the said enactments, or either of them, so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them." From the provision, also, respecting judgment, it may be collected that the conclusive effect of payment of interest was to be confined to the individual paying, and to executors or administrators:"Provided also, that in actions to be commenced against two or more such joint contractors, or executors or administrators, if it shall appear at the trial or otherwise that the plaintiff, though barred by either of the said recited acts or this act as to one or more of such joint contractors, shall nevertheless be entitled to recover against any other or others of the defendants, by virtue of a new acknowledgment or promise, or otherwise, judgment may be given and costs allowed for the plaintiff as to such defendant or defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff.” The natural meaning to be put on the words or otherwise, is the payment of interest described in the proviso immediately preceding. TINDAL C. J. It seems clear to us that the Defendant is not protected by the statute. The question turns on the construction of 9 G. 4. c. 14.; and in order to consider that rightly, we should see what the law was before that statute passed. Now, in Burleigh v. Stott, which was, like this, an action against the administrator of a surety on a joint and several promissory note, it was held, that a payment on account of the note within six years by the other joint contractor operated as a promise to pay the residue by all who were jointly liable. The statute then provided for the case of promises by one of many joint contractors. After enacting that 1832. WYATT V. HODSON. 1832. WYATT V. HODSON. an oral promise shall not suffice to revive a demand barred by the statute of limitations, it proceeds: "And where there shall be two or more joint contractors, or executors or administrators of any contractor, no such joint contractor, executor, or administrator shall lose the benefit of the said enactments, or either of them, so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them." That is a provision in favour of such as are not parties to the written promise. Then, with respect to payment of principal or interest, it provides, "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.” Not confining the effect of payment to the individual paying. Why? Because the payment of principal or interest stands on a different footing from the making of promises, which are often rash or ill interpreted, while money is not usually paid without deliberation; and payment is an unequivocal act, so little liable to misconstruction as not to be open to the objection of an ordinary acknowledgment. The statute then proceeds to enact, "that in actions to be commenced against two or more such joint contractors, or executors or administrators, if it shall appear at the trial, or otherwise, that the plaintiff, though barred by either of the said recited acts or this act as to one or more of such joint contractors, or executors or administrators, shall nevertheless be entitled to recover against any other or others of the defendants by virtue of a new acknowledgment or promise, or otherwise, judgment may be given and costs allowed for the plaintiff as to such defendant or defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff." It has been urged, that from the word otherwise we must imply by payment of interest," and thence infer that that payment of interest, like the written acknowledgment or promise with which it is coupled, is to operate only against the party paying. But there are various acts to which the word otherwise might apply; as pȧyment into court, or indorsement by a party who had received interest. However, on the broad construction of the act, we think payment of money by one of several joint contractors an acknowledgment not within the mischief or the remedy provided by the legislature against the effect of an oral promise. PARK J. I have always considered Whitcomb v. Whiting a governing case, notwithstanding some observations which have been thrown out against it. But the case has been recognised in Burleigh v. Stott, and confirmed in Perham v. Raynal, where an acknowledgment by one of several joint contractors on a promissory note was held to be binding on the others. That was, like the present, the case of a surety, and, therefore, expressly in point. Then, the recent statute having distinguished between the effect of a promise by one of many joint contractors and the payment of interest by such a person, the law, in respect of such a payment, remains as it was under the previous decisions. GASELEE J. I am of the same opinion. The words 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," coming after the enactment that a party should not be prejudiced by the promise of a joint contractor, is a convincing proof that a distinction was intended between the two cases. ALDERSON J. When the act passed, the case of Burleigh v. Stott had decided that payment on account, 1832. WYATT บ. HODSON 1832. WYATT V. by one of many joint contractors should have the effect of fixing them all; and the act says, that the effect of such an acknowledgment shall not be lessened. HODSON. Rule discharged. April 17. Plaintiff having proved under a commission of bankrupt in 1816, Held, estopped to sue for the same debt after the passing of which makes proof of a debt an election not to sue. ADAMES v. Bridger. DEBT on bond. A rule nisi had been obtained to stay the proceedings, commenced in 1831, on an affidavit that the Defendant had been a bankrupt in 1816, and that the Plaintiff had elected to prove under a commission sued out at that time. Bompas Serjt., who shewed cause, alleged that no dividend had been received; and that by the statute 6 G. 4. c. 16. 49 G. 3. c. 121. s. 14., the bankrupt act applicable to though that statute repeals this subject in 1816, mere proof of debt, without receipt 49 G. 3. c.121. of dividend, would not discharge the bankrupt from proceedings at law; but that, at all events, he could not now avail himself of that statute, which, having been repealed by 6 G. 4. c. 16., must, according to the language of Tindal C. J. in Kay v. Goodwin (a), be considered as if it had never existed; and the new statute 6 G. 4. c. 16. could not be applied retrospectively to proceedings under former statutes. Thus, in Surtees v. Ellison (b), it was held, that evidence of a trading which ceased before the 6 G. 4. c. 16. took effect, will not support a commission of bankrupt issued after that time. TINDAL C. J. By the 49 G. 3. c. 121. s. 14. it was enacted, "That after the 29th of June 1809, it shall (a) 6 Bingh. 576. (b) 9 B. & C. 750. not not be lawful for any creditor, who has or shall have brought any action, or instituted any suit against any bankrupt in respect of any demand which arose prior to the bankruptcy, or which might have been proved as a debt under the commission, to prove a debt under such commission for any purpose whatever, or to have the claim of a debt entered upon the proceedings under such commission, without relinquishing such action or suit, and all benefit from the same; and that the proving or claiming a debt under a commission by any creditor shall be deemed an election by such creditor, to take the benefit of such commission with respect to the debt so proved or claimed by him;" and so long as that statute continued an act of the legislature, the mere proof of a debt under a commission of bankrupt was a complete election by the creditor not to proceed by suit: although not in form, it was, in substance, a discontinuance of any suit commenced at the time. It is true, that statute is now repealed; but for matters bygone and completed, we must look to the law then in force. The fallacy is in considering the election to prove as an incomplete act. It was a complete act to effect a discontinuance; and, after such a lapse of time, the rule must be Discharged, with costs. 1832. ADAMES บ. BRIDGER. WATSON v. WALKER. April 17. affidavit in false judg MEREWETHER Serjt. had obtained, upon affida- Entitling vit, a rule nisi to set aside a writ of false judgment sued out by Walker, the Defendant below, in the above ment. cause: but his affidavit was entitled "In the Common Pleas, Watson v. Walker;" upon which it was objected by Y 4 Jones |