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Bell vs. Morrison et al.

examination of the report, whether the opinion of the Court or of any of the Judges proceeded solely upon such a ground.

In Whitcomb vs. Whiting (2 Doug. R. 652), decided in 1781, in an action on a joint and several note brought against one of the makers, it was held that proof of payment, by one of the others, of interest on the note and of part of the principal, within six years, took the case out of the statute, as against the defendant who was sued. Lord Mansfield said: "Payment by one is payment for all, the one acting virtually for all 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." This is the whole reasoning reported in the case, and is certainly not very satisfactory. It assumes that one party who has authority to discharge has, necessarily, also, authority to charge the others; that a virtual agency exists in each joint debtor to pay for the whole; and that a virtual agency exists, by analogy, to charge the whole. Now, this very position constitutes the matter in controversy. It is true that a payment by one does enure for the benefit of the whole; but this arises not so much from any virtual agency for the whole, as by operation of the law; for the payment extinguishes the debt. If such payment were made after a positive refusal or prohibition of the other joint debtors, it would still operate as an extinguishment of the debt, and the creditor could no longer sue them. In truth, he who pays a joint debt, pays to discharge himself; and so far from binding the others conclusively by his act, as virtually theirs also, he cannot recover over against them, in contribution, without such payment has been rightfully made, and ought to charge them.

When the statute has run against a joint debt, the reasonable presumption is that it is no longer 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

Bell vs. Morrison et al.

the rest, even though they should have utterly denied the debt at the time when such acknowledgment was made.

The doctrine of Whitcomb vs. Whiting has been followed in England in subsequent cases, and was applied in a strong manner, in Jackson vs. Fairbank (2 H. Bl. 340), where the admission of a creditor to prove a debt on a joint and several note under a bankruptcy, and to receive a dividend, was held sufficient to charge a solvent joint debtor in a several action against him, in which he pleaded the statute, as an acknowledgment of a subsisting debt. It has not, however, been received without hesitation. In Clark vs. Bradshaw (3 Esp. R. 155), Lord Kenyon, at Nisi Prius, expressed some doubts upon it; and the cause went off on another ground. And in Brandram vs. Wharton (1 Barn. & Ald. 463), the case was very much shaken, if not overturned. Lord Ellenborough, upon that occasion, used language, from which his dissatisfaction with the whole doctrine may be clearly inferred. "This doctrine," said he, “of rebutting the statute of limitations by an acknowledgment other than that of the party himself, began with the case of Whitcomb vs. Whiting. By that decision, where however there was an express acknowledgment, by an actual payment of a part of the debt by one of the parties, I am bound. But that case was full of hardship; for this inconvenience may follow from it. Suppose a person liable jointly with thirty or forty others to a debt, he may have actually paid it, he may have had in his possession the document by which that payment was proved, but may have lost his receipt. Then, though this was one of the very cases which this statute was passed to protect, he may still be bound and his liability be renewed by a random acknowledgment made by some one of the thirty or forty others, who may be careless of what mischief he is doing, and who may even not know of the payment which has been made. Beyond that case, therefore, I am not prepared to go, so as to deprive a party of the advantage given him by the statute, by means of an implied acknowledgment."

The English cases decided since the American Revolution, are, by an express statute of Kentucky, declared not to be of authority in their courts; and consequently Whitcomb vs. Whiting in Douglas, and the cases which have followed it, leave the question in Kentucky quite open to be decided upon principle. In the American courts, so far as our researches have extended,

Bell vs. Morrison et al.

few cases have been litigated upon this question. In Smith Adm'r. vs. D. & G. Ludlow, 6 Johns. R. 267, the suit was brought against both partners, and one of them pleaded the statute. Upon the dissolution of the partnership, public notice was given, that the other partner was authorized to adjust all accounts; and an account signed by him, after such advertisement, and within six years, was introduced.* It was also proved, that the plaintiff called on the partner who pleaded the statute, before the commencement of the suit, and requested a settlement, and that he then admitted an account, dated in 1797, to have been made out by him; that he thought the account had been settled by the other defendant, in whose hands the books of the partnership were; and that he would see the other defendant on the subject, and communicate the result to the plaintiff. The Court held that this was sufficient to take the case out of the statute; and said that without any express authority, the confession of one partner, after the dissolution, will take a debt out of the statute. The acknowledgment will not of itself be evidence of an original debt; for that would enable one party to bind the other in new contracts. But the original debt being proved or admitted, the confession of one will bind the other so as to prevent him from availing himself of the statute. This is evident, from the cases of Whitcomb vs. Whiting, and Jackson vs. Fairbank; and it results necessarily from the power given to adjust accounts. The Court also thought the acknowledgment of the partner, setting up the statute, was sufficient of itself to sustain the action. This case has the peculiarity of an acknowledgment made by both partners, and a formal acknowledgment by the partner who was authorized to adjust the accounts after the dissolution of the partnership. There was not, therefore, a virtual but an express and notorious agency devolved on him to settle the account. The correctness of the decision cannot, upon the general view taken by the Court, be questioned. In Roosevelt vs. Marks, 6 Johns. Ch. Rep. 266, 291, Mr. Chancellor Kent admitted the authority of Whitcomb vs. Whiting; but denied that of Jackson vs. Fairbank, for rea

* Very similar in its circumstances was the case of Garland vs. Administrators of Agees, 7 Leigh's (Virginia) Rep. 363, where the firm was held bound by the admissions, after its dissolution, of the sole managing partner. The judges, however, expressed no opinion on the law, the judgment below being simply. affirmed.

Bell vs. Morrison et al.

sons which appear to us solid and satisfactory. Upon some other cases in New York, we shall have occasion hereafter to comment. In Hunt vs. Bridgham, 2 Pick. R. 581, the Supreme Court of Massachusetts, upon the authority of the cases in Douglas, H. Blackstone, and Johnson, held that a partial payment by the principal debtor on a note took the case out of the statute of limitations, as against a surety. The Court do not proceed to any reasoning to establish the principle, considering it as the result of the authorities. Shelton vs. Cocke, 3 Mumford's R. 191, is to the same effect; and contains a mere annunciation of the rule, without any discussion of its principle. Simpson vs. Morrison, 2 Bay's Rep. 533, proceeded upon a broader ground, and assumes the doctrine of the case in 1 Taunt. Rep. 104, hereinafter noticed, to be correct. Whatever may be the just influence of such recognitions of the principles of the English cases in other States, as the doctrine is not so settled in Kentucky, we must resort to such recognition, only, as furnishing illustrations to assist our reasoning, and decide the case now as if it had never been decided before.

By the general law of partnership, the act of each partner, during the continuance of the partnership and within the scope of its objects, binds all the others. It is considered the act of each and of all, resulting from a general and mutual delegation of authority. Each partner may, therefore, bind the partnership by his contracts in the partnership business; but he cannot bind it by any contracts beyond those limits. A dissolution, however, puts an end to the authority. By the force of its terms it operates as a revocation of all power to create new contracts; and the right of partners as such can extend no further than to settle the partnership concerns already existing, and to distribute the remaining funds. Even this right may be qualified and restrained by the express delegation of the whole authority to one of the partners.

The question is not, however, as to the authority of a partner after the dissolution to adjust an admitted and subsisting debt, we mean, admitted by the whole partnership or unbarred by the statute but whether he can, by his sole act, after the action is barred by lapse of time, revive it against all the partners without any new authority communicated to him for this purpose. We think the proper resolution of this point depends upon another, that is, whether the acknowledgment or promise is to

Bell vs. Morrison et al.

be deemed a mere continuation of the original promise, or a new contract springing out of and supported by the original consideration. We think it is the latter, both upon principle and authority; and if so, as after the dissolution no one partner can create a new contract binding upon the others, his acknowledg ment is inoperative and void, as to them.

was gone.

There is some confusion in the language of the books, resulting from a want of strict attention to the distinction here indicated. It is often said that an acknowledgment revives the promise, when it is meant that it revives the debt or cause of action. The revival of a debt supposes that it has been once extinct and gone; that there has been a period in which it had lost its legal use and validity. The act which revives it is what essentially constitutes its new being, and is inseparable from it. It stands not by its original force, but by the new promise which imparts vitality to it. Proof of the latter is indispensable to raise the assumpsit on which an action can be maintained. It was this view of the matter which at first created the doubt, whether it was not necessary that a new consideration should be proved to support the promise, since the old consideration That doubt has been overcome; and it is now held that the original consideration is sufficient, if recognised, to uphold the new promise, although the statute cuts it off as a support for the old. What, indeed, would seem to be decisive on this subject is, that the new promise, if qualified or conditional, restrains the rights of the party to its own terms; and if he cannot recover by those terms he cannot recover at all. If a person promises to pay, upon condition that the other do an act, performance must be shown before any title accrues. If the declaration lays a promise by or to an intestate, proof of the acknowledgment of the debt by or to his personal representative will not maintain the writ. Why not, since it establishes the continued existence of the debt? The plain reason is, that the promise is a new one, by or to the administrator himself, upon the original consideration, and not a revival of the original promise. So, if a man promises to pay a pre-existing debt, barred by the statute, when he is able or at a future day, his ability must be shown; or the time must be passed before the action can be maintained. Why? Because it rests on the new promise, and its terms must be complied with. We do not here speak of the form of alleging the promise in the declaration, upon which,

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