new promise, but is only evidence of a promise. This was determined in the case of Heylin v. Hastings, (a) and in Humings v. Robinson.(b) He said, that it was decided, that the confession of nobody, but a defendant himself, is evidence against him. That last case was an action by an endorsee of a note against the drawer; and the plaintiff proved the acknowledgment of a mesne endorsor, that the endorsement on the back of the note was in his hand-writing; but the court was of opinion, that this was not evidence against the drawer, but that the endorsement must be proved. It would certainly open a door to fraud and collusion, if this sort of evidence were, in any case, to be admitted. A plaintiff might get a joint drawer to make an acknowledgment, or to pay part, in order to recover the whole, although it had been already paid.

1

Lord Mansfield said, the question here is, only whether the action is barred by the statute of limitations. When cases of fraud appear, they will be determined on their own circumstances. Payment by one is payment for all, the one acting virtually as agent for the rest; and in the same manner, an admission by one is an admission by all; and the law raises the promise to pay, when the debt is admitted to be due.

Willes, J. said, The defendant has had the advantage of the partial payment, and therefore must be bound by it.

(a) 12 Mod. 223. 1 Salk. 29.

(b) Barnes, quarto edit. 434.

"ting, ought not to be extended to this case." BAYLEY, J. observed, "It is said, that a joint promiser having made a payment "within six years, the Executors of the other are liable; and the "case of Whitcomb v. Whiting is relied upon. That is certain"ly a very strong case, and it may be questionable whether it "does not go beyond proper legal limits." HOLROYD, J. said, "I, also, am of opinion, that the circumstances of this case do not "take it out of the Statute of Limitations. Whitcomb v. Whi"ting is the only case that can be relied on by the Plaintiffs. That case has gone far enough; but it does not govern the present." And BEST, J. said, "The present case is therefore distinguishable "from Whitcomb v. Whiting; beyond which I think the Court "ought not to go." Atkins, Exors. &c. vs. Tredgold & Al. Exers, &c. 2 Barnew. & Cress. Rep. 23.

[*204]

*Ashhurst and Buller, Js. of the same opinion.

The Rule was discharged.

And where one of two makers of a joint and several promissory note having become a bankrupt, the payee received a dividend under the commission on account of the note, that will prevent the other maker from availing himself of the statute of limitations, in an action brought against him for the remainder of the money due on the note, if the dividend had been received within six years before the action brought.[1]

James Fairbank, and William Fairbank his son, (a) made their joint and several promissory note, on the 18th July, 1784, to the defendant, for 100l. In the same year James Fairbank became a bankrupt, and the plaintiff received several dividends under the commission, in respect of the 1001. secured by the

(a) 2 H. Bl. 340.

[1] In the cases of Dewdney, ex parte, & Seaman, ex parte, (15 Ves. Rep. 499.) ELDON, LD. CHANCELLOR, said, "It is decided "that the payment of a dividend under a commission-[of Bankruptcy] against one partner, upon a debt within the Statute of 'Limitations, raises a new assumpsit by the other."

But in the case of Brandram & others vs. Wharton, (1 Barnew. & Ald. Rep. 463.) where one of two joint drawers of a Bill of Exchange became bankrupt, and under his commission the indorsees prove a debt (beyond the amount of the bill) for goods sold, &c. and they exhibited the bill as a security they then held for their debt, and afterwards received a dividend; it was held, that in an action brought by the indorsees of the bill against the solvent partner, that the Statute of Limitations was a good defence, although the dividend had been paid by the assignees of the bankrupt partner within six years.

A payment by trustees, or by the assignees of a bankrupt, not being parties to the original contract, will not amount to an acknowledgment of the original debt, so as to take it out of the Statute of Limitations. Roosevelt vs. Mark's, 6 Johns. Ch. Rep.

note in question; the last of which was paid in the course of the year 1793; and there remained due 581. 6s. 8d. for which an action was brought. The defendant pleaded the statute of limitations, but a verdict was found for the plaintiff, under the direction of Mr. Justice Heath.

A rule being granted to show cause why there should not be a new trial, the question was, whether the payment of part of the money due on the note by the assignees took the case out of the statute of limitations?

It was contended for the plaintiff, that the act of the assig nees was the act of the bankrupt himself: and if the *bankrupt had acknowledged of paid part of the debt, [*205] the presumption raised by the length of time would have been repelled. That it had been decided in Whitcomb v. Whiting, (a) that the acknowledgment of one of several drawers of a joint and several promissory note takes it out of the statute of limitations as against the others, and might be given in evidence in a separate action against any of the others.

It was insisted, on the other hand, that, as the bankrupt himself had, done no act to acknowledge the debt, the case came within the statute of limitations, of which the assignées of one of the drawers could not prevent the other from availing him. self.

But the court were clearly of opinion, that the payment of the dividend under the commission was such an acknowledgment of the debt as took the case out of the statute of limitations.

In a subsequent case at Nisi Prius, in Easter term, 40 Geo. III.(b) in the king's bench, assumpsit was brought for money paid, laid out, and expended to the use of two defendants; to which was pleaded the statute of limitations by one of them.

The defendants had formerly carried on business as merchants in Cork, in Ireland, and had become bankrupts. While they carried on trade, the plaintiff had given his guaranty to Messrs. Hammerslys, the bankers, to secure any advances made to the defendants in consequence of their intercourse with England.

The bankers had made advances for their use to the [206] amount of 1,8007. but the plaintiff had not been *called upon on his guaranty until after the bankruptcy of the defendants, when he paid the money, and now brought his action against them for money paid to their use. One of the defendants let judgment go by default; and the plaintiff relied upon a letter written by him in the course of the preceding year, as containing promises to pay, and an acknowledgment sufficient to bind the other defendant.[1]

It was contended that this promise was of no avail, as it was made at the time when the defendant was a bankrupt; and, at all events, it could not bind the other defendant.

On the other hand it was contended, that this was a debt contracted by the two defendants while in partnership, and on their joint account, and cited Whiting v. Whitcomb, and what was the case where the demand arose under an express contract, as in the case of notes equally applied, to the implied contract, where the money was paid on account of the two.

Lord Kenyon said, he had some doubts upon the point, and would reserve the case. But an acknowledgment by the defendant being proved, the plaintiff had a verdict.

[1] Vide Ante, page 201, N. [1], and page 202, N. [1]

*CHAP. X.

[ *207 ]

Of Pleading the Statute.

THIS statute, and also the 32 H. VIII. c. 2. of limitations, are exceptions to the rule, "that where an action is required by statute to be brought within a certain time, it is the duty of the plaintiff to prove that he has done so, or he will fail in his suit.

The statute 31 Eliz. c. 5. s. 5. which limits actions upon penal statutes to two years after the commission of the offence, where the forfeiture is given to the king only, and to one year, where it is to the king and any other person, is conceived in terms almost similar to the present: and it seems, that the defendant may take advantage of that statute on the general issue, and need not plead it; the practice at Nisi Prius being, for the defendant to call upon the plaintiff to prove the commencement of his action within the limited period; and many questions arise as to what shall be said to be the proper commencement of it :(a) but the defendant must plead the statute if he mean to take advantage of it; although the cause of action appear on the declaration to have accrued more than six years before: for it is settled, that the statute of limitations does not destroy the debt; it only takes away the remedy [1] and the debtor may either *take advantage of the statute, if [*208] the debt be older than the time limited for bringing the action, or he may waive the advantage.(b)

In a case in the king's bench, 15 Car. II. the declaration was

(a) 2 Saund. 62. c. (6.)

[1] Vide Page 188 ante, note [1.]

(b) Burr. 2630.