
    John Turner v. Joseph Chrisman, Administrator of John Moore, deceased.
    A new promise is, in law, available to sustain a recovery upon an old contract, against a plea of bankruptcy.
    Tbe “ bar” arising from the bankruptcy is strictly a personal privilege, and is “ waived” by the subsequent promise.
    When the “ bar” is “waived ” by a new promise to pay an old debt, it is competent to declare on the old liability without suing on the new promise.
    Error to the court of common pleas of Union county.
    In the court below, Chrisman, as administrator of Moore, sued Turner, in 1847, in an action of debt, upon a single bill executed by Turner to Moore, dated March 10, 1834, payable one day after date. The declaration contains special counts on the note, charging the indebtedness to the intestate, and the common counts averring the indebtedness to the administrator.
    Plea, general issue, with notice that defendant would give in evidence a certificate of discharge under the bankrupt law of Congress, of August, 1841.
    On the trial the plaintiff below gave in evidence the note *declared on. The defendant gave in evidence his certificate of discharge under the bankrupt law. The plaintiff below then proved by parol that the defendant, subsequently to his discharge, and before suit brought, made a verbal promise to pay the administrator the note declared on. The defendant below objected to the evidence, but it was received by the court, and final judgment given in favor of the administrator. Motion for a new trial overruled, and exceptions taken by Turner.
    This writ of error is brought to reverse the judgment.
    Curry & Allison, for plaintiff in error :
    The certificate of discharge, under the bankrupt law, does not operate merely as a suspension of the remedy, but effects an absolute extinguishment of the debt—so complete that it can not be revived again. Such is the effect of the language of the law. U. S. Stat. at Large, 440.
    If we admit that in such case a moral obligation remains, which is a sufficient consideration for a new promise, still, the original debt remaining extinct, it results that if any suit be maintainable, it must be founded upon the new promise.
    The defendant in error relies upon the English practice, which has been followed, to some extent, in this country. That practice proceeds upon the idea that a new promise, after certificate in bankruptcy, is to be viewed in the same light precisely with a new promise made after the taking effect of the bar of the statute of limitations. It is put on that express ground in the cases cited by defendant in error, from 14 Johns. 178, and 8 Mass. 127. Such ground we think to be entirely unsatisfactory. The only effect of the bar of the statute of limitations is to suspend the remedy. The certificate in bankruptcy extinguishes the debt.. The two things are essentially unlike; but if they were exactly similar, we are not bound here by the English practice. So this court has already decided. In Hill v. Henry, 17 Ohio, 9, it was held that *the acknowledgment and promise to pay a debt which is barred by the statute of limitations does not revive the original cause of action, but if a creditor would enforce a collection he must do it by a suit on the subsequent promise. There is another reason why the proof of the new promise, in this case, ought tO' have been ruled out. Upon the supposition that the old debt had been revived by the new promise, still, no recovery could be had upon the old debt, unconnected with the new promise. Both together were required to make a case for the plaintiff below. And, this being true, he ought to have shown his whole case in his pleadings. The court ought not to have permitted him to present a part of his case in the pleadings and anothor part by oral proof at the trial. If such has been the English practice, it ought not to be followed here. Even there it has not gone unquestioned. In 1 Bac. Abr. 452, it is said that the practice of allowing the plaintiff, after plea in bankruptcy, to give in proof the special matter to show that he is not barred, “ hath been questioned by high authority; and it hath been thought that the pilaintiff should set out, in his declaration, the matter of which he would avail himself.” See also Penn v. Bennett, 4 Campb. 206 ; Deeper v. Tatton, 16 East, 420.
    P. B. Wilcox, for defendant in error:
    A count on a promise to the intestate may be joined with a count on a promise to the administrator. 1 Chit. Pl. 203, 8 Am. ed.; 5 Binn. 573.
    
      A new promise, after a certificate of bankruptcy, may be given in evidonce under the common counts, “ because the new promise had revived the old debt.” Lord Kenyon, Peake, 68; 3 Petersdorf’s Abr. 948.
    And the plaintiff may declare upon the original cause of action without noticing the subsequent promise. 14 Johns. 178; 8 Mass. 127.
    
      Z. T. Fisher, on same side :
    *It is expressly stated in 1 Chitty on Pleadings, 54, that when the subsequent promise of a bankrupt is effectual, it is sufficient to declare upon the original consideration. In the case of Shippey v. Henderson, decided in New York, it is expressly said by the court, that when a debt is barred by a certificate of bankruptcy, it is sufficient to declare upon the original consideration, and that a promise made by the bankrupt, after certificate granted will support an action. 14 Johns. 178. In 1 Selwyn’s Nisi Prius, 219, it is said that, “in the case of an express promise after certificate, the plaintiff is not obliged to declare specially, but may declare on the original cause of action, and if the bankruptcy be pleaded, the plaintiff may give the subsequent promise in evidence.” The bankruptcy is not pleaded in this caso, but the notice filed with the general issue amounts to the same thing under our statute. The same principle was held in the case of Maxim v. Murre, 8 Mass. 127.
    The plaintiff below can recover under the common counts, by proof of a subsequent promise, because the new promise had revived the old debt. 3 Petersdorf’s Abr. 948; 1 Chit. on Pleadings, 204.
   Spalding, J.

The action is brought by the personal representative of the payee against the maker of a sealed note. A count •on a promise to the intestate is. joined in the declaration with a count on a promise to the administrator. This is good pleading. Mr. Chitty says: “It is frequently necessary to add a set of counts on promises to the plaintiff, in his representative capacity, in order to admit of evidence of a promise or acknowledgment to the plaintiff, to take the case out of the statute of limitations.” 1 Chit. Pl., 7 Amer. ed. 438.

The promise to the administrator could be given in evidence under the common counts. In Williams v. Dyde, Peake’s N. P. Cas. 68, a subsequent promise by a bankrupt, after he was discharged by his certificate, was allowed to be given in evidence *upon a count for goods sold, and a plea of discharge under his certificate.

Although there seems to be a marked distinction between the effect produced upon a debt by the operation of the statute of limitations, and a certificate of discharge in bankruptcy, a subsequent promise by the debtor, is held sufficient, in either case, to overcome the plea, and entitle the plaintiff to recover on the original ground of action. The running of the statute of limitations does not discharge the debt. It only suspends the remedy on the presumption that the debt is paid. By an acknowledgment of the debt, or a new promise to pay, that presumption is removed, and the remedy is restored.

In bankruptcy, a debt is discharged by the operation of the certificate, and a note or bond becomes functus officio. 5 Mass. 509. The words of the statute are: “And such discharge and certificate, when duly granted, shall, in all courts of justice, be deemed a full and complete discharge of all debts, contracts, and other engagements of such bankrupt, which are provable under this act. United States Statutes at Large, 440. In Roberts v. Morgan, 2 Esp. 736, Eyre, C. J., says: “ A debt barred by a certificate, under a commission of bankruptcy, by a new promise to pay it, becomes a new debt.” Lord Mansfield also says: “Where there has been a new promise after the discharge, the bankrupt is liable as on a new contract.” Douglass, 192. And in Truman v. Fenton, Cowp. 544, the same learned judge says: “ The moral obligation uniting to a new promise, makes a new undertaking and agreement.” In Walbridge v. Harroon, 18 Vt. 450, Williams, C. J., says: “In bankruptcy, the debt is discharged, and the new promise alone gives the action.”

Aliter.—Thompson, C. J., in Shippey v. Henderson, 14 Johns. 180, where he says: “ A subsequent promise can only revive a precedent good consideration, the remedy having been suspended by the discharge.”

However much jurists may have differed as to the effect of a bankrupt’s discharge upon the original indebtedness; whether *it worked an extinguishment of the debt, or only a suspension of the remedy, it is very clear that a long train of authorities in England and America has settled the rule that a plaintiff, declaring on the original cause of action, may overcome the plea of bankruptcy, and recover his debt upon parol proof of a subsequent promise to pay the same.

I find but one well-defined case to the contrary, and the synopsis of that, as taken from the U. S. Digest for 1849, is as follows:

“ The parol promise of a certificated bankrupt to pay a debt due by note or specialty, before his bankruptcy, will not authorize an action upon the note or specialty.” Graham v. Hunt, 8 B. Mon. 7.

This volume of reports is missing from the State Library; and I have not been able to procure it from the private libraries of the city. The troublesome question is, how can a plaintiff declare upon, and recover for a debt that has been discharged? Ought he not rather to declare upon a new promise of the bankrupt debtor? Lord Ellenborough answers in Leaper v. Tatton, 16 East. 423 : “It is the common practice to declare on the original contract, and if the statute be pleaded, the only question is, whether the defense given by it has been waived.”

Marcy, J., in Depuy v. Swart, 3 Wend. 141 says: “ It is well established, that the plaintiff may declare on the original cause of action. The inconsistency of making the new promise the basis of the action, and at the same time allowing the plaintiff to declare upon the antecedent debt, which has been discharged, or the remedy upon it barred, has been often presented to the courts of England and this country; and although it has been sanctioned, it has been, looked upon as a deviation from the general rule, requiring a plaintiff to state in his declaration the agreement, or whole cause of action whereon his suit is brought. . . .

“ The replication setting up this contract has not been considered a departure, because it is not entirely a new matter ; *it derives that which is necessary to support its consideration from the old debt. The issue is, in fact, upon the new contract, and the note given on the old contract is only brought into view as furnishing the consideration which the plaintiff must show for the new promise. The note, in my opinion, has no valid existence for any other purpose.”

As an individual member of this court, I should feel better satisfied with the establishment of a rule that required the suit to be predicated upon the new promise; for, I must confess, the reasoning of the judges in the cases examined, has failed to convince me that the practice was sound in its inception, whatever it may have become by long-continued usage.

That a new promise is in law available to sustain a recovery upon an old contract, extinguished by an act of bankruptcy, I do not for a moment doubt. But to give a satisfactory reason for this well-established rule, is a work of more difficulty. The only tolerable explanation, to my mind, is that made by Lord Ellen-borough, in 16 East, and that was a case where the statute of limitations was pleaded, I think “the bar,” whether founded upon this statute or upon bankruptcy, is a strict personal privilege, and susceptible of being waived by a new promise.

The learned court in Massachusetts, that tried the case of Maxim v. Morse, 1 Mass. 129, reasons in this wise upon the subject: “ The inconsistency objected in this case, is in appearance more than in reality. A good collateral fact was put in issue, on which a regular judgment may be entered in the action. The pleadings are very similar to those which frequently arise under the statutes of limitation. The defendant pleads what is prima facie a legal bar to the plaintiff’s demand; the plaintiff replies other matter, which shows the defendant bound as well by law as in conscience, to pay the debt—and this matter is found for the plaintiff. There remains no reason why he should not have his judgment on the verdict.”

The action was debt on a judgment. The defendant pleaded his certificate in bankruptcy in ■ bar. The plaintiff replied a ^subsequent promise to pay the debt. The defendant rejoined that he did not make the promise, etc.; upon which issue the jury returned that the defendant did promise, as alleged in plaintiff’s replication, and. found the amount of the debt to be ninety dollars. The defendant moved an arrest of judgment, on the ground that the plaintiff had misconceived his action ; and that it ought to have been in case upon the defendant’s promise, in stead of debt upon the judgment. McKinley v. O’Keson, 5 Barn (Pa.), 369, is to the same effect.

This court will yield to the weight of authority on this subject, and hold with the English courts, and the courts of most of the states in this Union, that a new promise, after a certificate of bankruptcy, may be given in evidence to support a recovery, although the plaintiff may have declared upon the original cause of action, without noticing the subsequent promise. At the sama time it will be mindful to exact that measure of proof which will show the promise, on the part of the bankrupt, to have been distinct and unequivocal. A vague or conditional promise, or a mere acknowledgment of the debt, will not make him liable. 8 Humph. 510; 12 Smedes & Marsh. 492; 9 Ala. 322.

The case of Hill v. Henry, 17 Ohio, 9, cited by counsel for plaintiff in error, owes its decision to the peculiar phraseology of section 5 of the act of 1831, for the limitation of actions. It has no bearing on the questions arising in this case.

The judgment of the court of common pleas will be affirmed, with costs.

Hitchcock, C. J., was absent.  