effectual, a new trial must be granted. Exceptions sustained.