By the Court,
Savage, Ch. J.It is settled that the mode of declaring adopted in this case is right. 14 Johns. R. 180. Though the new promise is that which sustains the action, still the plaintiff is at liberty to declare upon the original contract. The discharge is technically a release from the demand, yet it is only so technically; the debt is still due in conscience. Cowp. R. 548. The fact is confessed that the plaintiff has never received satisfaction, or consented to release the defendant; but still the discharge is a valid defence. The rules of pleading tolerate a replication of a new promise to such a plea, without considering it as a departure, though such a replication to a plea of payment or release would be bad. When we speak of contracts from which the defendant is discharged by the insolvent laws as functus officio, they must be understood to be so only sub modo, because they may still be declared on as valid contracts.
The only question then is whether the plaintiff, in his replication, should have pleaded the conditional promise as proved upon the trial. A conditional promise is said to be sufficient to take a case out of the statute of limitations. The reason is, that, as the statute raises a presumption of payment, that presumption is repelled equally by a conditional, as an absolute promise, for either admits the debt to be due. The case of a discharge is different in some respects. In the case of a debt barred by the statute, the legal demand exists continually, and may be enforced as soon as the presumption is repelled. In the case of a debt barred by a discharge, the demand is extinguished in law, though it still exists in equity and good conscience ; and as Lord Mansfield said, in Truman v. Fenton, “ there is no honest man who does not discharge them, if he afterwards has it in his power to do so. Though all legal remedy may be gone, the *396debts are clearly not extinguished in conscience.” But the legal demand being extinct, it cannot be enforced, unless revived or renewed by a new promise. It is not sufficient to admit that the debt is unpaid ; but there must be a promise, for which the old debt is a sufficient consideration. In the case of the statute, the original demand always remained in existence; in the case of the discharge, the original demand was legally extinguished. In the first case, the promise merely rebuts the presumption of payment, and waives the statute bar; in the latter, it forms the contract itself, and the plaintiff may declare on the original contract; still the replication is the real declaration, as that must contain the contract which is to be enforced. This must be conceded to be an anomaly in pleading, but it is settled on authority. It is not settled, however, that in such a case the plaintiff may declare or reply an absolute promise, and prove a conditional one. When a conditional contract forms the basis of the suit, the plaintiff should declare upon it, or, at least, set it forth in his replication. In the case of Penn v. Bennett, 4 Campb. 205, the plaintiff declared for goods sold and delivered; the defendant pleaded his bankruptcy ; the plaintiff replied a subsequent promise to pay the debt. It was uncertain upon the evidence whether the promise was absolute or conditional. Lord Ellenborough decided, and instructed the jury, that if the promise was conditional, the action could not be maintained ; that the plaintiff should have declared upon it, and have proved that the condition was fulfilled ; but if the promise was absolute, then the plaintiff was entitled to recover, upon the present state of the pleadings. The least, certainly, which can be required of the plaintiff, is to state the real contract in his replication; that was not done in this case. There was, therefore, a variance between the pleadings and the proof. A new trial should be granted, and the plaintiff permitted to amend his replication, upon payment of costs.