But since the decisions in Atkins 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 [8 B. & C. 36], 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 [4 Man. & R. 440], 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 first of June, 1825, to the payee, taking credit to himself for payments of interests 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." In Connecticut the admissions of one partner, though after a dissolution made before the Statute of Limitations has run against the claim, were held to remove the bar as to all in Beardsley v. Hall, 36 Conn. 270 (1869); Bissell v. Adams, 35 Conn. 299. As to part payment by one joint promisor, see, also, Perkins v. Barstow, 6 R. I. 505 (1860); Tappan v. Kimball, 10 Foster, 136 (1855).
The doctrine of Whitcomb v. Whiting has also obtained in Massachusetts, at least to a certain extent. See Hunt v. Bridgham, 2 Pick. 581; White v. Hale, 3 Ib. 291; Frye v. Barker, 4 Ib. 382; and Sigourney v. Drury, 14 Ib. 387, in which the question is elaborately discussed, and the doctrine restricted to cases of payment by one joint promisor, and not extending to mere promises. In a later case in Massachusetts it was held that a partnership note is taken out of the operation of the Statute of Limitations by a part payment thereof, made by one partner within six held that after the dissolution of partnership, an acknowledgment by one partner would not be binding upon his co-partners;1 and it would seem upon principle that the same rule should apply during the existence of the partnership. Again, the manifest inconvenience resulting from the doctrine that one joint promisor could, by his single promise, render all his co-promisors liable on a debt barred by the statute, has led, in England, to the passage of an act of Parliament, called Lord Tenterden's Act, by which it is declared that where there are "two or more joint contractors or executors or administrators of any joint contractors, no such joint contractors, executors, or administrators shall lose the benefit of the said enactments [the Statute of Limitations], or either of them, so as to be chargeable in respect or by reason of any acknowledgment or promise by any other or others of them."2 This statute may, therefore, be considered as a declaration of the final opinion in England, upon the question of what should constitute an acknowledgment. Similar statutes have also been passed in Massachusetts and Maine.3
§ 1430. No form of words is, however, necessary to create an acknowledgment, nor need it be made in writing, unless it be required to be so made by some statute provision, even although the original contract were required by the Statute of Frauds to be in writing.4 It has even been held that it years, although the firm had then been dissolved by the voluntary act of the partners, if the holder of the note had previous dealings with the firm, and was not notified, and had no knowledge of the dissolution. Sage v. Ensign, 2 Allen, 245 (1861). Also in Maine see Getchell v. Heald, 7 Greenl. 26; Pikeu. Warren, 15 Me. 390; Shepley v. Waterhouse, 22 Ib. 497. But the inconvenience resulting from this rule has led, in England, in Massachusetts, and in Maine, to a statute provision by which it is clearly overruled, and it is required that a debt barred by the statute can only be revived against joint promisors by the express promise of each, plainly showing that the objects of the original statute were frustrated by the decisions of the court.
1 Van Keuren v. Parmelee, 2 Comst. 523; Levy v. Cadet, 17 Serg. & R. 126; Bell v. Morrison, 1 Pet. 351; Hackley v. Patrick, 3 Johns. 536; Walker v. Duberry, 1 A. K. Marsh. 189.
2 Statute of 9 Geo. IV. ch. 14.
3 Mass. Rev. Stat. ch. 120, § 18; Maine Rev. Stat. ch. 146, § 29.
4 Gibbons v. McCasland, 1 B. & Ald. 690.
1 Whitney v. Bigelow, 4 Pick. 110; East Ind. Co. v. Prince, Ryan & Mood. 407.
2 See Bell v. Morrison, 1 Pet. 355, and cases cited and commented on by the court.
3 Halliday v. Ward, 3 Camp. 32; Mountstephen v. Brooke, 3 B. & Ald. 141; Sluby v. Champlin, 4 Johns. 461; Titus v. Ash, 4 Foster, 329; Minkler v. Minkler, 16 Vt. 191; Bird v. Adams, 7 Ga. 505; Watkitis v. Stevens, 4 Barb. 168. Contra, Kyle v. Wells, 17 Penn. St. 286; Morgan v. Walton, 4 Barr, 323.