The opinion of the Court was delivered by
Williams, C. J.The petitioner must ground his claim for a new trial, on the fact of his having discovered new and material evidence, since the former trial, or the petition would be out of time, more than one year having elapsed since the rendition of the original judgment. The court have not been disposed to favor applications, on this ground, where there have been several trials, as there may be under our system. In the present case, there are several strong reasons why the application should be refused. It appears that the original action was debt on judgment, to which the *136defendant, D. S. Barlow pleaded the statute of limitation. There was a replication to this, which was demurred to, and ' the cause was heard and decided upon the demurrer, both in the county court and in this court. If the prayer of the petitioner could be granted in such a case, it could be of no avail, unless the county court should permit the petitioner to withdraw his replication and reply anew. It would be anticipating more than we can with propriety, to say that this would be done by the county court.
Before a final judgment is entered on a demurrer, leave has been given on payment of costs, to alter the pleadings, but we are not aware that it ever has been, or can be done, at a time after a final judgment has been entered.
But there are no merits in the application.
The affidavits do not disclose any acknowledgment of the debtor prior to the judgment, which would have prevented the operation of the statute of limitations. The promises of the petitionee, D. S. Barlow, which are relied on, were founded on the idea that he was legally discharged from any claim on the debt, and were made subsequent to the judg? ment, and with a view of preserving peace and harmony be? tween him and the family of his uncle. The conversation testified to by Mr. Woodruff, was in October, 1836, nin.e months after the final judgment in this court. Samuel H. Barlow is not so definite as to the time. He says that within four years he has had conversations with Darius S. Barlow, in which Darius acknowledged the justness of the debt, but it is apparent from his affidavit, that this conversation was but a short time after the payment of the fifty dollars, in October 1836, as sworn to by Mr. Woodruff. The promise of the defendant, whatever it was, if founded upon a legal consideration, must be enforced by an action thereon, but there would be injustice in giving to these conversations, which, as stated in the affidavits, were evidently made to sustain the friendly relation, existing in the families of the parties, any greater effect than was intended, and, especially, it would be unjust to set aside the judgment, and leave the parties to litigate the merits of the original claim, or to make the defendant liable on the promise for the whole amount of the judgment originally recovered in the name of the petitioner,
The petition must, therefore be dismissed with costs,