Stark v. Stinson

Bell, J. The defendants and the other two principals on this note were discharged as bankrupts in 1842. The plaintiff’s intestate, was a surety only, and the debt was paid by the plaintiff in 1850. The debt was absolute and unconditional, as well as due and payable, at the time the defendant obtained his discharge. That discharge was final, not only as to the original' payee, but as to the sureties ; there being no objection suggested as to its validity. Mace v. Wells, 7 How. Rep., 272 ; Van Sandan v. Crosby, 3 B. & A., 13; S. C., 2 Moore, 602. This action then, cannot be maintained against the defendant, unless his liability has been revived by what he has done since he obtained bis discharge. So far as the case shows, he has said nothing, by which his liability is in any way revived. But after his discharge he made five small payments upon this note, and he has since stated that he received but fifty dollars of the money, and that by those payments, he had refunded all the money he received and the interest. It is agreed that these statements are true. The question now is, whether these partial payments upon a debt thus discharged, are in law a new promise to pay the debt, or whether they constitute evidence, which may be laid before a jury, and from which a jury may infer a new promise to pay the debt. As to the first of these questions, we take it to be clear, that such payments are not in point of law, a new promise, nor the equivalent of a new promise ; and that even in the case of an outlawed debt, they have never been deemed more than evidence, [261] from which a new promise may be inferred. White v. Jordan, 14 Shep., 370 ; Gowan v. Foster, 3 B. & A., 511. In the case of a debt barred by the statute of limitations, partial payment is always evidence of a new promise to pay the balance. Exeter Bank v. Sullivan, 6 N. H. Rep., 124. Rut in the case of an infant, though his promise to pay a debt contracted during his minority, will bind him if made after his full age, (Aldrich v. Grimes, 10 N. H. Rep., 194; Orvis v. Kimball, 3 N. H. Rep., 314,) particularly if made to a surety, (Hoit v. Underhill, 10 N. H. Rep., 220,) yet it has never been held, that a payment of part, without more, afforded any evidence of a promise to pay the residue. Smith v. Mayo, 9 Mass. Rep., 62 ; Martin v. Mayo, 10 Mass. Rep., 137 ; Thompson v. Say, 4 Pick. Rep., 48; Wilcox v. Roath, 12 Conn. Rep., 550; Thrupp v. Fielder, 2 Esp. Ca., 628; Selw. N. P., 112, note. In the same manner, though it is held, that a bankrupt is morally bound to pay his debts, notwithstanding his discharge, still nothing less than an express promise to pay has been held sufficient to bind him. Lynburg v. Weightman, 5 Esp. Ca., 198 ; Fleming v. Hayne, 1 Stark., 370, and the cases of Lawson v. Eastman, and Underwood v. Eastman, decided in Grafton county, August term, 1847; Brown v. Collier, 8 Humph., 510; Porter’s admr’s. v. Porter, 31 Maine Rep., 169, cited 14 Law Reporter, 565. Judgment for the defendant.