SEC. 96. Effect of, generally.-In England, prior to the adoption of the Stat. 9 Geo. IV. c. 14, a part payment of a debt was treated as a sufficient acknowledgment, to uphold a promise to pay it, although the statute of James I. contained no such provision. The courts read an exception into the statute in the case of a part payment of either principal or interest; and this exception has been expressly preserved in the Stat. 9 Geo. IV. c. 14, and in all the statutes of a similar character in the States of this country except in Nevada. In Nevada, the statute contains no exception giving effect to part payment as an acknowledgment; and it is held that a part payment, unless evidenced by a writing signed by the debtor, does not have the effect either to suspend or remove the statutory bar. Under this provision, 1 Wilcox v. Williams, 5 Nev. 206. In Georgia, in Holland v. Chaffin, 22 Ga. 343, it was held that partial payment of a note, together with an express admission of the debt, are insufficient, unless the admission is in writing. See also Peña v. Vance, 21 Cal. 142, and Heinlin v. Castro, 22 id. 100, to the same effect. In some of the early English cases arising under the 9 Geo. IV. it was held that a part payment of a debt would not take the balance out of the stat Wain. ute unless there was a promise in writing. the part payment of principal or interest takes the case entirely out of the statute, and such part payment may be proved in the same manner as before the statutes were enacted. In such cases the part payment is made an acknowledgment by statute, and only leaves the plaintiff to establish the fact that it was made and intended as a part payment; whereas, where no statutory provision exists, such part payment only amounts to evidence from which an acknowledgment may be inferred, and is not absolutely an acknowledgment. This proviso was enacted because the part payment of principal, or the payment of interest, stands upon a very different footing from a mere verbal promise. “A promise," observes TINDAL, C. J., "is frequently made rashly, and is always liable to misconstruction; whereas a payment is not supposed to be made unadvisedly. A person may part with his words rashly, not so with his money." SEC. 97. Must be made as Payment of Part of Debt. In order to make a money payment a part payment within the statute, it must revives the remainder of the debt, and gives it legal vitality for a new statutory period. Jewett v. Petit, 4 Mich. 508; Aldrich v. Morse, 28 Vt. 642; State Bank v. Moody, 11 Ark. 638; Arnold v. Downing, 11 Barb. (N. Y.) 554; Rucker v. Frazier, 4 Strobh. (S. C.) 93; Smith v. Simms, 9 Ga. 418; Ayer v. Hawkins, 19 Vt. 28. Perhaps something more than a naked payment should be shown. Davidson v. Harrison, 33 Miss. 41; Davies v. Edwards, 15 Jur. 1044; Smith v. Westmoreland, 21 Miss. 663. But whatever may formerly have been the doctrine in this respect, there can be no question but that, if the fact of a part payment is established, it is sufficient to renew the entire debt, unless the balance is repudiated or its existence denied, United States v. Wilder, 13 Wall. (U. S.) 254; or at least sufficient to warrant a jury in finding a promise to pay the balance, even though the court will not therefrom draw such an inference as a matter of law, White v. Jordan, 27 Me. 370; Whipple v. Stevens, 22 N. H. 219; Illsley v. Jewett, 2 Met. (Mass.) 168; Balch v. Onion, 4 Cush. (Mass.) 559; Nash v. Hodgson, 31 Eng. L. & Eq. 555; Pond v. Williams, 1 Gray (Mass.), 630; Ramsay v. Warner, 97 Mass. 8; Sanderson v. Milton Stage Co., 18 Vt. 107; Nesom v. D'Armand, 13 La. An. 294; Dyer v. Walker, 54 Me. 18. 1 Cleaves v. Jones, 6 Exch. 578; Bank of Utica v. Ballou, 49 N. Y. 155. Part payment of the interest or principal of a debt, unaccompanied by contemporaneous qualifying acts or declarations of the payor, takes a debt out of the statute of limitations; and the statute requiring acknowledgments to be in writing alters the mode of proof, but not the effect of acknowledgments or promises, and does not affect the effect of a part payment, which is a species of acknowledgment in every sense equal to one expressed in writing. Barron v. Kennedy, 17 Cal. 574. 2 Ridd v. Moggridge, 2 H. & N. 567; Hollis v. Palmer, 2 Bing. N. C. 713. 8 Wyatt v. Hodson, 1 M. & Sc. 447. In Wesner v. Stein, 97 Penn. St. 822, MERCUR, J., says: "Part payment of a debt within six years before suit brought is sufficient from which to infer a promise to pay; but the payment must be clearly proved." Burr v. Burr, 27 Penn. St. 284; Yaw v. Kerr, 47 id. 333; Patton v. Hassinger, 69 id. 311. In Barclay's Appeal, 64 Penn. St. 67, SHARSWOOD, J., says: "There can be no more un equivocal acknowledgment of a present, existing debt, than a payment on account of it;" and according to all the authorities this is all that is required to take a case out of the statutes. Part payment does not create a new debt, but revives the old one, and the action must be predicated upon the original debt. Biscoe v. Stone, 11 Ark. 39; Egerey v. Decrew, 53 Me. 392; Elmore v. Robinson, 18 La. An. 651. be shown to be a payment of a portion of an admitted debt, and paid to, and accepted by the creditor as such, accompanied by circumstances amounting to an absolute and unqualified acknowledgment of more being due, from which a promise may be inferred to pay the remainder. If the payment was intended by the debtor to be a payment of all that was due, the circumstance of the creditor's having received it, and treated it as a part payment only, will not bring it within the statute.1 Part payment of a debt is not of itself conclusive to take the case out of the statute. In order to have that effect, it must not only appear that the payment was made on account of a debt, but also on account of the debt for which action is brought, and that the payment was made as a part of a larger indebtedness, and under such circumstances as 1 In Foster v. Dawber, 6 Exch. 853, an action of assumpsit was brought upon a promissory note for £500, dated Dec. 7, 1845, and also upon another note for the same amount, dated Jan. 20, 1846. The defendant pleaded that after making the notes it was agreed between J. Clark and the defendant that the latter should purchase with his own money a piece of paper marked with a 10s. receipt stamp, and should fill up and write on it thus: "Hull, February 16th, 1846. Received of R. Dawber (the defendant), the sums of £1,080, being the principal and interest on two notes, dated December, 1845, and January, 1846, in full of all demands." That the defendant should suffer J. Clark to sign his name, and that such purchase of the paper, and such writing out and filling up, and permitting J. Clark to sign it, should be accepted by J. Clark in full satisfaction and discharge of the said causes of action. Second plea, the statute of limitations. In 1835, J. Clark agreed to lend the defendant £1,000, on receiving two promissory notes of £500 each. The notes were given, and the interest thereupon regularly paid by the defendant to J. Clark, who, on receiving it, was in the habit of indorsing a memorandum on the back of the notes. The backs of the notes being at length entirely covered, J. Clark proposed that the notes should be cancelled and others substituted, which was accordingly done, and the notes in question given by the defendant. In Feb. ruary, 1846, J. Clark expressing a wish to make the defendant a present of the £1,000, directed him to buy a 10s. stamp, and draw out a receipt for £1,000, and £80 for inter 2 8 est, and which having been done, and the receipt having been signed by Clark, no further interest was paid. J. Clark subse quently died, having previously bequeathed the notes in question to his executors, with certain directions as to the investment of the proceeds. It was held that the giving of the receipt was not a part payment or acknowledgment of the debt, so as to take the case out of the statute of limitations, and that the renewal of the two notes in January, 1846, could not be considered as a promise so as to render the defendant liable, by a new promise, to pay the orig. inal notes. Tippets v. Heane, 1 C. M. & R. 252. 2 Tippets v. Heane, 4 Tyrwh. 772; Wainman v. Kynman, 1 Exch. 118. This rule and its application is well illustrated in a Pennsylvania case, where the payment of the costs to the prothonotary was held not to take the judgment out of the stat ute, because the costs were not a part of the debt. Strawn v. Hook, 25 Penn. St. 391. 8 A'Court v. Cross, 3 Bing. 329. In Tippets v. Heane, ante, PARKE, B., says: "In order to take a case out of the statute of limitations by a part payment, it must appear, in the first place, that the payment was made on account of a debt; secondly, it must appear that the payment was made on account of the debt for which the action is brought. But the case must go further, for it is necessary, in the third place, to show that the payment was made as part payment of a greater debt; because the principle upon which a part payment takes a case out of the statute is, that it admits a greater debt to be due at the time of the 1 warrant a jury in finding an implied promise to pay the balance; and if the payment was made under such circumstances as to rebut any part payment. Unless it amounts to an admission that more is due, it cannot operate as an admission of any still existing debt." 1 Linsell v. Bonsor, 2 Bing. 241, where an action was brought to recover £242118.; and it was proved that the defendant within six years, upon being called upon for interest, paid a sovereign, and said that he owed the money but would not pay it. It was left to the jury to say whether he used the words in earnest or in jest; and they having found that he used them in earnest, it was held that the payment of the sovereign did not take the debt out of the statute. A part payment will not take a case out of the statute of limitations, unless it is expressly made as part payment in discharge of liability for a larger amount, and with the intention of admitting a liability to pay the residue. Prior to the case of A'Court v. Cross, ante, it was supposed that the mere acknowledgment of a debt was a waiver of the statute; but that case decided that the acknowledgment must be such as to operate as a new promise. In that case, BEST, C. J., says: "There are many cases from which it may be collected that if there be anything said at the time of the acknowledgment to repel the inference of a promise, the acknowledgment will not take a case out of the statute." It is for the jury to say quo animo the party makes the admission. The mere act of part payment does not of itself take the case out of the statute, but the payment must be made with a view to revive the debtor's liability. In the case of Bateman v. Pinder, 3 Q. B. 574, the court put part payment on the same footing as an acknowledgment. And where a party revives a debt by paying it into court, but at the same time refuses to pay interest, such payment of the principal does not revive the claim for interest. Collyer v. Willock, 5 Bing. 513. So, where some items of account are barred by the statute, a part payment by the debtor, without appropriation to such items, will not take them out of the statute. Mills v. Fowkes, 5 Bing. N. C. 455. Those authorities show that the part payment must be made with the intention of creating a new liability to such promise, it does not affect the operation of the statute. Thus, where a debtor paid to a creditor a less sum than was due, under an agreement on the part of the creditor to accept it in full, it was held that such payment did not remove the statute bar. If it stands ambiguous whether the payment is a part payment of an existing debt, more being admitted to be due, or whether the payment was intended by the party to satisfy the whole of the demand against him, the payment cannot operate as an admission of a debt so as to extend the period of limitation. In some of the States, it is held that a partial payment of a note or other similar obligation does not remove the statute bar as to the balance, unless it is accompanied by an express acknowledgment of a further indebtedness, or by an express promise to pay it; but this doctrine will be found to be predicated upon the peculiar wording of the statute, or upon erroneous grounds of decision which do not generally prevail in the English, or in the great majority of our own courts, the rule generally adopted being that a general payment on account of a greater debt, unaccompanied by any qualifying acts, removes the statute bar as to the balance.* 8 was no proof other than as above of the time when said indorsement was actually made. Coffin v. Bucknam, 12 Me. 471. A deceased party had made in his books, within three years, an entry settling an account against the plaintiff, crediting him "by amount of services rendered on account, $398.53." Among the papers of his executrix, after her death, was found a receipt given by plaintiff to the executrix for $307.86, on account of services rendered the deceased in his lifetime," dated about six months before the bringing of this action. The plaintiff brought his action on account for services rendered as clerk and agent for the deceased against his administrators de bonis non. Held, that the entry and receipt were sufficient to remove the bar of the statute of limitations, which, without them, would have been an effective one to the action. Quynn v. Carroll, 10 Md. 197. An indorsement, in the plaintiff's handwriting, of a partial payment on a witnessed note within twenty years, together with testimony that the defendant had since said he would pay the balance of the principal, was held to revive a note dated more than twenty years since. Howev. Saunders, 38 Me. 350. 8 Smith v. Westmoreland, 20 Miss. 636; Michigan Ins. Co. v. Brown, 11 Mich. 265; Seel v. Matthews, 7 Yerg. (Tenn.) 313. 4 Semmes v. Magruder, 10 Md. 242; Foster v. Starkey, 12 Cush. (Mass.) 324 ; Niemceweiz v. Bartlett, 13 Ohio, 271; Burr v. Burr, 26 Penn. St. 284; Whipple v. Stevens, 22 N. H. 219; Barron v. Kennedy, 17 Cal. 574; Sanford v. Hayes, 19 Conn. 591; Bridgeton v. Jones, 34 Mo. 471; Hunt v. Holly, 18 Ga. 378; McLaren v. McMartin, 36 N. Y. 88. Where there is a running account between parties of long standing, of which the debtor has never been furnished with the items, or otherwise apprised of the entries therein, it has been held not sufficient to warrant the court in so applying a general payment as to take the whole debt out of the statute, but that the question should be left to the jury to find on account of what indebted ness the payment was made. Beltzhoover v. Jewell, 11 G. & J. (Md.) 212. while this may be the rule where there is anything attending the payment or any thing connected with the account itself which raises a doubt as to the application which the debtor intended should be made But 1 Berrian v. New York, 4 Robt. (N. Y. of the payment, yet it is not believed Superior Ct.) 538. 2 Waugh v. Cope, 6 M. & W. 829; Burkitt v. Blanshard, 3 Exch. 89. that the mere circumstance that the debtor was ignorant of the items of an account, or failed to make inquiries in that regard, |