Shippey v. Henderson

14 Johns. 178 | N.Y. Sup. Ct. | 1817

Thompson, Ch. J.,

delivered the opinion of the court. The question that arises in this case is, whether the plaintiff may declare upon the original cause of action, or whether he is bound to declare specially upon the new promise. I think the proper way is to declare on the original cause of action. 1 see no reason why this case should differ from that of infancy, or that where the action is barred by the statute of limitation.

The discharge under the insolvent act does not make the original contract void; it is expressly laid down by Chitty (Pl. 40.) that where a debt is barred by a certificate of bankrupt, a promise made afterwards by the bankrupt will support an action, and that it is sufficient in such case to declare upon the original consideration. Such promise can only revive a precedent good consideration, the remedy having been suspended by the discharge. (3 Bos. and Pull. 250. n. 7.)

The new promise is sufficiently laid by the words ratified, renewed, and confirmed. The words “ renewed, the said several promises,” are peculiarly appropriate, and amply sufficient.

The replication is no departure from the declaration, but fortifies and supports it, by answering and removing the bar interposed by the plea. We are, accordingly, of opinion that the plaintifi is entitled to judgment.

Judgment for the plaintiff.