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 1*781, 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 discriminating between a payment of interest before and after the statute had attached. In the former case a payment by one of the makers of a promissory note might be regarded as a payment by all, because at the time of the payment the parties were jointly liable for the debt, and one might therefore he considered as the agent of the other with respect to the debt. The Court also fully recognized the decision of Whitcomb vs. 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 vs. Nichols, has been the accepted law of this State for nearly thirty years, and [616] in the absence of legislation to the contrary, it is not to he questioned. It may not he amiss however to say, the same rule has received the sanction of the highest Courts in other States. Bellman vs. Bellman, 2 Hill, 416 ; Steele vs. Jennings, 1 McMullan, 297; Gordy vs. Gilliam, 6 Richardson, 28; McIntyre vs. Oliver, 2 Hanks, 209; Walton vs. Robinson, 6 Iredell, 341; Emmons vs. Overton, 18 B. Monroe, 643 (Decided 13th June, 1877.) In regard to the supposed hardship of the rule as against sureties to a note, 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 payments 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. There was no error therefore, in granting the plaintiff’s prayer, and in refusing the prayers offered by the defendant. Judgment affirmed.