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rupt, called at the bank and expressed himself satisfied with the transaction. This was held a sufficient payment to take the case out of the statutes as to the two defendants; and, in the light of this case, it is not surprising that the Pennsylvania court should say: "To carry out this principle of Whitcomb v. Whiting, Doug. 652, would allow a debtor that is hopelessly bankrupt to bind others by his new promise, and even to be hired to do it, and thus far the example has led in England."

On the other hand, it is true that in many states, especially the New England states, the doctrine of Whitcomb v. Whiting, Doug. 652, was upheld and under statutes similar to the English statute enforced.

In Sigourney v. Drury, 14 Pick. 387, Chief Justice Shaw rendered an opinion sustaining the doctrine of Whitcomb v. Whiting, Doug. 652, and which may well be considered the leading case upon that side of the question in the United States.

Cox v. Bailey, 9 Ga. 467, 54 Am. Dec. 358, is another strongly reasoned case in favor of the doctrine. The same rule was held to be the law in Rhode Island, Connecticut, Maine, and other states, but it is, I think, a circumstance worthy of great consideration that within a few years after the rendition of the decisions sustaining this rule, the legislatures of nearly all the states so holding by legislative enactment declared that no joint debtor should be deprived of the benefit of the statute by reason of the fact of payment by his codebtor.

It must be admitted that at the time of the adoption of 05 section 21, chapter 13, of the Compiled Laws of Wyoming of 1876, to wit, December 11, 1873, in fact, at the time of the organization of the territory of Wyoming, in 1868, the rule that one joint debtor was affected by the partial payment of his codebtor in such way as to deprive him (the former) of the benefit of the statute, prevailed in only a few of the states of the Union, to wit: Connecticut, New Jersey, Rhode Island, Delaware, Georgia, Oregon, North Carolina, Missouri, and perhaps at that date Minnesota, and one or two other states. In all the other states, and in England as well, the rule had been entirely overthrown, either by judicial decision or by legislative enactment. This fact is in my mind a strong circumstance, as evidencing the judgment of the profession, and of the people as well, concerning the wisdom and propriety of the rule here contended for by the plaintiff, and is entitled to consideration in attempting to properly construe our statute upon the subject, because, when we come to construe our statute, it is a fair pre

sumption that our legislature, when engaged in legislating upon a subject so generally acted upon in other jurisdictions, did have some regard for the general state of the law upon that subject, and we may very properly bear this in mind when we undertake to ascertain what was the legislative intention with respect to the statute. It is urged upon us that "when a statute is in general terms it is subject to the principles of the common law, and is to receive such construction as is agreeable to that law in cases of the same nature." And then it is said "that the common-law rule is clearly laid down in Whitcomb v. Whiting, Doug. 652." 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: Patterson v. Winn, 5 Pet. 241; Commonwealth v. Leach, 1 Mass. 61. And applying this definition to the matter in hand, I am unable to perceive that there is any "common-law" rule upon the subject. 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, and the rule 96 contended for is a rule which grew up and developed in the construction of the statute of 21 James I, and in no other way. It was first announced in 1781 by Lord Mansfield in Whitcomb v. Whiting, Doug. 652, and, while any statement of the law made by that great judge is entitled to great weight and respect, his declarations even as to the common law are simply persuasive authority.

This brings us now to the consideration of our own statute, and before reviewing the authorities construing this and similar statutes, I will examine the statute independently of them. It is quite clear that under the statute no written acknowledgment or new promise, howsoever solemnly executed or made by one of two codebtors, could in any measure suspend the running of the statute as to the other, and this would be so whether the acknowledgment or promise was made before or after the statutory bar had attached. This being so, it would seem that inasmuch as the law does not permit one codebtor by his express promise or acknowledgment to bind the other, it would logically follow that he could not, by an act which is simply in legal effect an acknowledgment from which the law implies a promise, bind him. I am unable to escape this conclusion, and it seems to me to be abundantly justified by the authorities..

In 1866 the twenty-fourth section of the code of Ohio was identical with section 21, chapter 13, of the Compiled Laws of

Wyoming of 1876; thereafter the legislature of Ohio adopted a new code, section 4992 of which is identical with our section 2381 of the Revised Statutes of Wyoming of 1887. These sections are set forth in the statement of facts preceding this opinion. In my judgment the two sections are in substance the same; there is no sort of difference in their effect.

In Marienthal v. Mosler, 16 Ohio St. 570, the supreme court of Ohio, in construing the twenty-fourth section of their code. used this language: "By comparing this section with the one for which it is substituted in the limitation act of 1831, and judicial constructions given to the act of 21 James I, it is apparent that the legislature did not intend to enlarge the facilities 97 for taking cases out of the statutory bar. Before this can now be effected by an acknowledgment of an existing debt or a promise to pay the same, it 'must be in writing, signed by the party to be charged thereby.' No change is made in the effect of a part payment of a debt. It will be seen, however, that the same effect is given to such part payment as is given to a written promise signed by the party to be charged thereby. It would seem, therefore, from analogy that the payment must be made by the party to be affected thereby, or by an agent authorized for that express purpose. In the contemplation of the statute, the part payment of a debt is regarded as evidence of a willingness. and obligation to pay the residue, as conclusive as would be a personal written promise to that effect. It could not, then, have been intended to give this effect to payments other than those made by the party himself or under his immediate direction. Surely nothing short of this would warrant the assumption of a willingness to pay equal to his written promise to that effect."

In Hance v. Hair, 25 Ohio St. 349, it was held under the same section that "a partial payment on a joint and several promissory note by one of the several makers will not prevent the running of the statute of limitations as to the other makers." And the case of Marienthal v. Mosler, 16 Ohio St. 570, was expressly affirmed.

In Kerper v. Wood, 48 Ohio St. 613, the statute in existence and relied upon was section 4992 of the Revised Statutes of Ohio, identical with our section 2381 of the Revised Statutes of Wyoming of 1887. The court quoted from the decisions in Marienthal v. Mosler, 16 Ohio St. 570, and Hance v. Hair, 25 Ohio St. 349, and say at page 621: "These decisions give emphasis to the reason and language of the statute. A payment, or

acknowledgment or a promise in writing, will not avail to take a case out of the statutory bar unless made by the party to be charged thereby, or by an agent authorized for that express purpose."

It is quite apparent from these decisions from Ohio that the supreme court of that state regarded the two sections as the same in substance, and in view of the fact that we 98 adopted our statute from that state these decisions are entitled at least to more than ordinary weight in the construction of our statute.

In Commonwealth v. Hartnett, 3 Gray, 451, it is said that "it is common learning that the adjudged construction of the terms of a statute is enacted as well as the terms themselves, when an act which has been passed by the legislature of one state or country is afterward passed by the legislature of another."

In Steele v. Souder, 20 Kan. 39, Mr. Justice Brewer delivering the opinion of the court, in construing a statute identical with section 21, chapter 13, of the Compiled Laws of Wyoming of 1876, uses this language:

"The language may indeed be open to three constructions: One, that the mere fact of payment, whether by a party to the instrument or not keeps it alive as to all originally liable on it; another, that payment by one party keeps it alive as to all; and, third, that payment, like acknowledgment or promise, keeps it alive only as to the party paying. It seems to us that the latter is the true construction. No valid reason exists why payment should be more potent than acknowledgment or promise. Indeed, payment was treated by the courts as simply an evidence of acknowledgment. Such construction makes the various provisions of this section not only harmonious with each other, but with the general provisions of the statutes making each party to an instrument severally liable thereon. Severally liable, each should be severally protected. We conclude, then, that payment suspends the running of the statute only as against the party making the payment."

I think there is no room to doubt the correctness of the learned justice's views with respect to the effect of the payment. It is certain that Lord Mansfield made no distinction between the legal effect of a payment and acknowledgment; and such is the generally accepted opinion. It is true that Tindall, C. J., in Wyatt v. Hodson, 8 Bing. 309, attempted to draw a distinction between a payment and "an ordinary acknowledgment"; but however much force there 99 may be in his remarks when

applied to an ordinary oral acknowledgment, I am unable to perceive any in cases where the acknowledgment or new promise is required to be in writing and subscribed by the party. In Nebraska the statute was as follows:

"Sec. 22. In any case founded on contract, when 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 in writing, an action may be brought in such case within the period prescribed for the same after such payment, acknowledgment, or promise."

In Mayberry v. Willoughby, 5 Neb. 369, 25 Am. Rep. 491, it was held that part payment by one of two joint debtors does not take the case out of the statute as to the other.

In Minnesota, the statute was:

"Sec. 24. No acknowledgment or promise is sufficient evidence of a new or continuing contract by which to take the case out of the operation of this chapter, unless the same is contained in some writing signed by the party to be charged thereby; but this section shall not alter the effect of any payment of principal or interest.”

In Willoughby v. Irish, 35 Minn. 63, 59 Am. Rep. 297, it was held in a well-considered case that: "A partial payment upon a promissory note by one of the joint and several makers thereof and indorsed upon it before the note is barred by the statute of limitations, and within six years before suit is brought is inoperative to prevent the running of the statute as to the others." (Syllabus.)

In New York the statute is identical with that of Minnesota just quoted. In McMullen v. Rafferty, 89 N. Y. 456, it was held that payments made by one of two joint and several makers of a note did not prevent the running of the statute as to the other, although the partial payments were made before the statutory bar had attached.

The following cases also hold that payment by one of 100 two joint obligors does not suspend the running of the statute as to the others: Bush v. Stowell, 71 Pa. St. 208, 212; 10 Am. Rep. 694; Kallenbach v. Dickinson, 100 Ill. 427; 39 Am. Rep. 47; In re Sander's Estate, 4 Misc. Rep. 343; 24 N. Y. Supp. 317; Littlefield v. Dingwall, 71 Mich. 223; Tate v. Clements, 16 Fla. 340; 26 Am. Rep. 709; Davis v. Mann, 43 Ill. App. 302. See, also, Smith's Leading Cases, pt. 11, p. 857, giving note to Whitcomb v. Whiting, Doug. 652; Angell on Limitations, 6th ed., 269, and note 281, et seq.; 3 Parsons on Contracts, 6th ed., 79, et seq.;

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