| Cal. | Jan 15, 1859
delivered the opinion of the Court—Terry, C. J., concurring.
The Court below erred in sustaining the demurrer to the complaint. Although it is true, that where a complaint shows prima fade upon the facts stated, that the claim is barred by the Statute of Limitations, the defendant may take advantage of the defect by demurrer, yet it must clearly so appear. In chancery, under the English system, this was the rule ; at law it was otherwise; there the statute must have been pleaded ; but as our pleadings approximate more nearly to the chancery than the common law form, we have adopted the equity rule. But when the complaint does not directly sho w prima fade a case for the operation of the statute, a demurrer cannot be sustained on this ground. In the present instance, the six hundred dollars were not to be paid absolutely at a given time, but this sum was to be paid as soon as the payor’s share of the claim sold should yield that amount, after deducting one dollar per day for expenses; and there is no averment that this state of things happened within the statutory limit. Nor is the case, as stated, within the Statute of Frauds. That statute requires a promise to pay the debt of another to be in writing, expressing the consideration. But this requirement has no reference to a promise by A, to pay money he owes by contract with B, to C. This is his debt; the mere direction in which he pays it, not altering the character of the contract from an original obligation. There is no difference between a debtor promising to pay his creditor directly so much money which he owes him, and promising his creditor to pay a third person the same sum, by agreement between the three. The last promisor is paying his own debt, and creating his own obligation, not assuming another’s. This has been often decided, and is too obvious
Judgment is reversed and cause remanded.