Of the many exceptions to the rulings of the court, which were taken by the plaintiff in review on the trial of this case, the only one upon which he now insists is the refusal of the court to rule that the discharge of the plaintiff (the defendant in the original action) under the insolvent laws of the Commonwealth constituted a good bar to the claims of the defendants in review. The decision of this question, in our judgment, turns upon the single inquiry as to the nature of the demand upon which the original suit was brought by the present defendants in review.
Upon reference to the record of the proceedings in the present case, we are satisfied that the action was brought upon the notes given or indorsed by A. Durant & Company, of which firm Foster, the original defendant, was a copartner. This is made apparent by various considerations. In the first place, the specification of defence filed by Foster sets up the statute of limitations as a bar to the plaintiff’s claim, and specifies “ said notes ” as having been adjusted and settled. This defence could not have been applicable to the account current between R. G. Shaw & Co. and the firm of A. Durant & Co. as an account stated; because it was made up and signed by Foster within six years prior to the commencement of the action, as shown by its date; and because the defence was in terms to the notes as the ground of action, and not to the account. The account current, signed by Foster, and by which he acknowledges the balance shown by said account to be due, was used, not as the substantive ground of action in the original suit, but only as an answer to the defence of the statute of limitations made by Foster to the notes, and for the purpose of proving a new promise. This is clearly shown by the fact that the plaintiff in review sought on the trial to avoid its effect as an acknowledgment of the original indebtment on the notes, upon the ground that it was signed by him alone, and not by all the members of the firm of A. Durant & Co.
But another and more decisive proof of the cause of action *153relied on in the original suit is found in the fact, that although the declaration in the original writ contains most of the common money counts, it does not include the one which is adapted to an account stated between the parties. 1 Chit. Pl. (6th Amer. ed.) 375. We think it clear therefore that the plaintiff brought his action on the notes upon which the original defendant was liable; and that the defendant pleaded to that action accordingly, by setting up the statute of limitations. To this plea the original plaintiff replied the new promise, and offered the account stated in proof thereof.
It follows as a necessary consequence that the discharge of Foster was no bar to a suit on the notes, because they all bear date prior to the 1st day of August 1838, and are therefore not within the provisions of the insolvent act of 1838, c. 163, §§ 6, 26, by which a debtor is discharged from all debts founded on any contract made by him after that date.
It is the well settled law of this commonwealth, that a new promise, by which a debt is taken out of the operation of the statute of limitations, does not create a new and substantive cause of action, but operates only as a waiver of a defence which the law had furnished him to an old promise, and a removal of the statute bar. It is the original debt, which constitutes the ground of action, and forms the basis of a judgment. Ilsley v. Jewett, 3 Met. 439. Way v. Sperry, 6 Cush. 241, 242. The former case is, in many respects, strikingly analogous to the case at bar.
For these reasons, we think the original debt was not discharged by the proceedings under the insolvent laws on the ■application of Foster, because it was contracted before the original insolvent act went into operation; and the ruling of the court below on this point was correct. Exceptions overruled,