Ecker v. Bohn

Grason, J., delivered the opinion of the Court. This is an appeal from the Circuit Court for Frederick County, and the record shows the same looseness and ²⁸⁷ irregularity in the pleadings, which we have taken occasion to condemn in the opinion of this Court, filed at the present term in the case of Norwood vs. The State, ante p. 68. Trusting that what we there said of such practice will have the effect of remedying it, we shall proceed to consider such of the questions, presented upon the record, as we deem material to the decision of this case. Upon the demurrer it was contended that the declaration was insufficient to justify a recovery, first, because it did not allege that the promise of the defendant to pay the debt of Jacob S. Bohn, was in writing, second, because the promise, as stated in the declaration, is in violation of the United States Bankrupt Law and against public policy, and third, because the declaration does not aver that Jacob S. Bohn had committed an act of bankruptcy, by reason of which omission it did not appear that the appellee had any right to file a petition in bankruptcy against him, the forbearance to file which is alleged as the consideration for the appellant’s promise to pajr Jacob S. Bohn’s debt to the appellee. 1st.

A mere promise to pay the debt of a third person, without any new or superadded consideration moving to the promisor from the plaintiff, is within the Statute of Frauds, and, to be binding, must he in writing, and must state the consideration. Hutton vs. Padgett, 26 Md., 281 . But it is not necessary to allege in the declaration that the promise is in writing. If it appear in proof at the trial to he in writing, it is sufficient! 2nd.

The Bankrupt Act forbids any creditor or any other person as trustee for such creditor, to take from the bankrupt any contract, covenant or security, for the payment of any money as a consideration to induce the creditor to forbear opposing the application for the discharge of the bankrupt, and imposes penalties and forfeitures upon any creditor, who shall take such contract, covenant or security. But there is no provision in that Act which for ²⁸⁸ bids the creditor to take from a third party such contract, covenant or security, as an inducement to forbear instituting proceedings against his debtor, for the purpose of having.him declared a bankrupt. Before any proceedings in banhruptcy have been commenced, we have no doubt that any creditor may take such contract, covenant or security, from a third party as an inducement to. forbear instituting proceedings in bankruptcy against his debtor, without violating any provision of the Bankrupt Act or contravening public policy. 3rd. The declaration alleges that Jacob S. Bohn was indebted to certain parties, that he was insolvent and unable to pay his debts, and had conveyed and transferred his real estate to the appellant, who had accepted the same without paying any consideration therefor.

These facts, if true, constituted an act of bankruptcy on the part of Jacob S. Bohn and the statement of them in the declaration is equivalent to a direct allegation, that he had committed an act of bankruptcy. The demurrer was therefore properly overruled. But while the declaration states a good cause of action, the record presents a state of facts which are conclusive against the appellee’s right to recover in this action.