TYSON, J.
The court sustained demurrers to several pleas of the defendant, invoking the defense of the statute of limitations of six and ten years. The original complaint, consisting of two counts, declares on two promissory notes executed by the defendant, on, to-wit, the 23d day of May, 1887, each in the sum of four hundred dollars, with interest thereon from date, due respectively, one payable twelve months after date and the other payable on the 23d day of May, 1889. The acceptance of service of the summons and complaint is of date May 19th, 1898, four days less than ten years after the maturity of the first maturing note, and one year and four days less than ten years after the maturity of the second.
On the 15th day of September, 1899, the complaint was amended so as to read as follows: “1. Plaintiff claims of the defendant the sum of eight hundred dol[305] lars ($800), due by two certain notes, under seal, bond or Bill single, for four hundred dollars each, both made by him on, to-wit, the 23d day of May, 1887, one payable on, to-wit, the 23d day of May, 1889, and one payable on, to-wit, twelve months after the daté of said note, with interest thereon from the date of said notes, which is, to-wit, the 23d day of May, 1887.
“Plaintiff avers that in each- of said notes under -seal, bond or bill single, the defendant waived all exemptions he had as to personal property, and plaintiff claims the benefit of such waiver.
“2. Plaintiff claims of the defendant the sum of, to-wit, $809,. due by two notes under seal, bond or bill single, which are in words and figures as follows, to-wit: ‘Talladega, Ala., May 23, 1887. On the 23rd day of May, 1889, I promise to pay The Talladega Beal Estate & Loan Association the sum of four hundred dollars, value received, in part payment for “Block No. 5,” of the Moorefield Addition -of the City of Talladega, with interest from date, payable at the bank of Is-bell & Co., and in favor of this note I hereby waive all my exemptions of personal property.
“ ‘Witness my hand and seal this 23rd day of May, 1887.
“ ‘George W. Chambers, [l. s.]
“ ‘Talladega, Ala., May 23, 1887.—-Twelve months after date I promise to pay to The Talladega Beal Estate & Loan Association the sum of four hundred dollars, value received, in part payment for' “Block No. 5,” of the Moorefield Addition of the City of Talladega, with interest from date, payable at the bank of Is-bell & Co., and in favor of this note I hereby waive all my exemptions of personal property. ,
“ ‘Witness mv hand and seal this 23rd day of Mav, 1887.
“ ‘George W. Chambers, [l. s.]
“And plaintiff -avers that both of said notes, under seal, bond or bill single, were made by the defendant on to-wit, the 23rd day of May, 1887, one -payable twelve months after elate, the other on, to-wit, the 23rd day of May, 1889, with interest thereon from the date of mak[306] ing thereof, and plaintiff avers that in each of said notes under seal, bond or bill single, the defendant waived all exemptions that he had as to personal property against the collection of the 'above claim, and plaintiff claims the benefit of such waiver.”
Does this amendment relate back to the filing of the original complaint? The answer to this question depends upon the solution of the question whether or not, the amendment introduces a new cause of action or claim. If it is the same cause of action, the same promise, as that declared upon in the original complaint, then the amendment does relate back and the statute of limitations as pleaded is not a bar. If the amendment was made simply to cure a misdescription of the instrument containing the promise so as to obviate a variance between the allegations of the original complaint and the instrument to be offered in evidence, then it is the same promise, the same claim, the same cause of action, and if the statute of limitations had not completed the bar when the original complaint was served, there was no error in holding the pleas bad. Sublett v. Hodges, 88 Ala. 491; Dowling v. Blackman, 70 Ala. 303; Ricketts v. Weeden, 64 Ala. 548; Stringer v. Waters, 63 Ala. 631; Steed v. McIntyre, 68 Ala. 407; 1 Ency. Pl. & Pr., p. 621, and note 3.
The limit of the right of amendment, under our statute, is there must not be an entire change of parties, nor the substitute of any entirely new cause of action.—Code, § 3331; Long v. Patterson, 51 Ala. 414; Mahan v. Smitherman, 71 Ala. 563; Springfield Fire & Marine Ins. Co. v. De Jarnett, 111 Ala. 248, and authorities therein cited.
The amendment made in this case is substantially the one which this court in Reed v. Scott, 30 Ala. 640, held, that the plaintiff should have been allowed to' make. In that case, the complaint was in the Code form, declaring on a promissory note. The amendment proposed by the plaintiiff was to amend his complaint “so as to describe said note, or instrument in writing, as under seal.” The court said: “Following the late decisions of this court in the cases of Crimm’s Adm’rs. [307] v. Crawford (29 Ala. 623), and Farrow v. Bragg, (30 Ala. 261), at the last term, we must hold that the circuit court erred in refusing to permit the plaintiff to amend his complaint, by inserting a correct description of the instrument sued on.” An examination of those decisions will show that the principle, upon which the amendments to the complaints allowed by the lower courts were sustained, was that they introduce no new cause of action, but merely inserted that what was necessary to secure a recovery upon the existing cause of action imperfectly set forth in the 'original complaints. See also Duals v. McWhorter, 122 Ala. 570.
The amendment here under consideration was clearly to correct a misdescription of the instruments sued on, and introduced ho new cause of action.
The insistence, however, is made, that the “plaintiff having alleged under videUcets, defendant was put on-notice that the proofs as to the due dates of the instruments sued on might not correspond with the allegations of the amended complaint.”
Just how this can be, we must confess our inability to comprehend, in view of the fact that the instruments sued on are set forth in huec verba in the complaint as. amended.
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TYSON, J.
The court sustained demurrers to several pleas of the defendant, invoking the defense of the statute of limitations of six and ten years. The original complaint, consisting of two counts, declares on two promissory notes executed by the defendant, on, to-wit, the 23d day of May, 1887, each in the sum of four hundred dollars, with interest thereon from date, due respectively, one payable twelve months after date and the other payable on the 23d day of May, 1889. The acceptance of service of the summons and complaint is of date May 19th, 1898, four days less than ten years after the maturity of the first maturing note, and one year and four days less than ten years after the maturity of the second.
On the 15th day of September, 1899, the complaint was amended so as to read as follows: “1. Plaintiff claims of the defendant the sum of eight hundred dol[305] lars ($800), due by two certain notes, under seal, bond or Bill single, for four hundred dollars each, both made by him on, to-wit, the 23d day of May, 1887, one payable on, to-wit, the 23d day of May, 1889, and one payable on, to-wit, twelve months after the daté of said note, with interest thereon from the date of said notes, which is, to-wit, the 23d day of May, 1887.
“Plaintiff avers that in each- of said notes under -seal, bond or bill single, the defendant waived all exemptions he had as to personal property, and plaintiff claims the benefit of such waiver.
“2. Plaintiff claims of the defendant the sum of, to-wit, $809,. due by two notes under seal, bond or bill single, which are in words and figures as follows, to-wit: ‘Talladega, Ala., May 23, 1887. On the 23rd day of May, 1889, I promise to pay The Talladega Beal Estate & Loan Association the sum of four hundred dollars, value received, in part payment for “Block No. 5,” of the Moorefield Addition -of the City of Talladega, with interest from date, payable at the bank of Is-bell & Co., and in favor of this note I hereby waive all my exemptions of personal property.
“ ‘Witness my hand and seal this 23rd day of May, 1887.
“ ‘George W. Chambers, [l. s.]
“ ‘Talladega, Ala., May 23, 1887.—-Twelve months after date I promise to pay to The Talladega Beal Estate & Loan Association the sum of four hundred dollars, value received, in part payment for' “Block No. 5,” of the Moorefield Addition of the City of Talladega, with interest from date, payable at the bank of Is-bell & Co., and in favor of this note I hereby waive all my exemptions of personal property. ,
“ ‘Witness mv hand and seal this 23rd day of Mav, 1887.
“ ‘George W. Chambers, [l. s.]
“And plaintiff -avers that both of said notes, under seal, bond or bill single, were made by the defendant on to-wit, the 23rd day of May, 1887, one -payable twelve months after elate, the other on, to-wit, the 23rd day of May, 1889, with interest thereon from the date of mak[306] ing thereof, and plaintiff avers that in each of said notes under seal, bond or bill single, the defendant waived all exemptions that he had as to personal property against the collection of the 'above claim, and plaintiff claims the benefit of such waiver.”
Does this amendment relate back to the filing of the original complaint? The answer to this question depends upon the solution of the question whether or not, the amendment introduces a new cause of action or claim. If it is the same cause of action, the same promise, as that declared upon in the original complaint, then the amendment does relate back and the statute of limitations as pleaded is not a bar. If the amendment was made simply to cure a misdescription of the instrument containing the promise so as to obviate a variance between the allegations of the original complaint and the instrument to be offered in evidence, then it is the same promise, the same claim, the same cause of action, and if the statute of limitations had not completed the bar when the original complaint was served, there was no error in holding the pleas bad. Sublett v. Hodges, 88 Ala. 491; Dowling v. Blackman, 70 Ala. 303; Ricketts v. Weeden, 64 Ala. 548; Stringer v. Waters, 63 Ala. 631; Steed v. McIntyre, 68 Ala. 407; 1 Ency. Pl. & Pr., p. 621, and note 3.
The limit of the right of amendment, under our statute, is there must not be an entire change of parties, nor the substitute of any entirely new cause of action.—Code, § 3331; Long v. Patterson, 51 Ala. 414; Mahan v. Smitherman, 71 Ala. 563; Springfield Fire & Marine Ins. Co. v. De Jarnett, 111 Ala. 248, and authorities therein cited.
The amendment made in this case is substantially the one which this court in Reed v. Scott, 30 Ala. 640, held, that the plaintiff should have been allowed to' make. In that case, the complaint was in the Code form, declaring on a promissory note. The amendment proposed by the plaintiiff was to amend his complaint “so as to describe said note, or instrument in writing, as under seal.” The court said: “Following the late decisions of this court in the cases of Crimm’s Adm’rs. [307] v. Crawford (29 Ala. 623), and Farrow v. Bragg, (30 Ala. 261), at the last term, we must hold that the circuit court erred in refusing to permit the plaintiff to amend his complaint, by inserting a correct description of the instrument sued on.” An examination of those decisions will show that the principle, upon which the amendments to the complaints allowed by the lower courts were sustained, was that they introduce no new cause of action, but merely inserted that what was necessary to secure a recovery upon the existing cause of action imperfectly set forth in the 'original complaints. See also Duals v. McWhorter, 122 Ala. 570.
The amendment here under consideration was clearly to correct a misdescription of the instruments sued on, and introduced ho new cause of action.
The insistence, however, is made, that the “plaintiff having alleged under videUcets, defendant was put on-notice that the proofs as to the due dates of the instruments sued on might not correspond with the allegations of the amended complaint.”
Just how this can be, we must confess our inability to comprehend, in view of the fact that the instruments sued on are set forth in huec verba in the complaint as. amended.
What Ave have said disposes of the ninth, tenth-, eleA'enth and twelfth pleas. The seventh plea set up a discharge and payment of the notes sued on. The facts alleged in this plea are, that the plaintiff agreed Avith a certain railroad company to permit a railroad to be built across the lot, the purchase price for which the notes sued upon Avere given. That the defendant objected to the building of a railroad across said land, but the plaintiff agreed with the defendant that the damage occasioned him thereby should be taken and deducted from the instruments sued bn. That the damage-done him thereby was, to-wit, “the full amount due on the said instruments, for the said railroad thereupon built the said line of railroad track over and across the said.land to the damage thereof, to-wit, the full amounts due on the said instruments sued on.” A majority of the court are of the opinion that the plea is not subject to the demurrer interposed to it, and that it presents a [308] good defense to the action. Justice íSiiakpe and the writer are of the opinion that the plea is bad for a failure to show a consideration to support the agreement to discharge the notes.—Mead v. Hughes, 15 Ala. 141; Phillips v. Scoggins, 1 Stew. & Port. 28; Holman v. Bank of Norfolk, 12 Ala. 413; 4 Ency. Pl. & Pr., 928.
It is sufficient to say of the eighth plea as originally filed, that it shows no more than a. trespass by a railroad company, at the request and invitation of the plaintiff, upon the land of the defendant, for the purchase of 'which he gave the notes sued on. It is not averred that the plaintiff made any conveyance of any right, title or interest in or to the land which the company took possession of. There was, therefore, no breach of the bond for title made by the plaintiff to the defendant by which the plaintiff obligated itself to convey to the defendant the land sold him upon the payment by him to it of these notes. Nor is there any averment in the plea that the railroad company paid to plaintiff any consideration for its right of way over and across the land. So, then, the company, under the averments of the plea, has derived no title or interest in the lot, and the principle announced in the case of Hawkins v. Merritt, 109 Ala. 261, upon which the appellant relies to support the sufficiency of the plea, has no application.
The plea does not seek to recoup or set off the damages growing out of the alleged trespass, but if it had done so,- it Avould have availed the defendant nothing.—Rosser v. Bunn & Timberlake, 66 Ala. 89.
The plea, as amended, and the fourth plea, as amended, show a dedication of the street fronting the lands of the defendant, by the plaintiff to the public. According to the avernients of these pleas, the dedication is irrevocable, and the right to interfere with the use of it by the public is beyond the authority of the plaintiff or the railroad company. Code, § 8899 et seq. The attempt of the plaintiff to sell and convey to the railroad company the right and privilege of locating, building and operating a railroad along and over the street was a nullity, and, therefore, was no conveyance of any [309] interest in the street which impaired the plaintiff’s right to grant and convey to the defendant a fee simple title to the land abutting on the street.—City of Demopolis v. Webb, 87 Ala. 659.
The judgment of the court below is reversed, and the cause remanded.