| Ill. | Oct 23, 1907
delivered the opinion of the court:
The basis of the action was the tort committed by defendant in 1892. Clearly, the Statute of Limitations would be a good plea to a declaration in case filed in 1904 counting on a tort committed in 1892. Appellant’s counsel say in their brief the only question involved is whether the promise set up in the replication to the plea of the Statute of Limitations restored the remedy, and contend that a recovery is authorized because, first, “appellant declares in assumpsit upon a liability ex contractu created and imposed by law, by reason of the fraud stated in the declaration; second, if the action be one in reality to recover for a tort and the law of torts governs, still the acknowledgment and new promise in writing waived the Statute of Limitations, removed the bar and restored the remedy for the tort committed.”
The rule that a subsequent promise will remove the bar of the Statute of Limitations applies to actions on contracts but not to actions ex delicto. (19 Am. & Eng. Ency. of Law,—2d ed.—289.) In Oothout v. Thompson, 20 Johns. 277, the action was for fraud in the sale of a slave. The Statute of Limitations was six years, and suit was brought after the expiration of that time. To the plea of the Statute of Limitations plaintiff replied a subsequent promise within six years next before the commencement of the suit. The court held the action could not be revived, and said: “A case of this kind does not stand upon the same principle as the acknowledgment of a debt within six years. There, the acknowledgment is evidénce of a new promise; here, it is not evidence of a new trespass, and therefore there is no analogy between the two cases.”
In Peterson v. Breitag, 88 Iowa, 418" date_filed="1893-05-22" court="Iowa" case_name="Peterson v. Breitag">88 Iowa, 418, a suit was begun to foreclose a mortgage made to secure a note which was given in settlement of damages claimed by the payee and mortgagee to have been sustained by him as a result of a tort committed by the mortgagor. The tort was committed in 1877 and the note and mortgage were executed in 1889. By the Statute of Limitations of the State of Iowa an action in tort was barred in two years. The court held there was no consideration for the note and mortgage and that they could not be enforced because the liability resulted from a tort, which was barred by the Statute of Limitations before the note and mortgage were given, and the giving of them could not operate to revive the cause of action. On page 421 the .court say: “But it must be conceded that it is always permissible for the defendant in such an action to show, by pleading and proof, what the consideration for the note and mortgage was. When this is done, the transaction is just the same as if the defendant had inserted in the note and mortgage an admission of guilt and that the note and mortgage were given to- pay the damages occasioned thereby. Any other holding would sacrifice the substance of the transaction to the mere form. In whatever way the question is viewed, in connection with the pleadings and agreed statement of facts, there is no escape from the conclusion that the rights of the parties" are the same as if the defendants had signed a writing acknowledging liability and promising to pay for the wrong.”
In Holiham v. City of Detroit, 98 N.W. 754" date_filed="1904-03-08" court="Mich." case_name="Holtham v. City of Detroit">98 N. W. Rep. 754, it was said: “An action of tort once barred by the Statute of Limitations cannot, like an action arising out of contract, be revived by either an express or implied agreement.”
We are of opinion that if, as contended by plaintiff, the fraudulent representations and concealments of defendant alleged in the declaration created a liability from which the law implied a promise to pay, so that indebitatus assumpsit would lie, still the liability results from a tort and not a contract. If the tort might be waived and an action of assumpsit maintained, still the very foundation of the action is the tort, and it is only by a fiction of law that a promise to pay is said to be implied. It is true, as contended by counsel for plaintiff, that in this State the authorities are to the effect that in actions ex contractu, where a subsequent promise is relied upon to take the case out of the bar of the statute, the original promise, and not the subsequent one, is the cause of action, and the subsequent promise only operates to restore or revive the remedy on the original cause of action. But as this rule does not apply to actions ex delicto, where the only cause of action is a tort, it would be illogical to say that an action in tort, when barred, cannot be revived by a subsequent promise, but as the law implied a promise to pay the alleged damages resulting from the commission of the tort, the action in form ex contractu may be revived by a subsequent promise. If the declaration, instead of setting out the tortious acts out of which the liability arose, had been in the ordinary form of indebitatus assumpsit, it could not be contended that the discharge in bankruptcy would not be a complete bar.
Each count of the declaration alleges that within five, years before the declaration was filed defendant admitted his liability and promised to pay. If the suit be treated as upon the original tort it was barred before the declaration was filed. If it be treated as upon a liability growing out of the subsequent promise to pay, then the plea of defendant’s discharge in bankruptcy releases the bankrupt from all his provable debts except such as are “liabilities for obtaining property by false pretenses or false representations, or for willful or malicious injuries to the person or property of another.”
We are of opinion the judgment of the Appellate Court was correct, and it is accordingly affirmed.
Judgment affirmed.