Henly v. . Lanier , 75 N.C. 172 ( 1876 )

After the defendant executed his promissory note to the plaintiff he was adjudicated a bankrupt; and after the plaintiff had begun action thereon he also was adjudicated a bankrupt, and the note sued on was assigned to him, the plaintiff, as a part of his personal property exemption, pursuant to the fourteenth section of the act.

The defendant pleaded his certificate of discharge in bar of the action; the plaintiff replied a new promise made since the discharge.

The two questions are raised: First, can the plaintiff maintain the action in his own name? Second, must the new promise be in writing?

1. The case states that the note sued on was a part of the plaintiff's estate when he became a bankrupt, and after the adjudication was assigned to him, under sec. 14 of the act, as a part of his personal property exemption. That section excepts from the operation of the act the exempted property, the title to which does not pass to the assignee, but remains in the bankrupt; so that, as to that, his right of property, his possession and his right of action remain as they were before the adjudication. The action, therefore, is well brought.

2. We know of no law of this State and no provision of the Bankrupt Act which requires the new promise to be in writing. Upon contracts entered into since the adoption of the new Code it is (174) provided by statute (see Bat. Rev., ch. 17, sec. 51) that to take them out of the operation of the statute of limitations the new acknowledgment or promise must be in writing. But this applies to the statute of limitations only, and has no application to promises which will take a case out of the operation of the Bankrupt Act. In Fraley v.Kelly, 67 N.C. 78, and Hornthal v. McRae, 67 N.C. 21, it was held to be sufficient to repel the bar of an adjudication in bankruptcy to prove an unequivocal promise to pay the debt, made after the adjudication, without reference to its being in writing. The jury in our case found that such a promise was made.

PER CURIAM. No error.

Cited: Fraley v. Kelly, 79 N.C. 349; Riggs v. Roberts, 85 N.C. 155;Fraley v. Kelly, 88 N.C. 229; Wells v. Hill, 118 N.C. 908.