Egbert v. McMichael
| Decision Date | 21 December 1848 |
| Citation | 48 Ky. 44 |
| Parties | Egbert <I>vs</I> McMichael. |
| Court | Kentucky Court of Appeals |
EGBERT AND HACKLEY were indebted to McMichael in the sum of one hundred and twelve dollars, by note, payable on the first day of January, 1842. After the note became due, Egbert, upon his petition, filed for the purpose in the proper Court, obtained a discharge as a bankrupt, by which he was released from all legal liability for this debt.
This action of assumpsit was brought against him by McMichael, on an alleged promise made by him to pay it, after his discharge in bankruptcy, the debt at the time being still due and unpaid.
The first question is as to his liability on this promise. The doctrine is too well settled, to require a reference to authorities to sustain it, that a discharged bankrupt, although under no legal liability for the payment of his previous debts, is under a moral obligation to pay them, which forms a sufficient consideration to support and render obligatory a promise made by him to do it. Such a promise, however does not revive his liability upon the note, or enable the creditor to bring a suit upon it, as this Court has decided, in the case of Graham vs Hunt, (8 B. Monroe, 7.) Being liable alone upon the new promise, the suit must be brought upon it; and an action of assumpsit is therefore the appropriate remedy.
As the note itself is prima facie evidence that it was executed for a valuable consideration, an allegation in the declaration of its existence, and that the debt remained unpaid, and of a promise by the defendant, in consideration thereof to pay it, is sufficient. It is not necessary for the plaintiff in such a case, to aver the original consideration, or to rely upon it as the foundation of the defendant's promise.
The most important question in this case, however, is, in regard to the sufficiency of the plaintiff's evidence to maintain his action.
He proved the execution of the note by the defendant, and introduced evidence conducing to prove that the following credit, entered on the back of the note was in the defendant's hand writing, viz: "Received on the within, eleven dollars, this 28th February, for my account for groceries;" and read the note and said credit endorsed thereon as evidence to the jury.
He also proved by a witness, that the defendant, in the year 1844, in his own store in the presence of the plaintiff, remarked "that he was...
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