Whiting.12 Defendant with three others executed a promissory note. The statute of limitations would become a bar to the defendants' liability six years after maturity. One of the makers made a part payment within six years of the bringing of the action. In affirming the plaintiff's right to recover, Lord Mansfield used this language, which has disturbed some courts to the point of severe criticism, while others have followed it: "Payment by one, is payment for all, the one acting, virtually, as agent for 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."13 12 (1881) Douglas 651. Note that this is authority where one joint obligor has made payment for all, and not in case one has made a verbal acknowledgment of the debt. See Sigourney v. Drury (1833) 14. Pick. (Mass.) 387, 392. Whitcomb v. Whiting seems contrary to the earlier case of Blend v. Haselrig, 2 Vent. 151, 86 Eng. Rep. Reprint 363, where the plaintiff was not allowed to recover against four joint promisors, one of whom acknowledged the debt within six years. However, see explanation to the contrary in White V. Hale (1825) 3 Pick. (Mass.) 291, 292. 13 In Atkins v. Tredgold (1823) 2 B. & C. 23, 107 Eng. Rep. Reprint 291, two of the judges, in language clearly obiter, criticized Whitcomb v. Whiting, Holyroyd, J., remarking that it "has gone far enough.' Subsequently, however, in Perham v. Raynal et al. (1824) 2 Bing. 306, 130 Eng. Rep. Reprint 323, where one joint maker verbally acknowledged the existing obligation, Whitcomb v. Whiting was followed. In Channel v. Taylor (1839) 5 M. & W. 494, 151 Eng. Rep. Reprint 209, the doubt cast upon Whitcomb V. Whiting by Atkins v. Tredgold supra, and Slater v. Lawson (1830) 1 B. & Ad. 396, 109 Eng. Rep. Reprint 835, was discussed, and the court followed the original case, holding that the payment by one obligor, even after the statute became a bar, revived the obligation of his coobligor. See also Manderston v. Robertson (1829) 4 M. & R. 440. Again in Goddard v. Ingram (1842) 3 G. & D. 46, the debt was held to be revived as against the co-partner after the statute had become a bar, even though the payment was made by one of the partners fraudulently after dissolution, and in concert with the creditor for the purpose of reviving the debt against the other partners. Of Whitcomb v. Whiting supra, Mr. Justice Story, in Bell v. Morrison (1828) 1 Peters 351, 368, after quoting Lord Mansfield's opinion in full, said: "This is the whole reasoning reported in the case, and is certainly not very satisfactory A minority of American courts follows this reasoning, which is that until the claim is barred the promisors are subjected to a joint common responsibility, one being authorized by this relation to make a payment for the benefit of all.14 Even by such 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 made."' was For similar comment see Van Keuren v. Parmelee (1849) 2 N. Y. 523, 527. 14 See Ellicott v. Nichols (1848) 7 Gill (Md.) 85; Clinton Co. v. Smith (1911) 238 Mo. 118, 141 S. W. 1091; Engle v. Worth Co. (1919) 278 Mo. 295, 213 S. W. 70; Perkins, Adm'r v. Barstow (1860) 6 R. I. 505; Mix v. Shattuck (1878) 50 Vt. 421; Angell "Limitations" (1876, 6th Ed.) Sec. 249. Also see statements by writers of the notes in (1920) 6 Virginia Law Review p. 586, and (1920) 29 Yale Law Journal p. 804, to the effect that this view is not the law except in about a half dozen American jurisdictions. Brandt on Suretyship and Guar anty (1905, 3d Ed.) Sec. 161, though citing a number of cases contra, states this to be the rule: "If a principal and surety exe cute a joint, or joint and several note, bond or other obligation, a new promise or a partial payment by the principal will avoid the bar of the statute of limitations as to the surety as well as to the principal. This is placed upon the ground that, as they are jointly liable the admission or act of one is the admission or act of both."' Accord: Greenleaf "Evidence" (16th Ed. 1899) Vol. I, Sec. 174. It is submitted, however, that the modern trend of cases disputes this statement as the present general rule. A prevailing explanation for the respectable number of jurisdictions which have followed Whitcomb v. Whiting from time to time, is that when it was decided, the statute of limitations was in bad repute, and any slight acknowledgment of the existence of a debt was interpreted to deprive a party of the benefit of the statute, although the debtor never intended to recognize his liability. Some American courts, influenced by the principal of stare decisis, have followed that case, even though it is generally recognized that the statute of limitations is one of repose, and does not merely presume payment. See Shoemaker v. Benedict (1854) 11 N. Y. 176, 182183. Chief Justice Shaw in Sigourney v. Drury (1833) 14 Pick. (Mass.) 387, 391, stated the regular payment courts, if after the death of one joint maker, the payment is made by his personal representatives, the liability of the survivor is not extended or revived. The joint contract is severed by the death of one of the parties, and the executor can do no act to take the debt out of the statute. If the promise is several, the act of one party cannot affect the others.15 Nor can the assignee of an insolvent debtor by making a partial payment toll the statute as to such debtor, since the debtor has no control over the assignee who is a trustee for both the debtor and creditor on whom the law imposes the duty of making the proper appropriation of the assets of the assignor to the payment of existing debts.16 § 193. Second view. A second class of cases treat the new promise or part payment as an acknowledgment of the debt by the party making it. According to courts holding this view, one joint contractor has no authority to make a new acknowl of interest by the principal on a joint and several promissory note "will continue an existing liability in force" against the surety, but disclaims any intention to hold such payment could revive and create a new liability on a debt once barred. By obiter in Corlies v. Corlies (1863) 30 N. J. L. 349, 350, it is said that payment by one joint obligor will preserve a claim from the bar of the statute, whether made before or after the bar attached; but when squarely presented in Parker v. Butterworth (1884) 46 N. J. L. 244, 254, payment after the statute became a bar was held not to revive the claim against the nonacknowledging obligors. 18 Slater v. Lawson (1830) 1 B. & A. 396, 109 Eng. Rep. Reprint 835; Atkins v. Tredgold (1823) 2 B. & C. 23, 107 Eng. Rep. Reprint 291; Root v. Bradley (1863) 1 Kansas 437; Angell "Limitations" Sec. 251. Contra: Fendley edgment of a debt, either before or after the statute of limitations has become a bar, so as to bind his co-obligor.17 By this reasoning, the promise to pay an old obligation is not the continuation of the old contract, but it constitutes a new contract supported by the old consideration. The new promise is not a mere mark by which time is counted, but a new causa litis.18 In an action against a surety who had never acknowledged the debt, though the principal had done so by making part payment, the Illinois Supreme Court adhered to this second view, holding the surety was not liable after the statute of limitations had become effective. Its opinion presents splendid reasoning, part of which reads: "Whitcomb v. Whiting infers a new promise from the mere admission of the existence of a past contract, which doctrine this court repudiates. "It is, doubtless, the law that joint debtors, in matters respecting their joint indebtedness, may, to a certain extent, bind each other by their admissions; but this can only be as to facts affecting rights or remedies then existing. ligor, and a subsequent verbal promise by another joint promisor to pay, do not make the latter liable. Pfenninger v. Kokesch (1897) 68 Minn. 81, 70 N. W. 867. See also Bottles v. Miller (1887) 112 Ind. 584, 14 N. E. 728; Mozingo v. Ross (1898) 150 Ind. 688, 50 N. E. 867; Stevens Store Co. v. Hammond (1898) 21 Ind App. 76, 51 N. E. 506; Dwire v. Gentry (1914) 95 Neb. 150, 145 N. W. 350; Hance v. Hair (1874) 25 Oh. St. 349; Homewood v. People's Bank (1920) 266 Pa. 116, 109 Atl. 873; White v. Pittsburg Vein Coal Co. (1920) 266 Pa. 145, 109 Atl. 873. 18 Bell V. Morrison (1828) 1 Peters 351; Willoughby v. Irish (1886) 35 Minn. 63, 67, 27 N. W. 379; Copeland v. Collins (1898) 122 N. C. 619, 30 S. E. 315. The admissions must relate to matters showing what are the Whether the new promise by the co-obligor is made before or after the statute has become a bar is immaterial, for in the latter part of the opinion in the same case it is said: "The point is made in argument that payment before the bar is complete and payment afterwards, rest upon different principles. In either case, if the running of the statute is arrested, it is because of the new promise, express or implied; and it is that new promise, i. e., contract, resting upon the consideration of the old debt, in either case, where the statute is pleaded, that is replied to take the case out of the statute. The elements of contract must exist in either case.' Even knowledge that the principal has made a payment will not toll the statute against the surety. The rule was thus stated by the New York Court of Appeals: "But it is the settled law of this state that payments made by one joint contractor cannot save from the statute of limitations a claim against another joint contractor, and that payments made by the principal debtor cannot save from the statute a claim against a surety; and it makes no |