After a continuance for advisement, the opinion of the Court was drawn up by
Much of fhe argument in behalf of the defendant has been devoted to assailing the decision of the case of Whitcomb v. Whiting, Douglas, 650.
It was on a joint and several nóte executed by the defendant hnd three others, and having proved payment by one o'f the others,' bf interest on the note and part of the principal within six years, the Judge thought that was sufficient to take the case out of the statute as against the defendant, and a verdict was found for the plaintiff. It was observed, per Curiam, that when cases of fraud appear, they will be determined on their own circumstances. 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 thé debt is admitted to be due. Beside, the defendant has had the advantage of the partial payment, and therefore must be bound by it. A similar attack was made Upon the law of this case in Atkins v. Tredgold, 2 Barn. & Cress. 23, and Chancellor Kent says, it Seems now to be considered as an unsound authority by the court which originally pronounced it. Certainly, however, not by the same members of that court who pronounced the decision. Their names and their fame have shone resplendently ever since the pub
The jury having found that Warren, the defendant, was a principal on the note or agreement declared on, and not a surety, it becomes quite unimportant to discuss the propriety of the request to the Court to instruct the jury, that if they believe that Warren signed the note as surety, he is discharged by lapse of time of eight or nine years. Certainly, however, the authority of the case of Perham v. Raynal would be in favor of the Judge’s declining to give the requested instruction. The prayer to the Court to instruct the jury that the note offered in evidence by the plaintiff', is not a note in writing for the payment of any sum of money, and does not come within the 10th section of the statute of Maine, entitled an act for the limitation of actions real and personal, and writs of error was by no means an improper request, and if the evidence of tlie new promise depended only on the circumstance that the note was attested by the witness, we should think that the case cited of Gilman v. Wells, 7 Greenl. 25, would be conclusive in favor of the position assumed by the defendant’s counsel. The testimony of the witness is full and direct as to the new promise by Durgin, and the case presents no evidence that any reliance was placed by tbe jury on tlie fact tliat tlie note was witnessed, if they believed the testimony, it was entirely immaterial whether the note was attested by a witness, or not. Nor can we entirely approve the course of the Judge in leaving to the jury, “to determine whether the note or contract was or was not within the said tenth section of the act aforesaid, and whether the new promise of said Durgin proved as aforesaid, was, or was not sufficient to revive said note or contract against said WarrenAccording to the course of decisions in this Court, we deem it a question of law. Perley v. Little, 3 Greenl. 97; Miller v. Lancaster, 4 Greenl. 159. Still wo are satisfied, that the presentation of the question in this light was made in a spirit of liberality, and with the intention, that no formal entrapping of the defendant should follow from the
Judgment on the verdict.