the case now before us) in November, 1883, | the full amount of compensation to which in claiming damages for burning the Southwick that event he might have been entitled lot, without alleging when the fire occurred. It would be unjust, as well as in violation of The first action was referred to arbitrators, the fixed rule of law, to allow him to subject who made an award in favor of the plaintiff, the defendant to the hazard and expenses of upon which judgment was afterwards entered, another suit to obtain an advantage which he and the judgment was paid by the defendant. lost either by his own carelessness and neglect At the trial of the second action, the plaintiff or by an intentional withholding of a part of did not seek to recover damages arising from his proof." the fire of September 2, 1883, but sought only to recover for the damage done to the South-in wick lot by the fire of May 5, 1881, and offered to show by the testimony of the arbitrators that in making their award they did not include any damages to that lot; and the plaintiff contended that therefore the judgment rendered in the first action did not include such damages.

Assuming this to be true, without considering at all as to the competency of the evidence offered; and assuming also that the second action may fairly be deemed to have been commenced to recover damages to the Southwick lot from the first fire (a point which is certainly doubtful)-it is nevertheless plain that the action cannot be maintained; for the case falls fully within the principle of the decision in Trask v. Hartford & N. H. R. Co. 2 Allen, 331. In that case the plaintiff brought an action and recovered judgment therein against a railroad company for the loss of a shop by fire communicated by one of its locomotive engines. He afterwards brought another action, for the benefit of an insurance company, to recover for the loss of a dwelling-house and shed which took fire from the burning of the shop; but it was held that the first judgment was a bar. Mr. Justice Merrick, in delivering the opinion of the court, said:

The doctrine of this decision was reaffirmed Goodrich v. Yale, 8 Allen, 454, 456, 458. See also Folsom v. Clemence, 119 Mass. 473. The plaintiff seeks to distinguish the present case from that, on the ground that the damage to the Southwick lot constituted a separate cause of action. But the two cases are indistinguishable. It was held in Perley v. Eastern Railroad Company, 98 Mass. 414, that the burning of a piece of woodland, situated half a mile from the railroad track, by a fire which spread over intermediate land, from grass near the track, which was set on fire by a cinder from a locomotive engine, was a loss from which the railroad company was responsible, and that the fire was none the less communicated from the engine because the intermediate land belonged to other persous, nor because the distance was half a mile. The statute upon which the present action is founded is similar to the statute upon which that case rested. Pub. Stat. chap. 112, § 214; Stat. 1874, chap. 372, § 106; Gen. Stat. chap. 63, § 101.

The defendant's act, causing the fire, was single. The burning over of the Southwick lot by the spreading of the fire gave no new cause of action, but only additional damages resulting from the original cause of action. Otherwise, the plaintiff would have as many causes of action as the number of separate lots which he owned, and which were burned over by the same fire. Moreover, the plaintiff's counsel, in the first action, properly treated the cause of action as single, by putting the claim for damages to both lots into one count.

"The loss of the shop and of the dwelling house and shed were distinct items or grounds of damage; but they were both the result of a single and indivisible act. The plaintiff, therefore, does not show any right to maintain another action to recover additional damages merely by showing that in consequence of his omission to produce upon the trial all the evidence which was admissible in his behalf, he failed to obtain | negligence on the part of the railroad. Ga. R. Co. | by a number of engines (Pa. R. Co. v. Stranahan, 79 V. Lawrence, 74 Ga. 534.

No objection appears to have been raised to the declaration, on the ground that two causes of action were included in one count; nor could such objection have prevailed. There was no

Pa. 405); that engines running over the division Circumstances admissible to prove negligence. The where the property destroyed was situated, at or following circumstances have been held admissible about the time of the fire, habitually scattered fire to prove negligence: dropping coals upon the track from ash pans and smoke stacks (Cleveland v. of defendant, which set fire to a tie and from which Grand Trunk R. Co. 42 Vt. 449); that the same enthe fire spread by means of some accumulated gine, using similar fuel, had emitted burning weeds, etc., to plaintiff's land (Webb v. Rome, W. sparks which had fallen at as great a distance as & O. R. Co. 49 Ñ. Y. 420, 10 Am. Rep. 389; Pa. R. Co. the building destroyed (Ross v. Boston & W. R. Co. v. Hope, 80 Pa. 373, 21 Am. Rep. 100); the presence 6 Allen, 87); that, a few weeks after the fire comof dry grass and other inflammable material plained of, another fire was caused by another of upon the way of a railroad, suffered to remain defendant's engines, by coals dropped from such there without cause, is a fact from which negli-engine (Longabaugh v.Va. City & T. R. Co. 9 Nev. gence may be found (Kellogg v. Chicago & N. W. 272). R. Co. 26 Wis. 223, 7 Am. Rep. 69: Bass v. Chicago, B. & Q. R. Co. 28 Ill. 9; Ill. Cent. R. Co. v. Mills, 42 Ill. 407; Flynn v. San Francisco & S. J. R. Co. 40 Cal. 14, 6 Am. Rep. 595; Salmon v. Del. L. & W. R. Co. 88 N. J. L. 5, 20 Am. Rep. 356); that fires on the line of the road had originated from sparks from company's locomotives prior to the fire in question (Smith v. Old Colony & N. R. Co. 10 R. I. 22; Henry v. Southern Pac. R. Co. 50 Cal. 176); that numerous fires had been set by sparks from the same engine (Philadelphia & R. R. Co. v. Schultz, 93 Pa. 341); that within a week before the fire in question, defendant's engines, in passing, scattered large sparks capable of setting fires, and that many fires from such sparks had been put out within that time (Annapolis & E. R. Co. v. Gant, 39 Md. 115); that the emitting of coals and sparks in unusual quantities was frequent, and permitted to be done

Additional proof required in New York. Additional proof of negligence is required in New York, such as that engines of the defendant passing the place of the fire, on other occasions, emitted sparks and coals; that part of company's engines passing the spot has imperfect fire screens, though the others had perfect screens (Field v. N. Y. Cent. R. Co. 32 N. Y. 346); or that defendant's engines at other times, before and after the burning,threw out large coals and set other fires (Bedell v. Long Island R. Co. 44 N. Y. 367, 4 Am. Rep. 688; Crist v. Erie R. Co. 1 Thomp. & C. 435, 58 N. Y. 638; Hinds v. Barton, 25 N. Y. 544; Westfall v. Erie R. Co. 5 Hun, 76; Lee v. Northern Cent. R. Co. 8 N. Y. Week. Dig. 111; Home Ins. Co. v. Pa. R. Co. 11 Hun, 184). Such evidence has been held sufficient to carry the case to the jury and to sustain a verdict for plaintiff.

new act of the defendant after the fire began | every continuance may be deemed a new injury. on the first lot. The case is not like those of Warner v. Bacon, 8 Gray, 397, 406, 407. continuing injuries, as by a nuisance, where Exceptions overruled.

SOUTH CAROLINA SUPREME COURT.

Sarah O'H. DIXON, Respt.,

V.

Robert N. GOURDIN et al., Exrs., Appts.

(....S, C.....)

1. The presumption of payment arising from lapse of time will, where there is no limitation of time against an action on a bond, be rebutted as to the surety as well as the principal by a payment of interest made by the principal, they being joint obligors.

2. Evidence that a surety on a bond, being a joint obligor, had entirely forgotten that his name was on the bond, is not competent on an issue as to payment of the bond, in a case of presumption arising from lapse of time.

(October 9, 1888.)

APPEAL by the defendant executors from a judgment of the Common Pleas Circuit Court of Charleston County, in favor of the plaintiff in an action on a joint and several bond. Affirmed.

The action was against Robert N. Gourdin personally, and against Robert N. Gourdin and Henry Young as executors of Henry Gourdin, deceased.

The facts and questions presented are sufficiently stated in the opinion.

Mr. H. E. Young, for appellants: When a note falls due the joint obligation is severed, and payments by one joint contractor do not keep the note alive as to his co-con

tractors.

Walters v. Kraft, 23 S. C. 578.

A note is barred by the Statute of Limitations; a bond, by the presumption of payment, arising from the lapse of twenty years. Both are, however, equally barred.

If twenty years have elapsed without the payment of interest on a bond, it will be presumed paid, notwithstanding the fullest conviction that it never has been paid.

Riddlehoover v. Kinard, 1 Hill, Eq. 376; Hutchison v. Noland, 1 Hill, L. 222.

An admission that the payment has not in fact been made, cannot of itself destroy the NOTE.-Presumption of payment from lapse of time. Debts excepted out of the Statute of Limitations are presumed paid after the lapse of twenty years, in the absence of explanatory evidence. Gregory v. Com. (Pa.) 13 Cent. Rep. 479. If a bond has been suffered to lie dormant for twenty years, this of self raises a presumption of payment. Anon. 6 Mod. 22; Winchelsea Cases, 4 Burr. 1963; Oswald v. Leigh, 1 T. R. 270. If supplemental proceedings be commenced before the lapse of twenty years, the presumption will not avail. Driggs v. Williams, 15 Abb. Pr. 477. The twenty years began to run from the time when the money became due. Prouty v. Eaton, 41 Barb. 409; 3 Phill. Ev. 408. The presumption, however, arising after such a lapse of time may be repelled by proof of the defendant's recent admission of the debt, or by proof of the payment of interest within twenty years; which is an acknowledgment that the principal sum was not then discharged. Oswald v. Leigh, 1 T. R. 270. Or the presumption may be answered by proof of

effect which considerations of policy have given to a certain period of time, whether payment has or has not been made.

Stover v. Duren, 3 Strobh. L. 450.

The facts relied on to rebut the presumption of payment of sealed notes and bonds from lapse of time must be stronger than mere be lief deduced from the weight of testimony being on that side. They must be of a charac ter which would revive an unsealed note barred by the Statute of Limitations.

Boyce v. Lake, 17 S. C. 486-489; Shubrick v. Adams, 20 S. C. 51; Pyles v. Bell, Id. 369; Langston v. Shands, 23 S. C. 149.

In the early days of the English Law there were no statutes of limitation. The ecclesias tic, Bracton, introduced them from the Roman Law.

Bracton, De Legibus Angliæ, ed. Twiss, vol. 2, p. 122 ss.; Wood, Lim. Act. §§ 2, 172.

It is as old as the earliest days of Roman Law that whatever stopped the running of the statute as to one obligor stopped it as to all.

Pandect, L. 5 C. De Duobus Reis, 8, 40; 5 Savigny, System des Romeschen Rechts, p. 315; (in France) 2 Euvres de Pothier, p. 383, Code, art. 2249; (in Germany) Eichhorn Deutsches Privat Recht, & 177; (in Scotland) Bell, Prin. Sc. Law, § 623.

In that law it is a matter of positive statute. But in English Law the reason given for it was that each co-obligor was the agent of the other co-obligors; consequently, as the payment made by one co-obligor was for the benefit of the others, e. g., reducing the debt, he was also their agent in perpetuating the debt; and this theory was accepted by Lord Mansfield in Whitcomb v. Whiting, 2 Doug. 652.

With the surety it is wholly different. The principal is in no sense his agent, either to pay or perpetuate the bond. This view of the case began early to work dissatisfaction among English lawyers with the rule laid down by Lord Mansfield-till now it is very generally overruled in England and all of the United States, and, at least by Walters v. Kraft, 23 S. C. 578, wholly overruled in this State.

other circumstances explaining satisfactorily why an earlier demand has not been made. As in Newman v. Newman, 1 Stark. N. P. 101, where the obligee had resided abroad for the last twenty years. But proof of the defendant's poverty is not it-sufficient to rebut the presumption. Willaume v. Gorges, 1 Campb. N. P. 217. The defendant, in an action on a bond containing a condition to pay on a certain day, may plead payment on that day; and the plea will be supported by proof of payment be fore the day appointed, as well as on the day (Sturdy v. Arnaud, 3 T. R. 601; Winch v. Parlon, cited in Bull. N. P. 174; Anon. 2 Wils. 173; Tryon v. Carter, 7 Mod. 231); and a payment to s third person appointed by plaintiff is payment to himself (Taylor v. Beal, Cro. Eliz. 222). But proof of payment of interest by defendant after the day of payment will falsify the plea. Such subsequent payment raises the strongest presumption that the debt was not paid on the day appointed. Moreland v. Bennett, 1 Strange, 652.

It has even, among the civilians, long been a disputed question whether or not the act or admission or payment of the principal extended the obligation of the surety.

See Pothier, Law of Contracts, pp. 385-387. The Roman Law severed the connection when the claim was out of date, but not earlier. In most of the American States it is severed when the obligation falls due.

Taylor, Ev. 8th ed. SS 743-747; Wood, Stat. Lim. pp. 605-615, especially notes in ed. 1883. See also Silman v. Silman, 2 Hill, L. 416; Smith v. Caldwell, 15 Rich. L. 365.

The doctrine that a new promise by one joint contractor will not bind his associates is especially applicable where the promisor is principal, and the other surety, who becomes bound "simply for the accommodation of his principal, receiving no consideration for the favor he bestows."

See Graham v. Roberson (Ga.) 3 S. E. Rep. 611.

Messrs. Miles & Cheves for respondent.

McIver, J., delivered the opinion of the

court:

not only for the reason assigned by the Circuit Judge, but also because it was negative in its character, and did not tend to establish the fact proposed to be established, and a portion of it was nothing more than an expression of the belief of the witnesses.

Five witnesses were examined, and, assuming that all of them were well acquainted with the private affairs of Mr. Henry Gourdin, what does their testimony amount to? The first witness said: "I have no recollection of ever having heard Mr. Henry Gourdin's name mentioned in connection with the bond." The second: "I did not know that Mr. Henry Gourdin was associated with the bond." The third: "I have never known, and till the past few months, have not heard of Mr. H. Gourdin's being on a bond of Mr. Robert N. Gourdin." The fourth, speaking of Mr. H. Gourdin: "Not more than a year or two before his death he gave me a full statement of his debts and assets. He didn't put down the bond of R. N. Gourdin to O'Hear as one of his debts. I am confident that he was ignorant that he was on the bond." The fifth witness, Mr. R. N. Gourdin himself, said: It had escaped my memory that Mr. Henry Gourdin was on the bond. In all my conversations with him on the subject of the bond it was spoken of as my bond. I am confident that it had escaped his memory as absolutely as it had mine."

This is the second appeal in this case, and for a full statement of the facts reference may be had to the case as reported in 2 Southeastern Reporter, 303, as well as in 26 South Carolina, 391. It is sufficient now to state that the action was on a joint and several bond, on which But, even assuming that this testimony was Robert N. Gourdin was principal and Henry sufficient to establish the fact that Mr. Henry Gourdin was surety, which became payable on Gourdin had entirely forgotten that his name the 27th of April, 1857, and that suit was com- was on the bond, we are at a loss to perceive menced on the 12th of April, 1885. The inter- its pertinency to the issue involved in this case. est on the bond, however, was regularly paid To use the apt and expressive language of the up to the 27th day of April, 1884; which in-counsel for respondent: "Legal liability cannot terest, as appears from the statement of facts be made to depend upon the memory of the agreed upon, "was paid by the checks of the debtor, nor can his forgetfulness discharge the firm of Gourdin, Matthiesen & Co., and debt. charged to R. N. Gourdin, entered and ap- It is contended, however, that the Circuit pearing on their books (and within the knowl-Judge erred in holding that, even conceding edge of II. Gourdin, a partner)." There was, the fact to be what the proposed testimony was however, no payment ever in fact made by H. designed to establish, he was bound to render Gourdin personally, "unless the above be judgment against the executors under the Buch." former decision in this case. This position is based upon the unfounded assumption that the former decision of this court rested upon the fact that H. Gourdin knew all the time he was a surety on the bond. It is difficult to understand how such a view could be taken of that decision. On the contrary, it is manifest from the most casual reading of that opinion that it rests upon the legal proposition that payments by the principal upon a joint and several bond operate to rebut the presumption, which arises after the lapse of twenty years from the maturity of the bond, that it has been paid, as to the surety as well as to the principal; and it is only towards the close of the opinion that anything is said in regard to the admissions of one being in fact the admissions of the other, because probably known to and acquiesced in by the other. But the language in which this is said shows clearly that the court did not rest its decision upon any such ground: "The case at oar seems to be one in which it could almost be said that, in fact as well as in law, the admissions of one were the admissions of the other,"-and then follows a statement of the circumstances pointing to such a conclusion.

The real question is as to the effect of these payments; whether they were sufficient to rebut the presumption of payment of the bond arising from lapse of time, so far as H. Gourdin or his estate is concerned. At the last trial, appellants offered certain additional testimony, for the purpose of showing that H. Gourdin acted as if the existence of this bond and his liability thereon had entirely escaped his memory. The case was heard by Judge Fraser, by consent, without a jury, who held that the additional testimony, which had been taken subject to exception, was incompetent, as the fact it was intended to establish, if admitted, could not affect the liability of Henry Gourdin; and in conformity to the former decision of this court he rendered judgment against the executors of Henry Gourdin for the balance due on the bond-a judgment by default having been rendered at the former trial against the other defendant, Robert N. Gourdin.

The executors appeal, upon the several grounds set out in the record. The first assigns error in holding that the testimony above referred to as additional testimony was incompetent. There was clearly no error in this,

Now, the use of the word "almost" shows

clearly that the court did not intend, and could not properly be understood to have intended, to rest its conclusion upon a fact of which it could only be said that it was almost established. Then, too, the expression "that, in fact as well as in law, the admissions of one were the admissions of the other," manifestly shows that the court, after having established the legal proposition that a payment by one of two joint obligors on a bond rebuts the presumption arising from lapse of time as to both, merely added that this legal conclusion, upon which the decision really rested, was, in all probability, in accordance with the actual fact. If, then, the additional testimony offered at the last trial was properly excluded,- -as we think it was,-then it is plain that, under the principle of res adjudicata, the appellants would be concluded, for it is conceded that the second trial was upon the same statement of facts agreed upon at the first trial; and, even if there was any error in the former judgment of this court, such error could only be rectified by an application for a rehearing or review in the proper form. But we are unwilling to rest our judgment on that ground, and, on the contrary, rest it upon the ground that the legal proposition upon which the former decision was based was right.

note is forever barred; and if there has been any subsequent promise, or acknowledgment from which a promise might be implied, such subsequent promise constitutes the cause of action, and not that contained in the note.

Counsel for appellants deny the proposition that in such case the action must be upon the subsequent promise, and not upon the original note, and claim that there is no authority for the proposition which we have laid down. In view of the distinct declaration to the contrary, by O'Neall, J., in Reigne v. Desportes, Dud. 124, and by Wardlaw, J., in Smith v. Caldwell, 15 Rich. L. 373, followed by the cases of Wal ters v. Kraft, 23 S. C. 580, and Colvin v. Phillips, 25 S. C. 234, it is difficult to understand how such a claim can be made. Indeed, the express terms of the statute itself would seem to be quite sufficient authority for the proposition which we have laid down; for it declares that actions of the character referred to "shall be commenced within four years next after the cause of such actions or suits, and not after."

But

This is precisely equivalent to saying that actions shall not be brought after four years have expired from the accrual of the cause of action; hence, the statute itself forbids any action on a promissory note, unless it is comThe whole argument of the counsel for ap-menced within four years after its maturity; pellants, as it seems to us, rests upon a failure and, if there has been any subsequent promise to observe the broad distinction which exists to pay such note, such subsequent promise between the two defenses of payment and the must necessarily be the only cause of action. Statute of Limitations. They rest upon entire- It is true that this distinction was lost sight of ly different and distinct principles, and are under the former system of pleading; for, as presented by different and distinct pleas; and explained by O'Neall, J., and by Wardlaw, J., to ignore these distinctions necessarily leads to in the cases above cited, under the general confusion and error. Prior to the Code the counts in declaration in assumpsit, it was alStatute of Limitations had no application together unimportant, but as Judge O'Neall whatever to a sealed instrument for the pay- says, it led to" many loose expressions" in the ment of money, while it did apply to a sim- cases, indicating that the subsequent promise ple contract. There was, therefore, no lim- revived and renewed the original cause of acitation of time to the right of action on a bond, tion; whereas, without abrogating the statute, while there was such a limitation to the right this was impossible, and the true theory was of action on a simple contract. From this it that the subsequent promise itself constituted a followed necessarily that the legal liability of new cause of action, and not that the original the obligor on a bond continued indefinitely, cause of action was revived or renewed. without limit as to time, while the legal liabil- inasmuch as the Statute of Limitations had no ity of the maker of a promissory note termi- application to actions on specialties, this docnated with the expiration of the statutory pe- trine could not be applied to an action on a riod; and from this it followed, with equal ne- bond, and in such a case the cause of action is cessity, that lapse of time, of itself merely, always the same. There is nothing to forbid constituted no defense whatever to an action the right of action on a bond after the lapse of on a bond, except as it afforded a presumption twenty years, but such a lapse of time only that the bond was paid, while it did consti- operates as a defense to an admitted right of tute a complete defense, of itself merely, to action. The question in such a case is not an action on a promissory note, without whether the original obligation has been reany regard whatever to the question of pay-vived or renewed, or whether any new obliga ment. Hence, when an action is brought on a bond, and lapse of time is relied on as a defense, the inquiry is totally different from what it would be in an action on a promissory note. In the former the question is whether a sufficient time has elapsed to afford a presumption of payment, and, if so, whether there is anything to rebut that presumption; while in the latter the only question is whether the time fixed by the statute has expired, without any inquiry as to the presumption of payment, or whether such presumption is rebutted; for, if such time has expired before the commencement of the action, then, under the express terms of the statute, the right of action on the

tion has been incurred; but the inquiry is whether the original obligation bas been discharged by the presumption of payment arising from lapse of time, and whether such presumption has been rebutted.

The extent, as to time, of the legal obligation which one assumes when be signs a promissory note, is very different from that which he assumes when he signs a bond. In the former case the legal obligation terminates with the expiration of the statutory period, because the statute expressly forbids the enforcement of such obligation after that time; but not so with a bond, for, as the statute does not apply, there is nothing to limit the extent, as to time, of the

1888.

DIXON V. GOURDIN

legal obligation, and hence it continues until it is discharged by payment either actual or presumed.

case.

Keeping in mind these views, it is very obvious that there is no conflict whatever between the former decision in this case and Walters v. Kraft, supra, but that the two cases rest upon totally distinct and different well settled principles. In that case the question arose under the Statute of Limitations, and it was decided upon principles applicable to that statute and its proper construction. In this case the Statute of Limitations is, confessedly, inapplicable; and therefore it cannot be decided upon the same principles which governed in that Here the question is whether a payment made by the principal obligor on a bond, during the lifetime of the surety-a joint obligor -and within twenty years before the commencement of the action, rebuts the presumption, arising from lapse of time, that the bond is paid. It is admitted that, so far as the principal debtor is concerned, the payment does rebut the presumption, and the only contest is as to whether the presumption is rebutted as to the surety. Considering that the sole question is one of fact-whether the bond has been paid-it is difficult to understand how it can be said that the bond is paid as to one, but not as to the other; for payment by either ought, it seems, to operate as satisfaction as to both. Now, in a case under the Statute of Limitations no such difficulty can arise; for, when the statutory period has expired, the right of action on the original contract is by the express terms of the statute barred as to all of the parties; and if there is any liability at all it must rest upon the new promise implied from a payment on the original contract, and such new promise can only bind those who are parties to it.

But, in addition to this, there can be no doubt that a payment on a bond is such a fact as will be sufficient to rebut the presumption arising from lapse of time; and if such payment be made by one of several joint obligors it inures to the benefit of all, and is regarded as the act of all. They all have a common interest that the payment should be made, and they are all, therefore, bound by it; but their community of interest extends no further than the making of the payment which is sufficient of itself to rebut the presumption arising from lapse of time; hence, where one of several joint obligors makes a part payment on a bond, he acts as the agent of his co-obligors; but his agency does not extend far enough to enable him to make a new contract for his co-obligors. Again; it is contended that the former decision in this case is in conflict with our decision in Shubrick v. Adams, 20 S. C. 49. It seems to us, however, that the single difference admitted to exist between the two cases is striking, and shows conclusively that there is no conflict. In Shubrick v. Adams the action was not commenced against Adams as administratrix of Gatewood until more than twenty years after his death; and as his death severed the obligation, or, to speak more accurately, terminated the relation of agency previously existing between him and his original co-obligor, Geddings, payments by the latter after Gatewood's death could not affect his estate;

and hence there was nothing to rebut the presumption arising from the lapse of the twenty years. Here, however, the action was commenced within six years after the death of Henry Gourdin, and several partial payments had been made on the bond by his co-obligor, during his lifetime (and therefore before the obligation was severed by his death, or the relation of agency had terminated), and within a period of much less than twenty years before the commencement of the action; and such payments, under the principles herein before laid down, were clearly sufficient to rebut the presumption arising from lapse of time, that the bond had been paid in full. In Shubrick v. Adams the partial payments relied on to rebut the presumption were made after the death of Gatewood, and therefore could not affect either him or his estate; while here the partial payments relied on for the same purpose were made before the death of Henry Gourdin, and therefore did affect him. This wide difference in the facts is amply sufficient to account for the difference in the result.

It is also contended by counsel for appellants in his printed argument that the court held, in Walters v. Kraft, "that when a note falls due the joint obligation is severed, and payments by and that the one joint contractor do not keep the note alive as to his other co-contractors,' principle upon which that case rests is "that, in all joint obligations to pay money, the joint obligation ceases as soon as the obligation falls due."

66

After a very careful examination of that case we must confess that we are unable to find a single expression or even a single word which gives countenance to the idea that where a note falls due the joint obligation is severed," or that the case rests upon the principle "that, in all joint obligations to pay money, the joint obligation ceases as soon as the obligation falls due;" and we may add that we know of no other case which recognizes any such principle. Indeed, if such a principle should be recog nized, then it would follow necessarily that a joint action could never be maintained upon a joint contract; for it is quite clear that, except in the cases specially provided for by statute, no action of any kind, either joint or several, can be commenced upon a note until it falls due; and, if the joint obligation is then severed, We it would follow inevitably that no joint action could ever be brought upon a joint note. must suppose, therefore, that what counsel really intended to say was that the court held in Walters v. Kraft that when the statutory period applicable to a joint note has expired, the joint obligation is severed, and that the case rests upon the principle that in all joint obligations to pay money the joint obligation ceases as soon as the statutory period applicable to such obligation expires. But from what we have said above it is quite clear that the case of Walters v. Kraft rests upon no such principle, and in fact nothing is said in the opinion about the severance of the joint obligation. On the contrary, that case rests upon the express terms of the Statute of Limitations, as interpreted by the later decisions of our courts, whereby it is declared that, after the statutory period has expired, no action can be