| Or. | Jul 31, 1906
delivered the opinion.
This action was commenced November 28, 1904, to recover on a promissory note executed by the defendants Wilbur, Block and Grandy on March 24, 1893, due four months after date. Wilbur was adjudged a bankrupt by the federal court in August, 1898. On the 30th of November following a payment of $28.09 was made on the note in suit by his trustee, and the sole question for decision is whether such payment will toll the statute of limitations as to the other makers of the note. Ever since the enactment in 1623 of St. 21 Jac. 1, c. 16, placing limitations upon personal actions, which statute has been substantially adopted in many of the states of the Union, there has been great diversity of opinion, especially in this country, as to whether a payment by a joint maker of a promissory note will remove the bar of the statute as to his co-obligors. One class of cases holds that, in the absence of a statute to the contrary, “payment by one is payment for all, the one acting as agent for the rest,” and serves to keep the debt alive both as to the party making the payment and his co-makers: Whitcomb v. Whiting, 1 Smith Lead. Cas. 703; Id., 2 Doug. 652; Cox v. Bailey, 9 Ga. 467" court="Ga." date_filed="1851-02-15" href="https://app.midpage.ai/document/cox-v-bailey-5551555?utm_source=webapp" opinion_id="5551555">9 Ga. 467 (54 Am. Dec. 358); Sigourney v. Drury, 14 Pick. (Mass.) 387; Cross v. Allen, 141 U.S. 528" court="SCOTUS" date_filed="1891-11-16" href="https://app.midpage.ai/document/cross-v-allen-93172?utm_source=webapp" opinion_id="93172">141 U. S. 528, 535 (12 Sup. Ct. 67, 35 L. Ed. 843" court="SCOTUS" date_filed="1891-11-16" href="https://app.midpage.ai/document/cross-v-allen-93172?utm_source=webapp" opinion_id="93172">35 L. Ed. 843). And another that a part payment of an indebtedness is equivalent to a new promise to pay the residue based upon the old consideration upon which a cause of action accrues at the time of the payment and therefore binds only the person making it or one whom he is authorized to bind by a new promise to pay: Bell v. Morrison, 26 U. S. (1 Pet.) 351 (7 L. Ed. 174" court="SCOTUS" date_filed="1828-02-26" href="https://app.midpage.ai/document/bell-v-morrison-85588?utm_source=webapp" opinion_id="85588">7 L. Ed. 174); Cowhick v. Shingle, 5 Wyo. 87" court="Wyo." date_filed="1894-09-21" href="https://app.midpage.ai/document/cowhick-v-shingle-6587380?utm_source=webapp" opinion_id="6587380">5 Wyo. 87 (37 Pac. 689, 25 L. R. A. 608, 63 Am. St. Rep. 17); Stubblefield v. McAuliff, 20 Wash. 442" court="Wash." date_filed="1898-12-30" href="https://app.midpage.ai/document/stubblefield-v-mcauliff-4724340?utm_source=webapp" opinion_id="4724340">20 Wash. 442 (55 Pac. 637).
But the effect of a part payment is regulated in this State by a statute essentially different from that of any other state, except perhaps Montana: Sections 24, 25, B. & C. Comp. This statute has repeatedly been before the court for consideration, and the doctrine was early announced that the payment by a