Bowie, C. J.,
delivered tiro opinion of this Court:
The appeal in this caso is taken from the ruling of the Court below, admitting tho deposition and testimony of Frederick C. Crowley, a witness examined on the part of the plaintiff, under the circumstances sot out in the first and second hills of exceptions; and from the refusal of the Court to grant the defendant’s first and fourth prayers, and the qualification of the fourth prayer by the Court, entitled “plaintiff’s prayer.”
The questions on the exceptions going only to the admissibility of the testimony, and those arising on the refusal and qualification of the prayers, involving the competency of that testimony when admitted, the decision of the latter may render the examination of the former unnecessary.
The prayers referred to are as follows:
Defendant’s 1 si Prayer.—“If the jury shall find from the evidence that Patrick Crowley, the defendant, applied for the benefit of the insolvent laws of the State of Maryland, on the 2nd April 1849, and was, on said application, finally discharged, then the plaintiff is not entitled to recover, notwithstanding they may believe the testimony of Frederick C. Crowley, as detailed in his deposition read in evidence by the plaintiff.”
Defendant’s 4th Prayer.-—“That to entitle the plaintifF'tO' recover upon a new promise made by P. Crowley, after his, application, the jury must find that such promise was made-to the plaintiff himself, or to some agent of the plaintiff in-that behalf, and the mere recognition of the existense of' such debt, accompanied with the expression of a desire to. pay it, and of an intention to pay it, is not, of itself, and: without a distinct promise to pay, sufficient to entitle the plaintiff to recover.”
Plaintiff's Prayer.—“That the jury are at liberty to find that an express promise was made by the defendant, Crow-to the nlaintiff, from the facts (if the jury find such [520]*520facts) that the said defendant, after his insolvent discharge,.recognized the debt due to the plaintiff and in controversy, as a subsisting legal obligation, and directed his son to pay the same out of his (the father’s) moneys in the hands of his said son, and from the other facts of the case, if they think the said facts, altogether, justify such finding.”
The deposition of F. G. Crowley was the only evidence in the cause to show such an express promise, and therefore the garnishees, by their first prayer, ask the Court to instruct the jury, if they shall find from the evidence, that Patrick Crowley, the defendant, applied for the benefit of the insolvent laws of the State of Maryland, on the 2nd April 1849, and was on said application finally discharged, then the plaintiff is not entitled to recover, notwithstanding they may believe the testimony of said Frederick C. Crowley, as detailed in his deposition, read in evidence by the plaintiff.
The authorities cited by the appellants, sustain the position assumed by them, that insolvents and bankrupts stand upon different ground with respect to debts from which they are discharged, from persons whose debts are barred by the statutes of limitations; those statutes do not discharge the debt, but only affect the remedy.
.In Lynbuy vs. Weightman, 5 Esp. Rep., 198, the plaintiff meant to rely on a new promise to pay, made by the bankrupt since his bankruptcy, and for that purpose was giving evidence of general declarations by the bankrupt, that he would pay everybody, and that his effects would pay twenty shillings in the pound; but there was no specific joromise whatever, proved to have been made to the plaintiff. Lord Ellenborough said, “that in order to bind a bankrupt by a new promise, he should expect a positive and precise promise to pay, not given in such general terms as it was offered here.”
[521]*521Brook vs. Wood, 13 Price, 661, 6 Eng. Exch. Rep., wag a case where a verdict for the plaintiff, obtained upon a constructive promise, or a promise by implication, was set aside and entered for the defendant; although the learned Judge who tried the cause had left the question of fact, of promise or no promise to pay, to the jury. Among other opinions to the same effect, Garrow Baron said, “We ought,, in all these cases, to hold the strictest hand upon constructive promises of this kind. The promise ought to be of the clearest and most distinct nature, before it can be permitted to have the effect of binding a party in the situation of this defendant. It cannot bo pretended that this was any such promise as should have been left to a jury; and therefore I am of opinion that the verdict cannot he supported.”
In Massachusetts, the part payment of principal and interest of a debt by a discharged bankrupt or insolvent, have been held insufficient to support an action, or raise a new promise to pay. Merriam vs. Bayley, 1 Cush., 77. 5 Cush., 484. 6 Cush., 210. In Mississippi, the High Court of Errors and Appeals said: “The English authorities hold that the promise to pay will not make a bankrupt liable, unless it he distinct and unequivocal. We are not prepared to hold that a mere vague or conditional promise will bo 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 tbe most unequivocal character. We do not say whether any promise will be sufficient.”
In 11 Penn. Rep., 365, the discharged bankrupt declared that ho was “going to pay” the particular debt which was1 the cause of action, “as quick as he was able,” and that he was “going to pay all Ms honest debts, except some in the city.” It was held that this language, although expressive of an intention, did not constitute an engagement to' pay, which is necessary to give legal effect to the moral obligation, [522]*522it is not enough, that there was a recognition of the debt. “The effect of such evidence has been carried very far to avoid the statute of limitations, much further than it ought to be, in order to avoid a bankrupt’s discharge, which would otherwise be a dead letter.” The decisions in New Jersey and New York, are to the same effect. 3 Wend., 344. 14 Johns. R., 178. 1 Johns., 36.
In this State, as far back as 1821, in the case of Yates' Admrs. vs. Hollingsworth, Earle, J., in delivering the opinion of the Court, said: “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.” 5 H.. & J., 211.
Without adopting the extreme views of some of the authorities above cited, it may be remarked that the policy indicated by the general current, has been adopted and inscribed in the recent legislation of Great Britain, requiring promises to revive a debt barred by a discharge in bankruptcy, to be evidenced by writing. Eden on Bankruptcy,, sec. 15, p. 429. The decision in this State, last cited, has; our full concurrence, and is conclusive.
The appellee contends, that though the promise must be positive, express and specific, yet it may be inferred by the-jury from circumstances, and need not be proved by direct proof. We are not prepared to admit this proposition. It.
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Bowie, C. J.,
delivered tiro opinion of this Court:
The appeal in this caso is taken from the ruling of the Court below, admitting tho deposition and testimony of Frederick C. Crowley, a witness examined on the part of the plaintiff, under the circumstances sot out in the first and second hills of exceptions; and from the refusal of the Court to grant the defendant’s first and fourth prayers, and the qualification of the fourth prayer by the Court, entitled “plaintiff’s prayer.”
The questions on the exceptions going only to the admissibility of the testimony, and those arising on the refusal and qualification of the prayers, involving the competency of that testimony when admitted, the decision of the latter may render the examination of the former unnecessary.
The prayers referred to are as follows:
Defendant’s 1 si Prayer.—“If the jury shall find from the evidence that Patrick Crowley, the defendant, applied for the benefit of the insolvent laws of the State of Maryland, on the 2nd April 1849, and was, on said application, finally discharged, then the plaintiff is not entitled to recover, notwithstanding they may believe the testimony of Frederick C. Crowley, as detailed in his deposition read in evidence by the plaintiff.”
Defendant’s 4th Prayer.-—“That to entitle the plaintifF'tO' recover upon a new promise made by P. Crowley, after his, application, the jury must find that such promise was made-to the plaintiff himself, or to some agent of the plaintiff in-that behalf, and the mere recognition of the existense of' such debt, accompanied with the expression of a desire to. pay it, and of an intention to pay it, is not, of itself, and: without a distinct promise to pay, sufficient to entitle the plaintiff to recover.”
Plaintiff's Prayer.—“That the jury are at liberty to find that an express promise was made by the defendant, Crow-to the nlaintiff, from the facts (if the jury find such [520]*520facts) that the said defendant, after his insolvent discharge,.recognized the debt due to the plaintiff and in controversy, as a subsisting legal obligation, and directed his son to pay the same out of his (the father’s) moneys in the hands of his said son, and from the other facts of the case, if they think the said facts, altogether, justify such finding.”
The deposition of F. G. Crowley was the only evidence in the cause to show such an express promise, and therefore the garnishees, by their first prayer, ask the Court to instruct the jury, if they shall find from the evidence, that Patrick Crowley, the defendant, applied for the benefit of the insolvent laws of the State of Maryland, on the 2nd April 1849, and was on said application finally discharged, then the plaintiff is not entitled to recover, notwithstanding they may believe the testimony of said Frederick C. Crowley, as detailed in his deposition, read in evidence by the plaintiff.
The authorities cited by the appellants, sustain the position assumed by them, that insolvents and bankrupts stand upon different ground with respect to debts from which they are discharged, from persons whose debts are barred by the statutes of limitations; those statutes do not discharge the debt, but only affect the remedy.
.In Lynbuy vs. Weightman, 5 Esp. Rep., 198, the plaintiff meant to rely on a new promise to pay, made by the bankrupt since his bankruptcy, and for that purpose was giving evidence of general declarations by the bankrupt, that he would pay everybody, and that his effects would pay twenty shillings in the pound; but there was no specific joromise whatever, proved to have been made to the plaintiff. Lord Ellenborough said, “that in order to bind a bankrupt by a new promise, he should expect a positive and precise promise to pay, not given in such general terms as it was offered here.”
[521]*521Brook vs. Wood, 13 Price, 661, 6 Eng. Exch. Rep., wag a case where a verdict for the plaintiff, obtained upon a constructive promise, or a promise by implication, was set aside and entered for the defendant; although the learned Judge who tried the cause had left the question of fact, of promise or no promise to pay, to the jury. Among other opinions to the same effect, Garrow Baron said, “We ought,, in all these cases, to hold the strictest hand upon constructive promises of this kind. The promise ought to be of the clearest and most distinct nature, before it can be permitted to have the effect of binding a party in the situation of this defendant. It cannot bo pretended that this was any such promise as should have been left to a jury; and therefore I am of opinion that the verdict cannot he supported.”
In Massachusetts, the part payment of principal and interest of a debt by a discharged bankrupt or insolvent, have been held insufficient to support an action, or raise a new promise to pay. Merriam vs. Bayley, 1 Cush., 77. 5 Cush., 484. 6 Cush., 210. In Mississippi, the High Court of Errors and Appeals said: “The English authorities hold that the promise to pay will not make a bankrupt liable, unless it he distinct and unequivocal. We are not prepared to hold that a mere vague or conditional promise will bo 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 tbe most unequivocal character. We do not say whether any promise will be sufficient.”
In 11 Penn. Rep., 365, the discharged bankrupt declared that ho was “going to pay” the particular debt which was1 the cause of action, “as quick as he was able,” and that he was “going to pay all Ms honest debts, except some in the city.” It was held that this language, although expressive of an intention, did not constitute an engagement to' pay, which is necessary to give legal effect to the moral obligation, [522]*522it is not enough, that there was a recognition of the debt. “The effect of such evidence has been carried very far to avoid the statute of limitations, much further than it ought to be, in order to avoid a bankrupt’s discharge, which would otherwise be a dead letter.” The decisions in New Jersey and New York, are to the same effect. 3 Wend., 344. 14 Johns. R., 178. 1 Johns., 36.
In this State, as far back as 1821, in the case of Yates' Admrs. vs. Hollingsworth, Earle, J., in delivering the opinion of the Court, said: “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.” 5 H.. & J., 211.
Without adopting the extreme views of some of the authorities above cited, it may be remarked that the policy indicated by the general current, has been adopted and inscribed in the recent legislation of Great Britain, requiring promises to revive a debt barred by a discharge in bankruptcy, to be evidenced by writing. Eden on Bankruptcy,, sec. 15, p. 429. The decision in this State, last cited, has; our full concurrence, and is conclusive.
The appellee contends, that though the promise must be positive, express and specific, yet it may be inferred by the-jury from circumstances, and need not be proved by direct proof. We are not prepared to admit this proposition. It. is difficult to' see the difference between allowing an implied promise to remove the effect of the insolvent’s discharge, and admitting circumstances from which, in the-absence of direct and positive proof, an express promise is-to be found or inferred.
An express promise, established by implication or inference from circumstantial evidence, is an implied promise in affect, All the evils which would result from the one, are [523]*523•attendant upon the other. The deposition of F. C. Crowley proves, directly, nothing more than an intention and desire on the part of the insolvent to pay the plaintiff “as soon as he was able,” and requests made on several occasions to the witness by the insolvent to pay the plaintiff, the witness being then largely indebted to the insolvent. When this indebtedness accrued, is not shown. If it existed prior to the insolvent’s application for the benefit of the Insolvent laws, those requests were, legally, nothing more than expressions of a willingness to pay; because the insolvent had no right to apply that debt to the satisfaction of one creditor in preference to another, or to make any application of it; that was the duty of his trustee. If the witness’ indebtedness accrued after the application or discharge, the request to pay was not-equivalent to an express, positive, unconditional promise to pay, but rather in the nature of an assignment of one debt to meet another; not stronger than the cases of part payment of principle or interest after the discharge, which are shewn by the cases cited, not to be sufficient to revive the debt. From these premises, we conclude that the defendant’s first and fourth, prayers should have been granted, and tbe plaintiff’s addition to defendant’s fourth prayer refused.
(Decided March 27th, 1863.)
The testimony of Crowley, contained in his deposition, being incompetent and insufficient, in tbe opinion of a majority of the Court, it is unnecessary to review tbe action of the Court below on the first and second exceptions. The judgment below must be reversed.
Judgment reversed.