LUNAR AND CALENDAR MONTHS.

ENGLISH HIGH COURT OF JUSTICE, CHANCERY DIVISION, JULY 8, 1881.

HUTTON V. BROWN, 45 L. T. Rep. (N. S.) 343.

An agreement for the hire of furniture at a weekly rental provided that the first payment should be made ou the following Monday, and the succeeding payments on each succeeding Monday, "the said letting on hire to be for the term of twenty-six months from the date of the first payment herein mentioned." Held, that the word "months" meant lunar months.

IN

N 1878 the plaintiff, Robert H. Hutton, being in difficulties and there being a distress-warrant levied on his furniture and effects, applied to the defendant, Joseph Brown, for a loan of 1,300l., which it was arranged should be advanced in the following manner: Brown paid off the money due in respect of the distress, and became the purchaser of the furniture. A hiring agreement, dated the 13th April, 1878, was then entered into between the plaintiff and defendant by which it was agreed that Hutton should pay a weekly rental of 221. 10s. for the hire of the furniture, the first payment to be made on the following Monday, the 15th April, and the succeeding payments on each succeeding Monday after that date, "the said letting on hire to be for the term of twenty-six months from the date of the first payment." The agreement was framed as a mere letting and hiring agreement. The plaintiff afterward gave the defendant a bill of sale to secure the sum of 3,0121. which the defendant claimed as due from the plaintiff. The above-mentioned furniture, as well as other property, was comprised in this bill of sale.

Hutton having commenced this action against Brown an order was made that an account should be taken of all monetary transactions between the plaintiff and the defendant, and that on the plaintiff paying 3,012. and a certain sum for costs into court, the defendant should deliver up the bill of sale to the plaintiff.

The defendant admitted that the bill of sale was only to stand as a security for the amount found due to him on taking the above-mentioned account.

When the account was taken the chief clerk decided that as the payments were weekly payments the word "months" in the agreement meant "luuar months." Brown contended that it meant "calendar months," and he therefore claimed eight weeks' more rent than was allowed by the chief clerk, the result of which would be that Hutton would be indebted to him in the sum of 2,5201., while if the months were lunar months he would only owe him 2,340l. The defendant thereupon took out a summons to vary the chief clerk's certificate.

Glasse, Q. C., and Wilkinson, for the defendant. The word "months" in the agreement means "calendar" months. The bill of sale has taken the place of the hiring agreement, but the amount secured by the bill of sale must be found by reference, among other things, to the hiring agreement. This is a mortgage transaction, and in a mortgage, "months means "calendar months." Anon., Barnard's Ch. 324; Dyke v. Sweeting, Willes, 585, 588; Davidson's Precedents, vol. 2, part 2 (4th ed.), p. 309; Coote on Mortgage (4th ed.), 250, 1026. The case in Barnardiston was a foreclosure action, while this is one for redemption; but the computation of time in both must be similar. Twenty-six calendar months, beginning from the 15th April, 1878, and omitting one extra day caused by 1880 being leap year, make exactly 113 weeks, ending on Monday, the day the weekly payments commenced. By 13 & 14 Vict., ch. 21, § 4, it is enacted that in subsequent statutes the word "month" shall mean calendar month, unless words be added showing lunar month to be intended.

They also referred to Freeman v. Read, 8 L. T. Rep. (N. S.) 458; 4 B. & S. 174.

J. Pearson, Q. C., and D. L. Alexander, for the plaintiff, contended that the word meant lunar months.

FRY, J. The question is whether, in this contract for letting chattels for twenty-six months, the word 99 months means calendar or lunar mouths. Now, in Simpson v. Margitson, 11 Q. B. 23, Lord Denman said (p. 31): "It is clear that months' denotes at law 'lunar months,' unless there is admissible evidence of an intention in the parties using the word to denote 'calendar months.' If the context shows that calendar months were intended, the judge may adopt that construction." Here the context throws no light on the meaning, except that the contract for weekly payments, I think, implies that lunar rather than calendar mouths are meant, in spite of Mr. Wilkinson's elaborate calculations. Then it is said that in mortgage transactions months are always calendar months, and that this is a mortgage transaction. But the rule as to mortgages only arises from this, that the interest on mortgage money is a fixed yearly sum, and therefore half a year's interest is for six calendar months. I cannot expand this into a mortgage transaction. The primary transaction is not a mortgage at all; it is simply a contract for the hire of furniture. I therefore hold that the word "months" means "lunar" months.

NEW YORK COURT OF APPEALS ABSTRACT.

BURGLARY -INDICTMENT-ROOM OF GUEST AT INN MUST BE LAID AS DWELLING-HOUSE OF LANDLORD. An indictment for burglary charged defendant with breaking and entering the dwelling of S. The offense was committed at the Astor House, an inn in New York city. S. resided at Albany and was at the time a guest occupying a room at the inn, which was the one broken into. The inn was conducted by lessees, who did not reside in the building. One L. was the manager of the house for the lessees. He was at the inn during business hours and took his meals there, and sometimes slept there, but his residence was with his family in another house. Held, that the indictment was fatally defective. The room of a guest in an inn is not his dwelling-house, and may not be laid as such in an indictment for burglary in breaking and entering it. It should be laid as the dwelling-house of the landlord. And this rule is not affected by the fact that the landlord resides elsewhere than at the inn. Lord Hale says: "And so it is if A. comes to the inn of B. and there hath a chamber appointed for his lodging and this chamber is broken up burglarily, it shall suppose it to be domus mansionalis of B., the innkeeper, because the interest is in him, and A. hath only the use of it for his lodging, without any certain interest." 1 Hale's P. C. 557. See also, 1 Hawkins' P. C. 134; 1 East's P. C. 500. Burglary primarily is an offense against the habitations of men, and a building must be occupied as a residence to make it a dwellinghouse for the purpose of burglary. But actual residence therein by the owner is not essential to constitute the house his dwelling-house. A house in which a wife is permitted to live separately, owned by the husband, but in which he never lived, is properly described in the indictment as his dwelling-house. Rex v. Trench, Russ. & Ry. C. C. 491; Rex v. Wilford, id. 517. So a house of a corporation aggregate, occupied by the servants, may be described as the mansion-house of the corporation. Ann Hawkins' case, Leach Cr. Law, 324, notes; 1 East's P. C. 501. In Rex v. Stock, Russ. & Ry. C. C. 185, the servant of three partners lodged in a room in a building over their place of business, communicating with it by a trap-door and a ladder, and it was held that a burglary committed in breaking

in the place of business was well laid as the dwellinghouse of the three partners. See also, Rex v Rees, 7 C. & P. 568. Judgment reversed. Rodgers v. People of New York. Opinion by Andrews, J. [Decided Oct. 11, 1881.

COSTS IN SPECIAL PROCEEDINGS IN DISCRETION OF COURT HEARING PROCEEDINGS OR APPEAL. — Upon a petition to vacate an assessment in the city of New York, the petitioners succeeded at the Special Term, and the assessment was ordered to be vacated, "with costs." The city appealed to the General Term, which reversed the order, "with ten dollars costs "" to the city. The petitioners thereupon appealed to this court, which reversed the order of the General Term and affirmed that of the Special Term, "with costs." Upon filing the remittitur the petitioners at a Special Term entered an order making the judgment of this court that of the Supreme Court, and concluding thus: "And that the petitioners recover their costs of appeal subsequent to said order." Held, that the petition was a special proceeding (In re Manhattan Sav. Inst., 82 N. Y. 142; In re Jetter, 78 id. 601) and no costs followed its decision, unless awarded by the order of the court, which had discretion to either grant or withhold them. If granted the rate should have been the same as for similar services in an action. Code, § 3240. The award of this court gave only the costs of appeal in this court. Sisters of Charity v. Kelly, 68 N. Y. 628; People v. Randall, 8 Daly, 82. The petitioners were not entitled to tax the costs of appeal to the General Term, as that court never granted costs in their favor. It does not follow from the award of costs to the city that if the General Term had affirmed the order appealed from it would have given costs to the petitioners. This court did not award the costs on appeal to the General Term to the petitioners, and the Special Term had no discretion to exercise as to such costs, on the filing of the remittitur. Its duty was to enter exactly the order which this court directed, and it could neither add nor take therefrom. McGregor v. Buel, 1 Keyes, 153. The order of the Special Term must therefore be construed as not granting costs on appeal to the General Term, and petitioners were not entitled to such costs. Order affirmed. Matter of New York Protestant Episcopal Public School. Opinion by Finch, J. [Decided Oct. 11, 1881.]

NUISANCE-CONDUIT PIPE LEADING WATER FROM ROOF INTO STREET NOT-ICE ON SIDEWALK FROM CONDUIT PIPE-NUISANCE ERECTED BY PREDECESSOR IN

TITLE.—In an action for injury received by plaintiff slipping on ice formed on the sidewalk from water which flowed through a conduit pipe in front of defendant's house across the sidewalk to the street gutter, it appeared that the owner of two houses upon lots numbered 18 and 20, constructed the conduit which led the water from the roofs of both houses through an opening on the party line across the sidewalk upon lot 18, just inside of the line between that lot and 20. Thereafter defendant became owner of 18 and altered the roof of the house upon that lot so that the water therefrom did not go through the conduit, but only the water from the house on 20, and it was the ice from this water upon which plaintiff slipped. At the time of the accident the premises were not in defendant's possession but in that of his lessee. The pipe did not reach the street nor abridge the area of the sidewalk. The trial court charged the jury that defendant was "liable from the fact that he had permitted this pipe to run across his premises and be used by his neighbor," and gave judgment on the verdict against defendant on the ground that the pipe was a nuisance, and the defendant's liability the same as if the water came from his own premises." At the General Term the judgment was upheld upon the ground that "the leader" was "a nuisance." Held,

error.

A conductor pipe designed to convey water from a roof to the ground when constructed with due care and proper precaution is not a nuisance, even if its mouth is toward the walk and it discharges upon it. To direct rain or watery snow from the roof on to the sidewalk or street, unless prohibited by positive regulation, is not an offense. Once upon the sidewalk and there frozen it may subject the municipality to an action by one slipping on the ice. Todd v. City of Troy, 61 N. Y. 506. While under like circumstances it was held in Kirby v. Boylston Market Association, 14 Gray 249, that an action would not lie against the property owner and that the remedy for damages so incurred was exclusively against the city. Defendant did not cause the obstruction here nor was he benefited by it. In such a case he was like the owner of land on which a nuisance is erected by a third party. He is not liable for its continuance unless requested to abate it. If he repaired or used it he might be liable. The statement that it is enough to charge a defendant that having acquired title to land after a nuisance was erected he continued it (2 Greenl. on Ev., § 472), must be taken to mean more than an omission to'abate or remove it, something amounting to an actual use. As if the defendant simply suffer a dam erected upon his land by a former owner to remain without being used by him, it is no continuance of the nuisance unless he be first requested to remove it. Pearson v. Gleau, 2 Green, 36. Morris Canal Co. v. Ryerson, 27 N. J. Law 459. To the same effect is Berwick v. Camden, Cro. Eliz. 520. See also Moore v. Dame, Browne 3. Dyer, 319; Brown v. Cay. & Sus. R. Co., 12 N. Y. 486; Wasmer v. Delaware, Lac. & W. R. Co., 80 id. 212; Irvine v. Wood, 51 id. 224; Clifford v. Dam, 81 id. 56. The case Walsh v. Mead, 8 Hun, 387, distinguished. Judgment reserved and new trial ordered. Wenzlick v. McCotter. Opinby Danforth, J.

[Decided Nov. 22, 1881.]

REFERENCE- -LONG ACCOUNT TO AUTHORIZE MUST BE BETWEEN PARTIES AND SUBJECT OF SUIT. - In this action, in order to determine the amount of a recovery, the examination of a long account was necessary, but it was not an account between the parties or of either one of them, but was the account of a third and unconcerned party referred to and inquired into to make proof of the issues in the suit. The immediate object of the action was not to recover any portion of the matter that would be shown by the account, but to recover a sum of money, the amount to be guaged by the figures that would be disclosed by that account, but not money for any thing that that account would show. The account was not a ground of defense but a fact which the account would reveal was a ground of defense, and the defeuse could be only shown by the account. Held, not a case where a compulsory reference could be ordered. In Van Rensselaer v. Jewett, 6 Hill, 373, it is said that the case cannot be referred though there be many items of damage, unless there is an account between the parties in the ordinary acceptation of the term. In Thomas v. Reab, 6 Wend. 503, reference was not granted, because though there were sundry items of damage, they did not form an account existing between the parties. Though the examination of numerous items of damage may be involved, they do not constitute an account, technically or properly speaking, between the parties. Silmser v. Redfield, 19 Wend. 21. An account between the parties is one made up of the dealings of the parties with one another (Dederick's Admr. v. Richley, 19 id. 108), though the account may be that of one party only. And so in Kain v. Delano, 11 Abb. (N. S.) 29, it is held that the accounts to be examined must be the immediate object of the action or the ground of defense, and must be directly and not collaterally involved in the action. The case Samble v. Mechanics' Fire Ins. Co., 1 Hall,

Superior Ct. 617, overruled. Order reversed. Camp v. Ingersoll. Opinion by Folger, C. J. [Decided Oct. 18, 1881.]

UNITED STATES SUPREME COURT ABSTRACT.

APPEAL-WHAT NECESSARY FOR JURISDICTION OF CASE FROM STATE COURT-FEDERAL QUESTION.-"TO give us jurisdiction for the review of a judgment of a State court the record must show affirmatively, or by fair implication, that some Federal question was involved which was necessary to the determination of the cause. The defense set up in this case was that the notes sued on were void for usury under the laws of New York, where they were made. Judgment was given against the plaintiff in error for want of a sufficient affidavit of defense. This judgment would be right if the affidavit was not such as was required by law or the practice of the court for the presentation of a defense like that relied on. As it is incumbent on the plaintiff in error to show by the record, not only that this was not the ground of the decision below, but that some wrong determination of a Federal question was, -and it has not been done,-we might dismiss the suit without further examination; but on looking into the opinion, which has been sent up with a record, we find that the Court of Appeal based its judgment, which alone we can review, entirely on the fact that the affidavit was not sufficiently specific in its averments to meet the requirements of the rules of pleading applicable to such cases. It is clear therefore that we have no jurisdiction." Writ of error to the Supreme Court of Pennsylvania dismissed. Boughton v. American Exchange National Bank. Opinion by Waite, C. J.

[Decided Dec. 12, 1881.]

LIMITATION-OF CLAIM AGAINST UNITED STATESSTATUTORY CONSTRUCTION.-By section 1069, U. S. R.S., it is provided that every claim against the United States cognizable by the Court of Claims shall be forever barred unless the petition setting forth a statement thereof is filed in the court within six years after the claim first accrues. Under section 36 of the act of Congress of Aug. 5, 1861 (12 Stat. 294), the surplus proceeds of the sale of land for taxes was required to be deposited in the treasury, to be there held for the use of the

owner or his legal representatives until he or they should make application therefor to the secretary of the treasury, who, upon such application, should, by warraut on the treasury, cause the same to be paid to the applicant. Held that the owner of such surplus proceeds would not be barred from filing his claim by reason of not having done so within six years from the time the deposit of such proceeds in the treasury. The person entitled to the money could allow it to remain in the treasury for an indefinite period of time without losing his right to demand and receive it. It follows that if he was not required to demand it within six years he was not required to sue for it within that time. A construction should be given to these statutes which would be consistent with good faith on the part of the United States. It would certainly not be fair dealing for the government to say to the owner of lands sold for taxes that the surplus proceeds should be held in the treasury for an indefinite period for his use or that of his legal representatives, and then, upon suit brought to recover such proceeds, to plead in bar that the demand therefor had not been made within six years. The general rule is that when a trustee unequivocally repudiates the trust, and claims to hold the estate as his own, and not subject to the trust, and such repudiation and claim are brought to the notice or knowledge of the cestui que trust in such manner

that he is called upon to assert his rights, the Statute of Limitations will begin to run against him from the time such knowledge is brought home to him, and not before. Merrians v. Hassam, 14 Allen, 522; Baker v. Whiting, 3 Sumu. 486; Kane v. Bloodgood, 7 Johns. Ch. 90; Atty.-Genl. v. Federal Street Meeting House, 3 Gray, 1; Bright v. Egerton, 2 De G., F. & J., 606; Wedderburn v. Wedderburu, 2 Vern, 749. Judgment of Court of Claims affirmed. United States v. Taylor. Opinion by Woods, J.

[Decided Dec. 5, 1881.]

PATENT-PUBLIC USE BEFORE APPLICATION FOR PATENT.-The effect of sections 6, 7 and 15 of the act of Congress of July 4, 1836, (5 Stat. 117) as qualified by section 7 of the act of March 3, 1839 (5 Stat. 353), is to render letters-patent invalid if the invention which they cover was in public use, with the consent and allowance of the inventor, for more than two years prior to his application for a patent. Held, first, that to constitute the public use of a patent it is not necessary that more than one of the patented articles should be publicly used. The use of a great number may tend to strengthen the proof of public use, but one well defined case of public use is just as effectual to annul the patent as many. For instance, if the inventor of a mower, a printing press, or a railway car, makes and sells only one of the articles invented by him, and allows the vendee to use it for two years, without restriction or limitation, the use is just as public as if he had sold and allowed the use of a great number; second, that whether the use of an invention is public or private, does not necessarily depend upon the number of persons to whom its use is known. If an inventor, having made his device, gives or sells it to another, to be used by the donee or vendee, without limitation or restriction, or injunction of secrecy, and it is so used, such use is public within the meaning of the statute, even though the use and knowledge of the use may be confined to one person; third, that some inventions are by their very character only capable of being used where they cannot be seen or observed by the public eye. An invention may consist of a lever or spring, hidden in the running-gear of a watch, or of a ratchet, shaft, or cog-wheel covered from view in the recesses of a machine for spinning or weaving. Nevertheless if its inventor sells a machine of which his invention forms a part, and allows it to be used without restriction of any kind, the use is a public one, within the So on the other hand, a use meaning of the law. necessarily open to public view, if made in good faith solely to test the qualities of the invention, and for the purpose of experiment, is not a public use within the meaning of the patent law. Elizabeth v. Pavement Co., 97 U. S. 126; Shaw v. Cooper, 7 Pet. 292. Accordingly when the inventor of corset steels wore them two years before applying for a patent, presented a pair of such steels to a lady friend for her own use and she used them in the manner designed by the inventor, held that this was a public use that would annul the patent for the invention. Decree of U.S. Circ. Ct. S. D. New York, affirmed. Egbert v. Lippman. Opinion by Woods, J.

[Decided Dec. 12, 1881.]

PATENT-COMBINATION OF OLD DEVICES NOT PATENTABLE.-An alleged invention relating to the manufacture of molding crucibles and pots (patent No. 49140 granted June 20, 1865), consisted in supplying to an apparatus, which was old, a mold for supporting what is known as the ball and giving shape externally to the crucible. This use of a mold was also old. Held that the invention was not patentable within the rule, as stated by Strong, J., in Hailes v. Van Wormer, 20 Wall. 368, where he said: "All the devices of which the alleged combination is made are confessedly old. No claim is made for any one of them singly as an inde

It is

Boston Seam. Fr. Society v. Mayor of Boston, 116 Mass. 181. Also in Cooley on Taxation, 416, ch. 20. there said that "one very important species of taxation is that which is exercised in the form of special assessments." In Weeks v. Milwaukee, 10 Wis. 242, Paine, J., said: "I have no doubt, if these assessments are to be sustained at all, that it must be done upon the ground that they are an exercise of the taxing pawer." Page 256. See also, Harvard College v. Aldermen of Boston, 104 Mass. 470; Mayor of Baltimore v. Greenmount Cemetery, 7 Md. 517. Dalrymple v. City of Milwaukee. Opinion by Lyon, J. [Decided Oct. 18, 1881.]

ILLINOIS SUPREME COURT ABSTRACT.

SEPTEMBER 30, 1881.*

ACKNOWLEDGMENT-WHAT NECESSARY TO IMPEACH CERTIFICATE.-To impeach the certificate of the acknowledgment of a deed, the proof must show a conspiracy between the officer taking the acknowledgment and the grantee, or that the officer practiced imposition or fraud upon the grantor, and the testimony of the grantor alone is not sufficient to overcome the certificate and the officer's testimony in support of the same. In Kerr v. Russell, 69 Ill. 666, where there was a contest between the widow and subsequent grantees of the fee in regard to the certificate of acknowledgment in respect of her relinquishment of dower, it was said: "On general principles, a purchaser for value, without notice of any adverse claim or secret equities, cannot be disturbed, and we see no reason why the rule should not apply in kindred cases." And it seems elsewhere it has been held, in favor of purchasers for a valuable consideration without notice, the certificate of acknowledgment is conclusive as to all matters which it is the duty of the acknowledging officer to certify, if he has jurisdiction. Note to Smith v. Ward, 1 Am. Dec. 81; Wharton's Ev., § 1052; Williams v. Baker, 71 Penn. St. 476; Hall v. Patterson, 51 id. 289; Miller v. Wentworth, 82 id. 280; Ridgeley v. Howard, 3 Harr. & McH. 321. As between the immediate parties to the deed, the acknowledgment may be impeached for fraud, collusion or imposition, but not otherwise; and the evidence to warrant the setting aside of a deed upon the ground that the acknowledgment was obtained through fraud, collusion or imposition must, by its completeness and reliable character, fully and clearly satisfy the court that the certificate is untrue and fraudulent. Marston v. Brittenham, 76 Ill. 614. And in Lickmon, etc. v. Harding, 65 Ill. 505, we held, in the absence of proof of fraud and collusion on the part of the officers taking and certifying the acknowledgment of a deed, the officer's certificate, in proper form, must prevail over the unsupported testimony of the party grantor that the same was false and forged. To a like effect are, also, Graham v. Anderson, 42 III. 514; Monroe v. Poorman, 62 id. 526. And see, also, Borland v. Walrath, 33 Iowa, 130; Vanorman v. McGregor, 23 id. 300; Hortienne v. Schnoor, 33 Mich. 274; Howland v. Blake, 97 U. S. 624. Fitzgerald v. Fitzgerald. Opinion by Scholfield, J.

ELECTION-IRREGULARITIES IN HOLDING, DO NOT INVALIDATE.-Mere irregularities in conducting an election and counting the votes, not proceeding from any wrongful intent, which deprive no legal voter of his vote and do not change the result, will not vitiate the election, so as to justify the rejection of the entire poll of the town or precinct in which the irregularities occurred. In this case it was held that the failure to number the ballots cast at an election, and to count the votes in the manner required by the statute, and *To appear in 100 Illinois Reports.

to string the ballots on a thread or twine in the order of their reading, and the allowance of persons not judges or clerks of the election to assist in counting the votes, and the presence of persons in the room during the count not challengers or officers, where nothing appears to show any injurious effect, or that the votes were not truly counted, will not justify the court, on a contest of the election, to exclude the entire poll and vote of a town as fraudulent and void. The rules prescribed by the statute in respect to these particulars are directory merely, not jurisdictional or imperative. In Piatt v. People, 29 Ill. 72, the violation of the law was in not closing the polls at the hour of 5 o'clock, P.M., as the statute required, but keeping and continuing them open after that hour. It was held not to invalidate the election. This case was followed in DuPage County v. People, 65 Ill. 360, where the judges of election of a township took a recess of an hour at 12 o'clock and went home to dinner, the statute positively forbidding an adjournment. This was held to be no ground for rejecting the entire poll of the township. In addition to the previous case, Fry v. Booth, 19 Ohio St. 25, and People v. Cook, 4 Seld. 67, were referred to as sustaining the decision. Hodge v. Linn. Opinion by Sheldon, J.

STATUTE OF LIMITATIONS-WHAT ESSENTIAL TO REMOVE BAR-PART PAYMENT BY ONE JOINT DEBTOR.

(1) In order to remove the bar of the statute of limitations in respect to a debt, there must be a new promise to pay the debt. But to bind a party to a new promise there must exist the elements essential to a new contract, express or implied. There must be such circumstances as will reasonably authorize an inference of an intention to waive the bar of the statute. There must be affirmative action or conduct designed to prospectively affect the rights of the parties to the prior contract. This new promise may be implied from the fact of a partial payment made after the bar of the statute has become complete, by the party originally chargeable. But in order to authorize the inference of a new promise from the fact of such payment, the party making the payment, and sought to be charged thereby, must have had an affirmative intention in making the payment, and that it should be applied to the particular debt. In respect to the effect to be given to the making of a partial payment, as authorizing the inference of a new promise, payment before the bar is complete, thereby arresting the running of the statute, so that it shall commence to run anew, and payment afterward, whereby the bar of the statute is removed, rest upon precisely the same principle. In either case, if the running of the statute is arrested, or if the bar already complete is removed, it is because of the new promise, express or implied, and it is that new promise,-i. e., contract,―resting upon the consideration of the old debt, where the statute is pleaded, that is replied to take the case out of the statute. In either case the same elements of contract must exist. (2) It is doubtless the law that joint debtors, in matters respecting their joint indebtedness, may, to a certain extent, bind each other by their admissions, but this can only be as to facts affecting rights or remedies then existing. The admissions must relate to matters showing what are the terms of a contract already made, or whether it has been performed or otherwise discharged. The idea however cannot be sanctioned, that a co-debtor, merely because he is such, has authority to bind his associates to a new contract, although it may be in regard to the old debt. In the case of joint debtors therefore, a partial payment by one, without the knowledge or assent, or subsequent ratification, of the others, will not operate to bind the latter so as to authorize the inference of a new promise on their part, and therefore will not affect the defense of the statute of limitations as to