burrow bailey versus Dillon Thursday saint Feb see Cowp certificate bankrupt  who have subsequent promise to a creditor who have not prove to pay when able  discharge on common bail Mr William show cause why the defendant shall not be  discharge upon common bail the case be this the defendant be indebt to the  plaintiff become a bankrupt the commission issue on the that of may the  bankrupt obtain his certificate which be sign on the that of August and allow  in the September follow in September or November the now plaintiff who be one  of this bankrupt creditor as aforesaid and do not appear to have come in under  the commission produce to the defendant a account between they prior to the  commission upon which account there be a balance due to the plaintiff from the  defendant of and upward remain due at the time of the bankruptcy the defendant  desire time to examine it and then acknowledge that this balance be due to the  plaintiff and promise to pay it to the plaintiff when he shall be able so that  the general question arise upon this case will hereafter be whether a person  indebt to another and afterward become a bankrupt and then be regular  discharge by have duly conform himself to the BankruptActs and have obtain his  certificate but afterward make a new acknowledgement of the same debt be due  and also a new promise to pay it shall or shall not be liable to the payment  of it but the particular question now before the court be single whether he  ought to be discharge upon common bail or hold to special bail for this alone  be the motion which Mr Norton have make and against which Mr William now show  cause Mr William argue on behalf of the plaintiff that this be a new debt find  upon a promise make on a good and sufficient consideration videlicet on a  conscientious obligation he compare it to case of new promise make after the  expiration of the six year which shall revive debt bar by the statute of  limitation as that of dean v crane in Mod and Andrews v brown et ux in  precedent in chancery and so the bankrupt act must be take favourable for  creditor a much strong instance be the case of a infant who after full age  ratify a contract for good not be necessary burrow by his promise to pay for  they for which he cite Southerton v Whitlock in strange where ld Raymond at  guildhall hold that the infant be bind in such a case yet the infant be full  as much discharge of the contract in that case as this bankrupt be in the  present case but this Act which give the discharge by certificate be make for  the benefit of the bankrupt and therefore he may wave this benefit which here  he have do consequent it be not at all within the Act of parliament as to the  case of turner v Schomberg in strange there be no good consideration to find  the promise the defendant have there give his note for and be afterward  discharge on the insolvent debtor Act afterward he promise to pay the debt at  two guinea per month part whereof he pay and be arrest for the remainder there  he be discharge indeed on common bail and it be hold to be no new  consideration but the old debt and so it be Mr Norton be stop by the court  from proceed to argue on behalf of the defendant in answer to what Mr William  have urge for vide ante burrow er p the court hold it quite unnecessary to  enter into the general and principal question or to enter at all in to all the  merit of the case upon this present motion since it will be very improper to  determine such a point in this method upon a question about special or common  bail therefore they say they will not meddle with the merit nor give any  opinion at all upon the general question but as to the particular question  which be the subject of the present motion they be unanimous that he ought to  be discharge upon common bail for Lord Mansfield observe that the present  question be no more than whether this promise make by the defendant under the  circumstance state and find only upon a conscientious obligation shall entitle  the plaintiff to keep he in prison this will be take advantage of his  conscientiousness to use it against conscience Mr just foster add that the  case in strange determine direct in point the question as to bail and burrow  Mr just Wilmot think that case to be even strong than this per cur unanimous  rule make absolute to discharge the defendant upon common bail