Schindel v. Gates

Robinson, J., delivered the opinion of the Court. This case has been argued with commendable zeal and ability, .but Ellicott vs. Nichols, 7 Gill, 86 , is, we think, conclusive as to the question presented by the record. Prior to Lord Tenderden’s Act, and the Mercantile Law Amendment Act of 1856, it was settled in England, that part payment by one, of two or more joint and several makers of a note, was sufficient to prevent the bar of the Statute of Limitations, and this too without regard to whether such payment was made before or after the statute had attached. Parkham vs. Raynal, 2 Bing., 306 ; Wyatt vs. Hodson, 8 Bing., 309 ; Rew vs. Pettit, 1 A. & E., 196 ; Burleigh vs. Stott, 8 B. & C., 36 ; Channell vs. Ditchburn, 5 M. & W., 594.

This doctrine is stated by Lord Ellenborough to have had its origin with the case of Whitcomb vs. Whiting, decided in the King’s Bench in 1⁷⁸¹, in which Lord Mans-, eield said, the payment by one is payment for all, the one. acting virtually for the rest, and in the same manner an admission by one is an admission by all, and the law; ⁶¹⁵ raises the promise to pay when the debt is admitted to be due. In this country the decisions are quite conflicting. In some States the English rule is fully recognized and adopted, whilst in others the Courts hold that no such authority can be fairly implied from the relation of joint debtors, and that a payment by one of several joint makers, cannot in any manner operate to bind the others. It is unnecessary to review the many cases on the subject — they are collected and reviewed in the notes to Whitcomb vs. Whiting, Smith’s Leading Cases, vol. 1, 642.

In Ellicott vs. Nichols, this Court recognized a distinction between a payment made by one of several joint-makers, before the statute had attached, and one made subsequent thereto. In the former, the payment was held sufficient to take the note out of the operation of the statute, but not so if the note had become barred. The case of Channell vs. Ditchburn, 5 Meeson & Welsby, 494, in which it was decided that a payment by one of the makers of a joint and several promissory note, even after the statute had attached, was sufficient to take the case out of the statute, was considered by the Court, and Judge Martin said that the error of Baron Parke consisted in his not