
    Sylvanus Maxim versus Elisha Morse.
    In debt on judgment, the defendant pleads his discharge under a commission of bankruptcy: the plaintiff replies that the defendant afterwards waived that advantage, and promised to pay the amount of the judgment. Issue was taken on the promise, which being found for the plaintiff, he had judgment for his debt
    Debt upon a judgment of the Court of Common Pleas for this county, rendered at August term, 1803, for 53 dollars damage and 9 dollars 75 cents costs.
    The defendant pleads in bar, that on the 11th of August, 1803, he became a bankrupt; that on the 8th of October following the commissioners certified his conformity; that after the recovery of the recited judgment, and before the purchase of the plaintiff’s writ in the present action, viz., on the 3d of November, 1803, the commissioners, with the assent of his creditors, gave him a certificate of discharge, which was approved, allowed, and confirmed by the district judge on the 8th of December following; and that the plaintiff’s debt might have been proved under the said commission.
    The plaintiff replies, that after the defendant had obtained his said certificate, viz., on the 20th of September, 1805, he waived and gave up all advantage to be taken by him, or which otherwise he might have taken, of said certificate, * in defeating or barring the demand of the plaintiff against him on the said judgment, by promising the plaintiff that he would pay the amount of the said judgment, and that he did promise the plaintiff to pay him the same.
    The defendant rejoins, that he did not make the promise, &c., and tenders an issue to the country, which is joined by the plaintiff.
    The jury return a verdict, that the defendant did promise, as alleged in the plaintiff’s replication, and find the amount of the debt to be ninety dollars.
    The defendant moved in arrest of judgment, on the ground that the plaintiff had misconceived his action, and that it ought to have been in case upon the defendant’s promise, instead of debt upon the judgment.
    
      In support of the motion, it was urged that the debt was discharged and extinguished by the bankruptcy and the proceedings under the commission; although, perhaps, it might furnish a sufficient consideration for the new promise. The replication is incon sistent with, and a departure from, the declaration. And the verdict, that the defendant promised, is an absurd and insufficient finding in an action of debt on judgment.
    
      For the plaintiff,
    
    it was contended that the subsequent promise was a revival of the old debt; and no good reason could be given why, if the cause of action was revived, the form of the action should not be revived also. If the action had been debt on the simple contract, the evidence necessary to support it would have been the same as if it had been assumpsit on the promise. The bankruptcy merely suspends, but does not extinguish, the debt; the new promise destroys the bar set up by the defendant; and the verdict establishes a fact which revives the old debt. Substantial justice has been done, and there is no sufficient reason why, for any objection merely technical, and having no relation to the merits, if indeed it has any weight in it, the plaintiff should be turned over to another * action, in which the verdict and judgment must be the same as in the present action. 
    
    
      
      Holmes and Baylies for the plaintiff.
    
      B. Whitman and Mitchel for the defendant.
    
      For the defendant, in reply.
    
    None of the cases cited for the plaintiff apply to the objection. It is not denied that the plaintiff is entitled to an action upon the promise, grounded on the original consideration of the judgment. In such an action, the defendant would have been let in to question that consideration, which he is wholly debarred from in the present action.
    
      
      
        Chitty on Pleading, 40. — 1 Lawes on Pleading, 526, Amer. ed. — 1 Selwyn, 15, 219. — Peake's N. P. Cases, 68. — Cowp. 544, Trueman vs. Fenton. — 2 H. Bl. 116, Besford vs. Saunders. — 3 Bos. & Pul. 250, Wennall vs. Adney,in notis.
      
    
   By the Court.

The inconsistency objected in this case is in ap pearance more than in reality. A good collateral fact was put in issue, on which a regular judgment may be entered in the action. The pleadings are very similar to those which frequently arise under the statutes of limitation. The defendant pleads what is, prima facie, a legal bar to the plaintiff’s demand; the plaintiff replies other matter, which shows the defendant bound, as well by law as in conscience, to pay the debt; and this matter is found for the plaintiff. There remains no reason why he should not have his judgment on the verdict. The only object of the defendant is to obtain a bill of costs, and to turn the plaintiff over to another action. The case at bar is within those cited for the plaintiff; and one of them is precisely this case.

Judgment on the verdict  