Cook v. Shearman
Massachusetts Supreme Judicial Court
Contract on a promissory note duly stamped. Answer, a certificate of discharge in insolvency. No replication was filed. At the trial in the superior court, before Morton, J., the plaintiff admitted the discharge, and, as evidence of a new promise, offered three letters, written to him by the defendant, two of which were dated after the beginning of the proceedings in insolvency but before the discharge, and one after the discharge.
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Contract on a promissory note duly stamped. Answer, a certificate of discharge in insolvency. No replication was filed. At the trial in the superior court, before Morton, J., the plaintiff admitted the discharge, and, as evidence of a new promise, offered three letters, written to him by the defendant, two of which were dated after the beginning of the proceedings in insolvency but before the discharge, and one after the discharge. The defendant objected to the admission of any of these letters, on the ground that no new promise had been alleged by the plaintiff; and further, to the admission…
1Opinion of the CourtGray, J.
1. An action upon a debt barred by a certificate of discharge in bankruptcy or insolvency, and revived by a new *23promise, counts upon the original debt. The new promise need not be alleged in the declaration; and, at common law, might have been replied or given in evidence in support of the promise declared on. Way v. Sperry, 6 Cush. 241. Under the practice act, no replication is required, unless by special order of the court. Gen. Sts. c. 129, § 23. The plaintiff was therefore rightly permitted to prove a new promise, without having alleged it either in his declaration or by way of…
2Cited by10 opinions
- Champion v. BuckinghamMassachusetts Supreme Judicial Court · 1896
- Bigelow v. NorrisMassachusetts Supreme Judicial Court · 1885
- Randidge v. LymanMassachusetts Supreme Judicial Court · 1878
- De Walt v. HeerenNorth Dakota Supreme Court · 1924
- County of Johnson v. WoodSupreme Court of Missouri · 1884
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