Shepley v. Waterhouse

22 Me. 497

• Court: Supreme Judicial Court of Maine
• Decided: April 15, 1843
• Status: Published

Opinion

The opinion of the Court, Shepeev J. taking no part in the decision, was drawn up by

Tenney J.

— The note declared on was barred by the statute of limitations, when one of the makers by a writing by him signed in ] 836, promised to pay the same. The other maker denies, that the promise revived the note as to him, who had no knowledge thereof. The question involved in this case has been much discussed, and different Courts and Judges have entertained different opinions thereon. In Whitcomb v. Whiting, 2 Dougl. 652, Lord Mansfield is reported to have said, “ payment by one is payment for all, the one acting- virtually as the agent of the rest. And in the same manner an admission by one is an admission by all.” This decision has been treated in England as a binding authority to the time, when the statute of 9 Geo. 4, c. 14, was enacted, though it appears that it has not in every respect commended itself to all the Judges who have had questions somewhat analogous under consideration. In Bell v. Morrison, 1 Peters, 351, the Supreme Court of the United States say, “ the reasoning of Lord Mansfield,” in Whitcomb v. Whiting, “ is certainly not very satisfactory,” and overrule the decision.

The Courts in Massachusetts have, however, in numerous cases, adopted the English doctrine. Similar decisions have been pronounced in New York. In this State, the Courts have uniformly held, that a note by several makers, barred by the statute of limitations, is revived against all, by a new promise of one. The subject was fully examined in Dinsmore v. Dinsmore, 21 Maine R. 433, and former decisions of this State confirmed. Future cases of the kind will rest upon different principles, by reason of the provision in c. 146, § 27, of the Revised Statutes, which is similar to the English statute referred to, but it can have no application to the case before us.

Defendant Mersey must be defaulted.