John P. Coles vs. Charles Kelsey - Appeal from Washington County, 2 Tex. 542

Mr. Justice Lipscomb delivered the opinion of the court, Mr. Justice Wheeler dissenting. The appellee filed his petition against the appellant in the district court of Washington county on the 11th day of May, 1846, in tbe following words, i. e.: “To the honorable the judge of the third judicial district: The petition of Charles Kelsey to your honor showeth that John P. Coles, of the county aforesaid, on the 4th day of March, A. D. 1840, executed his certain promissory note in the words and figures as follows, to wit: ‘Washington, 4th March, 1840.

Two years after date I promise to pay Charles Kelsey, Esq., or order, fifteen hundred dollars, for value received. (Signed) ‘JohN P. Coles.’ “And on the same day the said John P. Coles execiveri his certain other promissory note in figures and words as follows, to wit: ‘Washington, 4th March, 1840. Twelve months after date I promise to pay to Charles Kelsey, Esq., or order, fifteen hundred dollars, for value received. (Signed) ‘JohN P. Coles.’ On which last aforesaid promissory note is the following in-dorsement, to wit: “Pay to the order of James jE. Kelsey, signed Charles Kelsey — James E.

Kelsey.” And your petitioner alleges that he is the owner and holder of both of the said promissory notes, the latter note being transferred as aforesaid, by indorsement. By means whereof the said John P. Coles has become liable to pay to your petitioner the sums of money expressed in the two promissory notes, with interest from the time they became due, to wit: upon the first of said notes from the 4th day of March, 1842, and on the last from the 4th day of March, 1841. Yet the said John P.

Coles, though so indebted and liable as aforesaid, has not paid said amount or any part thereof, by which failure to pay, as the said Coles is bound by the terms of said notes, your petitioner is damaged in the sum of four thousand dollars; therefore he brings’ his suit, and prays that the said John P. Coles be summoned to appear at the next term of your honorable court, and that your petitioner may have judgment for his debt, damages and cost, and as in duty bound, etc. (Signed) “ J. Willie, Att’y for Plaintiff.” On which petition summons issued on the 16th day of July, 1846.

On tbe 3d of December of the same year, the following answer was filed, i. e.: “And now comes the said John P.

Coles, by attorney, and for answer says that the causes of action mentioned in the plaintiffs petition did not accrue or arise at any time within four years next preceding the commencement of the suit or the filing his said petition, nor did he, the defendant, at any time within four years before the commencement of suit, promise or assume to pay the promissory notes mentioned in said plaintiff’s petition, or either of them, and this he is ready .to verify, etc. (Signed) “ WilliamsoN & Webb, for Defendant.” There were several other pleas filed, as appears upon the record, some ten or twelve days after the above, but by what authority does not appear.

There does not appear to have been leave given by the court to amend, and the first of them •is a peremptory exception, which could not be received after ■answer; they will not, therefore, be noticed, further than to take the occasion to remark that the practice of filing pleas .at different times, and after the answer has been filed, without first obtaining the leave of the court, is an irregularity not to be sanctioned, and calculated to perplex and leave it uncertain .whether such pleas were received and went to the jury •or not.

When the case went to the jury, after the plaintiff’s •counsel had read his petition, and the defendant’s attorney his pleas, the plaintiff’s attorney read the notes sued on; he then called a witness and proved the handwriting of the defendant .to the signature of a letter addressed to the plaintiff, dated ,13th May, 1842, which letter he read to the jury as evidence The letter is in substance, so far as material: That he was sorry that it was not in his power to have done •anything for the plaintiff up to that time.

That every exertion will be made on defendant’s part to pay plaintiff as soon as he can; that defendant has been engaged in settling a farm on the Brazos, which was found to be a laborious business, and from which nothing had been realized, but that there was a prospect of a fine crop that year; that there is no money in the country; that the bills in circulation are doubtful and many of them valueless, and when offered that it was not known whether they ought to be received or not.

He hopes-to be able to make a payment that winter; that war with Mexico had again commenced, unknown to what extent the injury-may be from it; everything dull; land not selling, except a small tract occasionally on time. There was a verdict for the plaintiff for the amount of the notes, and interest. The defendant made a motion for a new trial, on the ground that the verdict was contrary to law and evidence, which was overruled by the court, and the defendant appealed. The appellant mainly relies on one ground for reversing the judgment of the court below.

That the court erred in permitting the letter from Coles to Kelsey to go to the jury. The most important points presented by the record are? "Was the subsequent acknowledgment, supposed to be contained in the letter of the appellant to the appellee, evidence-under the state of the pleadings in this case? And secondly,, was the letter’ a sufficient acknowledgment, under the statute, to take the case out of its operation? We will take np-the questions in the order they have been here presented.

It is important to examine how this question would be disposed of under the decisions made in the common law courts, and, as our statute is not materially different from the English-statute of 21, James I, chap. 16, sec. 3, only ours providing-for the bar intervening at the expiration of four years, and the English six, from the accrual of the cause of action, to-inquire how the statute was taken advantage of in the courts-of England, it will be more necessary to look into these authorities, because the statute of most of the states has been borrowed from the statute of James, and the decisions of the courts in those states have followed the English authorities.

In the 2d Saunders, 63, note 6, on the case of Hodsden v..

Harridge, we find the following remarks by Sergeant Williams: “And indeed at first it was not considered necessary for the defendant to plead this statute; for in Trinity term, 4 Corolus, 1, which was soon after the making of the act, a motion was made in arrest of judgment in assumpsit, that the-promise was alleged in tbe declaration, to be made beyond tbe time limited by tbe statute, and all tbe court beld, that if it appear by the plaintiff’s own showing that the action was not brought within the time limited by the statute, he cannot maintain his action; or if the contract in assumpsit or debt be alleged to be within the time, but on non-assumpsit or nil debet, pleaded, it appears in evidence that the contract was beyond the limited time, the action lies not and the defendant shall take advantage thereof, if it be specially found by the jury; for the statute is in the negative, “that he shall not maintain such action but within the time limited by the statute.” Croke Car. 115, Brown v.

Hancock, and in the cases of Freeman v. Stacy, and Shewin v. Cartright, Hut. 109. It was-so liolden on special verdict.” The same objection having been made in a subsequent case, the court was equally divided upon it, Jones and "Whitlock,, justices, being of opinion that as the statute has many exceptions, the defendant ought either to plead it or demur; and Hyde, chief justice, and Croke, justice, conceiving that as it appeared in the declaration that the contract was beyond the time of limitation, and the statute is in the negative, that it shall not be brought, the defendant might take advantage.

Croke Car. 163, Tankersly v. Robinson. About five years after, in a motion in arrest of judgment, it was adjudged by Jones and Berkley, the only judges in the court, that the statute must be pleaded, and the reasons given were, that the plaintiff might be within the exceptions in the statute. Croke Car. 381, Stiles v. Finch. The reasons assigned for requiring the statute to be pleaded, in Levinz, 110, Lee v.

Rogers, is that the statute was made for the ease of those who will take advantage of it, and the court will not give a defendant the advantage of it unless he plead it, seems somewhat questionable; and to say the least of it, it rests upon the assumption, on the part of the court, as to the object of the statute, scarcely warranted by a fair

interpretation thereof; we will see, by and by, if a better reason has not been given. It is clear from the authority cited that the statute could be taken advantage of by the defendant for some time after its enactment without plea or demurrer, that the first objection did not go the length of excluding a ■demurrer; but it was insisted the defendant should be either ■required to plead or demur, and finally, that he should be eou-■fined in his defense to pleading it, and this has been .the uni■form practice in tlxe English courts and in the United States •courts of common law.

But not always for the same reasons, and this will be seen by an examination of the discussions on the subject, of the true character and effect of a subsequent promise when relied on to take a case out of the statute of limitations, it being contended by some that the new promise Is a revival of the old undertaking, and by others that it is a •new and distinct contract, reference being had to the old promise only, for the purpose of showing a good consideration to support the validity in law of the subsequent promise.

The question was discussed with great ability in the appellate court of South Carolina, by Judge Oneal, who delivered the opinion of the court in the affirmative of the latter position In the case of Reynee v. The Executor of D.esporte, Executor of Doyea, Dudley, 119. The judge says: “ Is the old debt, or the new promise, the -cause of action?

It is a question of great importance both on -account of the general interest of the community in it, and .also on account of putting an end to one of the most vexatious •questions that has been discussed; uniformity and harmony ‘between the decisions of the courts as establishing rules of ■ action, both for the citizen and praotice of the courts, is also a most desirable end to be attained by this-decision if practicable. In deciding upon the statute, no rule is more universal than 'that it is the duty of the court to expound it as it is, and not ■as we might think it should be.

The statute of limitations has for a long series of years been the subject of eulogy or blame, by the different persons who have been called in to dis■cuss it, as fancy or the circumstances of the case dictated; generally in all modern cases it has been regarded by the ablest judges and soundest lawyers as founded in a wise policy, and to be sustained and enforced according to its letter, and not frittered down by distinctions unauthorized by its provisions.

It is a little remarkable that in the variety of decisions on tlie statute of limitations in relation to actions of debt on simple contract and assumpsit, until very recently, how completely have its provisions been overlooked.

Anything that, admitted the debt ever had an existence, was held to be enough to take a case out of the statute of limitations; this capricious,, and, I might say, dangerous current of decisions has at length-been arrested, and the judges of the court of this state, the-United States, of ÜSTew York, Pennsylvania, and of England: have about the same time abandoned the rule, and have returned.’ to the statute to ascertain in what cases it shall or shall not operate as bar The statute directs that the action of debt, on simple contract and assumpsit, shall be brought within four years next after the cause of action or suit, and not after.

The words of the statute are of plain and obvious meaning, and tO' give them effect, only two questions need be asked. When did the cause of action accrue? Is the suit brought withim four years from the accrual of the cause of action? “ In all cases where there has been no intervening disability,, the answers to these questions would enable us at once to say whether the bar of the statute precluded the plaintiff’s recovery or not. When did the cause of action accrue?

By-ascertaining when suit could have been brought upon it, in assumpsit and debt upon simple contract, from the time when the debt fell due; consequently upon that is the right to demand the payment, and to institute suit if not paid.

If more than four years intervened between the time at which the party, bjr his contract, had a right to demand the payment, and institution of the suit, the bar of the statute is complete and effectual, and the cause of action is gone; but the old debt is a past consideration and will support a new contract; for notwithstanding it cannot be legally enforced as a cause of action,, yet, if it has not been paid, the party who contracts it is in honesty bound, which is but another name for one branch of good morals.

The obligation of honesty and morality is a good consideration, and the promise made upon it will be enforced. “But it is a new cause of action, and not the revival of the old one; for, if not regarded as a new cause of action, the words of the statute would prevent it from enabling the party to recover. Regard it as a new cause of action, and the case is neither affected by the intent or meaning of the statute. This plain, hut I think obvious meaning of the statute, makes it easily understood and easily to be applied to all future cases.

The only reason which can be assigned why it was ever supposed that the old debt, and not the new promise, was the cause of action, is that in cownts indebitatus assumpsit, »n a note or bill of exchange, the precedent indebtedness, in the first, the making of the note, the drawing, accepting or indorsing the bill in the second, and the consequent liability to pay, is stated as the consideration of the legal liability to pay. in it the true time is wholly immaterial, and of course any promise between the consideration and the suing out of the original writ can be given in evidence as between the parties to the contract.

Hence the new promisd being received in actions of this kind, as corresponding with the allegata, it was easy to suppose and conclude that the old debt was revived and was the cause of action; this view, too, was much encouraged by many loose expressions of that kind to be found in the opinions of some of the most learned judges.” He then proceeds to review the cases of Pitam v. Foster, and Norris and Wife, 8 Eng. Com. L. 67; Scales v. Jacobs, 13 Eng. C. L. 85; Tanner v. Smart, id. 273; and Hurst v.

Parker, 1 B. & A. 91, to show that whatever had been the former decisions of the English courts, the more recent adjudications supported his views. For the same purpose, he refers to the case of Sands v. Gelston, 15 Johns. 519; the cases of Bell v. Morrison, 1 Pet. 360; Young v. Mompoey, 2 Bailey, 278; Grist v. Newman, 2 Bailey, 92; Cohen & Nesbit v. Aubin, id. 283; Trawell v. Salmon, id. 308; Lowry v. Dubose, id. 425; Glem v. McCullough, 2 McC. 212; James v. Lindsey, 4 McC. 93; each of which the learned judge reviews, and shows that in principle he is sustained by them.

The case from which I have drawn" so freely was brought on a promissory note by the assignee, and he relied on a promise made to his assignor; it was ruled that the action could not be sustained, because the promise made.to the assignor was not assignable; if the new promise bad revived the old debt, the action could have been sustained, in the same case the court decided that “ where a subsequent promise made by an executor was relied on to take the case out ■of the statute, the plaintiff must specially count on such new promise, as it could not be given in evidence, either on the count upon the note or the indebitatus assumpsit ■count.” It seems to me that Judge Oneal has been entirely successful in establishing his opinion so firmly by reason and ■authority, that it cannot be shaken, at least so far as applicable to cases in general, of a subsequent promise to remove the bar.

If in the case we have under consideration, the suit had 'been prosecuted under the common law forms, the evidence of -the supposed promise in the letter of the defendant to the plaintiff could have been received, though not specially counted ■on, because it would have been good evidence under the common indebitatzis assumpsit count, as we have seen, although the count on the note itself would show that it was barred.

In ■our practice of trying suits on petition and answer there are no fictions, and nothing can be admitted in evidence to support -another and different cause of action from the one stated in the petition; and consequently it seems, even on the principles governing the common law declaration, the new promise, •or any other exception to the bar, should be averred by petitioner.

We have seen that when from any peculiarity in the •subsequent promise, such as not being between the parties to the suit, it was required to be counted on specially, because it ■was not admissible evidence under a common count; and cases of this sort are found in the books, where, for this error of receiving such testimony under the indebitatus count, the judgment has been reversed, and leave given to add a special count in the declaration.

It would seem, therefore, to follow -as a necessary consequence, from the principle discussed, that where 'the law of the court does not permit the common counts, as it is with us, that the contract or subsequent promise should be 'Specially averred or fully stated in the plaintiff’s petition. If the new promise is the cause of action, surely it ought to be set out in the petition; if not, when the law is applied solely to the promise shown and sued on, it will appear that the plaintiff, from his own showing, is not entitled to bring suit..

I do not believe that it would make any difference whether the-subsequent promise be made before or after the statute had completed the bar, the promise so subsequently made would be the cause of action. The 12th

section of the act of limitations makes no exception or distinction, as to the acknowledgment to take the case-out of the operation of the law, whether it be made before or after the bar has been completed. The words of the act are:. “ No acknowledgment of the justice of the claim made subsequent to the time it became due.” It would seem that if the suit had to be supported on the acknowledgment, that it would follow that the acknowledgment was the cause of action, whether made before or after the bar had been completed.

But should a distinction be conceded, and should be thought that where the subsequent promise is made before the bar, because complete, that it would impart vitality and legal energy to the contract, dormant, and in the face of the statute dead. Tet, under our system of pleading, I should still hold that a fact so material, and one-performing so important a

part in giving legal life and effect,, should be distinctly and affirmatively alleged in the petition of the plaintiff. And in this aspect I do not deem it material that it should be held that the subsequent promise, whether made before or after the bar of the statute had been completed, at all important.

It should be borne in mind that professedly the great object of pleading is, to arrive at certainty in the matter to be adjudicated and decided on; that the plaintiff should circumstantially charge the grounds of his action, so as fully to inform his adversary of the essentials of the complaint for which redress is-sought. And the defendant, in like manner, should show the matter in avoidance or defense. This, no doubt, was the original design of pleading in the common law courts, however widely it may have b^,en departed from in those courts, in practice.

The common law courts lay down this rule: “The-declaration must show plainly and certainly all circumstances-. material to the maintenance of the action, for if there he two intendments, it shall be taken most strongly against the plaintiff.” Arch. 108. Again: “ A plaintiff should state evex-y fact that is necessary to inform the court that his case is within, the statute. If a man entitle himself by a lease, which by a proviso in a statute will be good if the ancient rent be reserved, he must show that a rent was reserved, and aver it to be the ancient rent.” R. PI. Conn. 105; Arch. PI. and Ev. 94.

Our statute of limitations, if it is to receive a literal construction, expressly prohibits a suit from being brought unless within the limited time, and I can see no l’eason why it should receive a more stringent one than other laws. The most eminent jurists of the present day concur in declaring that it is founded' in the wisest policy, and so far from being restricted, is entitled to a liberal

interpretation, and repudiate a long train of decisions, as having been decided without any regard to the true

interpretation of the act. To try the petition in the case before us by these rules, it does seem to me that it does not show a cause of action by the principles of pleading in the common law courts, whatever the practice in those courts may be. The authorities we have examined were all cases in common law courts, where the cause of action is set out by the' plaintiff’s declaration.

And I think it appears most manifest, that to apply the principles of those cases to a case in a court where the common counts were not known, the subsequent promise, viewed either as a new and distinct cause of action, or as reviving the old, ought to be specially set out as material to support the cause of action. I do not believe, however, that on this subject that we can with safety rely on common law rules of pleading, as our system of bringing suits by petition bears no analogy to the common law practice.

But there is a. most striking similarity in our forms to the English bill and answer in chancery, so much so as to leave no doubt of' their kindred origin. They are both derived from the Roman law, out of which grew up the civil law, which now prevails all over continental Europe with various modifications; ours came to us through the laws of Spain. Judge Story says that equity pleadings were borrowed from the civil law, or from (489) ■the canon law, which is a derivative from the civil law, or from both. Hence, at almost every step, we may now trace ■coincidences in the pleadings and practice in a Homan suit.

Story’s Equity PL sec. 14. The same author,

section 23, says ■“ an original bill praying relief is, as we have seen, founded upon some right claimed or wrong done by the defendant, in order to enable the court to understand the case, and to administer ■the proper remedial justice, as well as to apprise the opposite party of the nature of the claim and of the redress asked, and to enable him to make the proper defense thereto, it would ■seem indispensable that the bill should contain a clear and exact statement of all the material facts.” This is a pretty accurate description of what a petition ought to embrace in our courts; in truth, to set aside a few set phrases, mere matter of form, there is no difference in their -structure.

There is, however, another reason that should recommend the chancery practice to our courts as rules of pleading in preference to that of the common law courts. It will be seen that the legislature has expressly directed that suits should be brought by petition, i. <?., the act to regulate judicial proceedings in civil suits,

section 1: “That the adoption ■of the common law shall not be construed to adopt the common law system of pleading, but the proceedings in all civil suits shall, as heretofore, be conducted by petition and answer.” {See Acts Congress 1840, p. 88.) Thus in express terms continuing the former practice that had grown up under the civil law. And the 4th

article judicial department,

section 10, of the constitution of the state, in granting jurisdiction to the district courts, directs that “it is to be exercised without regard to any distinction between law and equity;” this mixed jurisdiction must doubtless still more assimilate our proceeding to the pleadings in chancery, as every cause of action must be asserted by the resort to the petition, to be modified to suit each particular case.

I do not mean to be understood as maintaining that we have the chancery rules of pleading as a body, I only mean that they will be found more analogous to our system and more to be relied on, than those of the common law. I will now proceed to inquire bow a statutory bar, appearing in an original bill, would be disposed of; and how the •complainant, or petitioner, should show that he was within an exception of the statute.

I shall again refer to the same ^author, not because he is the only one on the subject, but because of the great reputation his work has acquired, and his venerable name is more familiar to the profession than any •other that could be used. In

section 503, Story’s Equity Pleadings, after stating other objections that may be taken by ■demurrer, “ the same rule would lie to a bill for the redemption of a mortgage after a great lapse of time. If the bill were so framed as to present the objection without any attendant circumstances to obviate it; for in this and other like cases courts of equity act upon the 'analogy of the law, as to the statute of limitations, and will not entertain a suit for relief if it would be barred at law. If the objection does not appear on the face of the bill it may be taken by way of plea, •or by way of answer. Id. sec. 484.

The same principle will apply to a bill which states a case within the statute of limitation at law, and upon which courts of equity follow the analogy of the law. Eor under such circumstances courts of equity hold that the objection may be taken as a defense by demurrer, and that if the plaintiff' be within any exception of the statute it is incumbent on him to state it in his bill.

Thus, for example, if it should appear on the face of the bill that the cause of action, arising upon simple contract, accrued more than six years before the filing of the bill, a demurrer would lie.” This last rule is precisely in point. The petition showed on its face that the suit was brought more than four years after the cause of action had accrued. There was no replication, nor do I believe that, if there had been one, that the plaintiff could have been permitted to have supplied the defect in his petition by setting up a cause of action in his replication when there was none shown in the petition.

The defendant offered no fact by his plea that had not been shown by the plaintiff in his petition; where an answer alleges matter in avoidance of the facts stated in the petition, a replication may well show that the matter shown in the answer does not constitute the defense under such restrictions. I have no objection to a replication, but when the defendant answers no new fact, and the truth of his answer appears by the plaintiff’s own showing, he surely ought not to be allowed to allege facts in his replication, that, if in the petition, would have shown a good cause of action.

If the petition had not have shown on its face that the cause of action relied on and stated was barred at the time the suit was brought, and the statute had been pleaded, there would have been some reason for allowing a replication setting up the exception. Tet it seems the replication would have been bad,, because the plaintiff ought to have stated the exception as an attendant circumstance, essential to his action; an observance of this rule would prevent surprise by presenting all the facts material to the right of action.

And I cannot discover any thing in reason, or well established precedent, why it should not be required. In this case there was no replication of the subsequent promise, nor was it necessary under common law practice, as established in the English courts, although it was frequently done, and perhaps where there was no common count in the declaration. Or if the subsequent promise was made to one not a party to the suit, it would have been, thought necessary. If the suit was between the parties to the contract it could have been given in evidence under a common count.

But if it was otherwise, I presume it would at common law be held that the subsequent promise should be specially counted on. In any aspect, I am well satisfied that under our system a subsequent promise could not be given in evidence unless averred in the petition or made the subject of a special averment in a replication; perhaps in that case the replication might be considered in the light of an amendment. I believe the judgment ought to be reversed and remanded, to give the plaintiff in the court below an opportunity to amend his petition and set up the subsequent promise.

It will, however, be well to lay down some rules as to what will be a sufficient subsequent promise or acknowledgment to take tbe case out of the bar of the statute.

By an express provision in our statute, “ that when any action may appear to be barred by any law of limitation, no acknowledgment of the justice of the claim, made subsequent to the time it became due, shall he admitted in evidence to take the case out of the operation of the law, unless such acknowledgment be in writing, and signed by the party to be charged thereby.” This statutory provision was designed to put an end to the •almost infinite variety of decisions, as to what amounted to a subsequent promise.

But the better opinion seems to be, that the only difference introduced by the proviso is as to the character of the proof of the acknowledgment, and not as to what words would constitute such acknowledgment. In Story on Contracts, sec. 1013, the following doctrine will be found: “ The operation of the statute may also be frustrated by an acknowledgment of the existence of the debt, or by a new promise to pay it.

This promise, or acknowledgment, is considered as a new promise founded upon the previous debt as a •consideration, and must be sufficient in itself to support an ¡action for the debt independent of the original promise. The acknowledgment is to be considered, not as a revival of the original agreement, but as a new and distinct agreement in itself.” And the same author proceeds in the next

section to illustrate the text. “ If there be no express promise to pay, a promise may be raised by implication of law from the acknowledgment of the party. But such an acknowledgment must contain an unqualified admission of the debt, and a willingness to pay it. An acknowledgment of the original justice of the claim is not sufficient to take the case out of the statute, unless accompanied with an admission of the party’s present liability. If the acknowledgment be conditional, the remedy only revives on the performance of the condition.

It is not necessary, however, that any specific sum should be acknowledged to be due, if the acknowledgment he sufficiently broad to include the debt, and sufficiently particular to show that it was the subject matter of the contract.” The supreme court of the U. S. in the case of Moore v. Bank of Columbia, 6 Pet. 86, maintained and laid down the rules to be the same as cited from Story.

The statute of 9th George IV, ch. 14, contains a provision that in its terms, so far as it relates to a subsequent promise, is not materially different from our own, and the decisions of the English courts under that act appear to» harmonize with the doctrine laid down by Story, and by the supreme court of the United States. From which it appears that there must be an acknowledgment of the debt existing and an expression of a willingness to pay it; both must concur; an acknowledgment of the debt is not sufficient; but there must be an expression of a willingness to pay.

Do these two-ingredients, necessary to make an acknowledgment within the statute, concur in Coles’ letter to Kelsey? It appears to me that it does so appear, that is, if the letter referred to the two notes exhibited in the petition. And I believe that the presumption of law, in the absence of proof of any other transaction of the character referred to in the letter, would be that the letter had reference to those notes and to no others. This presumption, if not rebutted, would then assume the character of full proof.

In the letter he not only recognizes-the existence of the debt, but also declares his intention to-pay. If the promise or acknowledgment contained in the letter-had been set out in the petition, I should have felt no difficulty in affirming the judgment; but because that was not done,, and nothing appearing in the petition to let in the letter, so as to make the allegata and probata correspond, I believe the judgment ought to be reversed and the cause remanded.