Baltimore & Ohio Rail Road v. Clark

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 facts) 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 Brook 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