Assumpsit on a promissory note. Plea, the general issue. This cause was tried in the Court of Common Pleas, at the December term, 1851, before Staples, J., upon the papers and proceedings and certain facts agreed to by the parties, viz : That the defendant made the note declared on by the plaintiff, and that, after the making of the note and before the commencement of this action, the defendant obtained the benefit of the Insolvent Act of this State.
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The question in this case is whether the defendant, by his promise to pay after his discharge under the insolvent act, has not waived the personal exemption, which such discharge gave him. The new promise did not add to the legal obligation of the note. The plaintiff already had his written promise to pay and the parol promise could not be declared upon as a cause of action. But we think that such parol promise, given after discharge in insolvency, is in law a waiver of his exemption from arrest and is a good reason why execution upon the judgment should issue against him in the usual form. A promise by a certificated bankrupt to pay a debt barred by the certificate is binding as a new promise.
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We do not think the other exceptions should be sustained.
Braxton, J. dissented from this opinion upon the main question.
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Exceptions overruled, and execution ordered in the usual form.
