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provision to the contrary.4 And such payment by one is available in an action brought against the other.413 In like manner, a credit, given to one maker on his individual account with the holder, for interest paid on the note, is equivalent to a cash payment.*** The payment by one maker, A., will bind his co-maker, B., although made after the death of another co-maker, C.415 So, payment by a maker, who has died before suit brought, may be proved by an indorsement in his handwriting, and an admission by the other maker as against the latter. 416 And if a joint note is made by A., B., and C., and B. becomes A.'s executor and pays the interest after A.'s death, it will bar the statute as to A.'s estate, whether made by B. individually or as executor.417 So, a sealed note may be kept alive by a part payment by the assignee of one insolvent maker. 418

Where the note is a partnership note, a payment of interest by one partner after dissolution of the partnership, but before the note is barred, will take it out of the statute as to the other makers,419 pro

412 Byles, Bills, 358; Chit. Bills, 687; Perham v. Raynal, 2 Bing. 306, 9 Moore, 566; Dowling v. Ford, 11 Mees. & W. 329; Pease v. Hirst, 10 Barn. & C. 122; Anthony v. Fritts, 45 N. J. Law, 1; Turner v. Ross, 1 R. I. &S; Davis v. Coleman, 29 N. C. 424; Patch v. King, 29 Me. 448; Lincoln Academy v. Newhall, 38 Me. 179; Partlow v. Singer, 2 Or. 307; whether made after the note was barred, Channell v. Ditchburn, 5 Mees. & W. 494; or before, Craig v. Callaway Co. Court, 12 Mo. 94; Colburn v. Averill, 30 Me. 310; and although the payor was principal and his co-maker a surety only, Whitaker v. Rice, 9 Minn. 13 (Gil. 1); and although it does not appear by whom the payment was made (the burden being on the party setting up the statute to prove that he is discharged by it), Vore v. Woodford, 29 Ohio St. 245; but if the payment is made by A. after the note is barred as to B., it has been held that their joint liability is at an end, and B. is not affected by the payment, Parker v. Butterworth, 46 N. Y. Law, 244.

413 Whitcomb v. Whiting, Doug. 652; Bland v. Haselrig. 2 Vent. 151. Although made fraudulently. Goddard v. Ingram, 3 Q. B. 839. So, payment on a partnership note. Mix v. Shattuck, 50 Vt. 421. But see, contra, as to payment under a compromise by one partner, Turner v. Ross, 1 R. I. 88.

414 Chit. Bills, 692; Manderston v. Robertson, 4 Man. & R. 440.

415 Corlies v. Fleming, 30 N. J. Law, 349.

416 Burgoon v. Bixler, 55 Md. 384.

417 Griffin v. Ashby, 2 Car. & K. 139. But see § 1628, infra.

418 Belo v. Spach, 85 N. C. 122.

419 Casebolt v. Ackerman, 46 N. J. Law, 169; Merritt v. Day, 38 N. J. Law, 32; Houser v. Irvine, 3 Watts & S. (Pa.) 345.

vided that the holder had had previous dealings with the firm, and had no notice of the dissolution.420 And this has been held to be true as against B.'s estate, where A. and B. gave their partnership bond, and afterwards, on dissolution of the firm, A. assumed the debts and gave security to B., and after B.'s death gave his individual bond, and became bankrupt before it was paid.+21

§ 1627. But in some of the United States, as in Great Britain, the rule as to payment by a party jointly liable on the bill or note has been changed by the statute so as to leave one debtor unaffected by a payment made by his co-debtor.+22 In such case a maker will

not continue liable by reason of a set-off claimed by his co-maker, and indorsed as a payment after the note became barred by agreement of such maker with the payee.* 423 And, especially if the payment is made and indorsed by one maker on his individual account, he cannot afterwards set up that it was made on the joint account, after the holder has relied on the indorsement, and suffered the note to become outlawed as to the other maker.424 Under these statutes, it makes no difference whether the payment by the co-maker is made

420 Sage v. Ensign, 2 Allen (Mass.) 245; Tappan v. Kimball, 30 N. H. 136. So, where the partner defendant has admitted that the note should have been paid long ago by the other partner. Walton v. Robinson's Adm'r, 27 N. C. 341. But the burden is on the holder to show that it was made for the partnership, Wood v. Barber, 90 N. C. 76; and on the note in question, Holme v. Green, 1 Starkie, 488.

421 Heath v. Percival, 1 P. Wms. 682.

422 Shutts v. Fingar, 100 N. Y. 539, 3 N. E. 588; Hulbert v. Nichol, 20 Hun (N. Y.) 454; Coleman v. Fobes, 22 Pa. St. 156; Clark v. Burn, 86 Pa. St. 502; Lazarus v. Fuller, 89 Pa. St. 331; Balcom v. Richards, 6 Cush. (Mass.) 360; Holcomb v. Sloan, 39 Mich. 173; Rogers v. Anderson, 40 Mich. 290; Hance v. Hair, 25 Ohio St. 349; Miller v. Miller, MacArthur & M. (D. C.) 109; Biscoe v. Jenkins, 10 Ark. 108; Boynton v. Spafford, 162 Ill. 113, 44 N. E. 379; Willoughby v. Irish, 35 Minn. 63, 27 N. W. 379; Oleson v. Wilson, 20 Mont. 544, 32 Pac. 372; First Nat. Bank of Miles City v. Bullard, 20 Mont. 118, 49 Pac. 658; Parker v. Butterworth, 46 N. J. Law, 244; Bender v. Blessing, 82 Hun, 320, 31 N. Y. Supp. 481; Martin v. Hyde, 19 App. Div. 490, 46 N. Y. Supp. 613. And in Maine even a partner is not bound by the payment of his partner and co-maker after the note is barred. True v. Andrews, 35 Me. 183. 423 Hubbard v. Insurance Co., 25 Kan. 172.

424 Tainter v. Winter, 53 Me. 348.

RAND.C.P.-146

(2321)

in the defendant's absence or in his presence,'

425 or even by the hands of the defendant,426 although it will be binding on him, if made by his direction,427 or by the other as agent for him.428

Payment by Survivor-Executor.

§ 1628. After the joint liability has been determined by the death of one party, a payment by the survivor will not take the bill or note out of the statute, as against the personal representatives of the deceased debtor.42 And, e converso, a payment by the executor of a deceased maker will not affect the liability of the survivor.430

But a part payment made by one maker before the death of his co-maker, and binding upon the latter at that time, will be binding upon his executor after his death.131 In Maryland, however, the payee is not a competent witness to render the surviving maker liable by proving a payment made and indorsed by his deceased co-maker to take the note out of the statute.432

The maker's executor may bind his estate by payment of the interest on a note.433 But part payment by a surviving joint maker,

425 In his absence. Whipple v. Stevens, 22 N. H. 219. Or in his presence. Quimby v. Putnam, 28 Me. 419.

426 Bailey v. Corliss, 51 Vt. 366. So, if made by an order on one maker payable to the other at the request of a third party, although to be indorsed on the note. Cowing v. Vincent, 29 U. C. Q. B. 427.

427 Haight v. Avery, 16 Hun (N. Y.) 252.

428 Creighton v. Allen, 26 U. C. Q. B. 627. But one maker does not ratify the payment by another by his own subsequent promise to pay the balance. Pfenninger v. Kokesch, 68 Minn. 81, 70 N. W. 867.

429 Byles, Bills, 359; Chit. Bills, 687; 2 Pars. Notes & B. 659; Atkins v. Tredgold, 2 Barn. & C. 23, 3 Dowl. & R. 200. So, a fortiori, where the survivor is the principal and the deceased joint maker was a surety only. Lane T. Doty, 4 Barb. (N. Y.) 530.

430 Byles, Bills, 359; Chit. Bills. 691; 2 Pars. Notes & B. 659; Slater v. Lawson, 1 Barn. & Adol. 396; Smith v. Townsend, 9 Rich. Law (S. C.) 44. So, as to payment by administrator. Hathaway v. Haskell, 9 Pick. (Mass.) 42. But see, contra, in Oregon, under the construction given to the statute there. Sutherlin v. Roberts, 4 Or. 378.

431 Burleigh v. Stott, 8 Barn. & C. 36, 2 Man. & R. 93.

32 Miller v. Motter, 35 Md. 428.

433 Fordham v. Wallis, 10 Hare. 217. So, a payment by an agent of the maker's executor out of the executor's own property, under directions to

as such, will not bind the estate of his co-maker, although he is the executor of that estate.434 And the holder who relies on such payment, as against the estate of a deceased maker, must prove that the payment was made by the executor as such.435 And, if the note is already barred at the maker's death, it cannot be revived as against his estate by a subsequent payment by his executor or administra

tor.*

436

Payment by Indorser-Surety-Agent.

§ 1629. A part payment by an indorser does not take a note out of the statute as against the maker.437 And a part payment by the maker will not render the indorser liable.438 But payment by a principal will bind his surety.139 But the contrary has been held in some states.440 And payment made by the surety on his own ac

apply it to the debts of the maker. Heath v. Grenell, 61 Barb. (N. Y.) 190. But see, contra, as to payment by an administrator on a note which has not been proved against the state. Cox v. Phelps (Ark.) 45 S. W. 990.

434 Thompson v. Waithman, 26 Law J. Ch. 134; such payment being made prima facie as maker, and not as executor.

435 Byles, Bills, 359; Scholey v. Walton, 12 Mees. & W. 510; Griffin v. Ashby, 2 Car. & K. 139.

436 McLaren v. McMartin, 36 N. Y. 88.

437 Byles, Bills, 358; Harding v. Edgecumbe, 28 Law J. Exch. 313.

438 Hunter v. Robertson, 30 Ga. 479; Maddox v. Duncan (Mo. Sup.) 45 S. W. 688. So, the indorsement of a set-off for the maker against the indorsee will not bind the indorser. Woodhouse v. Simmons, 73 N. C. 30.

439 Wyatt v. Hodson, 8 Bing. 309: Hunt v. Bridgham, 2 Pick. (Mass.) 581; Sigourney v. Drury, 14 Pick. (Mass.) 387; Zent's Ex'rs v. Heart, 8 Pa. St. 337; Joslyn v. Smith, 13 Vt. 353. So, if the surety was present and asked for no restriction of its effect. Glick v. Crist, 37 Ohio St. 388. And see $924. supra. But not a payment by the principal after the note is barred. Smith v. Caldwell, 15 Rich. Law (S. C.) 365.

440 Kallenbach v. Dickinson, 100 Ill. 427; McMillan v. Leeds, 58 Kan. 815, 49 Pac. 159; even on a joint note of principal and surety. Goudy v. Gillam, 6 Rich. Law (S. C.) 28. So, now, by statute. Faulkner v. Bailey, 123 Mass. 588: Rev. St. c. 120, §§ 13–17. And it is a question for the jury whether one maker is surety for the other, or partner. Ellinger's Appeal, 114 Pa. St. 505, 7 Atl. 180. So, payment by the principal maker of a joint and several note has been held not to bar the statute as to his surety and co-maker. Burleigh V. Stott, 8 Barn. & C. 36, 2 Man. & R. 93.

442

count will render him liable, but not if it is made as agent for the principal. On the other hand, it has been held that a payment made by a surety will not revive a note that is already barred, as against the principal.**3

If the payment is made for any party by his authority or at his request, it will take the note out of the statute, as though made by himself.444 But he will not be bound, if the agent exceeds his authority in making the payment.445 And drawing a bill on the agent for a part payment will not authorize him to bind the principal by his payment as an acknowledgment of the balance of the debt.446 So, payment by a wife will not bind her husband as an acknowledgment of the debt, unless her authority as his agent is shown.* But payment on a note by a church vestry,448 or by the treasurer of an unincorporated society, will bind the principal maker.

449

Payment-To Whom Made.

447

§ 1630. Payment to an administrator, under void letters of administration, will take a note out of the statute, in favor of an administrator afterwards appointed by valid letters.450 So, too, a pay

441 Green v. Morris, 58 Vt. 35, 4 Atl. 561. Although paid by an order of the maker on the surety. Long v. Miller, 93 N. C. 233.

442 Even though the agency was not disclosed at the time. Holmes v. Durell, 51 Me. 201.

443 Jones v. Jones, 23 Ark. 212. But see, contra, where the payment was made in the presence of the principal. Whipple v. Stevens, 22 N. H. 219. 444 Burleigh v. Stott, 8 Barn. & C. 36; Pease v. Hirst, 10 Barn. & C. 122: Bealy v. Greenslade, 2 Cromp. & J. 61. But there is no implied power in the maker's widow to bind his heirs by a part payment. Etna Life Ins. Co. v. McNeely, 166 Ill. 540, 46 N. E. 1130. Nor in a corporation by part payment

to bind stockholders who have signed for its accommodation. Patterson v. Collier (Mich.) 71 N. W. 327.

445 Linsell v. Bonsor, 2 Bing. N. C. 241, 2 Scott, 399. So, where the principal had already expressly refused payment. Galpin v. Barney, 37 Vt. 627. 446 Hyde v. Johnson, 2 Bing. N. C. 776, 3 Scott, 289.

447 Neve v. Hollands, 18 Q. B. 262. And see § 318, supra; Waters v. Tompkins, 2 Cromp., M. & R. 723, 1 Tyrw. & G. 137.

448 Crew v. Petit, 3 Nev. & M. 456, 1 Adol. & E. 196.

449 Walker v. Wait, 50 Vt. 668.

450 Byles, Bills, 361; Chit. Bills, 693; Clark v. Hooper, 10 Bing. 480, 4 Moore & S. 353.

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