
    Arnold vs. Elliott.
    Whore the debtor promised to pay a debt, discharged by a decree of bankruptcy, after the lapse of a given time; it is held, that no suit could be maintained on the debt and promise, until such time had elapsed.
    Arnold sued Elliott in the Circuit Court of Rutherford county, in debt, on a promissory note. Elliott pleaded his discharge under the bankrupt law of the 19th August, 1841.
    The complainant replied, that defendant promised to pay the debt after the discharge aforesaid. To this replication there was a demurrer. This demurrer was on argument overruled.
    On the trial before Judge Samuel Anderson, and a jury, it appeared that the note executed by Elliott was presented to him after his discharge in bankruptcy; that he said that it was a just note, and he intended to pay it, but that he could not pay it then. He would pay it the next year, and that he would pay it as soon as able, &c.
    The Judge charged the jury as follows:
    “If the witness, whose deposition has been read, presented the note sued on to defendant in May 1845, as agent for the plaintiff, and the defendant said he would pay said note some lime next year, this promise would revive the debt, the old debt, although extinguished by the proceedings in bankruptcy, being a sufficient consideration for the new promise. But plaintiff in suing must show he is entitled to recover by the new promise, and if that was to pay some time the next year, defendant had the whole of the next year to pay it in, and if suit was brought before the end of the next year plaintiff .could not recover. If the promise made by defendant afterwards in June was, that he would pay as soon as he was able, or as soon as he could make the money, and it would give him pleasure to pay this debt, that it was a just debt, and he intended to pay this and all his just debts, this promise is conditional, and plaintiff could not recover without proving the condition, viz: that defendant had got able, or had made money enough to pay it.”
    The jury returned a verdict for the defendant, and plaintiff appealed.
    
      Avant, for plaintiff.
    
      Keeble and Ellis, for defendant.
   Chben, J.

delivéred the opinion of the court.

The plaintiff brought his action of debt on a note executed to him by the defendant for three hundred dollars.

The defendant pleaded his discharge in bankruptcy; to which the plaintiff replied, a subsequent promise.

On the trial the plaintiff proved, that in May 1845, his agent presented the note to Elliott, and that he promised to pay it sometime in the next year. He again presented it in June, and the defendant paid some, and said he would pay the balance when he got able. This suit was brought in March 1846.

The court charged the jury, that to entitle the plaintiff to recover under the new promise, he must wait until the expiration »of the next year, before he commenced his suit.

It is insisted this instruction is erroneous; that the promise to pay next year, is a recognition of the debt, and revives its obligatory force instantly, and that suit may be brought presently afterwards.

We do not concur in this view of the case. On the contrary, we thinl? his Honor was correct. Certainly the promise to pay, at a subsequent day, is not ground for a present action. No action would lie, without the promise, and as it depends upon the promise, it can be brought, only, after the period limited in the promise.

Affirm the judgment.  