dissenting.
It appears from the record that “the counsel for the plaintiff, and one of the counsel for the defendant, submitted said case without a written agreement so to do, on the plea of the statute of limitations, and the letter marked X,” etc. See record. This letter marked X is the letter referred to as containing the acknowledgment relied on to take the case out of the operation of the statute.
The case was thus first submitted to the court, a jury being waived, by the consent of parties, for the purpose of obtaining *559the judgment of the court upon the only subject of controversy between them — the sufficiency of the acknowledgment contained in the letter to take the case out of the operation of the statute.
By the permission of the court a jury was afterwards called,, and the notes sued on and the letter referred to were given in evidence to the jury without objection.
No objection to the sufficiency of the petition was made and relied on in the court below.
These facts I regard as most material, and as entitled to exert a controlling effect in the disposition of the case. I fully concur with the court in the opinion that the letter referred to- and embraced in the statement of facts does contain a sufficient acknowledgment to take the case out of the statute; and further upon this point I deem it unnecessary to express an opinion.
But in view of the facts I have stated, and of what I conceive-to be the well settled law applicable to the case, I find myself constrained to dissent from the opinion and decision of the court reversing the judgment and remanding the case, upon the following grounds:
1. I regard the submission of the case to the court, and subsequently to the jury, without objection to the sufficiency of the petition or the admissibility in evidence of the letter, as a waiver of any objection which might have been urged to the petition for the want of an averment of the subject matter of the letter, or to its admissibility in evidence. And now to-reverse and remand the case merely to supply this averment, is, it seems to me, to reverse and remand a case for the sole purpose of supplying that which appears upon the record to-have been waived by one party, and proved without objection by the other.
When the parties have chosen not to make a question, I do-not deem it our province to make one for them. They may have had the best of reasons for not wishing to controvert that point in the court below, and may have acted upon the most, deliberate agreement or the most honorable understanding, mutually obligatory. Parties are supposed to know their *560rights and to be capable of conducting their causes, without requiring the judges so far to depart from their judicial duty as to become their advisers. And when a party has seen proper to waive an objection to pleadings or evidence, which he might have urged, I do not deem it the ¡Dart of judicial duty to interpose ex officio to prevent him. That would be, to borrow an expression of Chief Justice Marshall, for the courts to assume the guardianship of adults as well as of infants. I conceive it to be the province of the courts to adjudicate the matters actually litigated by parties, and none others; to decide the case in controversy between the parties, not to make for them a new and different case, and decide upon matters not in controversy. Where there is no controversy, there is no occasion for an interposition of judicial authority.
Especially do I conceive it the sole province of an appellate court to adjudicate the very case which -was presented to and decided by the court below, and upon the very points and questions upon which the court there decided. To entertain and decide the case here upon questions never presented to or decided by the court below is, in so far as the questions considered are thus originally presented in this court, most manifestly the exercise of original jurisdiction and a departure from the constitution of the appellate court. As has been said by a learned judge, “appellate jurisdiction necessarily requires reexamination of what had been before decided in the court below.”
The point upon which this case is here decided was never made or intimated in the court below. In reversing the judgment, this court has not adjudicated any one matter appealed from. It has not adjudged any one order or decision of the court below to be erroneous. But the judgment of that court is reversed alone upon a question in respect to which there is no pretense that it made an erroneous or any decision whatever, or that it was desired or afforded an occasion to make a •decision. On the contrary, that question not having been there presented, but being in effect waived by the parties, the court was precluded from its consideration. There having been no decision upon the question below, there could be no *561appeal, and lienee no exercise of appellate jurisdiction as to that question, by any rules which define and prescribe the limits and course of appellate jurisdiction. Judicial cognizance is first taken of the question in this court. As to this question, then, upon which tolone the case is made to turn and ■is expressly decided, the jurisdiction here taken can he no less than the clear and undoubted exercise of original jurisdiction. And I with deference submit, is it not violative of the constitution of this as an appellate court?
It has been said by a very learned court (the court of errors and appeals in New York, 2 Wend. 145-6) to be its settled practice “not to review a decision or judgment of the court below, where the question has not been actually passed upon or distinctly presented to the court below,” because “ it was evidently the intention of the framers of the constitution that it should be strictly an appellate court.” It will not be questioned that, by our constitution, this is strictly an appellate court. Yet we do not hesitate to review and reverse a judgment «pora a question which was never passed upon or presented to the cournt below.
The same learned court, on another occasion, said, “ The rule is undoubtedly salutary that no party shall be permitted to pass the court below in silence, and thereby make this a court of original, not appellate j nrisdiction. IN either will this court listen to objections which, if made in the court below, might have been removed by the exercise of the ordinary powers of the court, previous to or at the hearing.” Beekman v. Frost, 18 Johns. 565.
This I .conceive to be the established, uniform course of all appellate courts. In the case just cited, Chief Justice Spencer stated the principle to be extracted from the eases decided in that court, to be, in substance, that no party shall be allowed to surprise or mislead his adversary, and that it would operate as a fraud to permit a party to seize a point in the appellate court passed without objection in the court below, and thus impose upon the opposite party the accumulated costs of the whole action; when, if the objection had been made, it might have been obviated by proof or amendment in the court be*562low. In tbe case of Gelson v. Hoyt, 13 Johns. 562, the same-court refused to hear the demurrer argued, because the counsel had purposely declined arguing it.in the court below, and had thereby deprived the plaintiff below of a right which would have been granted to him — the right of having the pleading demurred to amended, if vicious. In Anderson v. Roberts,, 18 Johns. 518, Van Ness, J.,,said: “Ithas been settled by this court, that matters not suggested at the hearing, nor decided upon by the chancellor, cannot be made the ground of error here.”
An eminent judge has said, “It is an established rule, founded on the soundest principles of justice, that a party shall not be permitted to reverse a judgment or decree on an objection not made in the court below.” And this opinion is supported by a particular reference to the opinions and decisions of Lords Eldon and Redesdale, the house of lords, the courts of the last resort in New York and Pennsylvania, and the supreme court of the United States. 9 Pet. 524-5. “When the-opportunity of objection is passed by in the court below it is taken to have been waived, 2 Soli. & Lef. 713; 12 Wheat. IS; S. P. 11 Wheat. 209, 210, 211; 7 Pet. 98; 2 Binn. 16S; 12 Serg. & Rawle, 103, unless the defect in the record is one which could not have been cured or amended in the court below, if the objection had been made before it was removed. 4 J. R. 602; 14 id. 560; 16 id. 353; 18 id. 558, 559; 2 Dow P. C. 72.” And see 7 Port. 270; 4 Sin. & Marsh. 113; 8 Miss. 136, 505; 1 Sm. & Marsh. 326; 7 Miss. 476; 1 Greenl. 76, 215; 2 Brock. 75; 7 Ala. 42.
References to the same effect might be multiplied, but these will suffice to show that this is the settled, uniform practice of all appellate courts. Moreover, it has been recognized and' acted on as the law of this court. Hansborough v. Towns, 1 Tex. 58; O’Connor v. Towns, id. 107; Crosby v. Houston, id. 203; Jones v. Black, id. 527.
My view of the law thus settled by the decisions of this and, I believe I may add, every other appellate court, will not permit me to disregard the evidence contained in the letter in question, which was first submitted to the court by the agree*563-564ment of the parties, then given in evidence to the jury without objection, and now, being incorporated in the statement of facts, forms a part of the record before us, merely because the subject matter of that evidence was not averred in the petition, and when no objection was made to the petition in the court below for the want of such an averment.
Had the point upon which the judgment is now reversed been objected to in the court below, the defect, if one, would doubtless have been immediately cured by an amendment of the petition or a replication of the new promise. And it is, in effect, admitted by the court, and cannot be doubted, that either, under our practice, would have removed the objection. But the omission or refusal of the defendant to make the objection below has enabled him, under this decision, to throw upon the plaintiff all the expense and delay of this appeal, and the further delay, expense and vexation of another trial, merely to remove an objection which, if originally made, would have been immediately cured in the court below. And should the case be again brought before us on appeal, our legal acumen may then discover some new objection, not before taken,' for which the case may again be reversed and remanded upon similar reasons to those which have now controlled its disposition, and will then give it all the force and authority of a precedent. The same process may be repeated again and again, indefinitely. And thus the assertion of every right which a party may unfortunately be compelled to litigate may be attended with interminable delay, expense, harassment and vexation. I have no wish to trace the evils consequent upon such a course of procedure; but they are, it seems to me, sufficiently apparent and serious of themselves to suggest a doubt of its compatibility with a system of legal rules, which have for their object the speedy redress of injuries and attainment of justice.
It will be readily seen that the principle I have stated as maintained in the authorities cited does not conflict with the other principle, which they equally maintain, and which has also been recognized by this court, 1 Tex. '225, 229, 230, that where there is no cause of action set forth, or where the foundation of the action has manifestly failed, and *565the objection goes to the merits and manifest justice of tbe ■case, and could not be obviated by proof or amendment in the ■court below, the appellate court will not permit a recovery to ■stand, though the objection was not taken below. In such a case, the appellate court does not undertake to revise the judgment upon questions not made in the court below; but, looking to the merits and the foundation of the action upon which the court below has exercised its jurisdiction, and perceiving that the plaintiff has set forth no cause of action, and has alleged in his petition no matters which, if true, entitle him to the relief prayed, or to any relief, and hence that his petition presents nothing which can constitute the basis of a judgment, or afford a foundation for the exercise of the jurisdiction of the court below in proceeding to adjudicate its contents, and that the objection is incurable by proof or amendment, and must therefore ever present an insuperable barrier to a recovery, the appellate court either proceeds itself to give such judgment as the court below ought to have given, or remands, with instructions to the court below to dismiss the case, as not constituting the proper subject of an adjudication in either court. 18 Johns. 516, 544, 559. But where the plaintiff has set forth a title or cause of action inaccurately or defectively, it is cured by verdict. And it is the settled rule, applied to courts of equity as well as law, that the appellate court will not reverse a judgment or decree for a defective averment in a declaration or bill, to which a demurrer was not taken and relied on in the court below, when the plaintiff has set out a substantive cause of action. 9 Wheat. 594; 11 Wheat. 121.
The present manifestly does not come within the class of cases in which the foundation of the action has failed, and the objection, if made, could not have been obviated by proof or amendment in the court below; and that the court here did not so regard it is equally manifest, when they remand the case for the express and sole purpose of having the objection obviated, or rather the supposed defect cured, by an amendment in the court below. But this case does come, as I conceive, precisely within the class of cases in which the refer-*566enees made do, I think, show that it is the well settled law here and elsewhere that the appellate court will not take cognizance of questions not passed upon or presented to the court below, or entertain an objection here which, if made below, might have been obviated by proof or amendment in that court. As wras said by the supreme court on a similar question, “ the case is not to be considered as if before us on a demurrer to the declaration. The want of an averment, so as to let in the proof of usage, cannot now be objected to the record. The evidence was admitted without objection, and now forms a part of the record, as contained in the bill of exceptions. Had an objection been made to the admission of the evidence of usage, for the want of a proper averment in the declaration, and the evidence had, notwithstanding, been received, it would have presented a very different question.” 9 "Wheat. 591, 595. And precisely so in the case before ns. The ease is not to be considered, as if before us on a demurrer, or exceptions to the petition. The want of an averment so as to let in the proof of the acknoioledgment or nexo promise cannot noxv be objected to the record. The evidence was admitted without objection, and xioxo forms a part of the record as contained in the statement of facts. Had an objection beex% made to the admission of the evidence of the new promise, for the want of a proper averment in the petition, and the evidence had notxvithstanding been received, it woxdd have presented a verxj diffex'ent question. And by thus substituting the words “ xiew promise ” for the word “ <usage ” in the opinion just cited, we have the opinion of the supreme court of the United States upon the identical case presented in the record before us. It cannot require further illustration to show that the principle applicable to both is the same in point of law. The authority of that tribunal, the names and judicial reputation of the jurists who have ever acted on this rule, and the previous recognition of it by this court in repeated decisions, will, I trust, be esteemed sufficient to justify my adherence to it on the present occasion.
I can but regard it as a rule of constitutional law deducible from the organic law of this court and obligatory upon it; *567and the reversal of the present judgment, under the circumstances, as the exercise of original jurisdiction in derogation of the rule. But whether it be the exercise of original or appellate jurisdiction, it gives to an appeal the effect of a demurrer or exception to the petition, and an objection to the admissibility of evidence, and, is incompatible with the established principles and usages of law, as administered in those appellate tribunals from which we have adopted our rules of decision, and seems to derive no sanction from any precedent or authority.
2. But I cannot concur in the opinion and judgment of the court, for the further reason that it was not, as I conceive, necessary to set forth the new promise by averment in the petition.
I do not propose to enter upon the discussion of this question. I regard the law as too well settled now to admit of controversy. Deeming, therefore, a particular examination of the numerous authorities in point unnecessary, I shall content myself with a single reference to a work of acknowledged authority professedly treating of this subject.
kfr. Angelí, in his treatise on the limitations of actions at law and suits in equity, etc., p. 315, sec. 4, 2d ed., having reference to the English and'American cases and decisions, lays down the rule without any qualification, that, “ in declaring in the case of a new promise or acknowledgment, the declaration is upon the original promise.”
That this is the well settled rule established by the great current of both the English and American decisions, I can entertain no doubt.
There is, however, a class of cases which, according to the decisions of the English* and some of the American courts, form an exception to the rule. These are where the old and new promise are not between the same parties; as where the new promise relied on to take the case out of the statute was made to the executor of the person to whom the original promise was made. In this class of cases, where the action was brought by the executor upon a promise to his testator■, to which the defendant pleaded the statute, and, to take *568the ca.se out of its operation, evidence of a new promise to the executor was relied on, it lias been held that the action could not be maintained, because the evidence of the new promise to the executor did not maintain the issue, which was upon a promise to the testator. 2 Ld. Raym. 1101; 2 H. Black. 562; 1 Barn. & Cress. 284 (8 Eng. Com. Law, 67); 6 Taunt. 210; Jones v. Moore, 5 Binn. (Penn.) 573. Now this is a class of cases referred to in support of the opinion of the court, or rather of the opinion upon which that opinion seems founded; but these cases differ essentially in their facts from the present, and the principle which they assert is not the general rule, but confessedly an exception to the rule. Nor is the justice of this exception universally conceded. In Jones v. IVIoore, supra, Breckenridge, J., declared it as his opinion that the acknowlment or new promise ought to be replied; that such a replication would be no departure, and the evidence would be admissible. And the supreme court of Massachusetts, it is said, have been unable to perceive the technical difficulty in this class of English cases, and the practice in that state has always been in all cases to declare on the original promise. Angell, 316; Little v. Blunt, 9 Pick. 488. Hence it is evident that even the exception recognized by the English courts in this class of cases is occasioned by a technical rule in their pleadings, not universally admitted even where that system of pleadings has been adopted. But the present does not come within the class of English cases here referred to. In this case the old and the new promise were both made to the same party, the plaintiff below, and hence this “technical ■difficulty ” is not presented in this ease. But if it were, it ought, I imagine, to be as little embarrassing to this court as it has been to the supreme court of Massachusetts.
The case decided in South Carolina, and cited and relied on by the court in this case with so much confidence, differs, as I conceive, materially from the present. In the first place, that was the case of an executor, and might be supposed properly to come within the exception to the rule just stated. The old and new promise were not between the same parties. The suit, too, was upon an assignment made after the new promise, *569which seems to have materially affected the decision. And' again, in that case the statute had interposed a complete bar to an action upon the old promise before the acknowledgment or new promise was made. The old promise had ceased to-have any legal obligation and constituted only a moral obligation, sufficient merely to serve as the consideration for the new promise. In such a case there seems to me to have been more reason for considering the new promise the cause of action. It alone gave the remedy. It gave vitality to that which was dead in law, and might, therefore, be said to be effectually the cause of action. Not so in the present case. In this case the statute had not barred the original promise or causq of action when the new promise was made. But at the date of the new promise the old promise existed in-full force, with all its-original legal effect and obligation ■ — ■ neither of the notes sued on having been then due but a little more than one year. It could then, it seems to me, with no propriety be said to be a mere moral obligation or duty, sufficient only as a consideration to support the new promise. It was not a moral obligation merely, but a valid, subsisting legal obligation, on which the plaintiff might then have brought suit as his cause of’ action, without reference to the new promise. It did not need the new promise to give it vitality. The only effect of the-latter was, not to give a cause of action, for one manifestly existed without it, but simply, in the language of the statute, “to take the case out of the operation of the law;” that is, operating upon the cause of action then existing, to obviate the effect of the statute for the time which had then elapsed, and to place the case upon precisely the ground it would have occupied in relation to the statute had the cause of action just then accrued. That, obviously, was then the effect of the new promise, if it had any effect; and I am aware of no principle by which its effect could, afterwards, at any particular point of time, have become transformed into something else, unless we are to adopt the singular position that the old promise continued to be the cause of action for several years after the new promise was made, and until just four years had elapsed from the maturity of the former, and then,. *570at that exact point of time, by some kind of “ legal magic,” tbe former was divested of and the latter invested with the essential quality to constitute the latter thenceforward the cause of action. But the view which involves such a proposition, in whatever form announced, presents, I think, a refinement too subtle to be seriously entertained as a practical and legal truth. The original cause of action, then, in this case was never barred; nor was the right of action upon it ever, for one moment, lost or suspended, up to the period of the commencement of this suit. In this view, therefore, it seems to me, as well as in view of the general rule stated, the action ■was well brought upon the original promise in this instance. But where the old debt was barred when the new promise was made, as in the South Carolina case cited, and others in which language somewhat similar, though not inconsistent with the recognized general rule I have stated, has been used, I readily agree that the new promise may be considered as, in one sense, the cause of action. In such a case, as was said by Wilde, J., in Little v. Blunt, before cited: “When the statute is pleaded, the plaintiff may reply the new promise, and when the pleadings assume this shape the original promise is apparently the cause of action; but it is the new promise alone that gives it vitality, and that, substantially, is the cause of action.” Yet in this case it was held, conformably to the established rule, that the new promise being implied from the original consideration, it was necessary to declare on the original consideration. The new promise could not be supported on the ground of a new consideration as an independent, substantive promise. Id. A declaration upon it alone, without setting out the original consideration, would therefore be bad. Upon an acknowledgment of the justness of the original debt, a promise is implied. And though it may be said that the new promise is the cause of action in that sense in which it gives a remedy where it had been lost, yet it is not so in that sense in which it is evidence of the consideration, or the fact and amount of the original indebtedness. So that, whatever may be said of the cause of action, it is the original consideration which has served to support both the old and new promise, and which *571constitutes tbe foundation of tbe plaintiff’s right. And tbe proposition that the new promise is the cause of action seems, to borrow the language of Mr. Justice Johnson, 5 Peters, 522, 41 rather a metaphysical position than a practical and legal truth.” "When the statute has been pleaded, it seems to me, as stated by Lord Ellenborough, 16 East, 420, that “ the only question is, whether the defense given by it has been waived.” And this, it seems, would have been the prevailing view had the pleadings in the earlier cases been so framed as “ to raise the question of waiver.” 13 Eng. C. L. 275.
In taking a distinction between an acknowledgment or new promise made before, and one made after the period of limitation had elapsed, I do not follow the imperfect and unsafe guidance of my own unassisted, hasty first impressions, nor rely alone on my own reasonings and conclusions, unsupported by authority. The distinction was taken by Holt, Ch. J., in one of the earliest and leading cases upon the statute. Heylin v. Hastings, Ld. Raym. 389; and in Scales v. Jacob, 13 Eng. C. L. 85, Burrow, J., said: “The acknowledgment which has been made within six years keeps the debt alive, according to all the cases, and is very different from the acknowledgment or promise made after the expiration of that time. Such a promise creates a new obligation, and must therefore be taken with all its qualifications.” He cites the opinion of Lord Holt, just referred to, and concludes that “there seems to be a solid and recognized distinction between an acknowledgment made before the expiration of the six years, and an acknowledgment after.” And Park, J., appears to have been of the same opinion. It was, however, a divided court; and although the distinction taken appears to my mind a clear and sound distinction; one the reality of which I cannot doubt, and upon which, if necessary, I could not hesitate to act, yet I do not rest my judgment upon it in the present cases, since its soundness has been questioned, and it is not material to the view I entertain of the law of this case, as resting on other grounds, the soundness of which, when well considered, will not, I think, admit of a question. I have, therefore, only adverted to it in this connection, as making one *572of several points of difference between this case and the South Carolina ease, so much relied on. And whatever may have been the language of Judge Oneal in that case, as the decision was upon a state of facts differing in other respects materially, as I conceive, from the present, I cannot regard that case as a precedent for this. .
A brief reference to the rulings in the English cases cited will show with how much reason they can be regarded as authorities in support of the present decision.
In the first of these, Pittam v. Foster, 8 Eng. C. L. 67, Abbott, Oh. J., reviews the cases to which I have referred as constituting the exception to the general rule, and adopts and applies to the facts of that case the principle of those cases. The action was brought against Poster and Norris and wife, upon promises made by Foster and the wife before her-marriage; the defendants pleaded the statute, whereupon issue was joined, and the plaintiff relied upon an acknowledgment made by Poster after the marriage of Norris and wife; and the question was, whether that supported the issue which was upon a promise while the wife was sole; and under .the decisions referred to, and especially the case of Ward v. Hunter, 6 Taunt. 210, which was an action by an executor on promises made to his testator, determined when Lord Oh. J. G-ibbs presided, “than whom,” says Abbott, Oh. J., “no judge was ever more perfectly acquainted with the rules of pleading,” the court held that it was not evidence to support the issue. And this was the only question decided in the case.
In Scales v. Jacob, 18 Eng. C. L. 85, the question was as to the sufficiency of the acknowledgment to take the case out of the statute. ' The new promise was to pay when of ability, and the only point decided was that, to enable the plaintiff to recover, he must also-prove the defendant’s ability.
In Tanner v. Smart, 13 Eng. C. L. 273, where the plaintiff relied on a like conditional promise in these words: “ I cannot pay the debt at present, but I will pay as soon as I can,” the question was thus stated by Lord Tenterden, Oh. J.: “ The point is, whether this is such an aeknowdedgment as, without *573proof of any ability on tlie part of the defendant, takes the case out of the statute.” And it was held that it was not.
In Hurst v. Parker, 1 B. & A. 91, it was decided that the principle which makes an acknowledgment an answer to the plea of the statute is not applicable to actions of trespass.
"With what reason or justice these cases can be said to support the decision in the present, I need not express an opinion. The question as to the necessity of declaring upon the new promise, in a case like the present, did not arise and was not decided in either of those cases. The question considered in the present case is, was the suit well brought on the original promise? Or ought it to have been upon the new promise? The court has determined the latter, and I submit that neither of the cases cited is an authority for that proposition. The settled rule of law in the courts where these cases were determined was otherwise, and in no one of them was that rule disturbed or its soundness questioned. Nor is there any just ground for the supposition that there is any conflict between the earlier and more recent decisions of those courts upon this question. On the contrary, in a more recent case than any of those cited, Upton v. Else, 22 Eng. C. L. 451, adverting to the rule which requires the suit to be brought upon the original promise, Best, Oh. J., said: “We cannot get over it.” It was always the rule in the English courts and has never been departed from in a case like the present. How a court in which the common law is the rule of decision, can “get over” this rule of those courts whose decisions afford the highest possible evidence of what the common law is, without, assuming an authority totally subversive of the authority of the best established precedents and the most solemn adjudications, an authority, indeed, superior to the law of the land, I am, I must confess, at a loss to comprehend.
The New York case cited, Sands v. Gelston, 15 Johns. 511, is equally foreign to the question. So far from being an authority for the position that the plaintiff must declare upon the new promise, in the opinion of the court by Spencer, J., there is not even an allusion to that proposition; and the only. *574question considered and decided is the same as in Scales v. Jacob and Tanner v. Smart, just cited, as to what is a sufficient acknowledgment to take the case out of the statute.
The case of Bell v. Morrison, 1 Pet. 351, is an authority upon the question in Sands v. Gelston, as to when the acknowledgment will be held sufficient, which it cited and approves. The question was one of evidence, not of pleading. In the very elaborate opinion of the court by Mr. Justice Story, I have not been able to find the expression of an opinion as to how the promise ought to be laid in the declaration. That question did not arise and was not decided in the case.
To pursue the inquiry further would be an unprofitable consumption of time. It is enough for my purpose that, as I understand them, no one of the cases cited is a precedent for this in point of fact; and in point of law, no one of them conflicts with the rule of the common law applicable to this case. Nor is that rule, as I conceive, the result of any technicality peculiar to the English system of pleadings. It was not adopted in reference to any particular system or rules of pleading. It is a rule of the common law engrafted upon our jurisprudence, as binding and obligatory here as in England or any other state of this Union in which the common law is the rule of decision. It is the exception to the rule, as we have seen, which has been occasioned by an adherence in England to the technical rules of pleading.
I do not perceive that the question as to the manner in which advantage should be taken of the statute is presented by the record in this case. The statute was pleaded and relied on as a defense in the court below, and there has been no question that it was well and rightly taken advantage of. A discussion of that question is therefore uncalled for by anything contained in the record before us. This question, however, was presented and decided at an early day in the present term in the case of Petty v. Cleveland, ante, p. 404, and I have heard nothing to weaken my conviction of the correctness of the rule then stated, that a defendant who would avail himself of the defense afforded by the statute must make and *575rely upon it as a ground of defense in tbe court below. The manner or form of setting up the defense, in our practice, I regard as quite immaterial. If the fact appears upon the face of the petition, it may be taken advantage of by demurrer or exception. But if it does not so appear, I know of no way in which it can be brought to the knowledge of the court but by pleading it. I regard the statute as a shield and not as a sword, as has been said; as a defense, which to avail a party he must avail himself of. And when he does so, whether by plea or exception, the plaintiff may reply the new promise or any exception which will take the case out of the operation of the statute. A replication is, in my opinion, as much a part of our system, by the force of positive law, as it is of the English, or as it was of the system existing here anterior to the adoption of the common law. In the case of Underwood v. Parrott, ante, p. 168, where this, I think, is shown, I felt constrained to yield my own opinion of its necessity to what I believed to be the sense of the profession, a long-acquiesced-in practice, and the opinion of a majority of this court. Still, under the rule in that case, a replication is allowable, but the evidence was admissible without it, upon the principle (to use the expression of Lord Ellenborough, 1 Barn. & Ald. 463) “of rebutting the statute of limitations.” "With so much of the opinion in that case, however, as dispenses with the necessit}"- of a replication to let in evidence of new matter in avoidance of the answer, I here take occasion to say, I have never been well satisfied. I believe that the proofs under our pleadings, no less than under those of the courts of common law or chancery in England, ought to conform strictly to the allegations of the parties; and when the proofs go to matters not within the allegations, they ought, if objected to, to #e excluded. Nor do I think it practically very material by what name the allegata in confession and avoidance of the answer may be called, provided the end in view be effectually attained. If the views upon that subject which appear to control the present case (to the facts of which I think them inapplicable), and which assign to an amendment the office of a replication, had been suggested as the views of any member of *576-577this court, when the case of Underwood v. Parrott was under consideration, where they clearly were applicable, I should gladly have acquiesced in them as securing, under another name, what I regard as a principle of the very first importance in our pleading and practice. And while, for the reasons I have stated, I cannot admit their applicability to the facts of the present case, I shall be ready in every proper case, consistently with these views, to hold the rule inviolable, that where new matter in avoidance of the subject matter of the answer is intended to be relied on in evidence, it must be replied or alleged upon the record, under the name, if it be preferred, of an amendment to the petition, or the evidence, if objected to, must be excluded. And on this point, I shall most cheerfully acquiesce in considering the case of Underwood v. Parrott as now overruled by this case.
Finally, the present is not, as I conceive, now an open question in this court. It was considered and expressly decided by the unanimous opinion of the late supreme court in the case of Selkirk v. Betts, Dallam, 471. The court in that case say: “The suit was well brought on the note. It was not necessary for the plaintiff to have noticed any subsequent promise of the makers to pay its amount or the balance to him.” And again, “a promise to pay a debt barred by prescription or a statute of limitations, or a promise to pay the assignee or holder of a chose in action, is not a new contract,, nor is there any need for a new or cumulative cause or consideration to support it.” The suit in the present case must be considered as having been brought under the direct authority of this decision; a decision made as long ago as the January term, 1842; and now for the first time questioned. On a decision of that court upon this question I am content to repose my judgment. And even if the court in that case were inaccurate in their statement of the law, I should not feel justified in visiting upon an innocent party the errors of the court of the last resort. When that court has decided, it is, as I conceive, the right of every one to adopt and act upon its decisions as the settled law of the land, until the lawmaking power shall have prescribed a different rule. The de-*578cisiona of the supreme court I regard as the settled law of this court. They have been referred to and treated as such in ^repeated decisions. They have been regarded by this court, and, I think, justly, as settling some of the most important principles and rules of property, upon grounds and reasons, which, having been acquiesced in for a series of years, and having doubtless exerted an influence upon legislation as well as private contracts, and rights having been vested under them, this court has not felt at liberty to question. 1 Tex. 770,788. Similar considerations constrain me to respect the decision just cited. It rests upon as high authority as any decision of this court. And I should be quite as slow to disturb it as our own more recent decisions, which have become less extensively known and acted on, and which might therefore be disturbed with less danger of putting in jeopardy and doubt the rights of person and property.
In a case like the present, where no considerations of justice seem to require a departure from former decisions, it seems to ine that we may well be, in the language of the supreme court of the United States, “entirely satisfied to administer the law as we find it.” It is enough for me that the rule of law has been settled; and upon such a question, especially, it seems to me that the certainty of the law, which alone can afford security and repose to every valued right, is a consideration of paramount importance. It matters very little, I think, whether the new or the old promise be considered the cause of action, provided we have one uniform and certain rule of decision by which to attain the real and substantial justice of each case. But I cannot conceive that the ends of justice will most likely be subserved, or that our own judicial system will most likely ever attain to any degree of certainty, harmony or consistency, by needlessly innovating upon these rules which have been well and satisfactorily settled; or by subverting any one of the few adjudged principles, which a few years have sufficed to furnish for our guidance, in the endeavor to harmonize the principles of apparently conflicting legal systems.
It is not the importance in themselves of the questions discussed iii the opinion, but of the principles involved in the *579'judgment of the court in this case, which has seemed to me to •demand a statement of the reasons which constrain me to withhold my assent. From the view I have taken it results, and it is therefore my opinion, that there is no error in the judgment, and that it ought to be affirmed.