Yoxtheimer v. Keyser

Per Curiam. That the plaintiff in error came as near to fix [366] himself by a promise to pay as he could without doing so, is extremely clear; but he seems to have studiously kept himself on the windy side of the law. To an inquiry whether he would pay this debt, he replied that “ he was going to pay it as soon as he got able,” and that he was going to pay all his honest debts, except some in the city. This, though expressive of an intention, did not constitute an engagement, which is necessary to give legal effect to a moral obligation; it is not enough that there was a recognition of the debt, which, in M’Kinleyu. O’Keson (where however there was an absolute promise), was perhaps too broadly said, in reference to a bankrupt, to be evidence of a promise to pay. The effect of such evidence has been carried very far to avoid the statute of limitations; much further than it ought to be in order to avoid a bankrupt’s discharge, which would otherwise be a dead letter. The bankrupt in this case expressed the same intention to pay all his honest debts, except those in the city, and he certainly did not mean 'to waive the benefit of his discharge as to all the rest. If the foundation of the action fails, it is unnecessary to consider the other exceptions. Judgment reversed.