7 Johns. 36 | N.Y. Sup. Ct. | 1810
The debt of an insolvent or bankrupt is due in conscience, notwithstanding his discharge. He may, therefore, revive the old debt by a new promise, and the old debt will be a sufficient consideration. This was so declared in the case of Trueman v. Fenton (Cowp. 544.) But the question here is, whether this was any thing more than a conditional promise, and whether it was not incumbent on the plaintiff to have shown that the defendant was of sufficient ability to pay without distressing his family. It has been repeatedly held, and seems now to be a settled principle, (2 H. Black. 126. Besford v. Saunders. 3 Esp. N. P. Rep. and 159. Cole v. Saxby. 4 Esp. N. P. Rep. and 36. Davies v. Smith.) that a promise to pay, when able, a debt' barred by the statute of limitations, or by a certificate under the bankrupt law, was not an absolute but a conditional promise, and it lay with the plaintiff to prove the defendant able, This appears, in the case before us, to have been a conditional promise; and taking together and in connection what the defendant was proved to have said before the suit was brought, or what he is stated to have said upon the trial, he promised to pay the debt, provided only he could do it without distress. The justice ought, then, to have required proof of his ability to pay; it would be equally illegal and unjust to compel the defendant to pay without such proof.
There being no cause of action shown as to the promise upon the note, the judgment below ought to be re - versed.
Judgment reversed.
