Page:Federal Reporter, 1st Series, Volume 6.djvu/186

 174 FBDEBAL REPOBTER. �right belweeu me and my jmst oreditors," The court, speak- ing by Mr. Justice Hunt, said that the debt, having been dis- charged by the discharge: of the debtor, was not renewed by such expressions ; that the law required an absolute or con- ditional promise to pay; but, in either case, it must be une- quivocal. �ihe other promise of the bankrupt is unequivocal, although conditional. The crediter was asked ': Question 2 70 . "Did he (the bankrupt) say how he would manifest his gratitude for it?" (i. e., for proving the debt and giving the consent.) Answer. "By paying me ail he ever owed me when he got able." Such a condititional promise has always been held ' to be binding when proof is made of the ability of the bank- rupt to pay. Freeman v. Fenton, Cow. 544 ; Besford v. San- ders, 2 H. Black. 116; Fleming v. Hayne, 1 Star. 370; Scon- ton V. Eislord, 7 John. 36; Maxim v. Morse, 8 Mass. 127; Corliss V. Sheppard, 28 Me. 550; Kingston v. Wharton, 2 S. & E. 208 ; James on Bank. 146. �Kingston v. Wharton, supra, was quite like the case under consideration. The plaintiff in the suit was an indorser upon the note of the bankrupt. On the twenty-ninth of De- cember, 1800, the debtor wrote to him asking him to take up the note at maturity, and declaring, "The moment I am able to relieve ybu, I will." The note fell due Pebruary 13, 1801, was protested and paid by the plaintiff. A commission of bankruptcy was issued against the defendant Maroh 16, 1801, under which he was declared a bankrupt, and on the twenty- sixth of May, folio wing, he obtained his discharge. The action was founded upon a promise to pay when the debtor should be able. The letter was treated by the court as a promise made by the debtor to induce the crediter not to oppose his discharge, and such promise was held to be good. The debt, notwithstanding the discharge, remained due in conscience. The moral obligation to pay still existed, and was a sufScient consideration to support the promise. Stress was laid upon the fact that in England it required an act of parliament (5 Geo. II, c. 30, § 11,) toavoid a promise by the bankrupt to pay a debt which otberwise would have been discharged ��� �