by acknowledgment or part payment, take the case out of the statute, as against the other. After those two cases, undoubt edly some degree of doubt might fairly exist as to the propriety of the decision in Whitcomb v. Whiting; and it does seem a strange thing to say, that where a person has entered into a joint and several promissory note with another person, he thereby makes that other his agent, with authority, by acknowledgment or payment of interest, to enter into a new contract for him. But since the decisions in At kins v. Tredgold, and Slater v. Lawson, the Court of King's Bench have twice decided, that payment by one of two joint makers of a promissory note, is sufficient to take the case out of the statute, as against the other. The first of these cases was that of Burleigh v. Stott, where the defendant was sued as the joint and several maker of a promissory note; and there the court held, that payment of interest by the other joint maker was enough to take the case out of the statute, as against the defendant; and that it was to be considered as a promise by both, so as to make both liable. And since the decision in that case, the Court of King's Bench have come to the same conclusion, in the case of Manderston v. Robertson, which was argued on the 22d of May, 1829. I have discovered my paper book in that case, which, it appears, was argued by Mr. Platt himself; and the court decided there, that an account stated by one of the makers of a joint note, and part payment of the account, took the case out of the statute as to the other; thus confirming the authority of Burleigh v. Stott. Then Mr. Platt relies upon the distinction in this case, that the payment was made after the statute had run, and which was pointed out by Mr. Justice Bayley as one of the grounds on which he distinguished the case of Atkins v. Tredgold, from Whitcomb v. Whiting; that there the statute had attached, and that its operation could not be affected by any act of future payment. But I find that in Manderston v. Robertson, the note was dated the 9th of July, 1817, and an account was furnished by one of the joint makers, on the 1st of June, 1825, to the payee, taking credit to himself for payments of interest after the six years had elapsed, but not before; and it was held, that this was sufVOL. III.

6

ficient to take the case out of the statute, as against the other maker. There the payment was after the six years had elapsed, and yet it was held sufficient. The result is, that we must consider the case of Whitcomb v. Whiting as good law." Whitcomb v. Whiting has been followed also substantially in Massachusetts. Hunt v. Bridgham, 2 Pick. 581; White v. Hale, 3 id. 291; Frye v. Barker, 4 id. 382; Sigourney v. Drury, 14 id. 387 And in Maine, Getchell v. Heald, 7 Greenl. 26; Greenleaf v. Quincy, 3 Fairf. 11; Pike v. Warren, 15 Me. 390; Dinsmore v. Dinsmore, 21 id. 433; Shepley v. Waterhouse, 22 id. 497. But see infra, n. (c). And in Vermont, Joslyn v. Smith, 13 Vt. 353; Wheelock v. Doolittle, 18 id. 440. And in Connecticut, Bound v. Lathrop, 4 Conn. 336; Coit v. Tracy, 8 id. 268; Austin v. Bostwick, 9 id. 496; Clark v. Sigourney, 17 id. 511. And perhaps in some other States. Seo the recent case of Zent v. Heart, 8 Penn. St. 337. This case was overruled, however, in Coleman v. Fobes, 22 Penn. St. 156. Goudy v. Gillam, 6 Rich. 28; Bowdre v. Hampton, id. 208; Tillinghast v. Nourse, 14 Ga. 641. But in the Supreme Court of the United States, in the case of Bell v. Morrison, 1 Pet. 351, the authority of Whitcomb v. Whiting was repudiated. It is true, that the new promise in that case was not made until the debt was barred by the statute; but there is much reason to believe, that the decision of the court would have been the same, if the promise had been made before the debt was barred. Story, J., in delivering the opinion of the court, after quoting the language of Lord Mansfield, that "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;" says: "This is the whole reasoning reported in the case, and is certainly not very satisfactory. It assumes that one party, who has authority to discharge, has necessarily, also, authority to charge the others; that a virtual agency exists in each joint debtor to pay for the whole; and that a virtual agency exists, by analogy, to charge the whole. Now, this very position constitutes the matter in controversy. It is true, that a

payment by one does enure for the benefit of the whole; but this arises, not so much from any virtual agency for the whole, as by operation of law; for the payment extinguishes the debt; if such payment were made after a positive refusal or prohibition of the other joint debtors, it would still operate as an extinguishment of the debt, and the creditor could no longer sue them. In truth, he who pays a joint debt, pays to discharge himself; and so far from binding the others conclusively by his act, as virtually theirs also, he cannot recover over against them, in contribution, without such payment has been rightfully made, and ought to charge them. When the statute has run against a joint debt, the reasonable presumption is that it is no longer a subsisting debt; and, therefore, there is no ground on which to raise a virtual agency to pay that which is not admitted to exist. But, if this were not so, still there is a great difference between creating a virtual agency, which is for the benefit of all, and one which is onerous and prejudicial to all. The one is not a natural or necessary consequence from the other. A person may well authorize the payment of a debt for which he is now liable; and yet refuse to authorize a charge, where there at present exists no legal liability to pay. Yet if the principle of Lord Mansfield be correct, the acknowledgment of one joint debtor will bind all the rest, even though they should have utterly denied the debt at the time when such acknowledgment was made." And the Court of Appeals in New York, in two recent cases, have established the law in that State, in entire accordance with the view stated in the text. The first of these cases is Van Keuren v. Parmelee, 2 Comst. 523. It was there held, that, after the dissolution of the partnership, an acknowledgment and promise to pay, made by one of the partners, will not revive a debt against the firm which is barred by the statute of limitations. The decision, therefore, went no further than that in Bell. Morrison, and consequently did not cover the case of a new promise or acknowledgment made before the debt is barred, nor determine whether there is any distinction in this respect between a

not.

new promise or acknowledgment and a part payment. After this case was decided, there was a difference of opinion in the Supreme Court, upon the two questions last noticed. See Bogert v. Vermilya, 10 Barb. 32; Dunham v. Dodge, id. 566; Reid v. McNaughton, 15 id. 168. But they were both set at rest by the Court of Appeals in Shoemaker v. Benedict, 1 Kernan, 176. It was there held, that payments made by one of the joint and several makers of a promissory note, before an action upon it is barred by the statute of limitations, and within six years before suit brought, do not affect the defence of the statute as to the other. And Allen, J., after examining the case of Van Keuren v. Parmelee, said: "Do the points in which this case differs from that decided in the Court of Appeals, take it without the principles decided, and without the statute of limitations? I think First: One point of difference is, that in this case partial payments, and not a promise or naked acknowledgment of the existence of the debt, are relied upon to take the case out of the statute. But partial payments are only available as facts, from which an admission of the existence of the entire debt and a present liability to pay may be inferred. As a fact by itself, a payment only proves the existence of the debt, to the amount paid, but from that fact courts and juries have inferred a promise to pay the residue. In some cases it is said to be an unequivocal admission of the existence of the debt; and in the case of the payment of money as interest, it would be such an admission in respect to the principal sum. Again, it is said to be a more reliable circumstance than a naked promise, and the reason assigned is, that it is a deliberative act, less liable to misconstruction and misstatement than a verbal acknowledgment. So be it. It is nevertheless only reliable as evidence of a promise, or from which a promise may be implied. Any other evidence which establishes such promise would be equally efficacious, and most assuredly, a deliberate written acknowledgment of the existence of the debt and promise to pay, is of a high character as evidence of a partial payment to defeat the statute of

limitations. In either case the question is as to the weight to be given to evidence, and if a new promise is satisfactorily proved in either method, the debt is renewed. The question still recurs, who is authorized to make such promise? If one joint debtor could bind his co-debtors to a new contract, by implication, as by a payment of a part of a debt for which they were jointly liable, he could do it directly, by an express contract. The law will hardly be charged with the inconsistency of authorizing that to be done indirectly which cannot be done directly. If one debtor could bind his co-debtors by an unconditional promise, he could by a conditional promise, and a man might find himself a party to a contract, to the condition of which he would be a stranger. Second: Another fact relied upon to distinguish this case from Van Keuren v. Parmelee is, that the payments were made before the statute of limitations had attached to the debt, and while the liability of all confessedly existed. In some cases in Massachusetts, this, as well as the fact that the revival or continuance of the debt was effected by payment from which a promise was implied rather than by express promises, were commented upon by the court as important points. But I do not understand that the cases were decided upon the ground that these circumstances really introduced a new element or brought the cases within a different principle. The decisions, in truth, were based upon the authority of the decisions of the English courts, and prior decisions in the courts of that State. That a promise made while the statute of limitations is running, is to be construed and acted upon in the same manner as if made after the statute has attached, is decided, in Dean v. Hewitt, 5 Wend. 257, and Tompkins v. Brown, 1 Denio, 247. If the promise is conditional, the condition must be performed before the liability attaches so as to authorize an action. It does not, as a recognition of the existence of the debt, revive it abso

lutely from the time of the conditional promise. And in principle, I see not why a promise made before the statute has attached to a debt, should be obligatory when made by one of several joint debtors, when it would not be obligatory if made after the action was barred. The statute operates upon the remedy. The debt always exists. An action brought after the lapse of six years, upon a simple contract, must be upon the new promise, whether the promise was before or after the lapse of six years, express or implied, absolute or conditional. The same authority is required to make the promise before as after the six years had elapsed. Can it be said that one of several debtors can, on the last day of the sixth year, by a payment, small or large, or by a new promise, either express or implied, so affect the rights of his co-debtors as to continue their liability for another space of six years, without their knowledge or assent, or any authority from them, save that to be implied from the fact that they are at the time jointly liable upon the same contract, and yet that, on the very next day, without any act of the parties, such authority ceases to exist? If so, I am unable to discover upon what principle. And may the debt be thus revived, from six years to six years, through all time, or if not, what limit is put to the authority? If any agency is created, it continues until revoked. The decision of Van Keuren v. Parmelee, is upon the ground that no agency ever existed, not that an agency once existing has been revoked." The law is the same in New Hampshire. Exeter Bank v. Sullivan, 6 N. H. 124; Kelley v. Sanborn, 9 id. 46; Whipple v.. Stevens, 2 Foster, 219. And in Tennessee. Belote v. Wynne, 7 Yerg. 534; Muse v. Donelson, 2 Humph. 166.

(x) Whitcomb v. Whiting, 2 Doug 652; Burleigh v. Stott, 8 B. & C. 36; Channell v. Ditchburn, 5 M. & W. 494.

(y) Tappan v. Kimball 10 Foster, 136