SMITH v. RICHMOND, 19 Cal. 476

Field, C. J. delivered the opinion of the Court— Baldwin, J. and Cope, J. concurring. Under the old system of pleading in actions at law, where a party was desirous of availing himself of the Statute of Limitations as a bar to the demand in suit, he was required to plead the same. He could not demur to the declaration, even where it appeared upon its face that the limitation prescribed by the statute had expired. If he did not plead the statute, he was considered as having waived its protection. In equitable suits the rule was different.

In suits of this character the defendant could make the objection by demurrer that the remedy was barred by the statute where it appeared upon the face of the bill that the prescribed limitation had expired. If the case came within any of the exceptions of the statute, it was necessary to aver the fact. (Humbert v. The Rector of Trinity Church, 7 Paige, 197; Sublette v. Tinney, 9 Cal. 425.) Under our system there is no difference in the rule whether the action be one strictly at law, or one in which equitable relief is sought.

In both cases the complaint must disclose a subsisting cause of action. “ Civil actions ”—and these terms embrace both legal and equitable actions—says the statute, “ can only be commenced within certain^prescribed periods, “ after the cause action shall have accrued.” If it appear, therefore, upon the face of the complaint,, that the,.,priscribed period has elapsed since the plaintiff possessed'the right of action, and no facts are alleged taking the particular demand from the operation of the statute, the complaint will be considered defective, and subject to demurrer.

If, however, the demand in suit be in truth barred, but the fact is not apparent upon the face of the complaint, the defendant must interpose the defense in his answer, as by plea under the old system. In actions upon written instruments for the payment of money, as promissory notes, the complaint will necessarily show the precise period at which the right of action accrued to the plaintiff; and if in such cases the complaint also show that the prescribed limitation has passed, any new promise which has been made, renewing or continuing the contract, should be alleged.

The new promise, it is sometimes said, constitutes in such cases the real cause of action, the original contract being only the consideration for the promise. The authorities are numerous which hold language to this effect. But this view is inconsistent with the theory upon which the pleadings under the old system were drawn. The declaration was always upon the original contract, which, according to the view mentioned, presented the absurdity of a declaration upon the consideration of the promise, and not upon the promise itself. (Leaper v. Tatton, 16 East. 420; Upton v.

Else, 12 Moore, 303.) The true view, as we conceive, is this: that the action is upon the original demand, and that the new promise is only evidence that the statute does not operate as a bar to its prosecution. At common law there was no limitation to the period within which actions could be brought, though a presumption was created by the lapse of twenty years that the claim was satisfied.

The statute prescribes the limitation, and the new promise only takes the case from its operation. “ If the action was brought upon the new promise,” said the Supreme Court of Hew Hampshire, “ there would be nothing to be taken out of the statute, for the new promise is never within it.

And this shows also that the action should be founded upon the original contract, and that although there must be a new promise, or an acknowledgment from which a promise may fairly be inferred, the reason of this is not that the action is founded upon the new promise as its substantive cause, but because nothing short of evidence of a debt due, and of an intention to pay it, is sufficient to take the original demand out of the statute, and remove the bar, which would otherwise defeat the action. This continues or restores the vitality of the original demand.” (Betton v. Cutts, 11 N.

H. 179.) And the Supreme Court of Massachusetts, speaking of a judgment rendered in an action ex contractu, where the defendant relied upon the statute, and recovery was had upon proof of a new promise by him, said, “ The Court are of opinion that the judgment must be considered as rendered on the old contract; that a payment, or new promise, or an admission from which a new promise may be inferred, is considered as removing out of the way a bar arising from the Statute of Limitations, so as to enable the creditor to recover notwithstanding the limitation; and not as the creation of a new substantive contract, which is to be the basis of the judgment.” (Ilsley v.

Jewett, 3 Met. 439.) These observations apply also to cases where a new promise is set up to obviate a discharge in insolvency, pleaded to an action upon a promissory note, or other contract for the payment of money. There is, it is true, a distinction made in numerous decisions between the case of a debt barred by the Statute of Limitations and a debt from which the defendant has been discharged under the bankrupt or insolvent laws.

Even whilst it is admitted in many of these cases that the statute only takes away the remedy, which is restored by the new promise, and that the action is founded upon the old contract, it is said that the discharge extinguishes the debt, and being extinct, the debt can only be revived by a new promise, and that this new promise constitutes the contract upon which the action must be based. (See Watkins v. Stevens, 4 Barb. 174.) We think in these cases too great effect is given to the discharge of the debtor.

The discharge does not extinguish the debt in any other sense than that it relieves the debtor from any legal obligation to pay the same; that is, from compulsory payment by proceedings in the Courts of justice. The debt still exists, and until paid must exist, though only binding upon the conscience of the debtor. If it were in fact extinguished, it could not, as is well observed in the case of Way v. Sperry, (6 Cush. 241) be renewed nor revived, nor become a consideration for a new promise.

The true view, as we conceive, is this : that the action is founded upon the original contract, and that the new promise is only a waiver of the defense furnished by the discharge. This view is in harmony with the principles upon which the action to recover the debt is conducted. The complaint is always upon the original demand, and nothing is alleged of the new promise until the replication to the plea. In the case at bar, the plaintiff has alleged both the discharge and the new promise in the complaint; but this mode of stating his case is not good pleading.

Nothing which constitutes matter of defense should be averred in the complaint. ( Green v. Palmer, 15 Cal. 415.) There would be a manifest inconsistency in declaring upon the original demand, if the theory that the action is based upon the new promise were correct; an inconsistency to which we are not reconciled, by the observation that “ the replication, which must set forth the new contract specially, * * * is the real declaration.” (Watkins v. Stevens, 4 Barb. 174.) The case of Way v.

Sperry, to which we have already referred, is in accordance with the views we have expressed. “We take it to be well established,” said the Court in that case, “ that, in actions brought on promises made by infants, and ratified after they come of age, on promises which have been renewed after the Statute of Limitations has furnished a bar, and on unconditional promises by discharged insolvent debtors and bankrupts, to pay debts from which they have been discharged, the plaintiff may declare on the original promise ; and that when infancy, the Statute of Limitations, or a discharge in insolvency or bankruptcy is pleaded or given in evidence, as a defense, the new promise may be replied or given in evidence in support of the promise declared on; that a replication, alleging such new promise, is not a departure, and that evidence thereof is not irrelevant.

And we do not hold that a note, promise or debt is 'destroyed ’ by a discharge in bankruptcy. If it were, it not only could not be renewed or revived, but it could not be a consideration for a new promise. Yet nothing is clearer, on authority, than that the old debt is a sufficient consideration for such promise. In all the cases above mentioned the new promise operates as a waiver, by the promissor, of a defense with which the law has furnished him against an action on the old promise or demand. (Maxim v. Morse, 8 Mass. 127 ; Foster v.

Valentine, 1 Met. 522, 523.)” “We cannot perceive any legal difference as to the point now in question, between the case of a debt that has been discharged by a process in bankruptcy and a claim voidable on the ground of infancy, or barred by the Statute of Limitations.

In the latter case, it has been decided that a new promise removes the statute bar, but does not create a new and substantive cause of action which is the basis of a judgment; and that the judgment must be considered as rendered on the old contract.” And by the same authority it is held, that where the new promise is made to the payee of a promissory note, the indorsee, to whom the note is afterwards transferred, may maintain an action upon it. The indorsee in such cases succeeds to the rights of the payee. The objection to the competency of the payee as a witness is answered by the case of Bryant v.

Watriss (13 Cal. 85). The whole tendency of the modern decisions, with reference to the competency of witnesses, is, as there stated, to relax rather than to extend the rule of exclusion. The instruction to the jury, requested by the defendant, was properly refused. Had it been given entire, it would have been erroneous. The Court was not bound to separate the concluding clause and give that by itself. Besides, there was no question as to the unconditional character of the promise.

It is true, the defendant at one time promised to give, in part payment of the note, a watch valued at sixty dollars, and at another time promised to give some eattfe in payment. The watch he did give, and its value was credited on the note. The cattle were never given. These promises did not, however, impair the full, express, positive and unconditional promises made on other occasions. If a certificate of the Court were in fact necessary to entitle 'the Sheriff to the expenses incurred in keeping the cattle attached, such certificate was virtually given by their allowance in the taxation of costs.

Judgment affirmed. Until the year 1860, and after this action was commenced and at issue, there was no replication to an answer allowed by the Civil Practice Act of this State.—Reporter.