Morris' Ex'rs. v. Herdman — 3 Del. 286

Majority

p. 286

JOHN L. MORRIS’ Ex’rs. vs. WILLIAM HERDMAN.

Headnote

On a count on a promise to a testator, evidence of a promise to the executor is not admissible to take the case out of the act of limitation.

Assumpsit. The narr. contained a single count on a promise to the testator. Pleas non-assumpsit, payment and the act of limitation. Replication and issues.

On the trial evidence was offered of a promise to the executors, I and objected to as not applicable to the issue, which was on a pro- j mise to the testator. (Chitiy on Coni. 324.)

It was admitted that the English law was such, because the promise is there regarded as a new cause of action; but it was said thatl our courts have in effect held otherwise; the Court of Appeals hav-l ing decided that the suit was upon the old cause of action, the new! promise being regarded merely as waiving the act of limitations.1 ( 1 Harr. Rep. 204 , JVeiolin vs. Duncan.)

But it was said that the decision in that case expressly recognized the necessity of counting on the promise intended to be proved. The question was one of pleading, entirely apart from a consideration oi the cause of action. It depends on the principle, that a party musí recover secundum allegata et probata.

To which it was replied, that upon a decision that the original cause of action was revived by the new promise, which is noth! itself a new cause of action, it followed that the cause of action t(j be declared on was the old one and no other: The promise to thJ executor had no other operation than to remove the act of limitation not being in itself any ground of action. Such was the case

p. 287

A’Court vs. Cross, though it was there held that the new promise was a distinct cause of action. It necessarily followed from that principle that there must be a count on the new promise; but according to the decision of our Court of Appeals that the new promise merely removes the act of limitation, and does not constitute a new cause of action, there was no necessity of counting upon it. In our practice it must be taken that we have replied the new promise to the plealof the act of limitation.

J. A. Bayard, for plaintiff.

Gray and Rogers, jr. for defendant.

But the Court thought otherwise, and said: — this case does not depend on that principle, it depends on a simple question of plead- ■ ing, and the application of evidence to the pleading. Here is an action by executors, as such, declaring on a debt due to the testator; the plea is the act of limitation, and there is a replication without being drawn out. What is that replication! That there was a promise to the testator within three years. It cannot be that there was a promise to the executor, because that would be I a departure in the pleading. If there had been two counts, one on a promise to the testator, and another on a promise to the executors, a plea of the act of limitation and general replication, such a replication being applicable to both counts, would admit the evidence. But [here the plaintiff has presented his case on a single point, a debt due Ito the testator, and promise made to him within the three years; he (must recover if at all by applying his proof to his case as presented [which excludes evidence of a promise to the executor, even toip'e-|vive a debt due to the testator. (I Harr. Ref. 207, Newlin vs. Duncan; 2 Saund. Pl. & Evid. 151, 642.)

I The plaintiff then proposed to prove an admission of defendant, Imade to the executors after the death of Doct. Morris of an unsettled mccount between them, as evidence of the indebtedness and promise fe the testator; but the court thought it the same question in a different form and rejected such evidence; upon which the plaintiff suffered a nonsuit.