CASES IN THE SUPREME COURT OF WYOMING. COWHICK V. SHINGLE. [5 WYOMING, 87.] LIMITATIONS OF ACTIONS-DEMURRER.-If it appears upon the face of a petition that the cause of action accrued at such a period that, under the statute of limitations, no action can be brought, a demurrer, on the ground that it does not state facts sufficient to constitute a cause of action, will be sustained. LIMITATIONS OF ACTIONS-PART PAYMENT BY ONE DEBTOR-EFFECT OF.-A partial payment by one of two parties, jointly and severally liable upon a promissory note, does not suspend the running of the statute of limitations in favor of the other party. LIMITATIONS OF ACTIONS-ACKNOWLEDGMENT OR PAYMENT BEFORE OR AFTER BAR.-There is no distinction between the legal effect of an acknowledgment or payment made before or after the bar of the statute of limitations has attached. In either case, the legal effect thereof is to create a new cause of action. COMMON LAW, WHAT IS.-As a rule, the term "common law" means both the common law of England, as opposed to statute or written law, and the statutes passed before the emigration of the first settlers of America. LIMITATIONS OF ACTIONS-CREATURE OF STATUTE.— At common law, there was no limitation, as to time, upon the right to bring a personal action. Such limitations are, and always have been, pure creatures of the statute. STATUTES ADOPTED FROM ANOTHER STATE-CONSTRUCTION.-If a statute of one state is adopted by another, the construction put upon the statute in the former will be adopted in the latter. LIMITATIONS OF ACTIONS-REQUIREMENTS AS TO PAYMENT, ACKNOWLEDGMENT, OR PROMISE.-Neither a payment, an acknowledgment, nor a promise in writing will take a case out of the bar of the statute of limitations, unless made by the party to be charged thereby, or an agent authorized for that express purpose. AM. ST. REP. VOL. LXIII.-2 (17) Action upon a joint and several promissory note, made by the defendants, John K. Shingle and H. Altman, to the plaintiff's intestate, John Y. Cowhick, dated January 3, 1888, for the sum of one hundred dollars, and payable one year after date, with interest. The cause of action upon the note accrued on January 7, 1889, and this action was commenced on February 2, 1894, more than five years after the cause of action accrued. It was alleged in the plaintiff's petition that the only payment made on the note was the amount of interest from its date to June 1, 1890, which interest, it was alleged, was paid to Cowhick by Shingle without the knowledge or consent of Altman. This payment was made on June 1, 1890. The defendant Shingle made default, but the defendant Altman interposed a general demurrer to the petition, relying upon the statute of limitations. The court sustained the demurrer, and rendered judgment in favor of Altman, from which the plaintiff appealed. The following sections of the Revised Statutes of 1887 were relied upon: "Sec. 2368. Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action accrues. Sec. 2369. Within five years an action upon a specialty or any agreement, contract, or promise in writing. Sec. 2381. When payment has been made upon any demand founded on contract, or a written acknowledgment thereof, or promise to pay the same, has been made and signed by the party to be charged, an action may be brought thereon within the time herein limited, after such payment, acknowledgment, or promise." The foregoing statutory provisions had been in force in the state of Wyoming since June 1, 1886. Prior to that time and subsequent to March 1, 1874, the code provision in force there, which corresponded with section 2381, above quoted, was section 21, chapter 13, of the Compiled Laws of 1876. This section read as follows: "Sec. 21. In any case founded on contract where any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt, or claim, or any promise to pay the same shall have been made, an action may be brought on such case within the period prescribed for the same, after such payment, acknowledgment, or promise, but such acknowledgment or promise must be in writing, signed by the party to be charged thereby." R. W. Breckons, for the appellant. H. Donzelmann, for the appellees. 90 CLARK, J. It is the settled construction of our Code of Civil Procedure that "where it appears upon the face of the petition that the cause of action accrued at such a period that under the statute of limitations no action can be brought, the defendant may demur to the petition on the ground that the petition does not state facts sufficient to constitute a cause of action": Sturgis v. Burton, 8 Ohio St. 215; 72 Am. Dec. 582. It is clear that more than five years elapsed between the date the cause of action accrued upon the note and the commencement of the suit, and hence the demurrer of the defendant 91 Altman was properly sustained by the court below, unless the payment of the interest by the defendant Shingle on the first day of June, 1890, had the effect of suspending the running of the statute in favor of the defendant Altman. Briefly stated, the sole remaining question for determination is: Does a partial payment by one of two parties jointly and severally liable upon a promissory note suspend the running of the statute in favor of the other? Before proceeding to the consideration of our own statutes, so far as they bear upon this question, it may not be amiss to briefly look into the history of the law upon this subject. The first statute in our system of jurisprudence which placed limitations upon personal actions was chapter 16 to 21 James I, enacted in 1623. In the construction of this statute and of statutes enacted at an early day, by several of the states of the Union, which were substantially like it, there was great diversity of opinion upon the question we have presented here. The leading case on this question in England is Whitcomb v. Whiting, Doug. 652, decided in 1781, where it was held by Lord Mansfield and his associates that "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." Willes, justice, concurring in the views expressed by Lord Mansfield, further said: "The defendant has had the advantage of the partial payment, and, therefore, must be bound by it." This case seems to be wholly opposed in principle to the case of Haslerig v. Bland, 2 Vent. 151, decided many years before, but after the adoption of the statute of 21 James I. While the doctrine of Whitcomb v. Whiting, Doug. 652, was several times seriously questioned by eminent English judges, notably by Lord Ellenborough in Brandram v. Wharton, 1 Barn. & Ald. 463, it became the generally accepted rule in England, and was such until parliament interfered in 1828, and, adopting what is known as Lord Tenterden's act, declared 92 among other things that no joint contractor should be in any manner affected by any written acknowledgment or promise made by their co-contractors, thus limiting the effect of written acknowledgments or new promises to the parties making them. This act, however, contained this proviso: "Provided, always, that nothing herein contained shall alter or take away or lessen the effect of any payment of any principal or interest made by any person whatsoever." We cite this thus fully because it is urged upon us that this statute is in substance the same as our section 2381, quoted in the statement of facts hereto appended, and inasmuch as the English courts after the adoption of the act gave the same effect to a partial payment by one of two or anore joint obligors as was given in Whitcomb v. Whiting, Doug. 652, that hence the cases so holding are authority for the proposition that our statute should be so construed as to make a payment by one obligor effective as to the others. I cannot assent to this contention because, considering the state of the law in England at the time of the adoption of Lord Tenterden's act, as declared by the courts there, it seems clear to my mind that the effect of the proviso in that act was to leave the legal effect of a payment made by "any person whatsoever" just exactly what it had been held by the courts to have been; in fact, it might be very strongly urged that the proviso was in effect a legislative affirmation of the rule previously established by the courts, and such in effect seems to have been the view taken by the court in Wyatt v. Hodson, 8 Bing. 309, and by Chief Justice Shaw in Sigourney v. Drury, 14 Pick. 387. By this act of Lord Tenterden, the effect of the decision in Whitcomb v. Whiting, Doug. 652, was limited solely to partial payments, and its effect in that respect was entirely overthrown in 1856 by the act entitled the Mercantile Law Amendment Act. So that long before the territory or state of Wyoming came into existence, the doctrine of that celebrated case had met its death in the land of its birth, and as stated at pages 608 and 609 of Wood on Limitations: "The judgment of the profession, as well as of the people generally, as to the wisdom of the doctrine, is best evidenced 93 by the circumstance that it has been nearly obliterated by legislative and judicial action." In the United States, under statutes substantially like the English statute, the doctrine of Whitcomb v. Whiting, Doug. 652, met with great disfavor at an early day and was wholly repudiated in several well-considered cases; among them may be mentioned as especially worthy of consideration: Bell v. Morrison, 1 Pet. 351; Exeter Bank v. Sullivan, 6 N. H. 125; Coleman v. Fobes, 22 Pa. St. 156; 60 Am. Dec. 75; Levy v. Cadet, 17 Serg. & R. 126; 17 Am. Dec. 650; Van Keuren v. Parmelee, 2 N. Y. 524; 51 Am. Dec. 322; Shoemaker v. Benedict, 11 N. Y. 176; 62 Am. Dec. 95; Yandes v. Le Favour, 2 Blackf. 371; Belote v. Wynne, 7 Yerg. 534; Muse v. Donelson, 2 Humph. 166; 36 Am. Dec. 309; Lowther v. Chappell, 8 Ala. 353; 42 Am. Dec. 643; Succession of Voorhies, 21 La. Ann. 659; Walker v. Duberry, 1 A. K. Marsh. 189; Steele v. Jennings, 1 McMull. 297. In some of the above cases the acknowledgment or partial payment relied upon to take the case out of the statute was made before the bar of the statute had become complete; but in my judgment there is no distinction in principle between the legal effect of acknowledgment or payment made before or after the bar of the statute had attached; in either case the legal effect thereof is to create a new cause of action: Muse v. Donelson, 2 Humph. 169; 36 Am. Dec. 309; Bell v. Morrison, 1 Pet. 351; Shoemaker v. Benedict, 11 N. Y. 176; 62 Am. Dec. 95; Allen v. O'Donald, 28 Fed. Rep. 17, 25; Wheelock v. Doolittle, 18 Vt. 440, 442; 46 Am. Dec. 163; Willoughby v. Irish, 35 Minn. 63, 69; 59 Am. Rep. 297. In the case of Coleman v. Fobes, 22 Pa. St. 156, 60 Am. Dec. 75, it is said: "We cannot but regard the case of Whitcomb v. Whiting, Doug. 652, which declared that a payment by one joint debtor was a new promise by all as being at the bottom of all the confusion that exists in the decisions in England and in this country on the subject of this statute in its relation to joint debtors." And from the review in that case of the English decisions it would seem that the doctrine had led to inextricable confusion, and to such extreme views that the statute 94 was in effect a nullity, as shown by the decision in Goddard v. Ingram, 3 Ad. & E., N. S., 839. In this case, the two defendants had been partners with one Shuttleworth; the partnership was dissolved in 1832, and, upon the dissolution, was. indebted to the plaintiffs, bankers, in the sum of two thousand pounds. In 1839, James Goddard, one of the plaintiffs who was individually indebted to the old partnership on his single account in the sum of thirty-five pounds, drew his check upon his own bank for that sum, and placed it to the credit of the partnership. A day or two afterward, Shuttleworth, who was hopelessly bank |