can only affect the party who makes it, unless he has authority to speak for others as well as himself. A joint debtor has no such authority. It cannot be justly inferred from the relation which he sustains to the other joint debtors; and though he may conclude himself by an admission, he cannot conclude them. His lordship, after saying, that payment by one is payment for all,' adds: 'the one acting virtually, as agent for the rest.' If the meaning be, that there is such an agency as will make the payment by one inure to the benefit of all the joint debtors, the reasoning is well enough; but it proves nothing on the point in controversy. If the meaning be, that one joint debtor is the agent of the others for the purpose of making admissions to bind them, that was assuming the very point to be proved; and the assumption had neither authority nor argument to support it. There is nothing in the relation of joint debtors from which such an agency can be inferred. A joint obligation is the only tie which links them together; and from the nature of the case, payment of the debt is the only thing which one has authority to do for all. I am persuaded that such a decision would not have been made, had it not been for the strong disposition which prevailed at that time to get round the statute of limitations. It was in direct conflict with Bland v. Haselrig, 2 Ventris, 151, which was decided ninety years before, when the statute was in better repute; and which is an authority in point, against the judgment under review. The case was this: in assumpsit against four, the statute of limitations was pleaded, and the verdict was, that one of the defendants promised within six years, but the others did not. Upon this verdict, judgment was rendered for the defendants. The case of Whitcomb v. Whiting has been several times questioned in England, and in Atkins v. Tredgold, 2 B. & C. 23, the court seemed much disposed to disregard it. But the authority of a great name has proved more than a match for common sense; and the decision in Douglass is now regarded as good law in England. Pecham v. Raynal, 2 Bing. 306; Pritchard v. Draper, 1 Russ. & Myl. 191. But it is not so in this country. Although the case in Douglass has been followed in some of the States, it has been questioned in others; and in several of the States, and by the Supreme Court of the United States, it has been wholly disregarded. I shall hereafter have occasion to refer to some of the cases.

"I will now inquire how the question stands in this State. It first came up in Smith . Ludlow, 6 Johns. 267, nearly forty years ago, when the statute of limitations was in bad repute, and when few men ventured to think for themselves after Lord Mansfield had spoken. The court said, that, where the original debt was proved, the confession of one partner, though made after the dissolution of the partnership, would bind the other, so as to prevent him from availing himself of the statute of limitations. This was said on the authority of Whitcomb v. Whiting, already mentioned, and Jackson v. Fairbank, 2 H. Black. 340, which was decided on the authority of the same case, though it went a more extravagant length. Of the case in Douglass I have already spoken; and of the case in Blackstone it is enough to say, that it has been condemned in England, Brandram v. Wharton, 1 B. & Ald. 463, and overruled in this State. Rosevelt v. Mark, 6 Johns. Ch. 266, 291. I may add, that what was said in Smith v. Ludlow, about binding one partner by the confessions of the other, made after the partnership had been dissolved, was not necessary to the decision of the cause; for there had been confessions by both of the partners, which the court held sufficient to take the case out of the statute, without making the admission of one evidence against the other. Still, on the authority of this case, and those in Douglass and Blackstone, it was decided in Johnson v. Beardslee, 15 Johns. 3, that the promise of one joint debtor was sufficient to take the case out of the statute. And in Patterson v. Choate, 7 Wend. 441, it was held, that, although one partner cannot, after a dissolution, bind the other by a new contract, yet his acknowledgment of a previous debt due from the partnership will bind the other partner, so far as to

prevent him from availing himself of the statute of limitations. This doctrine has been mentioned on other occasions; Hopkins v. Banks, 7 Cow. 653; Rosevelt v. Mark, 6 Johns. Ch. 291; Dean v. Hewit, 5 Wend. 262; but there are, I believe, no other decisions in this State to the like effect. In Patterson v. Choate, the six years had run, and the bar was complete before the acknowledgment was made. No one, I venture to say, who does not go upon the ground that the statute of limitations ought not to be enforced, can assign a solid reason for the distinction between contracting a new debt against a former partner, and making an acknowledgment which shall charge him with that which, though once a debt, had ceased to be so by the operation of law. I agree with the late Chief Justice Spencer, in Sands v. Gelston, 15 Johns. 519, that, 'the statute of limitations is the law of the land;' and that in point of principle, there is no substantial difference between a debt barred by the statute of limitations, and a debt for the payment of which the debtor has been exonerated by a discharge under a bankrupt or insolvent act.' Still, if there was no counterbalance in the adjudications of our own courts, I should feel bound to follow the two or three cases which support the plaintiff's claim, and leave reforms to the legislature. But those cases conflict in principle with many other decisions in this State, and cannot be supported.

"Although the rule is different in England in relation to admissions concerning partnership transactions (Wood v. Braddick, 1 Taunt. 104), it has been settled by a series of adjudications in this State, that the authority of partners to bind each other by any undertaking, or admission, even though it relate to partnership transactions, ceases with the partnership. In Hackley v. Patrick, 3 Johns. 536, although it was mentioned in the notice of dissolution, that Hastie, one of the partners, would adjust the unsettled business of the partnership, it was held that his subsequent admission of a balance due from the firm to the plaintiffs on account would not bind his copartner. The court said, it was a clear case. After a dissolution of a copartnership, the power of one party to bind the others wholly ceases. There is no reason why his acknowledgment of an account should bind his copartners, any more than his giving a promissory note in the name of the firm, or any other act.' This doctrine was reasserted and applied in Sanford v. Mickles, 4 Johns. 224, where it was held, that a partner, to whom authority had been given on the dissolution to collect and pay debts, could not indorse a promissory note belonging to the firm so as to pass the title to the indorsee. See Yale v. Eames, 1 Met. 486. In Walden v. Sherburne, 15 Johns. 409, it was again decided that the admission by one of the partners, after a dissolution, of a balance against the firm, did not bind the other partner. And where the notice of dissolution stated that the business would be settled by one of the partners, who was duly authorized to sign the name of the firm for that purpose, it was held, that such partner could not renew a note previously given by the firm, and which was running in the bank at the time of the dissolution. National Bank v. Norton, 1 Hill, 572. Mitchell v. Ostrom, 2 Hill, 520, asserts the same general doctrine. And in Baker v. Stackpole, 9 Cowen, 420, the rule that one partner, after a dissolution, cannot bind his fellows by an admission relating to partnership transactions, was sanctioned by the unanimous judgment of the court for the correction of errors. “Enough has, I think, been said to justify the remark, that the two or three cases on which the plaintiff relies cannot be supported. They conflict in principle with a series of decisions spreading over a period of forty years, and including a determination of the court of last resort.

"But this is not all. Since the Supreme Court first fell into the error of following Whitcomb v. Whiting, the course of decision upon the statute of limitations has undergone a great change in this country, and particularly in this State. At the former period, the statute amounted to little more, in judicial construction, than a ground

for presuming the debt paid, which might be rebutted by the mere admission that such was not the fact. But the law is not so now. There must be a promise, a new contract, though founded on the original consideration, to take a case out of the statute. If the promise is not express, the case must be such that it can be fairly implied. There must, at the least, be a plain admission that the debt is due, and that the party is willing to pay it. Allen v. Webster, 15 Wend. 284; Stafford v. Richardson, Ib. 302; Bell v. Morrison, 1 Peters, 362. It is the new promise and not the mere acknowledgment, that revives the debt and takes it out of the statute. Rosevelt v. Mark, 6 Johns. Ch. 290. This doctrine is sustained by many decisions in other States; but I do not think it necessary to cite them.

"The case of Whitcomb v. Whiting has, to a limited extent, been followed in Massachusetts: Cady v. Shepherd, 11 Pick. 400; Bridge v. Gray, 14 Ib. 55; Sigourney v. Drury, Ib. 387, 391, 392; Vinal v. Burrill, 16 Ib. 401. In Connecticut: Bond v. Lathrop, 4 Conn. 336; Coit v. Tracy, 8 Ib. 268; Austin v. Bostwick, 9 Ib. 496; Clark v. Sigourney, 17 Ib. 511. In Maine: Parker v. Merrill, 6 Greenl. 41; Pike v. Warren, 15 Me. 390; Dinsmore v. Dinsmore, 21 Ib. 433; Shepley v. Waterhouse, 22 Ib. 497. And in Vermont: Joslyn v. Smith, 13 Vt. 353; Wheelock v. Doolittle, 18 Ib. 440. But I think the judgment under review would not be upheld in either of those States. In North Carolina it has been held, that the acknowledgment of the debt by one partner, though after the dissolution, will prevent the operation of the statute. McIntire v. Oliver, 2 Hawks, 209. And the same has been decided in Georgia, provided the new promise is made before the action is barred; but not when the new promise is made afterwards, as it was in the case before us. Brewster v. Hardeman, Dudley, 138. It has been decided by the Court of Appeals, in South Carolina, that a promise by one partner made after the dissolution, and after the statute had run, will not charge the other partner. Steele v. Jennings, 1 McMullen, 297. In the Exeter Bank v. Sullivan, 6 N. H. 124, the authority of Whitcomb v. Whiting was wholly denied; and the court held, that a payment by one of the joint makers of a promissory note did not take the case out of the statute as to the other. (a) In Alabama, a promise by the principal debtor will not revive the demand against a co-debtor, who is a surety. Lowther v. Chappel, 8 Ala. 353. In Tennessee, a promise by one partner after the dissolution of the partnership, to pay a note made by the firm, does not take the case out of the statute of limitations as to the other partner. Belote's Ex'rs v. Wynne, 7 Yerger, 534; Muse v. Donelson, 2 Humph. 166. This is also the rule in Pennsylvania. Levy v. Cadet, 17 S. & R. 126; Searight r. Craighead, 1 Pen. & Watts, 135. It is also held in Indiana, that the power of one partner to bind the other by the admission of a debt ceases with the partnership. Yandes v. Lefavour, 2 Blackf. 371. And in Bell v. Morrison, 1 Peters, 351, the Supreme Court of the United States followed the decisions in Kentucky, and held that the dissolution of the partnership put an end to the authority of the partners to bind each other by any new engagement; and consequently that the acknowledgment of a debt by one partner, after the dissolution, would not take the case out of the statute of limitations. The elaborate argument of Mr. Justice Story, who delivered the opinion of the court, covers the whole field of discussion, and stands on principles, which, though they may be disregarded, cannot be overthrown.

"I have not stopped to inquire whether the statute operates upon the debt or the remedy; for, though this might be a point to be considered in a court of conscience, it is of no practical importance in a court of law. We are not dealing with moral but with legal obligations; and it is idle to talk of a debt where there is no legal obligation to pay it.

(a) [So in Arkansas, Mason v. Howell, 14 Ark. 199.]

"I am of opinion that the judgment should be reversed, and that judgment should be rendered for the defendants on the verdict.

"Jewett, C. J., also delivered a written opinion in favor of reversal.

"And thereupon the judgment of the Supreme Court was reversed, and judgment awarded for the defendants on the special verdict." And see also Burger v. Durvin, 22 Barb. (N. Y.) 68; Watts v. Devor, 1 Grant (Penn.), 267.

And in a more recent case, the Supreme Court of the same State has gone still further than the court went in Van Keuren v. Parmelee, and held, that part payment by one of several joint makers before the statute has barred an action on the note, will not take the case out of the statute as to the other makers. Dunham v. Dodge, 10 Barb. (N. Y.) Sup. Ct. 566; Shoemaker v. Benedict, 1 Kernan (N. Y.), 176. And see also Coleman v. Fobes, 22 Penn. 308. The same is true if the payment be after the statute has barred the action. Payne v. Slete, 39 Barb. (N. Y.) 634; Bush v. Stowell, 71 Pa. St. 208; Borden v. Pray, 20 Ark. 293. Though it is held by the latter court that, if the payment be made by one partner before the debt is barred, it will take the debt out of the statute as to another. Burr v. Williams, 20 Ark. 174; Hicks v. Lusk, 19 Ark. 692. For other cases, in addition to those cited in the opinion above quoted, showing a tendency to break away from the authority of Whitcomb v. Whiting, see Whipple v. Stevens, 2 Foster (N. H.), 219; Way v. Bassett, 5 Hare, Ch. 55; Biscoe v. Jenkins, 5 Eng. (Ark.) 108; Biscoe v. James, Ib. 163; Bogert v. Vermilya, 10 Barb. (N. Y.) Sup. Ct. 32; Ellicott v. Nichols, 7 Gill (Md.), 85; Bibb . Peyton, 11 S. & M. (Miss.) 275; Lane v. Doty, 4 Barb. (N. Y.) Sup. Ct. 530; Disborough v. Jones, 1 N. J. 677; Disborough v. Biddleman, 1 Spencer (N. J.), 275; Balcom v. Richards, 6 Cush. (Mass.) 360; Cox v. Bailey, 9 Ga. 467; Zent v. Hart, 8 Barr (Penn.), 337; Grant v. Ashley, 7 Eng. (Ark.) 762; Wooddy v. State Bank, Ib. 780; Pitt v. Wooten, 24 Ala. 474. As to effect of part payment by one of several joint contractors, see also post, § 275; Day v. Baldwin, 34 Iowa, 380.]

CHAPTER XXIV.

ACKNOWLEDGMENTS BY AND TO AGENTS, EXECUTORS, ETC.

261. AN acknowledgment made by an agent in respect to demands relating to concerns within the scope of his authority is binding upon the principal. It is upon this principle, that one cocontractor may bind another by part payment. And though a partner may not bind the firm after dissolution, by a part payment, or a new promise, he may do so if appointed to settle the affairs. of the concern.1 A partnership dissolved for future operations, and remaining in force for closing the business of the concern ; and the liquidating partner retaining his former power to bind the firm in things within the scope of the business committed to him; a payment by him on account of a simple contract debt of the firm in such case is such an acknowledgment as will take the claim out of the operation of the statute.2 Where an agent had been employed to pay money for work done, and the workmen were referred to him for payment, and he assents to it, it was held by Lord Ellenborough, that an acknowledgment, or promise to pay by him, will, after six years, take the case out of the statute. So where the plaintiff relied on a new promise, as an answer to the statute, which was made by the defendant's wife, who managed the business, and generally gave orders and paid for goods; Buller, J., held, that her promise was binding on the defendant, and took the case out of the statute; and ruled, that the promise of any servant, or agent, intrusted by the defendant to transact his business for him, would have the same effect. So, also, in an action against a husband for goods supplied to his wife, for her ac

1 Smith v. Ludlow, 6 Johns. (N. Y.) 267; Bell v. Morrison, 1 Peters (U. S.), 351; Haven v. Hathaway, 2 App. (Me.) 347.

2 Housen v. Irving, 3 Serg. & Watts (Penn.), 345.

3 Burt v. Palmer, 5 Esp. 145. [Forster v. Thompson, 2 Con. & Law. 568. A promise by an individual member of a college corporation will not take the case out of the statute. Lyman v. Norwich Univ., 28 Vt. (2 Wins.) 645.]

4 Palethrop v. Furnish, 1 Esp. 511, note. [Burk v. Howard, 13 Mo. 241; Barger v. Durvin, 22 Barb. (N. Y.) 68; First Nat. Bk. of Utica v. Ballou, 49 N. Y. 155.]