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Henry A. Hidden v. Benjamin Cozzens.
Greene, C. J.
delivered the opinion of the Court.
Where the creditor does not rely upon an express promise but upon a promise to be raised by implication of law from the acknowledgment of the party debtor, we think such acknowledgment ought to contain an unqualified and direct admission of a previous subsisting debt, which he is liable and willing to pay. If there be accompanying circumstances which repel the presumption of a promise or intention to pay, the admission is of no avail. If the acknowledgment be accompanied by the declaration of the debtor, that he is unwilling or unable to pay the debt, the declaration neutralizes the effect of the acknowledgment.
This is substantially the doctrine in Bell v. Morrison, et al., (1 Peters, 362.)
Á petitioner for the benefit of the insolvent law is required by that law to annex to his petition a true inventory of all his debts. This is not made with any view to payment of the debt, but on the contrary, is annexed to and made a part of the petition in which the debtor under oath states he is unable to pay ; and so far from being an acknowledgment of a subsisting debt which the party is *403 liable and willing to pay, the acknowledgment is made to protect him from process by the creditor to compel him to pay it. The substance of the proceeding is, he says to the Court the debt is due, but I cannot pay it,, and ask of you to exempt my body from process by the creditor to compel me to pay it.
We do not think the law will raise an implied promise to pay from such an acknowledgment.
In Hancock v. Bliss, (7 Wend. 267,) the debtor admitted the debt but said it was not in his power to pay it at that time, but he hoped to see the plaintiff to do something about it. This was held insufficient.
In Brown v. Bridges, (2 Miles, 424,) the question now raised came up under the insolvent law of Pennsylvania. It was there held that an acknowledgment of a debt, by including it in a schedule of debts on filing a petition under the insolvent law of that State, will not take it out of the statute. I have not been able to obtain a report of the case and cite it from a note of it'[in the supplement to the United States Digest, Vol. v, p. 369, sec. 473.