I am unable to agree. The case of Wolffe v. Eberlein, 74 Ala. 99, 49 Am.Rep. 809, contains a full discussion concerning the effect of a discharge in bankruptcy and is demonstrative of the fact that the difference of views bears relation more to the question of pleading than to substantive law. 8 C.J.S., Bankruptcy, § 583, p. 1577. And even as to this matter the Wolffe case points out that the rulings as to the feature of pleadings present "an anomaly in the law", and is only adhered to because "sanctioned by long practice rather than in principle." But we are not concerned with distinctions of that character. What is most impressive and reaches to the foundation of this litigation is the fact that in this case the new promise by the discharged bankrupt is the very basis of plaintiff's cause of action. The claim filed speaks only of the original debt, the note executed by the discharged bankrupt.
Plaintiff presumably knew that as administratrix of the estate the defendant was under solemn obligation to recognize the fact that the debtor had been relieved of the legal obligation to pay by the decree in the bankruptcy court, and could not be permitted in any manner to waive such discharge. With this knowledge the plaintiff filed a claim with no reference whatever or any indication that its claim was founded upon a new promise made by the decedent.
In the Wolffe case, supra, the court said: "That the new promise is the true and real foundation of the cause of action, and, strictly speaking, upon it alone can a recovery be had. Such is the settled doctrine of this court, and since the case of Bell v. Morrison, 1 Pet. 351, 7 L.Ed. 174, decided by Judge Story more than fifty years ago, it may be regarded as the recognized doctrine in this country."
It is my view the prevailing opinion in this case falls to give proper recognition to the purpose of our statute of nonclaims. It is settled by our decisions that though technical accuracy is not required, yet the statement must of itself, inform the personal representative on an inspection of it, of the nature, character, and amount of the liability it imports, and must distinguish it with reasonable certainty from all similar claims. Roberts v. Grayson, 233 Ala. 658, 173 So. 39; Floyd v. Clayton, 67 Ala. 265. *Page 641
The real purpose of the statute was that the claim give to the personal representative such proper information that he may determine — assuming its validity — how far he can proceed safely in the administration of the estate as solvent. Bibb Falkner v. Mitchell, 58 Ala. 657, Metcalf v. Payne, 214 Ala. 81,106 So. 496.
It would seem clear enough that the claim filed fails entirely to meet the letter or the spirit of the statute. It contains no hint of a new promise and nothing whatever to distinguish it in the slightest from other similar claims of which the bankrupt had been discharged. Knowing of the discharge of the bankrupt and without the slightest indication of any claim of a new promise which must be the foundation of this suit, I respectfully submit the personal representative had the perfect legal right to consider this debt as discharged with the others in reaching a determination as to the solvency of the estate. The claim filed withholds from the administratrix the only pertinent fact which might lead to a contrary conclusion, a fact upon which plaintiff must rely for recovery. And so far as the very foundation of his claim is concerned his statement tells the administratrix nothing.
Much more might be said with additional citation of authorities. But I forego further discussion. I am fully convinced that the trial court correctly ruled and of consequence respectfully dissent.
LAWSON, J. concurs in the foregoing views.