
    ROFF against ROFF.
    OH CBBTIOBABI.
    Creditor assenting to an assignment, and accepting a dividend in discharge of a debt, cannot recover the balance.
    The following state of facts were agreed on by the attorneys for the parties, and submitted without argument. Aaron Roff, the plaintiff in certiorari, being in embarrassed circumstances, had agreed to surrender to his creditors all his real and personal property, in consideration of which the creditors did agree and covenant, under hand and seal, with the said Aaron Roff, to accept the property by him assigned in full discharge and satisfaction of their several debts and demands, and that they, nor either of them, would [318] thereafter sue, molest, or imprison the said Aaron Roff for any of-the said debts, and that the said Aaron Roff should be from thenceforth released, acquitted, and discharged of and from the same debts, dues, and demands; that Asa Roff, the plaintiff below, and defendant in this court, was one of the creditors, and executed the before mentioned covenant and agreement; that the assignees of Aaron Roff, in conformity to the agreement and assignment, sold the real and personal property of the said Aaron, and paid the creditors their several proportions; that the said Asa Roff received his proportion as one of the creditors, and then afterwards brought the action below to recover the residue of his demand against Aaron Roff. At the trial it appeared in evidence that after the assignment and discharge before mentioned, Asa Eoff had frequently urged the said Aaron Eoff to pay the balance or residue [*o] remaining due after the dividend; and that the said Aaron Eoff, in conversation with several persons, had said, that he would pay Asa the balance on his demand when he was able, or when it was convenient to him, but that he would not be drove or pressed for it. Asa Eoff obtained a judgment, on which this certiorari is brought.
    Halsey, att’y for plaintiff.
    
      Hornblower, att’y for defendant.
   By the Court.

The defendant below, was under no legal obligation to pay the sum demanded. If liable at all, it is because he was under a moral obligation to pay, and being under such obligation, he made an express promise; for a mere moral obligation will not raise an implied promise. The plaintiff below having released and discharged the debt, on the consideration of the defendant’s having assigned all his real and personal property to his creditors, of whom the plaintiff was one, and who received his portion thereof, it would be going great lengths to say that a moral obligation remained. But admitting it did, evidence of an express promise was not made out; giving out in conversation that he intended to pay when he was able, or when it was convenient, is too loose; the action cannot be sustained.

Judgment reversed. 
      
       See Bul. 147, Esp. Dig 95, 2 East, 506.
      
     