45 Md. 278 | Md. | 1876
delivered the opinion of the Court.
This is an appeal from the Circuit Court for Frederick County, and the record shows the same looseness and
Upon the demurrer it was contended that the declaration was insufficient to justify a recovery, first, because it did not allege that the promise of the defendant to pay the debt of Jacob S. Bohn, was in writing, second, because the promise, as stated in the declaration, is in violation of the United States Bankrupt Law and against public policy, and third, because the declaration does not aver that Jacob S. Bohn had committed an act of bankruptcy, by reason of which omission it did not appear that the appellee had any right to file a petition in bankruptcy against him, the forbearance to file which is alleged as the consideration for the appellant’s promise to pajr Jacob S. Bohn’s debt to the appellee.
1st. A mere promise to pay the debt of a third person, without any new or superadded consideration moving to the promisor from the plaintiff, is within the Statute of Frauds, and, to be binding, must he in writing, and must state the consideration. Hutton vs. Padgett, 26 Md., 281. But it is not necessary to allege in the declaration that the promise is in writing. If it appear in proof at the trial to he in writing, it is sufficient!
2nd. The Bankrupt Act forbids any creditor or any other person as trustee for such creditor, to take from the bankrupt any contract, covenant or security, for the payment of any money as a consideration to induce the creditor to forbear opposing the application for the discharge of the bankrupt, and imposes penalties and forfeitures upon any creditor, who shall take such contract, covenant or security. But there is no provision in that Act which for
3rd. The declaration alleges that Jacob S. Bohn was indebted to certain parties, that he was insolvent and unable to pay his debts, and had conveyed and transferred his real estate to the appellant, who had accepted the same without paying any consideration therefor. These facts, if true, constituted an act of bankruptcy on the part of Jacob S. Bohn and the statement of them in the declaration is equivalent to a direct allegation, that he had committed an act of bankruptcy. The demurrer was therefore properly overruled.
But while the declaration states a good cause of action, the record presents a state of facts which are conclusive against the appellee’s right to recover in this action. The proof is clear and uncontradicted that, at the time the appellant made the promise stated in the declaration, the only deDt, due by Jacob S. Bohn to the appellee, which was provable under the Bankrupt Act, was one hundred dollars. It is true that the appellee was at that time surety for Jacob S. Bohn on two other notes, one to Metcalf and the other to Pfoutz, but he expressly swears that he had paid neither of them at the time of the appellant’s promise to pay their amounts to him, and that Metcalf’s note was unpaid at the time of the trial of this case. The debts to Metcalf and Pfoutz, not having been paid by the appellee at the time of the appellant’s promise, they were not provable by the appellee in bankruptcy under section
The appellant’s third prayer ought therefore to have been granted.
Both of the appellee’s prayers were fatally defective, because they required the jury to find for the plaintiff upon
As the view we have taken of this case is conclusive against the appellee’s right to recover, it becomes unnecessary for us to pass upon the questions raised by the exceptions taken during the progress of the trial, or by the appellant’s rejected prayers.
Judgment reversed,.