Majority
p. 178Shippey against Henderson. NEW-YORK, May, 1817.
Headnote
Where a debt barremiánr’sbe üií siTofvem act,h" mLe¡9T'tpdpay?t, tins’ pWnUfffto ble1^6 original withoutnotic;ng the subsequent promise. To a declara s«ntbe defend dfihirgemder ait • tiriS,1 aKfueatiy'to plaintiff discharge, and men cement of Ibvisui'i tUe-tefenr aot assented to, ratified,, re the plaintiffs «cwcd, and confirmed, the promises mentioned in the declaration: Held that the new promise was sufficiently ¡pid, and the replication was not a departure from the declaration.THIS was an action of assumpsit. The declaration contain-e(^ counts for goods sold and delivered, and for money had and received, in which the promises were Hid on the 1st'of May¡ 1815. The defendant pleaded, 1. Non assumpsit. 2. That, after making the supposed promises mentioned in the declaration, and before the exhibiting the plaintiff’s bill, on the 15th of February, 1812, the defendant was an insolvent debtor, within . , . . the meaning of the insolvent act of April 3d, 1811, and had ° , r . •, ’ been prosecuted, &c., tha the presented a petition, &c. and that, on foe :6th May, 1812, his discharge was granted.. To the second plea the plaintiff replied, that the defendant, after obtaining his discharge, and before the commencement of this suit, to wit, rectified, renewed, and confirmed, the several promises and unofi t^e jst jyay^ 1815, ai &c. assented to, and then and there
p. 179contended, that the plaintiff ought t.o have declared specifically on the new promise, not on the original undertaking. It is a general rule in pleading, to set forth the promise, as well as the liability of the defendant, and in this respect there is no distinction between an implied and an express promise ; for the law docs not create the promise in any case, though it may afford evidence sufficient for a jury to find a promise.[6] The prior debt, or moral obligation, is the consideration for the new promise. The debt of a bankrupt, or insolvent, who has obtained his certificate, remains due in conscience, and that is sufficient to support a nexv promise, by which the old debt is revived.[7] In all such cases, the declaration must state the new <¡tssumpsit. There is no cause of action until the new promise is made. The discharge puts an end to all legal and equitable obligation, and there is no existing promise or undertaking which a court of law will enforce, until it is renewed by a new promise. The obligation in conscience merely affords the consideration of the subsequent promise. The only exception to the rule of pleading for which we contend, is "that of infancy, and the only authority for that is C kitty. But the contract of an infant is not void, but voidable only.[8] As to the statute of limitations, it does not destroy the right of action, but merely suspends it. The debt remains, but the remedy is gone.[9] But in that case the new promise must be stated technically, and the bare acknowledgment of the defendant within the six years, which is tantamount to a new promise, supports the issue.[10] Admitting, however, that the plaintiff might declare on the ariginal undertaking, yet, the replication which gives the cause of action ought to state the new promise. The plaintiff says merely, that, the defendant, afterwards,, to wit, on the 1st of May, 1815, assented to, and renewed and confirmed the proalises laid in the declaration. The case of infancy is stronger than the present, as to the necessity of stating technically a new promise ; for, in that case there never was any promise binding i&
dertakings in the plaintiff’s declaration mentioned. To this replication there was a general demurrer, and joinder in demurrer.
Skinner, in support of the demurrer,
Talcot, contra.
p. 180law. Here was a previous promise valid in law; an existing cause of action. There is no departure in this case. The replication supports the declaration. The word “ renewed,” is sufficiently expressive. To renew a promise, is to promise over again.
In Williams v. Dyde,[6]
where a bankrupt had been discharged,- and the plaintiff declared generally on the original undertaking, and the defendant pleaded his discharge, Lord Kenyon held the declaration to be good, and that a subsequent promise to pay might be given in evidence to support it. This case was recognised in Leaper v. Tatton,[7] and the principle is adopted and laid down by Chitty[8] and other writers.[9] In Maxim v. Morse,[10] decided in the supreme court of .Massachusetts, the plaintiff brought an action of debt on a judgment, and the defendant pleaded his discharge under a commission of bankruptcy, and the plaintiff replied, that the defendant afterwards waived the benefit of his certificate, and promised to pay the amount of the. judgment, and the defendant rejoined, denying such promise, on which issue was taken; and on motion in arrest, after verdict for the plaintiff, the court gave judgment for him, considering the declaration as good, and well supported by the replication.
delivered the opinion of the court. The question that arises in this case is, whether the plaintiff may declare upon the original cause of action, or whether he is bound to declare specially upon the new promise. I think the proper way is to declare on the original cause of action. 1 see no reason why this case should differ from that of infancy, or that where the action is barred by the statute of limitation.
The discharge under the insolvent act does not make the original contract void; it is expressly laid down by Chitty (Pl. 40.) that where a debt is barred by a certificate of bankrupt, a promise made afterwards by the bankrupt will support an action, and that it is sufficient in such case to declare upon the original consideration. Such promise can only revive a precedent good consideration, the remedy having been suspended by the discharge. (3 Bos. and Pull. 250. n. 7.)
The new promise is sufficiently laid by the words ratified, renewed, and confirmed. The words “ renewed, the said several promises,” are peculiarly appropriate, and amply sufficient.
p. 181
The replication is no departure from the declaration, but fortifies and supports it, by answering and removing the bar interposed by the plea. We are, accordingly, of opinion that the plaintifi is entitled to judgment.
Judgment for the plaintiff.