Duffie v. Phillips , 31 Ala. 571 ( 1858 )

BICE, C. J.

— A recovery for a demand barred by the statute of limitations, or by a discharge in bankruptcy, “ is always upon a new cause of action ; although this is not apparent, where the declaration is in debt or assump-sit, on an executed consideration, because the form of pleading is so general, as to admit of any proof which shows an obligation, founded on the consideration, and between the parties, set forth in the declaration.” Although the old debt is revived by an express promise to pay it, yet there is a new cause of action. An express promise to pay only a part of the old debt will not revive it, but gives a new cause of action, co-extensive with the promise. — See Whitcomb v. Whiting, and the notes thereto, as reported in 1 Smith’s Leading Cases, (edition of 1855,) top pages, 721-729; Evans v. Carey, 29 Ala. R. 99 ; Ross v. Ross, 20 ib. 105.

When the only causes of action declared on are promissory notes, and they are barred by the statute of limitations and a discharge in bankruptcy; and the statute and discharge are pleaded, the plaintiff cannot recover, without proving a new cause of action within six years, consistent with at least one of those set forth in the complaint, and corresponding with it in every particular, except the period from which it dates its existence. — See 1 Smith’s Leading Cases, supra.

A promise, made several years after the notes had become due, and a considerable amount of interest bad accrued upon them, to pay the principal sum for which they were given, but not the interest, is materially different and vai'iant from a promise to pay that sum and the interest. Pool v. Relfe, 23 Ala. R. 701; Pattterson v. Sawyer,. 11 ib. 528.

When, as here, the only counts in the complaint claim the sum for which the notes were given, and the interest thereon; and the notes are barred by the statute of limitations and the discharge in bankruptcy; and the statute and discharge are pleaded; and a subsequent promise is replied, — proof of an express promise by the maker of the notes, to pay the principal sum, “but not the interest,” does not entitle the plaintiff to recover. The promise proved is materially variant from that set forth in the replication ; and if it had been set forth in the replication as it was proved, the replication would have been held bad on demurrer, for a departure from the complaint. In such cases, the replication is in the nature of anew assignment, and is bad if it departs from the complaint. And a plaintiff certainly cannot be permitted to recover under a good replication, upon the proof of a promise, the insertion of which in his replication would Jiave made it bad for departure.

We decide nothing now as to the right of the plaintiff to recover upon the promise proved, under a complaint which counts on that promise, and sets forth the notes or original debt as the consideration for it.

2. The defendant had the right to prove his indebtedness to others, without' producing the notes which evidenced that indebtedness, or accounting for their non-production. — Graham v. Lockhart, 8 Ala. R. 9.

In excluding evidence of such indebtedness, upon the mere ground that the notes evidencing it were not produced, and in the charge given, the court below erred. For those errors, the j udgment is reversed, and the cause remanded.