Branch Bank v. Boykin , 9 Ala. 320 ( 1846 )

ORMOND, J.

The replication, seeks to avoid the effect of the bankrupt’s discharge, by setting up a subsequent promise to pay the debt. We need not inquire whether a promise by the bankrupt to pay the debt, after the petition was filed, but before the final decree and certificate granted, would be sufficient; because, conceding such to be the law, the promise to be binding on the bankrupt, must be either an absolute, unconditional promise to pay, or if depending upon a contingency, or suspended upon a condition, it must be shown that the contingency has happened, or the condition been performed. To this effect are the English authorities, and such is the decision of this court in Dearing v. Moffitt, 6 Ala. R. 776.

The letter which the court excluded from the consideration of the jury, was clearly not an unconditional promise to pay the debt, but was merely a proposition to pay the interest due on the note, and “extend” it for twelve months. This proposition had relation to our extension laws, so called, by which time is given upon the execution of a new note with sureties. It was properly excluded, for two reasons. It was not relevant to the issue, which was, that there was a new promise to pay the debt, whilst this is a mere proposition to make a new contract. But if we were to expand the informal replication, so as to make it embrace the case of a conditional promise, then it was properly rejected, because there was not only no evidence that the condition was performed, but it is clear that the proposition was rejected by the bank. This is clearly established by the fact, that the original note is now sought to be enforced against the bankrupt, so that it is manifest the proposition of the bankrupt was rejected.

It was also urged, that the court should not have passed upon the evidence, but should have left it to the' jury to determine, whether it was, or was not, proof of such a promise. It was both the province, and under the charge asked for, the duty of the court, to expound the written testimony, and we have seen that in the construction put upon it, it decided correctly, and its judgment must therefore be affirmed.