Hornthall v. . McRae

Pearson, C. J. The question is — a debtor, after being adjudicated a bankrupt, but before the discharge, promises in consideration of the old debt, and in consideration of a new credit for the purchase of goods, to pay the old debt, the discharge which he expected to obtain, to the contrary notwithstanding— can the discharge be set up as a bar to a recovery on this new promise? The lawr is so clearly expressed by Parke, Baron, in Kirkpatrick v. Tattersall, Meeson & Welsby, (13, Exchequer,) 770, that it is unnecessary to do more than to give a few extracts *23 from tbe opinion. “ There is no plea alleging any illegality, nor does the contract appear on the -face oí it to be illegal. Consequently the only question is, whether, assuming the contract not to be tainted with any illegality, it is valid.” “ There ean be no question, that a debt, though barred by a certificate, is a sufficient consideration for a promise to pay it. But it is contended, that it the promise be made before the certificate is obtained the same rule does not apply. We are all' of opinion, that there is no distinction in this respect between a promise made before the certificate - and one made after it, both are equally binding, though the only consideration be the old debt. But then the promise must be one which binds the bankrupt personally to pay, notwithstanding his certificate,” &c. &c. “ The only distinction between a promise before and after the certificate is, that in the former it may be more doubtful, whether the debtor meant to engage to pay, notwithstanding his discharge under the bankruptcy; but it is clear, that if he did the promise is equally binding.” For error in excluding evidence of a new promise, there must be a venire de novo. Pee Curiam. Venire de novo.