Smith v. Richmond

Citations

• 19 Cal. 476

Syllabus

<p>TTitobb the old system of pleading in actions at law, a party, to avail himself of the Statute of Limitations, was required to plead it, even, where it appeared upon the face of the declaration that the limitation prescribed by statute had expired.</p> <p>In equitable suits the rule was otherwise. There, if it appeared upon the face of the bill that the remedy was barred, the defendant could demur; and if the case came within any of the exceptions of the statute, it was necessary to aver the fact.</p> <p>Under our system the rule is the same in law and equity; and if it appear upon the face of the complaint that the action is harred, and no facts are alleged taking the demand from the operation of the statute, the complaint is defective and demurrer lies.</p> <p>If the demand be in truth harred, but the fact does not appear upon the face of the complaint, the defense must he made in the answer.</p> <p>In suits upon written instruments for the payment of money, if it appear from the complaint that the demand is harred, and plaintiff relies upon a new promise renewing or continuing the contract, such new promise must he alleged.</p> <p>The doctrine of numerous authorities that the new promise in such cases constitutes the real cause of action, and that the original contract is only the consideration for the promise: Held, to be unsound. The true view held to he, that the action is upon the original demand, and that the new promise is only evidence that the statute does not operate as a bar to its prosecution.</p> <p>The same rule holds where a new promise is relied on to obviate a discharge in insolvency, pleaded to an action upon a promissory note or other contract for the payment of money. The action in such cases is founded upon the original contract, and the new promise is only a waiver of the defense furnished by the discharge.</p> <p>A discharge in insolvency does not extinguish the debt in any other sense than that it relieves the debtor from any legal oblig