43 So. 184 | Ala. | 1907
The plaintiff declared on a promissary note for $175, executed on the 18th day of October, 1899, by the defendant, payable to McMillan Bros., 90 days after date, which note, it is averred, was duly assigned to the plaintiff. The defendant pleaded, a discharge in bankruptcy in bar of the action. The plain
It is the settled doctrine of this court, supported by adjudications of the courts of other jurisdictions, that after a debtor has been adjudged a bankrupt he may, by a new promise to pay the original debt, if clear, distinct, and unequivocal, become liable therefor in an action at law; and the creditor may sue directly on the new promise, or, at his election, on the original debt, and reply the new promise to a plea setting up the discharge in bankruptcy. — Wolf v. Eberlein, 74 Ala. 99, 49 Am. Rep. 809; Griel v. Solomon, 82 Ala. 85, 2 South. 322, 60 Am. Rep. 733; Kraus v. Torry, 146 Ala. 548, 40 South. 956, and cases there cited. In Griel v. Solomon, supra, it is said: “Such a promise may be either absolute, or it may be conditional. But, if dependent on a condition or contingency, this fact must be stated by the pleader; and it must be averred and proved that the condition has been performed, or the contingency has happened. A piomise to pay so soon as the banlcrupt is able is a valid condition, not void for uncertainty, and is so held generally by the authorities. But, to be available, ' the promise must be averred in the proper form, and satisfactory proof adduced of the defendant’s ability to pay; that is, the fact that he has sufficient property or means to pay.” — Mason v. Hughart, 9 B. Mon. (Ky.) 480; Hilliard on Bankruptcy, 226; Kraus v. Torry, 146 Ala. 548, 40 South. 956.
When the case was here on a former appeal, we said, through Dowdell, J.: “That the defendant may borrow money is not alone sufficient to show his ability to pay his debts; for he might borrow on the bare face of his word and promise, as many good men have done, with
The question propounded to the defendant on 'his cross-examination by his counsel, namely, “How much of your income was it necessary for you to use for the support of yourself and family at the time this suit Avas instituted?” aauis not subject to the objection that it called for a conclusion of the Avitness. That which Avas called for Avas only a collective fact, or shorthand rendering of the facts. — Shafer v. Hausman, 339 Ala. 237, 243, 35 South. 691, and cases there cited.
The court properly sustained the objections propounded to the defendant on his rebuttal examination, by the plaintiff, the rulings in reference to which are covered by the second, third, and fourth grounds in the assignment of errors. On the former appeal it was held that the inquiry in respect to the defendant’s earnings, and necessarily his net earnings after paying iiis
Furthermore, if the witness had answered the question in the affirmative, or as the plaintiff desired, yet the uncontradicted evidence that .all of defendant’s earn" ings were consumed in the support of his family prior to the commencement of the suit would have remained before the jury; and it was not proposed by the plaintiff to show that any of the earnings were saved.
AVe find no error prejudicial to the plaintiff in the record, and the judgment appealed from is affirmed.