The question of whether one joint or joint and several obligor having no other authority than that necessarily involved in the joint relationship may bind his co-obligors by a new promise or partial payment is a question of law. In an early decision by Lord Mansfield 29 a joint debtor was held to have this power, and this decision was regarded as settling the law in England, though justly criticised by the courts,30 until Lord Tenterden's Act31 provided that no joint contractor should lose the benefit of the Statute of limitations by reason of a written acknowledgment signed by one or more of his co-contractors.31a In the United States the early

L. 15, 56 Atl. 170, 71 N. J. L. 680, 60 Atl. 1133.

28 It was so held in Liberman v. Gurensky, 27 Wash. 410, 67 Pac. 908.

29Whitcomb v. Whiting, Doug. 652. This was a case of part payment by one joint debtor, but Lord Mansfield said the same consequence would follow from an admission. A contrary decision had been given in Bland v. Hasel-rig, 2 Vent. 151.

30 Jackson v. Fairbank, 2 H. Bl. 340; Brandram v. Wharton, 1 B. & Ald. 463; Burleigh's Exec's v. Stott, 8 B. & C. 36; Channell v. Ditchburn, 5M.4W. 494. This was so held "although the [co-debtor] was a surety only, and even though the payment was not made until the statute had run out," Cockrill v. Sparkes, 1 H. & C. 609, 702. But where the community of interest had been severed by the death of a joint contractor it has uniformly been held that the admissions of a co-contractor do not bind the executor or administrator, nor the admissions of the latter the co-contractor. Atkins v. Tredgold, 2B.&C. 23; Slater v. Lawson, 1 B. & Ad. 396. To the same effect are Root v. Bradley, 1 Kan. 437; Hathaway v. Haskell, 9 Pick. 42. Nor will payment by one of several inheritors of mortgaged property extend the statutory period in favor of the mortgagee as against other inheritors. Weidenham-mer v. McAdams, 52 Ind. App. 98, 98 N. E. 883.

31 9 Geo. IV. c. 14.

31a This statute left unchanged the effect of a part payment but the Mercantile Law Amendment Act, 19 and 20 Vict., c. 97, s. 14, provided further that no co-debtor should lose the benefit of the Statute of Limitations by reason only of payment by any other co-debtor. See Cookrill. Sparkes, 1 H. & C. 699.

English decisions were followed in many cases; 32 but in most States at the present day, because of statutes or otherwise, a joint contractor has no longer power to bind his co-contractors in this way;33 though they will be bound if they authorize new promises or partial payments; and knowingly to permit them to be made is evidence of authorization.34 A joint debtor may even make a payment on a barred debt as agent for his co-debtor without thereby extending his own liability 35 but he must make clear that he is acting merely as agent, or he will revive his own liability.36

"Caldwell v. Stgourney, 19 Conn. 37; Miller v. Miller, MacArthur & Mock (D. C), 109, 48 Am. Rep. 738; White v. Connecticut General Life Ins. Co., 34 App. D. C. 460; Cox v. Bailey, 9 Ga. 467, 54 Am. Dec. 368 (but see Rogers v. Burr, 105 Ga. 432, 446, 31 S. E. 438, 70 Am. St. Rep. 50); Morgan's Exec. v. Metayer, 14 La. 612; Shepley v. Waterhouse, 22 Me. 497 (now changed by statute); Frye v. Barker, 4 Pick. 382 (now changed by statute); Craig v. Calloway County Court, 12 Mo. 91; Lawrence County V. Dun-kle, 35 Mo. 395; Woonaocket Institution for Savings v. Ballou, 16 R. 1.351, 16 Atl. 144, 1 L. R, A. 655; Bowdre v. Hampton, 6 Rich. 208; Sifton v. Mc-Cabe, 6 U. C. Q. B. 394.

Of the above decisions Caldwell v. Sigourney and Shepley v. Waterhouse were cases where a principal debtor revived the liability of a surety who was a joint promisor. To the decisions in this note, may be added Clinton County v. Smith, 238 Mo. 118, 141 S. W. 1091, 37 L. R, A. (N. S.) 272; Moore v. Goodwin, 109 N. C. 218, 13 S. E. 772; Moore v. Beaman, 111 N. C. 328, 16 S. E. 177; Copeland v. Collins, 122 N. C. 619, 30 S. E. 315; Silman v. Silman, 2 Hill (S. C), 416, in which it was held that a new promise made by one joint debtor before the debt is barred, binds co-debtors though a promise made after the debt had become barred would not do so.

33 Bell v. Morrison, 1 Pet. 351, 366, 7 L. Ed. 174; Woody v. State Bank, 12 Ark. 780; Slagle v. Box, 124 Ark. 43, 186 S. W. 299; State L. A T. Co. v. Cochran, 130 Cal. 245,62 Pac. 466,600; Boynton v. Spafford, 162 111. 113, 44

N. E. 379, 53 Am. St. Rep. 274; Mc-Donald v. Weidmer, 103 111. App. 290; Meizler v. Todd, 12 Ind. App. 381, 39 N. E. 1046, 54 Am. St. Rep. 531; Steel v. Souder, 20 Kan. 39, 41; Elmore p. Fanning, 85 Kan. 501, 117 Pac. 1019, 38 L. R. A. (N. S.) 685; Leonard v. Hughlett, 41 Md. 380, 387; Peiree v. Tobey, 5 Met. 168; Koons v. Vaucon-sant, 129 Mich. 260, 88 N. W. 630, 95 Am. St. Rep. 438; Monidah Trust v. Kemper, 44 Mont. 1, 118 Pac. 811; Willonghby v. Irish, 35 Minn. 63, 27 N. W. 379, 59 Am. Rep. 297; Atwood v. . Lammers, 97 Minn. 214,106 N. W. 310; Briscoe v. Anketell, 28 Miss. 361, 61 Am. Dec. 553; Theis v. Wood, 238 Mo. 643,142 S. W. 431 (decided under Kansas law); Oleson v. Wilson, 20 Mont. 544, 52 Pac. 372, 63 Am. St. Rep. 639; Dwire v, Gentry, 95 Neb. 150, 145 N. W. 350; Exeter Bank v. Sullivan, 6 N. H. 124; Whipple p. Stevens, 22 N. H. 219, 226; Van Keuren v. Parmelee, 2 N. Y. 523, 51 Am. Dec. 322; Murdock v. Waterman, 145 N. Y. 55, 63, 39 N. E. 829, 27 L. R. A. 418; Matteson p. Palser, 173 N. Y. 404, 66 N. E. 110; Hoover v. Hubbard, 202 N. Y. 289, 95 N. E. 702; Cohen p. Diamond, 74 N. Y. Misc. 444, 132 N. Y. S. 355; Moore v. Goodwin, 109 N. C. 218, 13 S. E. 772 (if not made until after the debt is barred); Hance v. Hair, 25 Ohio St. 349; Bush v. Stowell, 71 Pa. 208, 10 Am. Rep. 694; Carlton 4 Manning v. Ludlow Woolen Mills, 27 Vt. 496; Hanna v. Kasson, 26 Wash. 568, 67 Pac. 271; State Bank v. Pease, 153 Wis. 9, 139 N. W. 767; Cowhick v. Shingle, 5 Wyo. 87,37 Pac. 689, 25 L. R. A. 608, 63 Am. St. Rep. 17.