Yates's Adm'rs. v. Hollingsworth

Earle, J.- delivered the opinion of the court. A promise to pay after bankruptcy, waives the discharge, and the prior debt is a sufficient consideration for the new promise. But the new promise thus made, to charge the party, must be an express promise, and must be absolute and unconditional. If there is any thing like a condition in the promise, it must be removed by testimony, and placed on the footing of an absolute undertaking, to entitle the plaintiff to a recovery. As if the bankrupt should say, that he would pay when he was able, the plaintiff must shew an ability to pay. Taking these principles of law for our guide, the court are of opinion, that the promise imputed to the appellant’s intestate, the bankrupt in this case, was substantially nothing more than a conditional assumpsit, and no steps having been taken to place it upon the footing of an absolute [218] engagement, the court think the judgmént of the couhty court ought to be reversed; Ydtes being much urged said, that liis partner’s half of fcommisslons to become due from the appellee for proceeds received at auction, iiiust be paid to him, but that his own half should bé applied to the payment of the old debt, and he directed a small balance, then due from thé appellee to the partners, to be charged to himself, which was accordingly done. But the application of Yates’s half of the commissions to the payment of the former debt due by him to Hollingsworth, was to be made Upon the condition that Hollingsworth furnished the partners with auction business* which it does not appear he did furnish. Had commissions arose and become due from Hollingsworth, to the extent of the former debt, Yates would have been obliged, by his promise, to have applied them, and if he had refused or neglected so to do, the appellee would have had his remedy. The judgment must be reversed. JUDGMENT REVERSED,'