Wolffe v. Eberlein
74 Ala. 99
Ala.
1883
Check Treatment
SOMERVILLE, J.

— Thе proposition is not denied, that where a debt has been discharged by a decree in a court of bankruptcy, it may, in a certain sense, be revived, so as to *103renew its legal obligation, by an express and unequivocal promise tо pay it, made by the debtor subsequent to the date of discharge. The authorities are in perfect harmony as to this principle, the only conflict of opinion being as to cases where the debtor makes a promise to pаy prior to obtaining his certificate of discharge. — Evans v. Carey, 29 Ala. 99; Bishop on Contr. § 448; Allen v. Ferguson, 18 Ala. 1; Knap v. Hoyt, 57 Iowa, 591; s. c., 42 Amer. Rep. 59; Nelson v. Stewart, 54 Ala. 115. This case is clearly of the former class, the promise to pay being express, and subsequent to the discharge in bankruptcy.

The present action was brought on ajudgment, in defense of which the appellant, in the court below, set up by way of plea his discharge in bankruptcy. The plaintiff made replication of an express promise by defendant to pay the claim unconditionally. The main point of contention is on the form of the pleadings. It is insisted that the replication of a verbal promise is a departure from the original cause of action, which declared on a judgment, and that the action should have been based upon the new promise, and not upon the judgment, which was extinguished by the fact of dеfendant’s discharge in bank-, ruptcy.

There are two views of this subject presented in the books, as to the effect of a new promise to pay in its relations to a plea of bankruptcy. The more logical and sounder view, perhаps, is, that the new promise, and not the old debt, is the meritorious cause, or real foundation of the action. The old debt has become extinguished by operation of law, and no longer exists. But the moral obligation to pay still exists, and this, сoupled with the antecedent valuable consideration, is sufficient to support a new promise, if clear, distinct, and unequivocal in its nature. The moral obligation, uniting, to the new promise, makes what was designated by Lord Mansfield, in Truman v. Fenton, Cowp. 544, “a new undertaking and agreement.” — DePuy v. Swart, 3 Wend. 135; s. c., 20 Amer. Dec. 673; Fraley v. Kelly, 88 N. C. 227; s. c., 43 Amer. Rep. 743.

There is another class of cases, supported perhaps by the weight of authority, which refer the efficacy of such promises exclusively to the principle, that the defendant may renounce the benefit of a law designed for his .protection, and that the effect of the new promise is to waive any discharge that may be obtained in bankruptcy, at least to an extent commensurate with the promise itself. Mr. Wharton, in his recent work on Contracts, after observing that ‍‌‌‌​​‌‌‌​​​‌‌‌​‌‌‌‌‌‌‌‌‌​​​‌​‌‌​​‌​‌‌‌​‌‌‌​​​‌‌‌‍the validity of promises of this class is no longer placed upon the consideration of moral obligation, asserts that “the liability is now based exclusively on *104the right of a party to waive the protection of a statute relieving him from indebtedness.” — 1 Whart. Contr. § 513. Mr. Addison suggests, that “ the express promise operates to revive the liability аnd take away the exemptions — 1 Add. Contr. (Amer. Ed.) § 13. The same view is adopted by Mr. Parsons and Mr. Bishop in their works on Contracts, and, in fact, with singular unanimity by most if not quite all of the text-writers. — 1 Parsons’ Contr. 434-435* ; Bishop on Contr. §§ 446-448; Leake on Contr. 317; 1 Story on Contr. § 466. The past decisions of this court seem to have рroceeded upon this theory of the law, and the prevailing system of pleading, by which the plaintiff is accustomed to declare upon the original promise, and to introduce the new promise by way of replication to the рlea of bankruptcy, is manifestly an outgrowth of it. — Dearing v. Moffitt, 6 Ala. 776; Branch Bank v. Boykin, 9 Ala. 320; Evans v. Carey, 29 Ala. 99, 107.

It is not required that we should decide which of these two theories is correct. The better view, in our judgment, is that suggested by Mr. Parsons, that the plaintiff may, at his election, bring suit either upon the new promise, and declare upon it, in .the first instance, as the foundation of his action, thus himself assuming the onus of proving the discharge in bankruptcy, without which the new promise would be unavailing; or he may sue upon the old or original promise, and, when the plea оf bankruptcy is interposed as a defense, may set up the new promise in his replication to the plea, as in analogous cases'involving the defense of infancy and the statute of limitations. 1 Parsons’ Contr. 434-5* (6th Ed.), note (w), and cases citеd.

In DePuy v. Swart (3 Wend. 135; s. c., 20 Amer. Dec. 673, 676), while it was held that the liability of the bankrupt was referable only to the new contract, it was said to be well settled,- that the plaintiff could declare on the original cause of action. “ The inconsistency of making the nеw promise the basis of the action,” it was observed by Makoy, <L, “ and at the same time allowing the plaintiff to declare upon the antecedent debt, which has been discharged, or the remedy upon it barred, has been often presеnted in the eourts»of England and Of this country; and although it has been sanctioned, it has been looked upon as a deviation from the general rule requiring a plaintiff to state in his declaration the agreement or whole cause of aсtion whereon his suit is brought.” In Shippey v. Henderson, 14 Johns. (N. Y.) 178, it was held proper for the plaintiff to sue the bankrupt on the original demand, and to' reply the new promise in avoidance of the discharge set up in the plea; and such replication was decided nоt to be a departure from the declaration. This ruling was followed in many subsequent cases in New York, including Dusenbury v. Hoyt (53 *105N. Y. 521), decided as late as 1873, in which the court said: “We are of opinion that this ‍‌‌‌​​‌‌‌​​​‌‌‌​‌‌‌‌‌‌‌‌‌​​​‌​‌‌​​‌​‌‌‌​‌‌‌​​​‌‌‌‍rule of pleading, so well settled, and so long established, should bе -adhered to. The original debt may still be considered the cause of action for the purpose of the remedy?- — Fitzgerald v. Alexander, 19 Wend. 402; Wait v. Morris, 3 Ib. 394. In the case of Field’s Estate (2 Rawle Penn. 351; s. c., 23 Amer. Dec. 454), it was held that the new promise was substantially the meritorious cause of action ; but it was said that it might be treated otherwise in the pleadings, by declaring on the old promise, although this was admitted by Gibson, O. J., who rendered the opinion in thе case, to be an anomal/y in pleading. There are a large number of cases supporting the same view. — See Bishop on Contr., § 448, and cases cited in note 3.

We have been cited to no case which holds that this long-established rule of plеading is to be abandoned, where the action is one of debt brought upon a fidgment of a court of record. The case of Maxim v. Morse, 8 Mass. 127, was brought on a judgment, and the plaintiffs replication of a verbal promise by the bankrupt to pay the debt was held to be no departure from the original cause of'action, being declared to be such more in appearance than reality. The case of Otis v. Gazlin, 31 Me. 566, was a similar suit, in which the plaintiff successfully declared upon the judgment, instead of the new promise, and, although bankruptcy was pleaded, the form of pleading was held to be correct.

A strong analogy is found in cases involving the plea of the statute of limitations. Bankruptcy, it is true, extinguishes the debt as a legal subsisting demand, while the operation of the statute is only to destroy the remedy. Tet it is settled in the one class of cases, as well as in the other, that the new promise is the true and real foundation of the cause of action, and, strictly speaking, upon it alone can a recоvery be had. Such is the settled doctrine of this court,’ and since the case of Bell v. Morrison, 1 Peters, 351, decided by Judge Story more than fifty years ago, it ‍‌‌‌​​‌‌‌​​​‌‌‌​‌‌‌‌‌‌‌‌‌​​​‌​‌‌​​‌​‌‌‌​‌‌‌​​​‌‌‌‍may be regarded as the recognized doctrine in this country. — Bradford v. Spyker, 32 Ala. 134; Angell on Lim. (6th Ed.) § 212. Notwithstanding this fact, the rules of pleading permit the plaintiff to declare upon the original debt, and, when the statute of limitations is pleaded, to reply the new promise. — Angelí on Lim. § 288. In Bradford v. Spyker, 32 Ala. 148, this feature of pleading was said to be an anomaly in the law; but the court approved it, as sanctioned by lоng practice rather than in principle, quoting the language of Best, C. J. in Upton v. Else, 12 Moore, 303 (22 Eng. Com. Law, 451), where he said: “ Probably, the new promise ought in strictness to be declared on specially ; *106blit the practice is inveterate the other way, and we cannot get over it.”

The practice adopted in the presеnt action of declaring on the original debt, where the bankruptcy of the defendant is pleaded, has prevailed for a long time in this State. Though an anomaly in the law, we can see no good to result from abolishing it by judicial decision, but rather inconvenience and confusion. Admitting it to be wrong in principle, we feel justified in permitting it to stand, if for no other reason, because it is supported, with few exceptions, by the antiquity of uninterrupted practice, not only in this State, but generally in the courts of England and America.

2. The objection to the party plaintiff, in whose name the present suit was instituted or revived, is not well taken. A judgment is not “ a contract, express or implied, for the payment-of money,” within the meaning of seсtion 2890 of the present Code, such ■ as entitles the assignee to bring an action thereon in his own name. — Johnson v. Martin, 54 Ala. 271. The assignment, moreover, was made to the plaintiff, Eberlein, individually, after the commencement of the action, having been made by Mrs. Eslava, the original plaintiff in the judgment, during her life-time. The legal title remained in the latter, with only an equity vested in the assignee. After the death of Mrs. Eslava, this title passed to her administrator in trust for the beneficiary, and the suit was properly revived in his name.

3. In Evans v. Carey, 29 Ala. 99, it was deсided that an express promise by a bankrupt, to pay a .particular debt to a creditor, would “ avoid the effect of such discharge, as well when the words constituting such promise are spoken to a third person, as when they arе spoken to the creditor personally, or to his agent.” On this principle, the promise made to the agent of the assignor ‍‌‌‌​​‌‌‌​​​‌‌‌​‌‌‌‌‌‌‌‌‌​​​‌​‌‌​​‌​‌‌‌​‌‌‌​​​‌‌‌‍of the present judgment must be held to enure to the benefit of the assignee. We follow this authority, although it can рrobably be justified solely on the theory, that the effect of the new promise is only, using the language of Mr. Parsons, “to do away the obstruction otherwise interposed by the bankruptcy and discharge.” — 1 Parsons Contr. 434; Otis v. Gazlin, 31 Me. 567. It harmonizes with the practice, however, of declaring upon the original debt in such cases, and of introducing the new promise by way of replication to the plea of bankruptcy.

4. It is contended that no recovery can be had in the . present action, bеcause the plaintiff was never legally appointed administrator of Mrs. Eslava’s estate, an issue which was properly presented under the plea of ne wnques administrator. The order of the Probate Court of Mobile, showing the *107appоintment, recites that “ George Eberlein is hereby appointed the legal administrator of the said estate [of Celestine Eslava], for the special purpose of conducting a suit at law instituted by said Celestine Eslava in the City Court of Montgomery, in the State of Alabama, against one Frederick Wolffе,” proceeding further to describe the present action. It is insisted that these letters of administration are absolutely void. The authority of the Probate Court to appoint the plaintiff administrator is not denied. It is not shown that there is no vacancy in the administration, and, in the absence of evidence to the contrary, such vacancy must be presumed, in view of the fact that Courts of Probate in this State are courts of '■‘■general jurisdiction for the granting of letters testamentary and of administration.” — Const. 1875, Art. VII. § 9; Burke v. Mutch, 66 Ala. 568; Allen v. Kellam, 69 Ala. 442; Gray’s Adm’rs v. Cruise, 36 Ala. 559. Conceding that Courts of Probate have no power to limit the duties of the administrator to the narrow sphere of conducting a single suit, we are unable to perceive upon what principle this would vitiate the appointment itself. The power to appoint is unquestionable, and so likewise is the judicial act of appointment in exercise of the power. The objection, if valid, goes only to the effort to put a limitation upon the authority of the аdministrator, which would present the case only of the exercise of a lawful power in an unlawful or irregular manner. This would, at most, render the judgment voidable and not void, and such irregularity could be presented ‍‌‌‌​​‌‌‌​​​‌‌‌​‌‌‌‌‌‌‌‌‌​​​‌​‌‌​​‌​‌‌‌​‌‌‌​​​‌‌‌‍only in a direct proceeding, and not on collateral assailment. — Burke v. Mutch, 66 Ala. 568, аnd cases there cited. Perhaps the sounder view would be, that the attempt to limit would be a mere nullity, in as much as the law fixes the duties of the administrator after appointment, and not the probate judge in violation of the law. The prеsent case does not seem to be affected by sections 2358 and 2625 of the Code, relating to special administrators and administrators ad litem.

There are some other exceptions in the record, based upon the rulings of the court on the evidence. These we have examined, and find nothing of merit in them.

The judgment of the court below is, in our opinion, free from error, and it is accordingly affirmed.