*376 By the Court,
Beardsley, J.The promise made by Ingersoll to the clerk of Hall, Rhoades & Sherman amounted to nothing. It was made, such as it was, after Ingersoll had been declared a bankrupt, but before his discharge. The debt due from him was then in full force, and there was no occasion for a new promise. Subsequently, and before the discharge was granted, the debt was carried into judgment, the effect of which can not at all depend upon the previous engagement to pay.
A moral obligation to pay continues notwithstanding a bankrupt discharge, and constitutes a valid consideration for a new promise. But the promise proved in this case, had it been made after the discharge, would not have aided the parties. It was 'not an absolute engagement to pay, but a promise to pay when able to do so. This is the substance of the testimony given by the witness, for he states that Ingersoll said the debt was a just one, and should be paid, but he was just then unable to pay it. This repels the idea that he intended to make an absolute engagement, and under such a promise, had it been made subsequently to the discharge, proof of the ability of the party to pay must have been given. (Depuy v. Swart, 3 Wend., 135; Fleming v. Hayne, 1 Stark. N. P. Cas., 370.) But it is enough to say here that the promise, whatever it was, had no reference to this judgment, the validity of which was the point in question on the trial.
The judgment was rendered subsequently to the bankrupt petition, but previously to the discharge being granted. By this judgment the original indebtedness was extinguished, but the judgment debt was not provable under the bankrupt act so as to entitle the creditor to a distributive share of the property, and therefore was not canceled by the discharge. The judgment remaining in force, notwithstanding the discharge, was a full authority for the execution, and the sale was regular and valid.
The judgment of the common pleas was erroneous and must be reversed.
Judgment reversed.