
    [Philadelphia,
    December 27, 1824.]
    WILLING against PETERS.
    IN ERROR.
    A plaintiff, who, pending' the action, assigns all his interest in the claim he is prosecuting to a third person, to whom he is indebted, to whose use the action is marked, and who thereupon acknowledges under hand and seal, that his debt is satisfied, to the amount of the plaintiff’s claim against the defendant, and releases him from the same, is, upon paying the costs, a competent witness.
    A promise by a debtor, after the execution of a voluntary release under seal by the creditor, at the debtor’s request, to pay the balance of the debt, is founded on a sufficient consideration and. Is binding.
    
      Diehard Peters, jr., the defendant in error,
    brought this action in the District Court for the city and county of Philadelphia, against the plaintiff in error, Thomas Willing, to recover a balance of eleven hundred and forty-four dollars, seventy-four cents, due upon a promissory note for two thousand dollars, dated December 2d, 1816, payable sixty days after date, drawn by the defendant below in favour of the plaintiff, by whom it was endorsed, and upon a loan of three hundred dollars by the latter to the former. The account produced by the plaintiff exhibit! ng the balance, showed that he had received about sixty per cent, of the original debt.
    The defendant relied upon a release bearing date Jlpril 15th, 1817, executed by the plaintiff and the other creditors of the defendant, by which they did “ remise, release, discharge, and for ever quit claim unto, the said Thomas Willing, jr., his heirs, executors and administrators, and every of them, of and from all and all mannerof actions, cause or causes of action, suits, bills, promissory notes, judgments, bonds, writings, debts, accounts, sum and sums of money, damages, claims, and demands whatsoever, both in law and equity, or otherwise howsoever, which against the said Thomas Willing, jr., they or either of them, or any or either of their heirs, executors, or administrators, should or might thereafter have, claim, challenge, or demand for or by reason or means of any transaction, matter, cause, or thing whatsoever, from the beginning of the world to the day of the date thereof ”
    
    
      With a view to prove a promise to pay the balance of the debt, subsequently to the execution of the release, the plaintiff himself was offered as a witness; and, to show that he was not interested at the time he was offered, the docket was produced, from which it appeared that this suit was, on the 16‘th of July, 1821, marked to the use of Joseph Curwen. A paper,-dated Liverpool, 30th of Jlpril, 1821, signed by Joseph Curwen, was likewise given in evidence, by which he acknowledged to have received from Richard Peters, jr., eleven hundred and fifty dollars; “being so much on account of a debt due from him to me; the said sum of eleven hundred and fifty dollars having been received in an assignment of a claim on Thomas Willing, late Thomas Willing, jr , of the city of Philadelphia, for which a suit has been instituted in the District Court for the city and county of Philadelphia, to March term, 1821, No. 293, and which suit has been marked- to my use by Richard Peters, jr., and having been received by me in payment of the sum of one thousand, one hundred, and fifty dollars, of the amount due to me by Richard Peters, jr.; and I having, as I do hereby, in consideration of the said assignment, release and acquit him of so much, viz. the sum of eleven hundred and fifty dollars, of the said debt due.to me.” During the trial of the cause, the following papers were also executed and read in evidence:
    “ Know all men by these presents, that I, Richard Peters, jr., of the city of Philadelphia, have assigned, transferred, and set over, (for the consideration of one thousand dollars to me in hand paid fay Joseph Curwen) to the said Joseph Curwen all my claim upon Thomas Willing, jr., for which suit has been brought in the District Court for the city and county of Philadelphia, and all right and interest therein and thereto: — Witness my hand and seal this eleventh day of December, 1822.
    (Signed) , “ Richard Peters, jr.” (Seal.)
    <£ I acknowledge to have received from Richard Peters, jr., a transfer of his claim upon Thomas Willing, jr., for which suit has been brought in the District Court for the city and county of Philadelphia, as of the 30th of April last, and do hereby release the said Richard Peters, jr., of and from the sum of eleven hundred and fifty dollars, being the amount, of the claim upon Thomas Willing,, jr., and the consideration for which the transfer aforesaid was made; for which sum I acknowledge myself to be paid and satisfied to that amount: — Witness my hand and seal the 11th day of December, 1822.
    (Signed) “J. Curwen.” (Seal.)
    A sufficient sum having been deposited with the prothonotary, to cover all the costs which had accrued, or which might accrue in the cause, Mr.' Peters was offered as a witness. He was objected to by the counsel of the defendant, but the court admitted him, and a bill of exceptions was tendered and sealed.
    
      The witness swore, that after the execution of the release, viz. in the month of February, 1322, the said Thomas Willing, in a conversation he had with him relative to this debt, declared that he owed it io him and intended to pay it, and expressly promised that he would pay it.
    The C..URT charged the jury, that the release given in evidence discharged the defendant from all debts due to the plaintiff, at the time of its execution, or which might afterwards become due, by reason of any transaction, master, cause, or thing, prior to the execution of that instrument; but that if the defendant afterwards made an express promise to pay a debt discharged thereby, there was a sufficient moral consideration to support a promise, and therefore such promise would be binding: and whether or not such a promise had been made by the defendant, they submitted to the jury.
    The counsel of the defendant excepted to this opinion, and the jury having found a verdict in favour of the plaintiff, removed the record to this court by writ of error.
    
      Rawls, jr., and Binney, for the plaintiff in error,
    in arguing against the admissibility of the plaintiff as a witness, disclaimed any intention to call in question the propriety of the decision of this court, in the case of Steele v. Phoenix insurance Company, 3 Binn.'306, which, they admitted, was a logical conclusión from well established principles. That case, however, they observed, had gone to the utmost limit of safety, and farther than any other case, either in England or in the other states had extended the rule by which a parly is permitted to give evidence. Phill. Ev. 57. Cog-hill v. Coghill, 2 Hen. & Mtinf. 467. The question is, had the witness any interest in the event of the suit at the time he was offered? He was interested, because, if Cur wen failed to recover in this suit, Peters was answerable to him upon the implied warranty of title to the thing he had assigned, and thus he was interested in proving the existence of a claim. Upon the sale of a chattel, whether tangible or merely in action, there is an implied warranty of title, and if the purchaser does not get what he has paid for, he may recover kirk the prwe. Ritchie v. Summers, 3 Yeaies, 533. Boyd v. Bopst, 2 Dr’ll. 91, Dorsey v. Jackman, 1 Serg. & Rawle, 42. Heer manee v. Vernoy, 6 Johns. 7. Defreeze v. Trumper, 1 Johns. 274. Kenrich v. Whiting, 16 Johns. 210. Although in assigning to Curtuen his claim on Willing, Peters .has not warranted the goodness of the claim, yet he has warranted, that he had a claim of some sort; that he had something which was capable of being transferred, and if it turns out that, he had no claim of any description, it is manifest, that he has undertaken to transfer that to which he had no title, and therefore the consideration on which Cur-wen’s release to him was founded has failed. A claim, is a challenge of the propriety or ownership of a thing which a man has not in possession, and is wrongfully withheld by another, Stowcll v. Tomb, 
      
      Plowden, 359,. Cummings’ Assignee v. Lynn, i ZWi. 444. On the transfer of a claim, there is therefore always an implied warranty of the legal existence of such claim. If one assigns a bond, the money due upon which he has received prior to the assignment, he is unquestionably liable to refund, and the same principle is applicable to a transaction like this. In the case of Consequav. Willing, 1 Peters’ Rep. 103, the releases were so framed as to meet the difficulty now suggested.
    2. There was no consideration for the defendant’s assumption. The debt having been released by the voluntary act of the creditor, it was completely extinguished, and could not be revived by any subsequent promise. The cases in which effect has been given to a new promise, are those of discharge under bankrupt or Insolvent laws, infancy, or act of limitations; cases in which the operation of a statute or a positive rule of law, has deprived the creditor of his remedy, while the debt remained. It has indeed been said, that wherever there is a moral obligation to pay a debt, without a legal remedy to enforce payment, it is a sufficient consideration for a new promise; but no case can be found in which the rule has been applied to a debt, discharged by a voluntary release; and in speaking of the rule, it is invariably illustrated by reference to the eases already mentioned, to which therefore the principle must be considered as confined. There is good reason for the distinction between a debt barred by operation of law, and a debt extinguished by the act of the creditor himself. In the one case, he is deprived of his remedy by circumstances not under his own control, and to which he never gave his assent, and therefore if the debtor waives bis legal advantage by making a new promise, that promise is binding. But where the release is the voluntary act of the creditor, it must be considered as made upon a consideration equal in legal contemplation, at least, to the debt, and therefore the debt is satisfied and extinguished. 1 Selw. N. P. 43, 51, 52. 1 Com. on Coni. 25. Lloyd v. Lee, 1 Sir. 94. Hammond v. Roll, March, 202. Townsend v. Hunt, Cro. Car. 408. Coe v. Hutton, 1 Serg. & Rawle, 398. '
    
      J. R. Ingersoll, for the defendant in error,
    contended, that Mr. Peters was a competent witness, and relied upon the cases of Steele v. Phoenix Insurance Company, 3 Rinn. 306, and Consequa V. Willing, 1 Peters’ Rep. 303, as in point. The argument, he observed, is, that if Peters had no claim, the consideration of Cur-wen’s release failed, and he could support an action against Peters. But Curwen’s release was absolute, upon receiving an assignment of the claim, whatever it might be, and nothing but fraud in Peters could give Curwen an action against him. That Peters had a claim of some sort could not admit of a doubt, and such as it was, Cur-wen was content to make it the foundation of his release. This release was under seal, which alone imports a sufficient consideration. Besides, to give effect to a release, no consideration whatever is necessary. Coc v. Did ton, l Scrg. & Datóte, 338. Addison’s Rep. 56. Longbridge v. Dorviller, 5 Barn. & Aid. 117.
    
      2. A moral obligation to pay a debt, on which no suit can he brought, is a sufficient consideration for an assumption, and there is no room for the distinction taken between a debt barred by operation of law, and one discharged by a voluntary release. In the case of bankruptcy, the debt is equally discharged; yet a subsequent promise to pay it is binding.. The principle is the same in both cases, — the existence of the moral dutjr to pay a debt, which has not been actually paid. Here the release was executed, at the request of the plaintiff in error, and be subsequently, when he felt his ability, made a positive promise to pay the balance of the debt; a stronger case of mq^al obligation cannot occur, than the circumstances of this case present. Bull. N. P. 12.9, 147. 7 Johns. 36. 2 Caines, 150, Lord Suffield v. Bruce, 2 Starkie, 175. Townsend v. Hunt, Cro. Cur. 408. Com. on Coni. 22. 1 Font. 345, (33S.) 6 Johns. Ch. Rep, 242.
    
   The opinion of the court was delivered by

Tilghman, C. J.

This action was commenced by Richard Peters, jr., against Thomas Willing, in the District Court for the city and county of Philadelphia. Pending the action, Richard Peters assigned all his interest in the claim which he was prosecuting against the defendant, to Joseph Curwen, upon which the action was marked on the docket, for the use of the said Curwen. The amount of Peters’ claim, assigned to Curwen, was eleven hundred and fifty dollars. Peters owed that sum to Curwen, and Curwen acknowledged himself, under hand and seal, to be satisfied to the amount of eleven hundred and fifty dollars, and released Peters from the same. These facts being proved at the trial of the cause, Peters was offered as a witness for the plaintiff, and although objected to by the defendant, he was admitted. This is the first error assigned. I do not see how the witness could have been rejected, without overruling the ease of Steele v. The Phœnix Insurance Company, 3 Binn. 306, and many others which have been decided on the authority of that case. A distinction indeed, has been taken, which shall be considered. It is said, that Peters was interested, notwithstanding Curwen’s release, because the assignment necessarily implied a warranty, that the claim was good. It is true, that on the sale of personal property, there is an implied warranty of the property by the vendor, unless the agreement be to the contrary. But this rule is generally applicable to personal property, which is tangible, and capable of delivery. I do not know, that it extends to the assignment of a chose in action, which indeed is only assignable in equity. But certainly there can be no warranty, where it appears that the parties did not intend there should be any. Now, Peters in his assignment calls it his claim against the defendant, for which an action was then depending, and Curwen receives it as such, for good or for bad, and gives a release to Peters for so much money received of him. The case of Ritchie v. Summers, 3 Yeates, 531, was relied on by the counsel for the defendant; but that was a very different case. There, Ritchie had purchased of Summers, a note for three thousand dollars, drawn by Joseph Thomas, payable to, and endorsed with the name of John Morton, which was forged. The jury found, in their special verdict, that- the note was not what it was sold for by the defendant, and upon that misrepresentation the cause turned, and the plaintiff récovered. But, in the present case, there was no proof or suggestion of any kind of misrepresentation or fraud in Peters. If there had been, the case of Ritchie v. Summers would be to the point. It appears to me therefore, that whether Curtain succeeds, or fails in this suit, he can have no reeouise to Peters. Consequently, Peters stood disinterested, and was a good witness.

The second error assigned is, that there was no consideration for the defendant’s promise to Peters, which was therefore nudum pactum and void. The fact was, that the defendant being indebted to Peters, and others, in considerable sums, paid them about sixty per cent, on their debts, whereupon at his request they released him. Afterwards, the defendant acknowledged to Peters, that he was still indebted to him, in the balance beyond the part paid, and promised to pay it when he should be able. It was submitted to the jury, whether he was able or not, so that the only question is, whether there was a sufficient consideration for this conditional promise? It is very certain, that there are instances, where a debt is so far extinguished, as not to be recoverable at law or in equity, and yet exists in morality and good conscience, so as to afford sufficient consideration for an assumption. This is exemplified in the common ease of a discharge under a bankrupt law. No recovery can be had against the bankrupt, yet by the common tsense and feeling of mankind, the debt exists until it be actually [paid. The mind of the defendant assented to this principle — he felt the obligation of the unsatisfied debt — he declared that he considered it as uncancelled, and promised to pay it, when he should be able. This was all that an honourable man was bound to do; and the jury ought to have had very convincing evidence before they found that he was able But, a distinction has been made, between a discharge by law, as m a case of bankruptcy, and a discharge, as in the present instance, by the voluntary act of the creditor. I cannot say, that I think this distinction well founded; especially when it is considered, that a bankrupt is not entitled to a discharge without the assent of two-thirds of his creditors in number and value, which assent is the voluntary act of the credit- or. A case was cited by the counsel for the plaintiff, Townsend v. Hunt, Cro. Car. 408, which is very much in point. There, the plaintiff, at the request of the defendant, gave a full'release of a legacy of sixty pounds, due from the wife of the defendant, as executrix of a third person, although but part of the legacy was paid. The defendant afterwards promised, that if his wife did not .pay the balance, during her life, he would. The wife died, without paying the balance, and an action being brought against the defendant, it was held that the release being made at his rt quest, his promise was binding. Tisis case is cited and taken for law, by Comyn, in his treatise on contracts, page 22. Mr. Peters’ release to the defendant was a benefit conferred on him, at his own request, which he was enjoying when he made the conditional promise of payment. It is a stronger case than Townsend v. Hunt, because there, the debt was not due from Townsend, but from his wife, as executrix. It appears to me, that the defendant, though released, was under a moral obligation to pay the debt, as soon as his circumstances should render it convenient. There was therefore a good consideration for his assumption. I am of opinion, that the judgment should be affirmed.

Judgment affirmed.  