Farmers & Mechanics v. Flint

17 Vt. 508 | Vt. | 1845

The opinion of the court was delivered by

Hebard, J.

The first point made by the defendant is, that there was no consideration for the new promise. This depends upon the condition, in which the discharge in bankruptcy leaves the original debt. It has been argued here that the debt was left unencumbered by any equitable or moral obligation on the part of the bankrupt to pay it. And if that be so, there would be no consideration for the promise. In the case of Hall, exparte, 38 E. C. L. 426, the court held that a note, given for the amount of a former debt, which had been released by deed, was nudum pactum; and, upon the authority of that case mainly, it has been urged that the promise in this case was without consideration. But we think such is not the law. The effect and operation of the discharge in bankruptcy is to excuse the bankrupt from the payment of his debt; — it in no way annuls or affects the original debt, but suspends the right of action for its recovery. Such is the nature and effect of the statute of limitations. That is a perfect bar, while it remains; but it may be removed without any new consideration. The right of action being merely suspended by favor of the law, there is still a moral obligation and duty remaining upon the bankrupt to pay the debt; and that is a sufficient consideration for the new promise.

The next inquiry is, whether this promise should be in writing. It is urged, on the ground of policy, that it should be; but I am not aware, that, as a matter of policy merely, a new promise was ever required to be in writing. As a matter of proof, merely, parol evidence is competent,'unless otherwise required by statute.

Another point in the case is, that the declaration should have been upon the new promise, and not upon the original debt. We think the balance of authority is the other way; but that' question does not arise. The parties joined issue upon the fact of the new promise, and that has been found by the jury. But it is urged, that this was an immaterial issue, or a departure, and that therefore the judgment should be arrested. To this there are two answers. The first is, that this is not a departure; for the replication is in relation to the subject matter of the declaration, and therefore, if the new matter brought forward was either immaterial, or insufficient to answer the purpose, for which it was put upon the record, the defendant should have demurred, and not traversed. Therefore no question arises upon the declaration.

But if it were a departure, still, if, upon the whole record, the court can see that a correct result followed, and that the judgment is right, the judgment will not be arrested. The court have passed upon-the questions, and the-jury have found the same facts, that would have entitled the plaintiffs to recover, if the declaration had been upon the new promise.

Judgment affirmed.