Dearing v. Moffitt , 6 Ala. 776 ( 1844 )

ORMOND, J.

The view we take of this case, renders it unnecessary to consider any other question than the effect of the promise relied on as a waiver of the decree in bankruptcy.

It cannot be doubted that an express and unequivocal promise to pay a debt owing by a bankrupt, made after his discharge, will prevent him from relying on his certificate as a discharge, and the only question here is, whether the promise relied on in this case, is of that character.

The first member of the sentence is a declaration, that the debt was of such a character, that it ci’eated an honorary obligation for its payment; that, therefore, he intended to pay it, and would not avail himself of his discharge as a bankrupt. We do not consider that this is an absolute unconditional promise to pay the debt, but is merely a declaration, that at some future time, it should be paid. It cannot, however, be disconnected from what follows this statement, “that he had some work engaged, from the proceeds of which, he intended to pay the plaintiff” As a promise is merely evidence of the determination of the mind to do a particular act, there does not seem to be any reasonable distinction between, I will pay, and I intend to pay, on the happening ofa particular event. This is then a promise to pay out of a particular fund, which the bankrupt expected to receive, and according to all the authorities, he is liable only according to his promise. If that is conditional, it must be shown that the contingency has happened. Thus, in Bessford v. Saunders, [2 H. Blackstone. 116,] the promise by the bankrupt was, that “the plaintiff should no be a loser, but that he would pay when he was able.” This was held to be a conditional, and not an absolute promise, and that to recover, the plaintiff must prove the ability of the bankrupt to pay. To the same effect, is Kingston v. Wharton, [2 S. & R. 208.] This is the established doctrine in relation to conditional promises, relied on to take a debt out of the influence of the statute of limitations, between which, and a dis* •charge in bankruptcy, the analogy appeal’s to be perfect.

We are, therefore, of the opinion, that the promise in this case, is not absolute, but conditional, and that to recover upon it, it is necessary to prove that the state of things existed, upon the happening of which, the promise to pay depended. Let the .judgment be reversed, and the cause remanded.