Ross v. Jordan

1. The single question is, was the court right in sustaining the demurrer ? We think not. We know of no law which requires the promise to pay a debt' from which the bankrupt had been discharged to be in writing. The moral obligation to pay the debt is a sufficient consideration to support the new promise; and such promise being made after the discharge of the defendant in error in bankruptcy, he is bound thereby and ought to pay it. The demurrer admits the truth of the facts set out in the declaration and amendments, and such being the facts, the law gives a right of action to the plaintiff and he may recover, unless some reason other than appears from the declaration and demurrer be given by defendant in bar of the suit. See Bump on Bankruptcy, 743; 44 Vermont, 518; 27 Ark., 619.

2. If the note be not described with sufficient fullness, the declaration may be amended so as to set it out in full, it being substantially referred to therein. On the facts set out substantially, the plaintiff ought to be allowed to go to the jury, amending any defect of pleading under the broad provisions of our Code. Code, §3479.

The court, therefore, erred in dismissing plaintiff’s declaration.

Judgment reversed.