Murphy v. Crawford ex rel. Jones , 114 Pa. 496 ( 1886 )

Mr. Justice Clark,

delivered the opinion of the - court

In a suit brought to recover a claim which had been barred by a discharge in bankruptcy, the following distinct principles may certainly be considered as settled by the decision of the court: — first, the effect of the certificate in bankruptcy is to extinguish the debt, not merely to bar the remedy for its recovery; Second, the prior legal1 obligation is a sufficient consideration for a new promise to pay it; third, the promise to be effective must be clear, distinct, and unequivocal without qualification or condition; and fourth, in an action upon such claim, the declaration must be upon the new promise and not upon the original obligation; Fields’ Case, 2 Rawle, 351; Earnest v. Park, 4 Rawle, 452; Ott v. Perry, 1 Phila., 118; Yoxtheimes v. Keyser, 12 Penn. St., 243; Canfield’s Appeal, 1 W. N. C., 67; Bolton v. King, 9 Out., 78; Hobaugh v. Murphy, 4 Amerman 358; Allen v. Ferguson, 9 Bankey L. R., 481.

In Field’s case, the court said: — “It is impossible to conceive how an instrument can regain its properties once lost, •except by a repetition of the solemnities from which it origin-' ally derived them, and nothing is clearer than that a promise to pay is not a new delivery; therefore it was held, that a promise to pay a specialty debt, discharged by certificate in bankruptcy, does not revive the original debt as a debt by specialty; that the original debt is merely the consideration which renders the new promise available.

In Reeside v. Hadden, it was said, that the absurdity of allowing a promise to revive a debt, absolutely extinguished by a release, or by a certificate in bankruptcy, is too gross to be tolerated; the proper mode of proceeding in such a case is to declare on the new promise. So, in Ott v. Perry, 1 Phila., 118, a case in the District Court of Allegheny, in which it was sought by scire facias to revive a judgment discharged by bankruptcy, it was said in substance that the judgment was not the defendants’ promise, and subject to revival by him in pais ; that it was the act of the court, and was discharged and annulled by the decree; its vitality was gone, and none but the court could give it new life; it was discharged fully and formally, and the remedy upon, it was exhausted.

The j udgment upon which this scire facias issued was entered 17th February, 1877; the defendant was discharged in bankruptcy 9th July, 1880, from all debts existing 23rd April 1878. This judgment was therefore absolutely extinguished by the decree. The plaintiff has established a new promise of the defendant to pay, but this does not revive the debt of record; the defendant’s responsibility rests upon the promise alone, and must be enforced by such remedies as are appropriate in the collection of simple contract debts. It follows, therefore, that the scire facias upon the judgment cannot be sustained.

It is contended, however, that under the provisions of the Act of 10th May, 1871, the form of the action may be amended. The scire facias is a proceeding upon the judgment, as such; the purpose of a writ of scire facias, upon a judgment is either to remove it, the defendant being required by the terms of the writ to show cause whv execution ought not to issue, or to make some third person a'party thereto and chai’geable therewith, as terre tenant or otherwise, who was not party to the original suit; in either case, however, the purpose of the writ is simply to continue a former suit to execution. It is therefore not an original action, but the continuation of a pending suit, and the specific cause of action .is the judgment. To suffer an amendment by which the form of action might be changed to an original suit was, we think, not contemplated in the Act of 1871.

Besides, as we have said, upon a scire facias the cause of action is the judgment, and the general issue plea is nul tiel record. By the bankruptcy the judgment is extinguished; the new promise creates a new debt, for which the prior indebtedness is the consideration merely. The new promise, and not the judgment, is the meritorious cause of action. By substituting assumpsit or debt, for the remedy by scire facias, is therefore to change the cause of action, and this it has been repeatedly held cannot be done; Trego v. Lewis, 8 P. F. S., 468; Royse v. May, 12 Norris, 454; Tyrell v. Lamb, 15 Norris, 464; Taylor v. Hanlin, 7 Out., 504.

Upon the recent assignment of error, therefore, the judgment must be reversed. Owing to the view we have taken of this case, it is unnecessary to consider the remaining errors.

The judgment is reversed.