Scouton v. Eislord
New York Supreme Court
IN error, on certiorari, from a justice’s court. Eislord brought an action of assumpsit against Scouton, before the justice. The plaintiff declared on a note of hand given by the defendant to the plaintiff on the 14th April, 1806, and for goods sold, &c. The defendant paid into court 25 cents for the goods sold, &c. and 62 cents for the costs; and as to the note, he pleaded a discharge under the insolvent act.
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IN error, on certiorari, from a justice’s court. Eislord brought an action of assumpsit against Scouton, before the justice. The plaintiff declared on a note of hand given by the defendant to the plaintiff on the 14th April, 1806, and for goods sold, &c. The defendant paid into court 25 cents for the goods sold, &c. and 62 cents for the costs; and as to the note, he pleaded a discharge under the insolvent act. The plaintiff then proved, that the defendant promised the plaintiff tó pay him the note, “ provided he could pay him without distressing his familyand the defendant also said, in open…
1Per curiam
The debt of an insolvent or bankrupt is due in conscience, notwithstanding his discharge. He may, therefore, revive the old debt by a new promise, and the old debt will be a sufficient consideration. This was so declared in the case of Trueman v. Fenton (Cowp. 544.) But the question here is, whether this was any thing more than a conditional promise, and whether it was not incumbent on the plaintiff to have shown that the defendant was of sufficient ability to pay without distressing his family. It has been repeatedly held, and seems now to be a settled principle, (2 H. Black. 126. Besford v.…
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