Page images

the statute has run, will be operative as against the others.1 In others

and in the English cases that have followed and in some of the early American cases the same rule was applied, whether the new promise was made before or after the statute had run. "The case of Whitcomb v. Whiting, says BRONSON, J., 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. The learned judge reviews the cases in New York, beginning with Smith v. Ludlow, 6 Johns. (N. Y.) 267, when the statute of limitations was in bad repute, and when few men ventured to think for themselves after LORD MANSFIELD had spoken, and shows that the courts of that State have been constantly struggling against the arbitrary rule of the judicial Warwick of England, until it has been entirely overthrown, and the Supreme Court of the United States sanctions the emancipation. A still later case in New York was that of Shoemaker v. Benedict, 11 N. Y. 176, where payments were made by one of several joint makers of a note before the statute of limitations had run upon it, and it was insisted by the plaintiff that this payment took the case out of the statute as to all the joint makers. The court remarks that it was very well settled in New York before the case of Van Keuren v. Parmalee, upon authority, that payment by one of several joint debtors, before the statute had run, operated to take the case out of the statute as to all; but the court in this case, upon principle, held that such payments do not affect the defence of the statute as to the other debtors. The court says: "If a new promise is satisfactorily proved, the debt is renewed. The question still recurs, Who is authorized to make such a promise? If one joint debtor could bind his co-debtors to a new contract by implication, as by a

payment of a part of a debt for which they were jointly liable, he could do it directly by an express contract. The law will hardly be charged with the inconsistency of authorizing that to be done indirectly which cannot be done directly. If one debtor could bind his co-debtors by an unconditional promise, he could by a conditional promise, and a man might find himself a party to a contract to the condition of which he would be a stranger. . . . And in principle I see not why a promise made before the statute has attached to a debt should be obligatory when made by one of several joint debtors, when it would not be if the action was barred. The statute operates upon the remedy. The debt always exists. An action brought after the lapse of six years upon a simple contract must be upon the new promise, whether the promise was before or after the lapse of six years, express or implied, conditional or absolute."

In Tennessee, Pennsylvania, Indiana, Illinois, Florida, Kentucky, New Hampshire, Alabama, Kansas, and Nebraska this doctrine would seem to be held, carrying out the principle of decided cases.

After a joint debt has been barred by the statute, part payment by one of the joint debtors does not revive the debt as to the others. Biscoe v. Jenkins, 10 Ark. 108; Mason v. Howell, 14 id. 199. And this rule holds as to a payment made by one partner after the partnership is dissolved. Myatts. Bell, 41 Ala. 222. In Emmons v. Overton, 18 B. Mon. (Ky.) 643, it was held that a part payment made by a surety after all right of action upon the note is barred does not renew the note as to the balance. Where the maker and indorser of a note are sued jointly, proof that the indorser made payments at different times within six years will not vary or affect the liability of the maker, or deprive him of the advantages of the bar

1 Mayberry v. Willoughby, 5 Neb. 368; North Carolina, by statute, the power of Schindel v. Gates, 46 Md. 604; Beardsley one partner to bind the others by an adv. Hull, 36 Conn. 270; Green v. Green- mission or part payment is expressly taken borough Female College, 83 N. C. 449; away by statute, but the power of one Merritt v. Day, 38 N. J. L. 32. But in joint maker of a note to bind the others

it has been held that a part payment made by one partner after the dissolution, and after the statute has run, will bind all.

of the statute. Bibb v. Peyton, 19 Miss. 275. Nor will a payment made by one of two sureties remove the statute bar as to the other. Exeter Bank v. Sullivan, 6 N. H. 124. It is settled in New York that an acknowledgment or promise to pay a debt, or a part payment made by one of several partners after dissolution of a firm, or by one of joint and several debtors, will not renew the debt against the others, under the statute of limitations. New York Life Ins. Co. v. Covert,

by an admission or payment before the statute has run is retained; hence the decision in the case last cited, relating merely to the power of a principal to bind a surety by a part payment of interest before the statute had run, is applicable to the point cited, upon the ground that the deeision, except for the restraint of the statute, would be equally applicable in the case of copartners. The court, in Schindel v. Gates, ante, seems to give its assent to the doctrine of Whitcomb v. Whiting. At least, it does not express any disapproval of the doctrine of that case; and ROBINSON, J., in referring to the case of Ellicott v. Nichols, 7 Gill (Md.), 86, says: "The court, in Ellicott v. Nichols, fully recognized the decision of Whitcomb v. Whiting, and said that the part payment of principal and the payment of interest relied on to take the case out of the bar was made within the legal time and before the statute had attached. The rule thus laid down in Ellicott v. Nichols has been the accepted law of this State for nearly thirty years, and, in the absence of legislation to the contrary, it is not to be questioned. It may not be amiss, however, to say the same rule has received the sanction of the highest courts in other States. Selltey v. Selltey, 2 Hill (S. C.), 496; Steele v. Jennings, 1 McMull. (S. C.) 297; Goudy v. Gillam, 6 Rich. (S. C.) 28; McIntire v. Oliver, 2 Hawks (N. C.), 209; Walton v. Robinson, 6 Ired. (N. C.) 341; Emmons v. Overton, 18 B. Mon. (Ky.) 643. In regard to the supposed hardship of the rule as against sureties to a note,

From this con

29 Barb. (N. Y.) 435. Payment of interest on a note by one of two joint makers, at the request of the other, is sufficient to take the debt out of the statute of limitations, as against both the makers. Munro v. Potter, 34 Barb. (N. Y.) 358. See also Searight v. Craighead, 1 Penn. 135 ; Brewster v. Handman, Dudley (Ga.), 138; Levy v. Cadet, 17 S. & R. (Penn.) 126; Yandes v. Lefavour, 2 Blackf. (Ind.) 371; Beloit v. Wynne, 7 Yerg. (Tenn.) 534.

the answer is, that it is always in their power to inquire whether it has been paid, and, if it remains unpaid, to compel the holder to proceed against the principal, or to pay the note and proceed in their own name. The demurrer to the defendant's third plea was, therefore, properly sustained. The note in this case was a joint and several note, and the fact that the defendant signed it as surety in no manner affected the plaintiff's right to recover. As between the defendant and the principal, the relation of the former as surety was of course material, because the latter, if compelled to pay the note, had his remedy over against the principal; or, if the note was paid by the principal, such relation would protect the surety from any claim for contribution. In this case the pay. ments of interest were made from year to year by the principal, and before the statute had attached, and such payments were sufficient, in our opinion, to prevent the bar of limitations."

1 Mix v. Shattuck, 50 Vt. 421. And this seems also to be the rule in England. Thus, in a recent case, it was held that one of two partners must be presumed, in the absence of proof to the contrary, to have authority to make a payment on account of a debt due by the firm, so as to take the debt out of the statute of limitations as against the other; and in a case where A., one of the partners in a firm, gave instructions to their solicitor to put in force and realize a bill of sale held by the firm, and to place the proceeds when received "to the account of the firm," who were

flict it will be seen that it is impossible to formulate any general rule relative to the power of one copartner to revive a debt as to the others, but that the doctrine held in a given State must be consulted. 1

[ocr errors]

SEC. 288. Assent of a Co-contractor to a Part Payment by another, Effect of. While in most of the States a part payment made by one joint debtor will not suspend or remove the statute bar as to the others, yet, even where the statute provides that an acknowledgment or part payment made by one joint debtor shall not remove the statute bar as to the others, it is held that where such part payment is made by the direction or at the request of the others, they are all equally bound thereby, as in such case the one making the payment acts as the agent of the others. Thus, in a New York case, the prin

then indebted to the solicitor for his bill of costs, and the solicitor having sued the two partners for the balance of his bill of costs, B. pleaded the statute of limitations, it was held (affirming the judgment of the Queen's Bench Division), that there was sufficient evidence for the jury of a part payment so as to take the case out of the statute of limitations as against B. Court of Appeal, March 12. Goodwin v. Parton, 42 L. T. Rep. N. s. 568.

1 In Smith v. Ludlow, 6 Johns. (N. Y.) 267, the court held that an acknowledgment made by one partner after the partnership was dissolved was binding upon the others, where it appeared that by an advertisement in a newspaper they had appointed him as liquidating partner to close up the firm business, and to collect the debts due to, and pay those due from, the firm, upon the ground that he thereby was clothed with a special agency which made his acts within the scope of such authority binding upon them. And a similar doctrine has recently been held in the Superior Court of New York. Thus, after a firm had gone into liquidation, A. paid to his partner B. $50,000 in funds and credits, to be applied towards paying the debts thereof, B. agreeing to pay the same in full. Held, that a part payment made by B. on a claim against the firm would take the case out of the statute of limitations, although the whole of the $50,000 had previously been applied by B. to the payment of other firm liabilities. Burnett v. Snyder, 45 N. Y. Super. Ct. 577.


2 Haight v. Avery, 16 Hun (N. Y.), 252; Pitts v. Hunt, 6 Lans. (N. Y.) 146; National Bank of Delaware v. Cotton (Wis.), 24 Alb. L. J. 451. In Winchell v. Hicks, 18 N. Y. 558, where sureties on a joint and several note were called upon for payment, and they directed the holder to call upon the principal for payment, and the principal made a payment on the note, it was held such an acknowledgment of liability as to arrest the running of the statute against him. In Huntington v. Ballou, 2 Lans. (N. Y.) 120, where the maker made payment of interest on the note, reciting in the receipt that it was made by an accommodation indorser, by the hand of the maker, and the indorser, when afterward shown the receipt by the holder, examined it and expressed his approval of it, it was held that the payment took the case out of the statute, as to such indorser. It is said in the opinion that "the holder had the right thereafter to suppose that the payment made by the maker was so made with the full understanding and arrangement that it should be so made for the indorser.". This holding was approved and the judgment affirmed in First Nat. Bank of Utica v. Ballou, 49 N. Y. 155, and in this case it was also held that the requirement of the statute, that an acknowledgment or promise to take a case out of the operation of the statute must be in writing, does not alter the effect of a payment of principal or interest, and prescribes no new rule of evidence as to the fact of such payment, which may be

8 Munro v. Potter, 34 Barb. (N. Y.) 358.

cipal handed money to the surety, and requested him to pay it to the creditor; the surety paid it, and had the payment indorsed. It was held that the surety could not claim that he acted in the transaction merely as an agent, and therefore that the case was taken out of the statute as to both. The assent of a surety to a part payment by the principal may be inferred. Thus, where a debtor and his surety go to the creditor together, for the express purpose of making a payment, and for that alone, and both apparently co-operate in the transaction, though the debtor alone handles the money, the creditor has a right to consider it a joint payment binding the surety under the statute of limitations, unless the surety in some manner notifies him that it is not so.2 And it seems that where money is paid by a surety in the presence of the principal, and the latter does not dissent thereto, or say anything, his silence may be treated as an acquiescence in such payment, so as to remove the statute bar as to both. If one co-contractor procures a payment to be made by his co-debtor, it is sufficient to bind him.* But even though the money is paid by one co-contractor for another, with the funds of the other, and as his agent, and he so informs the creditor at the time, he is not bound thereby; and such payment does not remove the statute bar as to him. But the question as to whether there has been an assent by one co-debtor to a payment made upon the joint debt by another is a mixed question of law and fact, to be determined in view of all the circumstances attending the transaction.

proved by oral admissions of the debtor, and such payment may be made by an agent, and the authority of the agent may be proved by parol evidence. The case of Harper v. Fairley, 53 N. Y. 442, depended on the question whether the maker of the note had knowledge of the payment made upon it by another, and assented to it or authorized it, and is not in conflict with the above cases in any respect.

1 In Haight v. Avery, ante, a father became surety for his son. The son paid the interest, but, as was insisted by the plaintiff, by direction of the father. The father set up the statute. The judge charged the jury that, in order to charge the father by such payments, it was not necessary that they should be shown to have been made by himself, but that it was sufficient if they were made by the son by his direction. Held, sufficient.

[ocr errors]

2 Mainzinger v. Mohr, 41 Mich. 685. The admissions of one joint debtor are not evidence against the others. Rogers v. Anderson, 40 Mich. 290.

3 Whipple v. Stevens, 22 N. H. 219. But see Quimby v. Putnam, 28 Me. 419, where it was held that a payment made by one of two joint debtors, in the presence of the other, will not afford evidence of a new promise made by both. See also, to the same effect, Patch v. King, 29 Mo. 448. Payments authoritatively made by the treasurer of a partnership or joint-stock company, from the partnership funds, and by him indorsed on a note executed by the partnership, take the note out of the statWalker v. Wait, 50 Vt. 668.


4 McConnell v. Merrill, 53 Vt. 147. 5 Bailey v. Corliss, 51 Vt. 366.

[blocks in formation]

The question

SEC. 289. When Action is treated as commenced. as to when an action is commenced, within the meaning of the statute, is one which has been variously decided. In some of the States, the statute itself settles this question, but where the statute is silent upon this point it may be said that an action is commenced when the writ is issued. That is, when it is filled out and completed with an intention of having it served. In any event, the issue of a process and giving it to an officer for service, or depositing it in a place designated or provided by an officer for that purpose, clearly amounts to a commencement of an action. Formerly the question as to when an action could be said to have been commenced, so as to save a debt from the operation of the statutes, was one of great importance, and over which there was some confusion and conflict of doctrine. But the general rule adopted was, and is, except where otherwise provided by statute, that the statute is suspended from the time of the suing out of the writ, and its bona fide delivery to a proper officer for service. The writ may be

1 Jackson v. Brooks, 14 Wend. (N. Y.) 649; Lowry v. Lawrence, 1 Cai. (N. Y.) 69; Ross v. Luther, 4 Cow. (N. Y.) 158; Burdick v. Green, 18 Johns. (N.Y.) 14; Cheetham v. Lovis, 3 id. 43; Fowler v. Sharp, 15 id. 323; Cox v. Cooper, 3 Ala. 256; Schroeder v. Ins. Co., 104 Ill. 71; Feazle v. Simpson, 2 Ill. 30; Ford v. Phillips, 1 Pick. (Mass.) 202; Seaver v. Lincoln, 21 id. 267; Mason v. Cheney, 47 N. H. 24; Parker v. Colcord, 2 N. H. 36; Society, &c. v. Whitcomb, 2 id. 227; Hardy v. Corliss, 21 N. H. 356; Day v. Lamb, 7 Vt. 426; Hail v. Spencer, 1 R. I. 17; Johnson v. Farwell, 7 Me. 370; Updike v. Ten Broock, 32 N. Y. L. 105.

3 Beckman v. Satterlee, 5 Cow. (N. Y.) 519; Evans v. Gallaway, 20 Ind. 479; Lowry v. Lawrence, 1'Cai. (N. Y.) 69; Kenney v. Lee, 10 Tex. 155; Hail v. Spencer, 1 R. I. 17; Cheetham v. Lewis, 3 Johns. (N. Y.) 42; Burdick v. Green, 18 id. 14; Jackson v. Brooks, 14 Wend. (N. Y.) 649; Sharp v. McGuire, 19 Cal. 577; Pemental v. San Francisco, 21 id. 351; State v. Groome, 10 Iowa, 308.

In Clare v. Lockard, 122 N. Y. 263, it was held that under the provisions of the Code declaring that "an attempt to commence an action in a court of record is equivalent to the commencement thereof," within the meaning of the provision lim

2 Michigan, &c., Bank v. Eldred, 130 iting the time of commencing actions, U. S. 693.

"when the summons is delivered to the

« PreviousContinue »