§ 245. It was held by Lord Ellenborough, in Holmes v. Green,1 that in order to take a case out of the statute, in an action on a promissory note, it is not sufficient to show a payment by a joint maker of the note within six years, so as to throw it upon the defendant to show, that the payment was not made on account of the note. But the question in the case was as to the application of the payment. It was contended, that the payment must be attributed to the claim in question, unless it could be shown by the defendant that some other account existed between the parties. The learned judge said, "there would be no such thing as the statute of limitations, if this doctrine were to prevail: an acknowledgment to bind a partner ought to be clear and distinct: this would be an extravagant extension of the case of Whitcomb v. Whiting."

§ 246. It matters not to whom the part payment may be made. If paid to an agent, or even to a person not authorized to receive it, but appearing to be so, it amounts to an acknowledgment. Thus, in Clarke v. Hooper,2 it was observed by Tindall, Ch. J.,-"In this case the statute of limitations has been pleaded to an action on a promissory note, and the plaintiff has proved payment of principal and interest within six years; not indeed to one who had a rightful title to receive it, but who having letters of administration, would appear, at least, to stand in that situation. In the mind of the party

debtor fails to direct to which note the payment shall be applied, the creditor may apply it to whichever one he pleases, whereby the note to which he applies it will be taken out of the operation of the statute; but he cannot divide the sum and appropriate part on each note so as to take them all out of the statute. Ayer v. Hawkins, 19 Vt. (4 Washb.), 26. But in Burn v. Bolton (15 Law Jour. (N. s.) C. B. 97), Tindal, C. J., said, that, "if two admitted demands were due at the time of the part payment, so that it was doubtful to which demand the payment applied; such a payment would not take either demand out of the statute." And see Burr v. Burr, 26 Penn. St. 284; Armistead v. Brooks, 18 Ark. 521. If there are three notes, two of which are barred, and a sum of money be paid on account of interest generally, but less than the amount of interest due on the note not barred, the payment will prevent the running of the statute on the latter note. Nash v. Hodgson, 31 Eng. Law & Eq. 555, But if applied on the others, it will not take them out of the statute. Pond v. Williams, 1 Gray (Mass.), 630.]

1 Holmes v. Green, 1 Stark. R. 488.

2 Clarke v. Hooper, 1 Bing. R. 480; see also, Megginson v. Harper, 4 Tyrw. (Ex.), R. 94, in which the decision was upon the like ground; and also, Pease v. Hirst, 10 Barn. & Cres. R. 122, and 21 Eng. Com. Law R. 38. [And see post, § 269. It seems that since the Stat. 9 Geo. IV. c. 14, an acknowledgment made to a stranger would not be sufficient. Grenfell v. Girdleston, 2 Y. & Coll. 662.]

paying, such a payment must have been a direct acknowledgment and admission of the debt, and is the same thing, in effect, as if he had written in a letter to a third person that he still owed the sum in question."

§ 247. If it be agreed between debtor and creditor, that the latter shall receive goods in reduction of his demand, the delivery of the goods operates as a partial payment. But where the goods are to be sold, and the proceeds appropriated in part extinguishment of the debt, the goods must be sold, and credit given for the proceeds in a reasonable time. Where the maker of a promissory note delivered goods to the holder to be sold, and the proceeds appropriated towards the payment of the note-it was held, that if such sale is made and the proceeds indorsed upon the note, within a reasonable time, it is to be considered, in reference to the statute of limitations, as a payment made by the maker's order. But if the holder, without any assent on the part of the maker, or any notice to him, makes the sale and indorsement after a reasonable time has elapsed, it will not take the note out of the statute.2 So, in an action upon a note payable more than six years before the commencement of the suit, it was held, that where the defendant had delivered another note to the plaintiff "to collect the same, and apply the proceeds to the payment of the note in suit," and the plaintiff had accepted it, that he was found to comply with these directions; and that as soon as he collected the money upon it, he was obliged to consider it a payment of so much of the note in suit; and that proof of a payment on the collateral note would operate as proof of payment of the same sum on the note in suit. But in such case, if the plaintiff has not used that reasonable diligence which the law requires, to collect the collateral note, and the payments have been made later than they should have been, they cannot be considered as made by order of the defendant.3

1 Hooper v. Stevens, 4 Adol. & Ell. R. 71; Hart v. Nash, 2 Cromp. Mees. & Welsb. (Exch.), R. 337; [Sibley v. Lambert, 30 Me. 253].

2 Porter v. Blood, 5 Pick. (Mass.), R. 54.

3 Haven v. Hathaway, 2 App. (Me.), R. 345, recognizing Porter v. Blood, supra. [So, a bill of exchange, delivered on account of a larger sum due with interest to pay part, will take the remainder out of the statute, from the time of the delivery, though the bill at maturity be dishonored. Turney v. Dedwell, 24 Eng. Law & Eq. 92. And the maintenance of a child was held part payment of a note, the amount having been indorsed by the mother on the note in lieu of interest. Badger v. Arch, 28 Eng. Law

& Eq. 464. But it was recently held, in Alabama, that the deposit, by the maker of a promissory note, with the assent of sureties, of cotton, with the agreement that its proceeds when sold should be applied in payment of the note, did not withdraw the note from the operation of the statute of limitations, although the cotton was sold and the proceeds applied in payment, after the maturity of the note, and within six years before the commencement of suit. Lyon v. State Bank, 12 Ala. 508.]

A partial payment on a witnessed note takes the note out of the statute for twenty years from the time of the payment. Estes v. Blake (30 Me.), 17 Shep. 164.

Whether the part payment, or an acknowledgment, will take a bond out of the statute, the authorities do not agree. Thus, where the obligor of a bond, with a full knowledge of his legal rights, admits his liability after the bond is barred, the admission revives the obligation. Tillet v. Commonwealth, 9 B. Mon. (Ken.), 438. So the payment of interest on a bond by one of the sureties before the statute of limitations attaches, takes the debt out of the operation of the statute. (McBride, J., dissentiente.) Crage v. Callaway, &c. 12 Mis. 94. See also, Amistead v. Brook, 18 Ark. 521. But in Alabama it has been held, that a verbal acknowledgment by the obligor will not prevent the statute from running against a bond, nor revive the remedy after the statute has become a bar. Crawford v. Childress, 1 Ala. (N. s.), 482.

The replication of a new promise to a plea of the statute of limitations in a suit on a former judgment, is bad; such a replication is good only in actions on promises. Taylor v. Spicey, 11 Ired. (N. C.), 427. But in Carshore v. Huyck, 6 Barb. (N. Y.), 583, the court felt bound to sustain such a replication to a plea of the statute in an action on a justice's judgment, for reasons peculiar to the law of New York, as appear by the following extract from the opinion of Harris, J.: "The principal, and, I think, the only question in this case, is whether, after a justice's judgment has become barred by the statute of limitations, it will be so revived by a new promise of payment as that an action of debt may be maintained upon it. The plaintiffs maintain the affirmative of the proposition. . . . The defendant contends that a promise to pay a judgment cannot entitle the plaintiff in that judgment to maintain an action upon it, as a subsisting cause of action; that a judgment once barred by the statute of limitations cannot have its vitality restored by a new promise to pay. The question is not without its difficulty, and neither party is without eminent authority to sustain his position. It seems, however, to be settled against the defendant in this State. Upon a full examination of the cases in which the subject has been discussed, I am satisfied, that, at least in this State, the doctrine is too firmly established to be again unsettled, that when the operation of the statute of limitations is avoided by a new promise, the old demand, and not the new promise, is to be the foundation of the action. I confess, that, were I at liberty to reason upon the question, the inclination of my mind would be to the other side of the question. The doctrine rests for its support upon a distinction between the cause of action itself and the remedy. The distinction is too thin and subtle to be received with satisfaction. An existing continuing cause of action, without any remedy to enforce it, is, to my mind, a mere abstraction. To say that a man has a cause of action left, after he has lost, by the operation of the statute, his remedy upon it, seems to me little less absurd than to say, I still have my property after I have actually lost it. If a debtor obtain a discharge under an insolvent act, a subsequent promise to pay the debt is regarded as a new contract, supported, it is true, by the preëxisting moral obligation, as a consideration for the new promise, but to be enforced as a new contract, and, like every other contract, according to its own terms. The reasonableness of this doctrine is much more manifest, at least to my mind, than that which has been established in this State in respect to the revival of debts barred by the statute of limitations. The best defence of the latter doctrine with which I have met, is contained in the opinion of

Mr. Justice Marcy, in Dean v. Hewett (5 Wend. 257). His argument is, that the new promise rebuts the presumption of payment upon which the statute of limitations proceeds, and has the same effect in keeping alive the remedy, whether made before or after the statute attaches. I am unable to perceive the conclusiveness of this reasoning. In the one case, the new promise, made before the statute has barred the debt, arrests its course, and a new starting point is made, from which it again commences to run. It cannot be said, in that case, that the new promise revives the debt, for it never was extinct. But when the statute has once attached, the debt is in fact, however it may be in theory, extinct. It has lost all its vitality. If, afterwards, it has any 'legal use or validity,' it is through the reanimating principle of the new promise. And it is only useful for this purpose, as furnishing, by virtue of its continuing moral obligation, a sufficient consideration for the promise." And upon these grounds the court saw no reason why a new promise should not revive a judgment as well as a promissory note. In Ohio, an acknowledgment of a debt, or part payment, or promise to pay after the debt has been barred by statute, will not revive the debt. Hill v. Henry, 17 Ohio, 9. And see Appendix, CXXII. And some of the cases in other States would seem to recognize the distinction. "The general rule, as I now consider it settled," says Shaw, C. J., in giving the judgment of the court, in Sigourney v. Drury, "is that to avoid the operation of the statute, it must be shown that the defendant promised within six years next before the commencement of the suit, and if it appear that more than six years have elapsed since the making of the original promise, or since the cause of action thereon accrued, it must appear that the defendant has made a new promise to pay within the six years." 14 Pick. (Mass.), 387. See also, Deshler v. Cabiness, 10 Ala. 959; Davidson v. Morris, 5 S. & M. (Miss.), 564; Van Keuren v. Parmelee, 2 Comst. (N. Y.), 523, cited in note to § 260, post; Carshore v. Huyck, 6 Barb. (N. Y.), Sup. Ct. 583, cited supra; Peyton v. Minor, 11 S. & M. (Miss.), 148; Brewster v. Hardeman, Dudley (Ala.), 138; Mason v. Howell, 14 Ark. 199; Esselstyn v. Weeks, 2 Kernan (N. Y.), 635; Deloach v. Turner, 7 Rich. (S. C.), Law, 143; Shackleford v. Douglass, 31 Miss. (2 George), 95; Briscoe v. Anketell, 28 Miss. (6 Cush.), 361. But other cases hold, or seem to imply, that there is nothing in the distinction. Wheelock v. Doolittle, 18 Vt. 440; Carlton v. Ludlow, 1 Wms. (Vt.), 496; Trustees, &c. v. Osgood, 8 Shep. (Me.), 176; Watson v. Robinson, 5 Ired. (N. C.), 341; Coles v. Kelsey, 2 Texas, 501; Hunter v. Starkes, 8 Humph. (Tenn.), 656. And in Farley v. Kustenbader, 3 Barr (Penn.), 418, it is made a question, whether a new promise, before the statute has run, is supported by a sufficient consideration. And Case v. Cushman, 1 Barr (Penn.), 246, was cited as an authority. But in Hazzelbacker v. Reeves, 9 Barr (Penn.), 258, Case v. Cushman was overruled, and it was held, that a new promise before the statute has run is supported by a sufficient consideration.

The cases, also, differ in the effect of a promise not to take advantage of the statute of limitations. It was held to be equivalent to an acknowledgment in Burton v. Stevens, 24 Vt. (1 Deane), 131; Noyes v. Hall, 28 Vt. (2 Wms.), 645; Stearns v. Stearns, Vt. Jan. 1860; and in Webber v. President, &c. of Williams College, 23 Pick. (Mass.), 302. And see also, Emmons v. Hayward, 6 Cush. (Mass.), 501, cited ante, note to 115; and Rackham v. Marriott, 37 Eng. Law & Eq. 460. Otherwise in Maine, Warren v. Walker, 10 Shep. (Me.), 453. And in Pennsylvania and Maryland, Marseilles v. Kenton, 17 Penn. St. 238; Stockett v. Sasscer, 8 Md. 374. But such an agreement will preclude the defendant from pleading the statute. As a covenant not to sue is tantamount to a release of the claim, so an agreement not to defend a particular ground is tantamount to a release of all benefit to be derived from that ground. Ibid. And see Hodgdon v. Chase, 29 Me. (16 Shep.), 47. And so is the law of France. "Prescription cannot be renounced in advance, but only after it is acquired," Code Civil

Expliquè, Art. 2220. If prescription could be renounced before it is acquired, it is there said, a renunciation may become a formal part of every contract, and thus the object of the law would be completely frustrated. Ibid. Note. It seems that an action will lie for the breach of an agreement not to take advantage of the statute. East India Co. v. Paul, 1 Eng. Law & Eq. 44; Bank of Penn v. Hill, 10 Humph. (Tenn.), 176. In Hodgdon v. Chase, 32 Me. (2 Red.), 169, it was, however, expressly held, that an action would not lie in such a case, as it would render the statute inoperative.]