Beck v. Howard

The judgment of the court was pronounced by Kino, J. The defendant is sued on an open account, and pleads in bar of the action, a cession of his property made after the debt accrued, to which the plaintiff was a party, and which was accepted by the judge. The plaintiff relies on a promise to pay the debt, made by the defendant subsequently to the surrender. The subsequent promise, which is fully proved, created a new obligation, which authorized the plaintiff to maintain his action, whether we are to consider, under the pleadings an.d evidence, that the defendant was discharged, or not, by his creditors. If he was not discharged, the legal obligation resting upon him was, to pay his creditors whose demands accrued prior to the cession, on his acquiring property more than sufficient for his maintenance, and for the discharge of his debt subsequently contracted. In that event, the only remedy of the prior creditor is to require a new surrender. C. C. art. 2173. 4 La. p. 45. 8 Rob. 2,04. Bui. & C’s. Dig. 492. But the defendant’s subsequent promise created a different obligation from that imposed by law. It was an unconditional undertaking to pay the debt without regard to the legal consequences of his previous cession, and made a new debt, for the recovery of which the plaintiff could proceed by a separate action, without requiring the debtor to make a new surrender. If he was fully discharged, as is contended, the moral obligation resulting from the previous indebtedness was a sufficient consideration to support the subsequent promise, and the effect of that promise was to create a new debt. C. C. art. 1752. Bach v. Cohn, ante p. 101. Wa think that the district judge did not en-, in overruling the plea. Judgment affirmed.