ASSUMPSIT. The narr. contained a single count on a promise to the testator. Pleas non-assumpsit, payment and the act of limitation. Replication and issues.
On the trial evidence was offered of a promise to the executors, and objected to as not applicable to the issue, which was on a promise to the testator. (Chitty on Cont. 324.)
It was admitted that the English law was such, because the promise is there regarded as a new cause of action; but it was said that our courts have in effect held otherwise; the Court of Appeals having decided that the suit was upon the old cause of action, the new promise being regarded merely as waiving the act of limitations. (1Harr. Rep. 204, Newlin vs. Duncan.)
But it was said that the decision in that case expressly recognized the necessity of counting on the promise intended to be proved. The question was one of pleading, entirely apart from a consideration of the cause of action. It depends on the principle, that a party must recover secundum allegata et probata.
To which it was replied, that upon a decision that the original cause of action was revived by the new promise, which is not in itself a new cause of action, it followed that the cause of action to be declared on was the old one and no other. The promise to the executor had no other operation than to remove the act of limitation, not being in itself any ground of action. Such was the case of *Page 287 A'Court vs. Cross, though it was there held that the new promise was a distinct cause of action. It necessarily followed from that principle that there must be a count on the new promise; but according to the decision of our Court of Appeals that the new promise merely removes the act of limitation, and does not constitute a new cause of action, there was no necessity of counting upon it. In our practice it must be taken that we have replied the new promise to the plea of the act of limitation.
But the Court thought otherwise, and said: — this case does not depend on that principle, it depends on a simple question of pleading, and the application of evidence to the pleading. Here is an action by executors, as such, declaring on a debt due to the testator; the plea is the act of limitation, and there is a replication without being drawn out. What is that replication? That there was a promise to the testator within three years. It cannot be that there was a promise to the executor, because that would be a departure in the pleading. If there had been two counts, one on a promise to the testator, and another on a promise to the executors, a plea of the act of limitation and general replication, such a replication being applicable toboth counts, would admit the evidence. But here the plaintiff has presented his case on a single point, a debt due to the testator, and promise made to him within the three years; he must recover if at all by applying his proof to his case as presented which excludes evidence of a promise to the executor, even to revive a debt due to the testator. (1 Harr. Rep. 207, Newlin vs. Duncan; 2Saund. Pl. Evid. 151, 642.)
The plaintiff then proposed to prove an admission of defendant, made to the executors after the death of Doet. Morris of an unsettled account between them, as evidence of the indebtedness and promise to the testator; but the court thought it the same question in a different form and rejected such evidence; upon which the plaintiff suffered a nonsuit.