Nelson v. Stewart, 54 Ala. 115

Nelson v. Stewart

54 Ala. 115 | Ala. | 1875

BRICKELL, C. J.

A discharge in bankruptcy operates as a bar to all remedies, legal or equitable, against the bankrupt personally, on debts provable as claims in the bank*116ruptcy proceedings. The discharge does not extinguish the debt; the bankrupt may, by a subsequent promise, revive and renew it, restoring it as a legal demand to the condition in which it was before the discharge was granted.—Evans v. Carey, 29 Ala. 109. There are authorities asserting that a promise made by the bankrupt, pending the bankruptcy proceedings, and before the discharge is granted, will revive the debt, taking it without the operation of the discharge.—Otis v. Gazlin, 31 Maine R. 567; Brix v. Braleau, 1 Bing. 281. Other authorities assert a contrary doctrine, and that a new promise, to be effectual against the discharge, must appear to have been made subsequently.—Stebbins v. Sherman, 1 Sandf. Sup. Ct. 510. In Kingston v. Wharton, 2 Serg. & Rawles, 208, it was held, a promise by a bankrupt, made on the eve of going into bankruptcy, to pay a pre-existing debt, when able, was not barred by the discharge, the plaintiff averring the defendant’s ability to pay. The decision rests on the theory, the promise was contingent, and of consequence not a provable demand; and if the defendant had never been able to pay, no action could have arisen. The case is not an authority which will support the present action. This promise is absolute, free from all contingency, preventing it from proof as a claim in bankruptcy, or which could arise in the future, giving a cause of action. Assuming the just interpretation of the contract is, that the intestate promises, because of the character of the consideration, he will not interpose his anticipated discharge against it, such promise added nothing to the legal obligation of the contract. That obligation could not be strengthened by solemn promises, or pledges of honor. The discharge operated on the contract, and on any and all promises of which courts can take notice, growing out of it, not made subsequent to the bankruptcy.—Reed v. Frederick, 8 Gray, 230. The purpose of the parties doubtless was to bind the intestate in conscience not to interpose his discharge in bar of the debt, creating a moral obligation he could not disregard. Peformance of the promise must be left to the sense of honor and right on which reliance was placed. The discharge operated a bar to the action, and the court was in error in charging otherwise.

The judgment is reversed and the cause remanded.