
    COURT OF' APPEALS, JUNE TERM; 1821.
    Yates’s Adm’rs. vs. Hollingsworth.
    a pvomise by a fflcmpt ui\vei t« i™?™ pule sufficient Sie^romiscl1 for
    must howeTe°mbe comHuóna'i'e ’L" "omiitiou
    Appeal from B'altimdre county court. If was an áctioig °* ass^(mPs'^ broúgíit by the appellee against the appellants* was taken for the plaintiff, subject to' the opinion C0lirf:> oil the following frets, viz. The plaintiff in Juty 1303, lent to Yates, the defendant’s intestate, gi'ÓOO, and Yates, soon after,, in the course of the same year, became bankrupt, and was discharged under the statute of' of the United States, and iu pursuance of that statute, transferred his property to assignees regularly appointed according to its provisions,? No dividend was ever made by said assignees among the creditors of Yates. Some time in the year 1815, fates entered into partnership, as an auctioneer, with Hall Ham son, and the plaintiff' became indebted to Yates and Harrison in the sum of §28 15, for commissions on sales at auction; and when the plaintiff was called upon for payment of said debt, he replied, h'é supposed Yates would have charged himself with it, in part payment of the aforesaid money lent by him to Yales, and ,that he would call on Yates oil the siibject. The plaintiff did soon after call, and told Yales he was surprised he had not settled the above debt of §28 15, by charging himself with it; Yales replied, that the plaintiff’s claim on him had nothing to do with the business of himself and Harrison. The plaintiff, however, persisted in his claim, and urged his debt against Yates as a debt of honour, it being for money lent from motives of friendship merely, and oúght to be paid, Yates replied, that he had transferred property to his assignees sufficient to pay this and his other debts. - The plaintiff insisted that his debt ought not to be put on that footing, that it ought to he paid by Yales, and that he would not battle it with his assignees. He also observed, that he expected, in consequence of the dissolution of the copartnership between Thomas and Samuel Hollingsworth, they would have a good deal of business for aft auctioneer, and that he had always employed him, Yates, as an auctioneer, and was desirous still t'o do so, but that he should not do so unless Yates would consent that the commissions should be applied in payment of this debt. Yales said, he thought it hard that his services should he thus applied, when he had assigned sufficient property for the payment of all his debts. The plaintiff replied he had nothing to do with that,, that his debt did not originate in the course of business, but was merely a loan to accommodate Yates, who then said that his partner’s half of the commissions alluded to must be paid, but that his own half should be applied to the payment of the debt he owed the plaintiff; and at the same time directed the above sum of §28 15, due from the plaintiff to him and Harrison, to be charged to himself, and applied in part to the discharge of the plaintiff’s debt, which was accordingly done at the time, to wit, in July 1815.
    On these facts the county court gave judgment for the plaintiff, and the defendants appealed to this court.
    The case was argued before Buchanan, Earle, Johnson, Martin, and Dorsey, J.
    
      Pinkney, arid Williams, (Assistant Attorney-General,)
    relied on the thirty-fourth section of the “Act to establish an uniforin system of bankruptcy throughout the United States(5 Vol. of the Laws of the U. States, 332.) Cole vs. Saxby, S Esp. Rep. 159. LynbUy vs. VPeightman, 5 Esp. Rep. 198. Besford vs. Sdunders, 2 H. Bile. 'Rep. 116. Seouton vs. Eislord; 7 Johns. Rep. 36. Davies vs. Smith, 4 Esp. Rep. 36. Clementson vs. Williams, 8 Cranch, 72. Tlvrupp vs. Fielder, 2 Esp. Rep. 628. 1 Com. on Cont. 163. Rowcroft vs-. Lomas; and 4 Maude fy Selw. 457.
    
      Winder,, for the appellee;
   Earle, J.-

delivered the opinion of the court. A promise to pay after bankruptcy, waives the discharge, and the prior debt is a sufficient consideration for the new promise. But the new promise thus made, to charge the party, must be an express promise, and must be absolute and unconditional. If there is any thing like a condition in the promise, it must be removed by testimony, and placed on the footing of an absolute undertaking, to entitle the plaintiff to a recovery. As if the bankrupt should say, that he would pay when he was able, the plaintiff must shew an ability to pay.

Taking these principles of law for our guide, the court are of opinion, that the promise imputed to the appellant’s intestate, the bankrupt in this case, was substantially nothing more than a conditional assumpsit, and no steps having been taken to place it upon the footing of an absolute engagement, the court think the judgmént of the couhty court ought to be reversed;

Ydtes being much urged said, that liis partner’s half of fcommisslons to become due from the appellee for proceeds received at auction, iiiust be paid to him, but that his own half should bé applied to the payment of the old debt, and he directed a small balance, then due from thé appellee to the partners, to be charged to himself, which was accordingly done. But the application of Yates’s half of the commissions to the payment of the former debt due by him to Hollingsworth, was to be made Upon the condition that Hollingsworth furnished the partners with auction business* which it does not appear he did furnish. Had commissions arose and become due from Hollingsworth, to the extent of the former debt, Yates would have been obliged, by his promise, to have applied them, and if he had refused or neglected so to do, the appellee would have had his remedy.

The judgment must be reversed.

JUDGMENT REVERSED,'  