#### Thomas S. Hathaway, Administrator, *versus*John S. Haskell.

In the case of a joint and several note made by two promisors, a partial payment made within six years by the administrator of oné of them, will not take the note out of the statute of limitations as against the surviving promisor.

Assumpsit upon a joint and several promissory note made by the defendant and one Charles Stetson, now deceased, dated February 11th, 1813, payable to H. Hathaway, the plaintiff’s intestate. The defendant pleaded that he did not promise the intestate within six years before the commencement of the action. The plaintiff replied a new promise within six years.

Commissioners were duly appointed upon the estate of Stetson, who died insolvent, and the note was presented to the commissioners, and the sum due thereon was ailowed by them. The administrator of Stetson paid two dividends upon the note, the first in 1819, and the second in 1827.

*Wilde*J. was of opinion, that this evidence was sufficient to sustain the issue on the part of the plaintiff, and the defendant consented to be defaulted ; but if the whole Court should be of opinion that it was not sufficient, the plaintiff was to become nonsuit.

*W*Baylies, for the defendant,

cited *Brandram*v. *Wharton,*1 Barn. & Ald. 463 ; 2 Stark. Ev. 897 ; *Hackley*v. *Patrick,*3 Johns. R. 536 ; *Walden*v. *Sherburne,*15 Johns. R. 424 ; 3 Kent’s Com. 26 ; *Atkins v.*Tredgold, 2 Barn. & Cress. 23; *Bell*v. *Morrison,*1 Peters, 351 ; *Thompson*v. Peter, 12 Wheat. 565 ; *Pittam v. Foster,*2 Dowl. & Ryl. 363.

*L. Williams*and *Warren,*for the plaintiff,

cited *Whitcomb*v. *Whiting,*2 Doug. 652 ; *Hunt*v. *Bridgham,*2 Pick. 581, [2d ed. 583, note 1 ;] *White*v. *Hale, 3*Pick. 291, [2d *ed.*293, note 1 ;] *Wood*v. *Braddick,*1 Taunt. 104 ; *Jackson v. Fairbank,*2 H. Bl. 340; *Perry*v. *Jackson,*4 T. R. 516 ; *Perham*v. *Raynal,*2 Bingh. 304 ; *Shelton*v. *Cocke, 3*Munf. 191 , *Smith*v. *Ludlow,*6 Johns. R. 267; *Thornton v. Illingworth,*2 Barn. & Cress. 824.

Parker C. J.

afterward drew up the opinion of the Court. We think the evidence offered by the plaintiff in this case, to *44prove a promise or acknowledgment in avoidance of the statute °f limitations, was insufficient for that purpose. Nothing is proved against the defendant himself, and the cases of promises or acknowledgments by a joint promisor, are of a different character. They seem to be founded on the analogy to co-partnerships, in which the acts and declarations of one are binding on the whole ; but in such cases, by all the late decisions, such acts and declarations, after a dissolution of the co-partnership, cease to have that effect. Here the joint interest is dissolved by the death of the principal in the note, and it would be stepping beyond the line of precedents to admit the declarations of his administrator to bind the living partner. Besides, here is no declaration, but the mere fact of payment of a dividend upon an insolvent estate, from which no promise or acknowledgment can be inferred against the defendant, who does not appear to have taken any part in the transaction.

Where a living partner acknowledges a debt or promises to pay it, it is supposed to be because he knows that it is due and ought to be paid, and he is accountable to his partner if by his means the debt should be twice paid. But an administrator may not know, or if he does, is not authorized, by virtue of his representation of the deceased, to revive a debt against the survivor by any act of bis. The cases cited by the defendant’s counsel clearly maintain this doctrine, and it is reasonable ; for otherwise the legal rights of a party would be injuriously affected by the acts and doings of one with whom he has no connexion by contract or by legal relation.1

*Plaintiff nonsuit.*

1

 See Revised Stat. *c.*120, § 18; Chitty on Contr. (4th Am. ed.) 650, note 2; *Greenleaf*v. *Quincy,*3 Fairfield, 11; *Pike*v. *Warren, 15*Maine R. (3 Shepley,) 390.