While it is occasionally said that a discharge in bankruptcy discharges the debt,1 this statement is made to explain the rule that a debt which is barred by a discharge in bankruptcy is not revived by a part payment,2 or by anything short of an express promise. It is usually said that a discharge in bankruptcy does not discharge the debt itself, but merely creates a bar to enforcing it, which the debtor may take advantage of, if he wishes.3 There is so great a difference between the discharge of a debt and its bar by bankruptcy that a promise made by a third person to a creditor is supported by sufficient consideration if the creditor discharges the debtor from liability on a debt already barred by bankruptcy.4

The debtor may accordingly prefer not to take advantage of his discharge, and may waive the bar thereof. Such a waiver may be effected by a new promise to pay a debt which is otherwise barred by such discharge.5 Such a promise is enforceable if made after the proceedings in bankruptcy have been instituted but before a discharge has been granted.6 It has, however, been held that in order to waive the bar, the new promise must be made after discharge and before suit is brought upon the debt.7

1 It is said that "the decree of the bankrupt court discharges and extinguishes the debt." Needham v. Mat-thewson, 81 Kan. 340 [sub nomine, Matthewson v. Needham, 26 L. R. A. (N.S.) 274, 105 Pac. 436].

In this case, however, it is said that the old debt is a moral obligation which is a sufficient consideration for a subsequent promise to pay it.

2 See Sec. 3169.

3 Zavelo v. Reeves, 227 U. S. 625, 57 L. ed. 676 [affirming, Zavelo v. J. S. Reeves & Co., 171 Ala. 401, 54 So. 654].

It is said that a discharge in bankruptcy "goes only to the remedy and does not cancel the debt, which remains as an unenforceable moral obligation." Rate v. American Smelting & Refining Co., 56 Mont. 277, 184 Pac. 478.

It may be added that in this same case the court quotes, In re West, 128 Fed. 205, to the effect that a discharge in bankruptcy operates as a discharge of the obligations of the bankrupt.

On this question see Sec. 3156 et seq.

4 Webster v. Le Compte, 74 Md. 249, 22 Atl 232.

5 United States. Allen v. Ferguson, 85 U. S. (18 Wall) 1, 21 L. ed. 854;

Zavelo v. Reeves, 227 U. S. 625, 57 L. ed. 676 [affirming, 171 Ala. 401, 54 So. 654].

Alabama. Anthony v. Sturdivant, 174 Ala. 521, 56 So. 571; Dantzler v. Scheuer, - Ala. -, 82 So. 103.

California. Lambert v. Schmalz, 118 Cal. 33, 50 Pac. 13.

Indiana. Willis v. Cushman, 115 Ind. 100, 17 N. E. 168.

Kentucky. Thornberry v. Dils, 80 Ky. 241; Brooks v. Paine (Ky.), 77 S. W. 190.

Maryland. Old Town National Bank v. Parker, 121 Md. 61, 87 Atl. 1105.

Massachusetts. Way v. Sperry, 60 Mass. (6 Cush.) 238, 52 Am. Dec. 770.

Michigan. Craig v. Seitz, 63 Mich. 727, 30 N. W. 347.

Minnesota. Smith v. Stanchfield, 84 Minn. 343, 87 N. W. 917; Pearsall v. Tabour, 98 Minn. 248, 108 N. W. 808.

Missouri. Wislizenus v. O'Fallon, 91 Mo. 184, 3 S. W. 837.

New York. Dusenbury v. Hoyt, 53 N. Y. 521, 13 Am. Rep. 543; Herring-ton v. Davitt, 220 N. Y. 162, 1 A. L. R. 1700, 115 N. E. 476.

North Carolina. Cauley v. Dunn, 167 N. Car. 32, 83 S. E. 16.

Ohio. Turner v. Chrisman, 20 Ohio 332.

Pennsylvania. Hobough v. Murphy, 114 Pa. St. 358, 7 Atl. 139; Murphy v. Crawford, 114 Pa. St. 496, 7 Atl. 142.

6 England. Kirkpatrick v. Tattersall, 13 Mees. & W. 766.

United States. Allen v. Ferguson, 85 U. S. (18 Wall) 1, 21 L. ed. 854; Zavelo v. Reeves, 227 U. S. 625, 57 L. ed. 676.

Alabama. Griel v. Solomon, 82 Ala. 85, 2 So. 322.

Arkansas. Lanagin v. Nowland, 44 Ark. 84.

Georgia. Dicks v. Andrews, 132 Ga. 601, 64 S. E. 788.

Iowa. Knapp v. Hoyt, 57 la. 591, 42 Am. Rep. 59, 10 N. W. 925.

Maine. Otis v. Gazlin, 31 Me. 567.

Maryland. Old Town National Bank v. Parker, 121 Md. 61, 87 Atl. 1105.

Massachusetts. Lerow v. Wilmarth, 89 Mass. (7 All.) 463, 83 Am. Dec. 701.

New Hampshire. Wiggin v. Hodg-don, 63 N. H. 39.

New York. Jersey City Ins. Co. v. Archer, 122 N. Y. 376, 25 N. E. 338.

North Carolina. Hornthal v. McRae, 67 N. Car. 21; Fraley v. Kelley, 67 N. Car. 78.

Wisconsin. Hill v. Trainer, 49 Wis. 537, 5 N. W. 926.

"It is settled, however, that a discharge, while releasing the bankrupt from legal liability to pay a debt that was provable in the bankruptcy, leaves him under a moral obligation that is sufficient to support a new promise to pay the debt. And in reason, as well as by the greater weight of authority, the date of the new promise is immaterial. The theory is that the discharge destroys the remedy, but not the indebtedness; that, generally speaking, it relates to the inception of the proceedings, and the transfer of the bankrupt's estate for the benefit of creditors takes effect as of the same time; that the bankrupt becomes a free man from the time to which the discharge relates, and is as competent to bind himself by a promise to pay an antecedent obligation which otherwise would not be actionable because of the discharge, as he is to enter into any new engagement. And so, under other bankrupt acts, it has been commonly held that a promise to pay a provable debt, notwithstanding the discharge, is as effectual when made after the filing of the petition and before the discharge as if made after the discharge." Zavelo v. Reeves, 227 U.

A debt which is barred by a composition with creditors under the bankrupt act, is a sufficient obligation to amount to a consideration for a subsequent promise to pay it,8 as long as no new and independent consideration, outside of the pre-existing liability, supports the promise of the creditor to refrain from enforcing the bar of the original debt. If the original debt was released by a valid release under seal, or if it was discharged by compromise which was supported by a sufficient consideration, the former obligation is generally held not to be a sufficient consideration for the subsequent promise.9 Such new promise may be enforced by the assignee of the claim which the debtor thus promises to pay.10