Lord Mansfield held in an early case that a "payment by one joint debtor 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. "27

20New England Trust Co. v. New Yogk Belting Co., 166 Mass. 42, 43 N. E. 928; Cuyler v. Ellsworth, 6 Paige,32.

21 Browne v. Lee, 8 B. 4 C. 689; Cowell v. Edwards, 2 B. ft P. 268; Batard v. Hawes, 2 E. & B. 287; Moore v. Bruner, 31 111. App. 400; Chaffee v. Jones, 19 Pick. 260, 265; Powell v. Matthis, 4 Ired. L. 83, 40 Am. Dec. 427; Gross v. Davis, 87 Tenn. 228, 230, 11 S. W. 92.

22 Cowell v. Edwards, 2 B. & P. 268; Hitchman v. Stewart, 3 Drew, 271; Ramskill v. Edwards, 31 Ch. D. 100; Burroughs v. Lott, 19 Cal. 125; Security Ins. Co. v. St. Paul etc. Ins. Co., 50 Conn. 233; Young v. Lyons, 8 Gill, 162, 166; Gross v. Davis, 87 Tenn. 226, 11 S. W. 92, 10 Am. St. Rep. 635; Twichell v,. Askew (Tex. Civ. App.), 141 S. W. 1072; Preston v. Preston, 4 Gratt. 88, 47 Am. Dec. 717; Cm v. May, 91 Ala; 233, 8 So. 790. See also Young v. Clark, 2 Ala. 264.

23 Security Ins. Co. v. St. Paul Ac. Ins. Co., 50 Conn. 233; Whitman v. Porter, 107 Mass. 522; Boardman v. Paige, 11 N. H. 431; McKenna v. George, 2 Rich. Eq. 15.

24 Michael p. Allbright, 126 Ind. 172, 25 N. E. 902; Boardman v. Paige, 11 N H. 431; Mills v. Hyde, 19 Vt. 59, 46 Am. Dec. 177; Liddell v. Wisnell, 59 Vt. 365, 8 Atl. 680. In England since the Judicature Act, 36 & 37 Vict., v. 68, s. 25, the equity rule prevails in all cases. Lowe v. Dixon, 16 Q. B. D. 455. And in States in this country where procedure at law and that in equity are assimilated, the same result may be expected.

25See infra, Sec.Sec. 1277 et seq,

26See infra, Sec.Sec. 1026, 1631.

27 Whitcomb v. Whiting, 2 Doug.

There is nothing in the inherent nature of joint indebtedness which should warrant the conclusion that one joint debtor may by a new promise bind his co-obligors. The question should, on principle, depend upon the authority in fact of the promisor to act as agent for his co-obligors. In deciding such a question of fact it may be a highly material circumstance that the joint obligors are partners, and other circumstances from which an inference of actual or apparent authority may be drawn will be similarly important. If, however, Lord Mansfield's ruling is adopted to its full extent, all these questions become immaterial. In every case the payment or new promise of one joint, or joint and several obligor will have the same effect as if jointly made by all. This was the law in England 28 until changed by statute,29 by virtue of which the right of one joint debtor to bind another by a new promise or part payment is dependent upon authority in fact.30

In America the tendency has been strongly away from the early law laid down by Lord Mansfield. In a very few jurisdictions the old rule may perhaps prevail.31 Generally, however, after a debt is already completely barred by the statute,

652. This ruling of Lord Mansfield was contrary to that in an early case. Bland v. Haselrig, 2 Vent. 151.

28Wood v. Braddick, 1 Taunt. 104 (an acknowledgment by one partner after dissolution); Burleigh v. Stott, 8 B. & C. 36; Pease v. Hirst, 10 B. ft C. 122; Dowling v Ford, 11 M. & W. 329; Fordham p. Wallis, 10 Hare, 217.

29The Statute of Frauds Amendment Act (1828), Sec. 1, provided that no written acknowledgment or promise by one joint debtor should bind the others, and the Mercantile Law Amendment Act (1856), Sec. 14 provided that no payment of principal or interest by one co-debtor should bind another.

30Watson v. Woodman, L. R, 20 Eq. 721; In re Tucker, [1804] 3 Ch. 420.

31 Bound v. Lathrop, 4 Conn. 336, 10 Am. Dec. 147 (cf. later Connecticut decisions cited in subsequent notes);

Austin v. Bostwick, 9 Conn. 496, 25 Am. Dec. 42; Casebolt v. Ackerman, 46 N. J. L. 169; Turner v. Boss, 1 R. I. 88. In the three decisions last cited the debt was not barred at the time of the new promise, but the court does not seem to rely on this distinction. (Cf. with the last decision Woonsocket Inst. v. Ballou, 16 R. 1. 351, 16 Atl. 144.) "Lord Mansfield's rule formerly prevailed in Maine and Massachusetts, North Carolina and Vermont, White v. Hale, 3 Pick. 201, 15 Am. Dec. 200; Colburn v. Averill, 30 Me. 310; Well-man v. Southard, 30 Me. 425; Cady v. Shepherd, 11 Pick. 400, 22 Am. Dec. 370; Vinal v. Burrill, 16 Pick. 401; lb-ley 0. Jewett, 2 Mete. 168; Mclntire v. Oliver, 2 Hawks, 200, 11 Am. Dec. 760; Wheelock p. Doolittle, 18 Vt. 440, 46 Am. Dec. 163; Noyes v. Cush-man, 25 Vt. 300, but in these States has been changed by statute.

one joint, or joint and several debtor without authority from his co-debtors cannot revive the obligation. Thus after dissolution of a partnership, one partner cannot bind others by new promise or part payment.32 And there seems no reason, on principle or authority, to give any greater force to the acts of a joint debtor, who is not a partner, in the absence of evidence showing actual authority.33 There seems, on principle, little reason to distinguish a case where the new promise or part payment is made before the statute has run. During the continuance of a partnership there can be no doubt of the implied authority of one partner thus to prolong the statutory period;34 but there seems no reason to infer such authority in the case of a joint debtor who is not in partnership with his co-debtors,35 or in case of a partner after dissolution. It is true that a joint debtor, even in these cases, may properly make full payment or promise of it, and if he pays exact contribution from his co-debtor because the debtor who paid was bound to pay the joint obligation. But it is the inference of a new promise by the other debtor which is here in question; and while a new promise on the part of the one who pays may properly be inferred from a part payment, or may be made expressly by one joint debtor, no reason can be found why this promise should bind any one but the debtor who makes it. This view prevails in many States,36 but other States hold the new promise or payment effectual to prolong the debt against all,37 though if the debt were barred when the new