"In the case of Bland v. Haselrig, 2 Vent. 151, where the action was against four, upon a joint promise, and the plea of the Statute of Limitations was put in, and the jury found that one of the defendants did promise within six years, and that the others did not, three judges against Ventris, J., held that the plaintiff could not have judgment against the defendant who had made the promise. This case has been explained upon the ground that the verdict did not conform to the pleadings, and establish a joint promise. It is very doubtful, upon a critical examination of the report, whether the opinion of the court or of any of the judges proceeded solely upon such a ground.
"In Whitcomb v. Whiting, 2 Doug. 652, decided in 1781, in an action on a joint and several note brought against one of the makers, it was held that proof of payment by one of the others, of interest on the note and part of the principal within six years, took the case out of the statute, as against the defendant who was sued. Lord Mansfield said: ' Payment by one is payment for all, the one acting virtually for all 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.' This is binding on all, but without such authorization it is difficult to see why it should have such effect. It has clearly been may arise by implication from facts alone,1 but this is very doubtful at least.2 So, also, it has been held not to be necessary that it should be made directly to the party to whom the debt is due, but that it will be sufficient if made to a stranger;3 but it is questionable whether this doctrine would be now supported. Under the provisions of Lord Tenterden's Act, it has been considered necessary that the acknowledgment should be to the creditor himself, and that it would not be sufficient if made to a mere stranger.4 And, although the older cases before the passage of this act are clearly to the opposite effect,5 yet the tendency of the modern decisions to require a stricter form of acknowledgment, taken in conjunction with this act in England, and similar ones passed in America, indicate, perhaps, that an acknowledgment to a mere stranger would not now be considered sufficient in this country.6 But an acknowledgment to an agent or person fully authorized and representing the creditor, would, it should seem, on principle, be amply sufficient.1 Whether it would be if made by the maker to the payee of a bill or note held by a subsequent party, may be doubtful; but it has been decided in the affirmative.2
The acknowledgment and promise 1 which are sufficient to bar the statute must, as we have seen, he express and unequivothe 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.
"The doctrine of Whitcomb v. Whiting has been followed in England in subsequent cases, and was applied in a strong manner in Jackson v. Fairbank, 2 H. Bl. 310, where the admission of a creditor to prove a debt on a joint and several note under a bankruptcy, and to receive a dividend, was held sufficient to charge a solvent joint debtor, in a several action against him, in which he pleaded the statute as an acknowledgment of a subsisting debt. It has not, however, been received without hesitation. In Clarke v. Bradshaw, 3 Esp. 153, Lord Kenyon, at nisi prius, expressed some doubts upon it; and the cause went off on another ground. And in Brandram v. Wharton, 1 B. & Ald. 463, the case was very much shaken, if not overturned. Lord Ellenborough, upon that occasion, used language from which his dissatisfaction with the whole doctrine may be cal, and it operates not so much to revive the original promise as to create a new one, founded upon the former as a conclearly inferred. 'This doctrine,'said he, 'of rebutting the Statute of Limitations by an acknowledgment other than that of the party himself, began with the case of Whitconib v. Whiting. By that decision, where, however, there was an express acknowledgment by an actual payment of a part of the debt by one of the parties, I am bound. But that case was full of hardship; for this inconvenience may follow from it. Suppose a person liable jointly with thirty or forty others to a debt, he may have actually paid it, may have had in possession the document by which that payment was proved, but may have lost his receipt. Then, though this was one of the very cases which this statute was passed to protect, he may still be bound, and his liability be renewed, by a random acknowledgment made by some one of the thirty or forty others who may be careless of what mischief he is doing, and who may even not know of the payment which has been made. Beyond that case, therefore, I am not prepared to go, so as to deprive a party of the advantage given him by the statute, by means of an implied acknowledgment.' The English cases decided since the American Revolution are, by an express statute of Kentucky, declared not to be of authority in their courts, and, consequently, Whitcomb v. Whiting in Douglas, and the cases which have followed it, leave the question in Kentucky quite open to be decided upon principle.