The appellee sued the appellant on three promissory notes executed by the appellant to the appellee, in California, on the 22d day of January, 1855, two of which were payable generally and one payable in the town of Covington, Fountain county, Indiana.
*403The defendant pleaded the statute of limitations of California, which bars actions upon promissory notes in four years, alleging that he was, when the notes were executed, and ever since had been, a resident of that state.
The plaintiff replied, first, the general denial; second and third, a new promise made by the defendant, in writing, within four years prior to the time of the commencement of the action; fourth, the fourth paragraph of the reply was stricken out on the motion of defendant; fifth, that at and from the date of the contracts sued upon, the defendant was a non-resident of the State of Indiana, and was a non-resident at the time of the commencement of this suit; and that at the time of making the contracts, the payee was .a resident of the State of Indiana; and that said contracts were to be performed in the State of Indiana.
Demurrers to the second, third, and fifth paragraphs of the reply were overruled, and exceptions taken.
At the instance of the defendant, the court made a special finding and stated its conclusions of law. The defendant excepted to the finding as to the facts, as well as to the conclusions of law; and also moved for a venire de novo, which was overruled, and final judgment rendered for the plaintififi There is no evidence nor any bill of exceptions in the record.
The only questions involved in the case are those upon the demurrers, and the conclusions of law upon the special finding.
The first question in natural order for consideration is, whether the statute of limitations of California is a good bar to the action. Our statute of limitations provides: “The time during which the defendant is a non-resident of the State, or absent on public business shall not be computed in any of the periods of limitation. But when a cause has been fully barred by the laws of the place where the defendant resided, such bar shall be the same defence here as though it had arisen within this State.” It is the last sentence of this section which is relied upon in this case. The *404position of the appellee’s counsel is, that the clause can only apply to such persons as have resided in another state or country until the cause of action has been barred by the statute of such state or country, and have then become residents of this State; and that it does not apply to one against whom a cause of action has existed, which is barred by the law of the place of his residence, who is sued in this State while he is yet a non-resident of this State. It is said that in printing this clause of the section, the word “has,” immediately before the word “resided,” has been omitted. But, perhaps, the supplying of that word would not materially change the meaning of the clause. If it was material, could we regard it as part of the statute without its having been “published and circulated” as such according to the constitution? We think the construction of this clause contended for by counsel for the appellee, cannot be adopted. There is nothing in the language used which conveys the idea that the defendant must have ceased to reside in the place where he resided or “has” resided up to the time when the period of limitation expired, and has then become a resident here, in order to authorize him to claim the benefit of this section 'of the statute. It is our opinion that the court erred in 'overruling the demurrer to the fifth paragraph of the reply.
It is not necessary to consider separately the second and third paragraphs of the reply. They set up a new promise, made in writing, and allege that the writing has been lost, and, on careful and diligent search, cannot be found. There are two objections urged to these paragraphs of the reply; first, that the written instrument referred to in them is not filed with them, nor any sufficient excuse for not doing so shown; and, second, that they depart from, or are inconsistent with, the complaint. We think neither of these objections well taken. If an instrument which, or a copy of which, sfeóuíd otherwise be filed with a pleading has been lost, and on diligent search cannot be found, we see no other way than to dispense with the filing of it. At common law, profert of a lost instrument need not be made, when sued *405on in a court of law, if that fact was alleged as an excuse for not doing so; though in suits in chancery, an affidavit was required in support of a bill for relief upon a lost instrument. Following the case of Blasingame v. Blasingame, 24 Ind. 86, and the reasoning therein, we hold that it is sufficient to allege, in a pleading founded on a lost instrument, that it is lost and cannot be found, after careful and diligent search, to excuse the filing of the same, or a copy of it, with the pleading, without an accompanying affidavit.
To reply a new promise to pay a debt otherwise barred by the statute of limitations, is no departure.
It is conceded that it was not at common law; but it is claimed by counsel for appellant, that under the code it is different. We are referred to section 67 of the code, which authorizes the plaintiff, in his reply, to state “any new matter not inconsistent with the complaint.” That was precisely the rule before the code. The replication must be consistent with the declaration.
As early as the case of Zehnor v. Beard, 8 Ind. 96, it was said by this court, that “the inconsistency of the reply and the complaint is the same defect known in the old system as a departure in pleading.” The practice is to declare upon the original promise, and when the statute is pleaded, to reply the new promise. The new promise is a waiver of the right to rely upon the statute, or its effect is to revive the former cause of action and give it vitality. Angelí Limitations, sec. 288. That the new promise is now required to be in writing, does not change this rule.
Objection is made to.the special finding of the court, on the ground that it does riot specially find the existence of the statute of limitations of the State of California. But the evidence not being in the record, we cannot say that the court did not find all that the evidence justified. But suppose that the special finding did show that there was such a statute of limitations of California as set out in the answer; it shows also that the defendant made the new promise in writing, as alleged in the reply. The statute contains the *406same provision as our own with reference to a new promise, requiring that it shall be in writing and signed by the party to be charged thereby. The court found that the defendant promised in writing to pay the notes within four years before the commencement of this action. This was a good reason why the statute of limitations of California was no defence to the action; and notwithstanding the second and third paragraphs of the reply were bad, this one being good and having been found to be true, the plaintiff was entitled to judgment in his favor.
The judgment is affirmed, with one per cent, damages and costs.