There has been some conflict, and some change in the law, as to the effect of the acknowledgment, part payment, or new promise, of one of two or more joint debtors. And it is obvious that this must depend mainly upon the question whether the statute

Arise from excluding than admitting it; otherwise they would nave provided for this case, as well as that of a mere promise or acknowledgment by words only. For these reasons we are of opinion that a ventre de novo ought to be awarded." And see Nash v Hodgson, 6 De G. M. & G. 474,31 Eng. L. & Eq 555.

(t) Hyde v. Johnson, 3 Scott, 289.

(tt) Heinlin v. Castro, 22 Cal 100.

(tu) Lowery v. Gear, 32 111. 382.

(tv) Lawrence County v. Dunkle, 35 Mo. 395; Whitaker v. Rice, 9 Minn 13.

(tw) Maber v. Maber, Law Rep 2 Exch. 153.

(u) Neve v. Hollands, 18 Q. B. 262.

1 A part payment, whether made before or after the debt is barred, does not revive the contract, unless made by the debtor himself, or by some one having authority to make a new promise on his behalf for the residue. Harper v. Fairley, 53 N. Y. 442. - K. is viewed as one of repose,' or one of presumption. If the latter is the true construction of the statute, as there is no reason why one of two joint debtors, as, for example, one of two who were partners in a firm that has been dissolved, should not know perfectly well whether the debt exists or not; and as there is a community of interest between him and the other joint debtors, and it may be supposed he would make no acknowledgment adverse to his own interest, if it were not true, - it would follow, that the acknowledgment of one that it does exist, ought to bind all. But if the statute gives its protection, on the ground either that the debt is paid, or, if unpaid, shall * not, and ought not to be demanded, it is obvious that the acknowledgment by one debtor of the non-payment of the debt is not enough. He may bind himself by his acknowledgment or promise, if he choose to do so, but cannot bind the other party, unless he has authority to do so. And this we take to be the true test and measure of the effect of an acknowledgment by one of many joint debtors. If he that makes the acknowledgment had full authority to bind the others by an original promise, growing out of an entirely new transaction, as one partner in an existing firm has to bind the others, then the acknowledgment, if otherwise sufficient, may bind all, as the new promise of all; but not where this authority is wanting.

We cannot, however, assert that the view above presented is fully sustained by authority, although we think it not only deducible from the reason of the law, but sustained by modern adjudication, - so far at least, as to show that the tendency of authority is in this direction. (v)1 Nevertheless, our notes will

(v) It was decided in Whitcomb v. Whiting. 2 Doug. 652, that an acknowledgment, new promise, or part payment, by one of several joint debtors, would take the case' out of the statute of limitations as to all. That was an action on a joint and several promissory note executed by the defendant and three others. The plaintiff having proved payment, by one of the other three, of interest on the note and part of the principal, within six years, it was held, that this was sufficient to take the case out of the statute as to the defendant. And Lord Mansfield said: "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." And Willes, J., said: "The defendant has had the advantage of the partial payment, and therefore must be bound by it," It would seem that the court proceeded partly upon the then prevalent view, that the statutory bar was founded on a presumption of payment, and partly upon the ground that one joint debtor, in making a new promise, or acknowledgment, or part payment, acts in his own behalf, and also as agent for the rest. The first ground, as we have already seen, no longer exists. And as to the second, it would be difficult to maintain upon principle that any such agency exists. This decision, however, though at times doubted

1 In a few States a new promise, or part payment, by one joint debtor will revive a debt against the others. Clark v. Sigourney, 17 Conn. 511; Shepley v. Water* show, that in some cases a part payment has barred the statute and revived a remedy against others who were only sureties; (w)1 * and this even where the parties were held, that payment of interest by the other joint maker was enough to take the case oat 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 1 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 sufficient 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 ld. 433; Shep-ley v. Waterhouse, 22 id. 497. But see infra, n. (c). And in Vermont: Joslyn v. Smith, 13 Vt. 353; Wheelock v. Doo-little, 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. See the recent case of Zent v. Heart, 8 Pa, 337. This case was overruled, however, in Coleman v. Fobes, 22 Pa. 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. 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 v. 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 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