#### Patrick G. Hildreth versus John Shillabee, Jun.

A plea of a discharge under the 9th see. of the general insolvent act, [1. R. L. 464.] must aver every fact necessary to give jurisdiction to the officer granting it, and the want of such averments cannot be supplied by the recitals contained in the discharge itself, though the discharge be set forth at large in the plea. By this act it is essential, in order to give the magistrate jurisdiction over the case, that the debtor should have been imprisoned for 60 days upon execution in a civil suit. A plea, therefore, which merely set forth, that the debtor was *imprisoned*for 60 days and upwards, on civil suit, was held to be insufficient.

To an action of debt on judgment, the defendant pleaded his discharge under the insolvent act; and the plaintiff replied, that after the discharge was obtained the defendant “ assented to, ratified, renewed and confirmed the Said judgment and demand of the plaintiff.” Held, that the replication was no departure from the count, and that the new promise was sufficiently laid in the replication.

Debt, to recover *$2,515.25,*due from the defendant to the plaintiff, on a judgment obtained in the Supreme Court in the year 1816.

The defendant pleaded, *1. nul tiel record.*II. a discharge under the 9th section of the general insolvent act, [1 R. L. p. 464.]

*232This plea alleged, “ that after the making of the supposed “ promises and undertakings, in the plaintiff’s declaration mention*ee*e(j$ to wit on the fifth day of December, in the year 1816, the “ said defendant was and had been, *actually imprisoned for*60 *days*“ *and upwards in a civil action*within the true intent and meaning “ of the act” &c., and that “ whilst the said defendant was and “had been *so actually imprisoned*for 60 days and upwards in a civil “ action as aforesaid, one William Hall a creditor of the said defendant,” &c.

The discharge itself was then set out at length in the plea, and that recited also, that the defendant had been actually imprisoned for 60 days and upwards, in a civil action, and that his creditor made *affidavit,*that the said insolvent “ was then in prison *on*“ *execution*issued against him in. a civil action, and had been so imprisoned for 60 days and upwards,” &e.

Upon the first plea the plaintiff took issued and replied to the second, alleging that the defendant “ after obtaining his discharge “insaid second plea mentioned, and before the commencement of “ this suit, to wit, on the first day of January, in the year 1820, at “ the City and County of New-York aforesaid, *assented to and then*“ *and there ratified, renewed and confirmed the said judgment and de“mand*of him, the said plaintiff, in the said declaration mention- “ ed,” &c.

To this replication the defendant demurred generally, and the plaintiff join ed in th e demurrer.

*Hugh Maxwell, Esq.,*for the defendant, and in support of the dumurrer contended,

I. That the replication was a departure from the count. The foundation of the declaration is a matter of record, and the plaintiff cannot, by parol proof, substitute in its place a collateral matter by his replication ; for thereby, a judgment in *assumpsit*would be rendered in an action of debt, [4 *T. R.*504. 1 *Salk.*221. *Co. Lit.*304. *a.*6 *Mass. R.*57. 1 *Chit. Plead.*618. 2 *Saund. R.*84. *a. n.*1.]

II. The judgment was the act of the law, and having been discharged by the law, it cannot be renewed by parol. The issue is *233not offered on the promise to pay, but on the question as to whether the defendant has or has not done an act, whereby he has renewed, ratified and confirméd the judgment. Now, this is an act of a court, not of a party, for a judgment can only be renewed by law.

This release obtained by the operation of law, is much stronger than a release by the mere act of a party, and yet it is well settled, that a debt once released by the act of the creditor cannot be revived by a subsequent promise. There is nothing left for the new promise to act upon; the original liability being extinguished by the act of the party is notin existence, so as to be the subject of a promise except upon a new consideration, and it could not therefore be renewed. Every thing, which is done in relation to it, must be a new creation; there must be a fresh consideration as well as a new promise, or the contract would have no legal existence. So here, the original liability being extinguished by the discharge, was entirely gone and there was nothing for the new promise to attach itself to, without a new consideration *;*for the promise without the consideration would be a nullity. By the plea, it appears, that the defendant was discharged from all debts; the replication admits the plea to be true, and therefore, admits that the judgment was discharged by law. There is nothing left therefore to be the subject of renewal and confirmation. The judgment was the record evidence of the existence of a debt, but as the debt was discharged, the judgment was legally satified, and there was no foundation for a renewal and ratification of the judgment by means of the defendant’s *assent.*There is some absurdity in saying, that a judgment was “ assented to and ratified” :—for a judgment, being the decree of a court, needs no assent from the debtor to give it validity, and cannot be set up or pulled down by his volition. We show a legal extinguishment of the debt and a satisfaction of the judgment, which was the evidence of it, and the replication does not show any thing to create a legal liability on the part of the defendant. He could not renew a judgment himself, except by permitting a new one to be entered up against him, and the replication therefore is bad upon its *234face. [3 *Cranch’s R.*300. *Com. Dig. Plead. 2. W. 12.*1 *Gall*i*son’s R. 32. 4 Burr. R.*2482.]

III. We do not deny that a debt, barred by the statute of limitations, or by other means put beyond the creditor’s power, may be renewed by a new promise, because equity in stich cases, upholds the new promise by means of the original consideration. But a *judgment*discharged in law is discharged in equity, and a promise *to*renew is therefore *nudum pactum.*

*Mr. James Tallmadge,*for the plaintiff, *contra,*insisted,

I. That the replication to the second plea was 'sufficient. It alleges, that the defendant *after his discharge,*“ ratified, renewed and confirmed the judgment.” By the discharge, the judgment was not *extinguished;*it remained as a lien upon all the property of the defendant, which was at the time of' the docketing of the judgment, the subject of a lien. If it could be shown, that the de fendant was the owner of real estate at that time, the judgment would still attach itself to such real estate, notwithstanding the discharge. It is a mistake, therefore, to suppose the judgment to be gone in consequence of the discharge; it still binds all property upon which it was a lien.

The defendant owed the plaintiff a debt, which he had promised to pay. Before the fulfilment of this promise, the defendant obtained his discharge under the insolvent act. This discharge he may interpose between his original liability and promise, and any act of his creditor, which seeks to compel a performance of the promise. The moral obligation to pay the debt remains, and the defence afforded by the discharge may at any time be waived by the party for whose benefit it was obtained. If he make a promise to pay the debt, which thus morally remains, after obtaining the discharge, he throws away his defence and stands as he did before the discharge was granted. No new consideration is necessary to uphold the new promise; for the original consideration attaches itself to the new promise, and becomes a part of the new liability.

*235In such cases, it is proper in pleading to declare upon the original promise. The defendant then sets up his discharge. The defendant cannot deny *that;*but he states new matter, which shows not an *entirely*new contract, but that the defendant has voluntarily abandoned that, which, but for the new promise, would be a sufficient defence. This is no departure: for it does not set up an entire new contract. On the contrary, it shows a circumstance perfectly consistent with the original agreement set out in the declaration, and points out how that agreement is to be, under a change of circumstances, upheld and supported.

There are adjudged cases, which support these principles fully; and there is no difference between this case and those already decided, except that, which arises from the fact, that we declare upon a judgment. What is a judgment *1*Is it not the record evidence of the existence of a debt *%*And in declaring, must we not count upon that evidence *1*By the very act of obtaining the judgment, all evidences of debt became merged in the judgment; and we, of course, were compelled to resort to that, which was left to us. The words used in the plea show that the defendant waived his discharge, and if insufficient in point of form, they are good in substance, and cannot, therefore, be reached by a general demurrer. For these reasons, we deem the replication sufficient. [8 *Mass. R.*127. *Shippey v. Henderson.*14 *John. R.*178. 1 *Chit. Plead.*40.]

II. But if the replication should be considered as bad, the defendant cannot escape upon these pleadings; for it will be found, upon examination, that he is the first offender. His plea is bad; and the plaintiff will, therefore, be entitled to judgment, let the fate of the replication be what it may. The plea is no answer to the declaration; for it no where alleges, that thé plaintiff’s judgment was barred, or even affected by the discharge. Neither does it admit the recovery of the judgment declared on, which it should do, if it intends to avoid it, by matter *ex post facto.*

The plea is also bad, because it neither names the court, in which the judgment was obtained, nor the person upon whose suit it was rendered. If does not name the court from which the *236execution issued, nor does it set out that execution by a *test*or . . return. For these reasons, the plea is fatally defective.

There is also another difficulty in the way. The plea of an insolvent’s discharge cannot be joined with a plea of *nul tiel record.*But waiving this consideration, there is nothing in the plea, which shows jurisdiction in the officer, who granted the discharge. The jurisdiction cannot be inferred by the court, but must *he*set out with precision by the plea. The act gives authority to certain officers to entertain petitions, and grant discharges to insolvents in *certain cases.*The plea must show distinctly all that the act requires. To give jurisdiction to the magistrate, there must be, I. imprisonment; II. the application of a creditor, together with his affidavit. And it must distinctly appear, that the petitioner has been imprisoned sixty days and upwards, on *execution,*in-a civil action. Now it does not appear from this plea, that the defendant was imprisoned on an execution: he might have been arrested and detained on *mesne*process, for any thing contained in this plea; and the court cannot *infer,*that the imprisonment was on execution.

It is true, the affidavit of the creditor states that fact, but the plea cannot be aided by the affidavit. The averment in the affidavit presents no issue; it cannot be traversed, and the plea is fatally defective in this important particular. [The learned counsel cited in the course of his argument, and to various points illustrative of his views, (and which could not well be taken down,) the following cases, viz: 7 *J. R. 75. Frary v. Dakin.*10 *Ib.*161. *Morgan v. Dyer. 11 Ib. 224. Jenks v. Stebbins. 2 Salk.*517. 7 *Cowen’s R. 442.*1 *Saund.*298. *n.*1. 20 *John. R.*159, 161. *Andrus v. Waring.*1 *Chit. Plead. 217,*236-7, 240.]

*Maxwell*in reply, observed, that the defendant would be deprived of an important right, if the plaintiff could pursue the course adopted. If the plaintiff relied upon the new promise, lie should have declared upon if, and then the defendant would have had the statute of limitations as his defence, if he should think lit. to avail himself of it. By declaring upon the judgment, this privilege is taken from him, and he is deprived of a fair legal right

*237Oakley J.

The first question arising on the demurrer in this case is, as to the sufficiency of the defendant’s second plea. The action is debt on judgment; and the plea sets up a discharge under the 9th section of the general insolvent act. [1 *R. L.*464.]

In the case of *Delavan v. Stanton,******decided at the present term, it was held, that a plea of a discharge under this act, must aver every fact, necessary to give jurisdiction to the officer granting it; and that the want of such averment could not be supplied by the recitals contained in the discharge itself, though that be set forth at length in the plea. By the act in question, it is provided, that any creditor of any person, who shall have been imprisoned for . sixty days, *upon execution*in any civil action, may apply for relief, &c. The fact of the imprisonment of the debtor, on execution, is essential, to authorize the officer to take cognizance of the case; and such fact must, therefore, be averred. In the present plea, the averment is, that the debtor had been imprisoned, for sixty days and upwards, *on a civil action.*For any thing here alleged, the imprisonment may have been on *mesne process,*and in that case the law did not authorize the creditor to make the application, on which the discharge was granted. Without noting the other objections to the plea, this is fatal to it.

The question, however, most important to the parties arises on the replication to this plea. To defeat the operation of the discharge, the plaintiff says, that after it was obtained, the defendant “ assented to, ratified, renewed, and confirmed the said “judgment and demand of the plaintiff.”

In *Shippey v. Henderson,*(14 J. *R.*178,) the action was *assumpsit*for goods sold, &c. And to a plea of the defendant’s discharge, there was a replication, in the same words with the present. The Supreme Court held, that the action was properly brought on the *original promise;*that the new promise was sufficiently laid : and that the replication was no departure from the declaration. The court say, that the discharge does not make the original contract void, but suspends every remedy upon it; and that the new promise merely removes the bar interposed by the pica.

*238This case would seem to be decisive, unless there is some distinction, growing out of the fact, that the present action is founded on a judgment. I cannot perceive any good reason for making any distinction. The judgment is not affected by the discharge, any further, than to release the defendant from any personal liability on it, and to prevent its attaching as a lién, on subsequently acquired lands. It remains operative as to any existing lien, and may *be*enforced against any property of the defendant, bound by it, at the time of the discharge. The discharge, therefore, only bars, or suspends any personal remedy on the judgment against the defendant; and I see no reason why a promise to pay the judgment, after the discharge, (and the replication substantially avers such a promise,) may not be relied on, as removing that bar, upon the authority of *Shippey v. Henderson.*The judgment, as evidence of a personal contract between ,the parties, is certainly as capable of being set up and renewed by a new promise as any ordinary assumpsit.

This view of the case accords with the doctrine of the Supreme Court of Massachusetts, (8 *Mass. R.*127,) where the very question now before us has been decided,- and upon a state of pleadings substantially like the present.

*Judgment for the plaintiff.*

[Wm. H. Bulkley, *Atty. for the plff.*Wm. P. Hawes, *Atty. for the*deft.]

*

 Ante p. 190.