
    Mark Prewett vs. Thomas M. Caruthers.
    Whether a subsequent promise of any kind by a bankrupt will render him liable to the payment of any debt from which, by his bankruptcy, he has been discharged — Query t
    
    
      'A subsequent promise, to be obligatory at all, must be of the most unequivo- ■ cal character ; a mere vague or conditional promise will not be sufficient; ( and loose declarations made by the bankrupt to third persons with reference- ,' to his having promised to pay the debt to his creditor„will not be sufficient to establish a promise ; they afford some ground for a presumption that a - promise has been made to the creditor, but of themselves they do not amount , / to a promise.
    In error from the circuit court of Itawamba county; Hon. Hugh R. Miller, judge.
    Mark Prewett sued Thomas M. Caruthers upon a note dated October 30, 1830, due on the first of February, 1840, for two thousand dollars. The defendant plead, 1. Non-assumpsit; 2. His discharge under the bankrupt law on the 11th of July, 1842, by the northern district court of the United States for Mississippi; to which last plea the plaintiff replied a subsequent promise; on which issue was taken.
    Upon the trial, after the note had been read by plaintiff, and his certificate of bankruptcy by the defendant, the plaintiff proved by John G. Folkes, that in January, 1843, defendant told him he had business with plaintiff for the settlement of a note, on which Boling C. Burnett was his surety, and he had an appointment to meet them that day at Aberdeen to settle it, but he had been prevented from going; afterwards, in the fall of the same year, he (witness) and Caruthers were doing a job of work for Prewett, and Caruthers told witness his pay was to be credited on the note on which Burnett was surety, by contract with Prewett; he was bound to pay the note, and would do so, though discharged by the bankrupt law.
    Pumphret H. Hall proved, that in July, 1843, Caruthers told him he had agreed to build for Prewett the running gear and press for a cotton gin, and instruct the witness in the work, and the price was to be credited on the note on which Burnett was surety, held by Prewett, and from which he had been discharged ; that he had paid already some small payments ; and when this work was done and the price credited, Prewett would have to wait one or two years for the rest; though he had promised to pay him the whole note, and would do it. In the summer of 1845, he saw Caruthers and Prewett together; the latter asked for a settlement about the note, and requested Caruthers to give a new note, which Caruthers refused, but admitted he had agreed to pay the note if Prewett would release Burnett.
    Kirk Prewett proved, that Caruthers had frequently told him he owed the note to Mark Prewett, and would pay it; that he had said Burnett was his surety, and if Prewett would release Burnett, he’d pay the note; and after Burnett was released, Caruthers told witness plaintiff had released Burnett, and he would now pay the note in full.
    Priestly, on the part ofo the defendant, proved that, in 1845, he talked with plaintiff about Caruthers’s debt to him, and plaintiff said he had been for some time trying to get Caruthers to settle the note with him, and he refused to do it; and plaintiff requested witness to see Caruthers and settle it; witness did so, and Caruthers refused to do any thing about it.
    This being all the proof, the court gave these instructions for defendant:
    That unless the jury believe that defendant has unequivocally and positively promised to pay the note sued upon since his discharge, they will find for defendant; a conditional promise, or mere acknowledgment of the debt, will not make him liable • nor will a promise to any one not authorized to receive the money.
    On the part of the plaintiff the court gave this charge :
    A promise may be proved either by a witness who heard the promise made, or by the acknowledgment of the party that he made the promise; and if the jury believe, from the evidence, that the defendant acknowledged he had made the promise, it is. equivalent to proof of the promise itself.
    The jury found for the defendant. The plaintiff moved for a new trial, and on the hearing of the motion, proved that the note sued on was not before the jury, but that a note for $3000, marked paid on the back, had been sent out with them, and that the counsel for the defendant had the note sued on in his pocket. The court overruled the motion; and the plaintiff, embodying the facts in a bill of exceptions, sued out this writ of error.
    
      jR. Davis, for plaintiff in error.
    
      Coopwood and Dowd, for defendant in error,
    Cited Fleming v. Horne, 2 Eng. Com. Law Rep. 144; 1 Stark. 370; 5 Esp. 198 ; Besford v. Saunders, 2 H. Bl. 116; 3 Wend. 135; Scouton v. Eislord, 7 Johns. R. 36; Wait v. Morris, 6 Wend. 394.
    
      Guión and Baine, on same side.
   Per Curiam.

This was an action on a note, to which the defendant Caruthers pleaded his discharge as a bankrupt. The plaintiff replied a new promise, and the jury found for the defendant, and the case comes up from a motion for a new trial.

The evidence consists mostly of declarations made by Caru-thers to other persons. No doubt he did state in such conversations that he intended to pay the note, but in some of these conversations, he stated that he would pay, provided his security in the note could be released; and in others, he. is reported to have admitted that he had promised to pay Prewett, and that he would do so. But very little reliance is to be placed on such promiscuous conversations held with third persons. It appears that there were two interviews between the plaintiff and defendant; in the first, Prewett asked Caruthers for a settlement about the note, and requested him to give a new note. This Caruthers refused to do, but admitted that he had agreed to pay the note if Prewett would release his security, B. C. Burnett. In the next interview, Caruthers declared that he was free from all liability in consequence of his bankruptcy, yet he agreed to save his security harmless if he ever should be able. The witness did not recollect that Caruthers stated to Prewett that he would not pay the note, but he stated his discharge and relied upon it. There is, then, an absence of proof of a subsequent promise, unless we take the loose declarations of Caruthers made to third persons. Such conversations might serve to furnish some grounds for a presumption that a promise had been made to the creditor; but of themselves they do not amount to a promise. The conversations between the parties must be relied on as furnishing the best evidence, and in them there was no such promise made as will bind the party. The English authorities hold that the promise to pay will not make a bankrupt liable unless it be distinct and unequivocal. Fleming v. Horne, 2 Eng. Com. Law Rep. 431; Besford v. Saunders, 2 H. Black. 116. We are not prepared to hold that a mere vague or conditional promise will be sufficient. On the contrary, we are rather inclined to exact more than the English decisions have done. If a subsequent promise will bind at all, it must be of the most unequivocal character. We do not say whether any promise will be sufficient.

One of the grounds for a new trial was, that the plaintiff’s counsel had accidentally put the note, on which the suit was brought, in his pocket, instead of handing it to the jury, but handed them a different note, which bore marks of payment on its face. There is no showing on this point that would warrant a new trial.

Judgment affirmed.  