276. Not only is part payment of principal or interest by one joint contractor, as well since as before Lord Tenterden's Act, sufficient to take the case out of the statute, but the allowing credit for interest in an account, being equivalent to its payment, is also sufficient to defeat the operation of the statute.1

277. The point raised in Channel v. Ditchburn 2 was, whether payment of interest by one of a joint and several promissory note was sufficient to take the case out of the statute of limitations, against the other, even though the payment be not made within six years after the first accruing of the cause of action. Parke, B., in delivering the judgment of the court, said that cases had been relied on as distinguishing this case, and throwing discredit on the authority of Whitcomb v. Whiting; and it seemed a strong position to say, that a party who joins with another in making a joint and several promissory note, by that act, endows the other, his agent, with authority, by payment of interest or principal, to make a fresh contract for him. But, since that case, the court of Queen's Bench had twice decided, that a part payment by a joint contractor takes the case out of the statute, and thus confirmed the authority of Whitcomb v. Whiting. It is said, however, continued the learned judge, that a distinction arises in this case from the fact of the statute having run out before the payment was made; but, on looking at the paper book in the case of Manderston v. Robertson, it appears the payment in that case was made after

man v. Fisher, 3 Grant (Penn.), 302. Pitts v. Hunt, 6 Lan. (N. Y.) 146. And where two joint promisors of a note refer the holder to a third promisor, who pays the interest, the payment takes the note out of the statute as to all. Winchell v. Bowman, 21 Barb. (N. Y.) 448. But see contra, Smith v. Townsend, 9 Rích. (S. C.) 44, and ante, § 260, note. The indorser of a note payable to another is such a joint promisor. Perkins's Adm'r v. Brastow, 6 R. I. 505. Part payment by one joint debtor at the request of another takes the case out of the statute as to both. Monro v. Potter, 34 Barb. (N. Y.) 358. The payment of interest by the principal debtor binds the sureties. Lawrence Co. v. Domtale, 35 Mo. 395; Whittaker v. Rice, 9 Min. 13. And where sureties are called on for payment, and they refer to the principal, who pays, the payment binds them. Winchell v. Hicks, 18 N. Y. (4 Smith) 558. In England now, by Stat. 19 & 20 Vict. c. 97, § 14, part payment of "principal, interest, or other money," by one co-contractor, his executors or administrators, does not bind the other. And, since this statute, it seems, that express consent will make no difference. Jackson v. Wooley, 8 Ell. & B. 778.]

1 Pearne v. Hurst, 10 Barn. & Cress. 122.

2 Channel v. Ditchburn, 5 Mees. & Welsb. (Exch.) 494.

3 In Burleigh v. Stott, supra, and in Manderston v. Robertson, 4 Man. & Ry. 440. 4 Supra.

the statute had run out. The case of Whitcomb v. Whiting must, therefore, still be considered as good law.1

278. As an acknowledgment of part payment must be in writing, and signed by the party chargeable thereby (though the appropriation of such part payment may be proved by parol declarations), a question has arisen whether, as under the statute of frauds, a party would be bound, if such acknowledgment (be it of part payment or of a promise of payment) were signed by an agent. This question arose in Hyde v. Johnson,2 and the court there held, that an acknowledgment by the agent of the debtor would not revive a debt by the statute of limitations, and that such acknowledgment must be signed by the debtor himself. "There are no words in the first section that would seem to authorize the signature of an agent as being sufficient to save the statute; and it is equally clear, that where the legislature intended that such should be the case, as in the eighth section in regard to executory contracts, it had no difficulty in pointing out the distinction, and expressly legalizing contracts signed by principals or agents thereunto lawfully authorized."

279. The third section of Lord Tenterden's Act enacts, that no indorsement or memorandum of any payment written or made. after the time appointed for this act to take effect, upon any promissory note, bill of exchange, or other writing, by or on the behalf

1 It is clear, therefore, it has been said, that the courts are not inclined to disturb the case of Whitcomb v. Whiting, notwithstanding the hardship it seems to inflict on joint contractors. It is important, in considering Whitcomb v. Whiting, to remember that that was a case of payment on account and not of mere acknowledgment, as it purports to be by the marginal note; and that although part payment will still keep alive a debt as against a joint contractor, yet that this does not apply to acknowledgments or promises by joint contractors. The first clause in the 9 Geo. IV. c. 14, will render it necessary that the plaintiffs should act with extreme care and caution in adopting proceedings where there are two or more joint contractors or the personal representative of any contractor, for not only will the joint contractor or personal representative be not bound by the written acknowledgment or promise signed by his co-contractor or joint representative; but if an action be commenced against them, and it shall appear at the trial or otherwise (it is so expressed in the statute) that one of the defendants has signed, but not the others, though the plaintiffs may recover against those who have signed, yet judgment shall be given and costs allowed for the defendants who have not signed. As it is certain that part payment will take the case out of the statute, whether in the case of joint contractors or otherwise, it is deserving of consideration how the payment is to be established in evidence. 8 Lond. Monthly Law Mag. 203, 204.

2 Hyde v. Johnson, 2 Bing. (New Cases) 776.

of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment, so as to take the case out of the operation of either of the said statutes. (That is, either out of the English statute of 21 Jac. I. or the Irish statute of 10 Car. I.) The construction of this statute has been, 1st. It must appear that the payment was made on account of a larger debt; 2d. That it is the debt sued for; 3d. A verbal acknowledgment of part payment is insufficient, though, if the payment be proved aliunde, its appropriation may be proved by parol declarations. Parke, B., in Tippetts v. Hearne,1 is reported to have said, to take a case out of the statute by part payment, it must be first shown, that the part payment was on account of a larger debt, the principle on which it takes it out being that it admits a greater debt to be due at the time; secondly, it must be shown to have been a payment in part discharge of the particular debt sued for; thirdly, Willis v. Newman establishes that a verbal acknowledgment of the payment of part of a debt within six years is not sufficient, within the 9 Geo. IV. c. 14, to take the case out of the statute of limitations.4

It is clear, if the fact of payment be distinctly proved, the appropriation of the payment to the debt in respect of which it is paid may be proved by a parol admission.5 The marginal note in the case just cited is, though a verbal acknowledgment of part payment of a debt, or of payment of interest thereon is insufficient within the act, to take the case out of the statute of limitations; yet, if the payment of money is proved as a fact, and not by a mere admission, its appropriation to a particular amount may be shown by the declaration of the party making the payment, and such declarations need not have been made at the time of such payment. 280. One very important difference between the Virginia statute, respecting acknowledgments and new promises in writing, and

6

1 Tippetts v. Hearne, 4 Tyrw. 775.

2 1 Starkie, 488.

3 Willis v. Newman, 3 Younge & Jer. 518; 4 Tyrw. (Ex.) 179, 960. 4 "We confess that, but for this decision on the point" (says the English law critic from whom we obtained these authorities, in a note), "we should have thought that, as before the statute, a parol admission of part payment would have been sufficient; and, as the makers of the statute refrained from legislating on the effect of part payment, so a parol acknowledgment of part payment would have been as effectual now as it was previously to the passing of the 9 Geo. IV. The authority of the lastmentioned case is, perhaps, somewhat doubtful." 8 Lond. Monthly Law Mag. 204. 5 Waters v. Tomkins, 1 Tyrw. & Gran. 139; 2 Crompt. Mees. & Rosc. (Ex.) 726. 6 See Appendix, p.'cxlv.

Lord Tenterden's Act, is the requirement of the former contained in the clause declaring that every written promise or acknowledgment shall be held to be a drawing down of the original debt, to the date of the acknowledgment or promise. This, it will be perceived, is in direct opposition to the rule which, as has already been pointed out, has been firmly established by the concurrent authority of the Federal and local courts of this country, as well as by the judicial tribunals of England. One of the consequences of it plainly is, as has been asserted,1 that a conditional promise is equally effectual as a promise without condition, though the performance of the condition should not be shown. "Now, very justly," says the author just referred to, "the courts of Virginia are driven back by the proviso of the statute to the doctrine of the former cases, and it would seem, on principle, that they ought to modify the forms of pleading so as to correspond with the doctrine, as they heretofore discarded the doctrine because it conflicted with the forms of pleading." 2 The author's remark made in the course of his comments upon the clause in question of the Virginia statute, that, "if it shall be carried into full effect, it will contribute as much to thwart the policy of the statute of limitations, as the rest of the act will be to advance it," is undeniable. There is yet another important difference, though one not so surprising as the one just pointed out, and this is in respect to part payment. It has been shown above, that the doctrine upon this subject has been left by Lord Tenterden's Act as it stood previously. The proviso in that act, that "nothing herein contained shall alter, or take away, or lessen the effect of any payment of any principal or interest made by any person whatsoever," is in the Virginia statute altogether omitted.

281. Lord Tenterden's Act has been substantially adopted in Massachusetts, with a judicious supplement. By the construction of the former, as above given, one joint contractor, though he cannot prevent another from taking advantage of the statute of limitations, by any other species of acknowledgment, he may do so by part payment of principal or interest. The Massachusetts statute, on the contrary, expressly declares, that if there be two or more joint contractors, no one of them shall be chargeable by reason of

1 Essay on the Act of Virginia, founded on the English statute of 9 Geo. IV. c. 14, by William T. Joynes, 216.

2 Ibid. 225.

3 See Appendix, p. li., lii.

any payment made by any other or others of them. The enactments founded upon the policy of Lord Tenterden's Act, in Vermont1 and Michigan,2 do not appear to vary from those in Massachusetts; but between those of Massachusetts and those of Maine,3 there appears to be this difference; namely, in the latter State the promise or acknowledgment in writing allowed as evidence of a new or continuing contract shall be an express one. The statute of Wisconsin has all the provisions of the statute of Massachusetts, in respect to joint contractors and part payment, but no promise in writing is required. The words "by words only," in the English act, are omitted in all the before-mentioned American acts, except in that of Virginia.

282. In Massachusetts, where a promissory note, made and delivered as a settlement of a demand barred by the statute, is given up to the maker by the payee, for the purpose of restoring all matters between the parties to the state they were in before the note was given, the act of making and delivering such note is not competent evidence to take the original demand out of the operation of the statute. It was the duty of the court to say, that there was no sufficient evidence of any acknowledgment or promise in writing, signed by the party to be charged thereby, to avoid the effect of the statute.5

283. Part payment, by a sole debtor, continues to have the same effect in Massachusetts it had before the provision of the Revised Statutes. Therefore, it was held, that a negotiable note given by a debtor for part of a debt, being payment of such part, takes the debt out of the operation of the statute. The giving of one's own negotiable note, say the court, for part of a simple contract debt for money paid, is a part payment of such debt. The effect was the same as if the amount had been paid in bank-notes or coin. Though the note in question was not considered as a promise in writing to pay the whole debt, it was of itself de facto a payment of part, and so by force of the statute the case was taken out of its operation.6

1 Appendix, p. xliii.

3 Ibid. p. xxxiv.

2 Ibid. p. cxxxi.

4 Ibid. p. cxxxvii.

5 Sumner v. Sumner, 1 Met. (Mass.) 1. Aliter, it seems, if the note be given up for the purpose of leaving open the question of the amount due to the payee, and not the question of the maker's being indebted to him.

6 Ilsley v. Jewett, 2 Met. (Mass.) 168.