entered in pursuance thereof will be effectual as a part payment. Thus, in an English case,1 after a debt due to the plaintiff by his son had been barred by the statute, the plaintiff, his son, and his son's wife had an interview, at which the interest due to the plaintiff was calculated. The plaintiff's son then put his hand into his pocket, as if to get out the money to pay it. The plaintiff stopped him, and, writing a receipt for the money, gave it to his son's wife, saying he would make a present of it to her. It was held, by a majority of the Court of Exchequer, BRAMWELL, B., dissenting, that the transaction was sufficient to take the case out of the statute. The true test as to what transactions will amount to a part payment for the purposes of avoiding the statute appears from the judgment in the case last cited, as well as from other cases, to be, that any facts which would prove a plea of payment of interest or principal in an action brought to recover either would amount to a payment sufficient to bar the statute. And BRAMWELL, B., in dissenting from the opinion of the majority in the case last cited, did so on the ground that in his judgment the facts would not have supported such a plea of payment. So, if by agreement money is paid by a debtor on behalf of his creditor to a third person, that may be a sufficient part payment as between the debtor and creditor.*

SEC. 114. Part Payment by Bill or Note. - Where a debtor gives a bill or note on account of a debt, it operates as a part payment, even though it ultimately proves worthless. It may be said that payment, in the popular use of the term, is taken to include a giving and taking of a negotiable instrument on account of a debt, as well as a giving and taking it in satisfaction of a debt. A bill is conditional payment, and its immediate operation as an acknowledgment of a balance demand is not to be affected by its operation as a payment, being liable to be defeated at a future time; and even if it is worthless, the intention and the act by which it is evinced remain the same," and it operates as such an acknowledgment of the debt as removes the statute bar.

A question arises, when a bill or note is given in part payment of a debt, whether the part payment must be considered made at the time of the delivery of the bill, or of payment thereof. On this point it has been decided that when a debtor draws a bill of exchange to be applied in part payment of a debt, and the bill is paid when due by the drawee to the creditor, it operates as a part payment from the time of the delivery of the bill by the debtor, not from the time of the payment."

1 Maber v. Maber, L. R. 2 Exch. 153.
2 Bodger ». Arch, 10 Exch. 333; Amos

. Smith, 1 H. & C. 238.

479.

* Maber v. Maber, L. R. 2 Exch. 153. Worthington v. Grimsditch, 7 Q. B.

Turney v. Dodwell, 3 El. & Bl. 136. In Irving v. Veitch, 3 M. & W. 90, it was held that where a debtor draws a

bill of exchange, to be applied in part payment of the debt, and the bill is paid when due by the drawee to the creditor, it operates as part payment, to defeat the statute of limitations, only from the time of the delivery of the bill by the debtor, not from the time of its payment. Gowan v. Forster, 3 B. & Ald. 507; Smith v. Ryan, 39 N. Y. Superior Ct. 489.

SEC. 115. Indorsements on Notes, etc. - Indorsements by a creditor on a bill or note admitting payments of interest or principal, if made before the debt was barred, were formerly, after the creditor's death, held to amount to sufficient evidence for the purpose of avoiding the plea of the statute; the principle of their admission as evidence being that they were acknowledgments against the interest of the person making them. But indorsements made after the statute has run upon the claim afford no evidence whatever that the payment was made, because it is an act in furtherance of the interests of the creditor, and a person will not be permitted to make evidence for himself." Therefore,

8

an indorsement, in order to remove the statute bar, must be shown by affirmative evidence to have been made before the statute bar had attached to the debt, or that a payment was made upon the claim after the debt was barred which the indorsement covers; and the ordinary presumption that a writing was executed at the time it bears date does not attach.1 Parol evidence is admissible to prove the fact of payment, or to defeat it, although evidenced by a writing; 2 but in order to be effective to remove the bar of the statute, it must be shown to have been a payment in reference to the demand in suit. Where a payment is made upon a note, and indorsed thereon by the holder, at the request of the payor, proof of such fact is sufficient to remove the statute bar.* But unless a payment, as such, is actually made upon the note or claim in suit, or an indorsement is made with the debtor's assent, it cannot have the effect either to keep the debt on foot or revive it. Thus, where the debtor rendered services for the creditor, and the latter, without the debtor's assent, indorsed it upon a note he held against him, it was held not such a payment as would operate as a revival of the note. The usual medium of proof of a part payment of a note or other written obligation is by an indorsement thereon. But the bona

5

Clapp v. Ingersoll, 11 Me. 83; Wilcox v. Pearnon, 9 Leigh (Va.), 144; Brown v. Hutchings, 11 Ark. 83; Gibson v. Peoples, 2 McCord (S. C.), 418; M'Ghee v. Green, 7 Port. (Ala.) 537; Whitney v. Bigelow, 4 Pick. (Mass.) 110; McMasters v. Mather, 4 La. An. 419; Concklin v. Pearson, 1 Rich. (S. C.) 391; Connelly v. Pierson, 9 Ill. 108.

It has been held in California that, in the absence of any written acknowledgment or promise signed by the party to be charged, part payment does not take a debt, especially a specialty debt, out of the statute of that State. Thus a memorandum indorsed on an overdue bond acknowledged part payment, and changed the title and terms of payment, but was signed by the obligee alone, the obligor only assenting thereto. Suit was brought when the term of the statute had expired, since the pay. ment fell due according to the terms of the original bond, but not since payment fell due under the agreement. Held, that the indorsement could be effective only as a verbal contract, and would not suffice to prevent the running of the statute against the original debt and bond. Peña v. Vance, 21 Cal. 142. In Michigan, it is held that unexplained indorsements of payments on a bond have no weight as

evidence of payment, for the purpose of charging the debtor, by treating them as an acknowledgment, so as to take the case out of the statute of limitations. Michigan Ins. Co. v. Brown, 11 Mich. 265. When an indorsement on a bond or note made by the obligee or promisee is relied on to take it out of the statute of limitations, the law determines whether such indorsement was or was not favorable to the party making it, at the time when it was made, and on this question depends its admissibility in evidence. Wilson v. Pope, 37 Barb. (N. Y.) 321.

1 Shaffer v. Shaffer, ante; Guillon v. Perry (Penn.), 1 W. N. C. 39; Rowe . Atwater, id. 149; Kinsloe v. Baugh, id. 147.

2 Wolf v. Foster, 13 Kan. 116.

8 Read v. Hurst, 7 Wend. (N. Y.) 408; Howe v. Thompson, 11 Me. 152; Haven v. Hathaway, 20 id. 345; Addams v. Seitzinger, 1 W. & S. (Penn.) 243.

4 Hawley v. Griswold, 42 Barb. (N. Y.) 18; Sibley v. Phelps, 6 Cush. (Mass.) 172; Smith v. Sims, 9 Ga. 418.

Phillips v. Mahan, 52 Mo. 197; Kyger v. Ryley, 2 Neb. 20.

6 Alston v. State Bank, 9 Ark. 457; Chandler v. Lawrence, 3 Mich. 261; Connelly v. Pierson, 9 Ill. 108; Turner v.

fides of the indorsement must be proved when made by the creditor, and relied upon by him to remove the statute bar. The rule in this respect was well stated by LORD ELLENBOROUGH in the case first cited in the last note. In that case, an action of debt on a bond dated in 1785 was brought, and there were several indorsements thereon, acknowledging the receipt of interest down to 1793, which were proved to be in the handwriting of the defendant. These were allowed to be good evidence of the bond remaining unsatisfied at the date of the last indorsement. The presumption from lapse of time being thus repelled, the plaintiff, for the purpose of meeting certain direct evidence of payment, in 1794, proposed to read other indorsements down to 1795, acknowledging the receipt of interest and part of the principal. But these latter indorsements were not in the handwriting of the defendant. An objection being taken to their being read, LORD ELLENBOROUGH thought it necessary to prove that they were on the bond at, or recently after, the times when they bore date. Although it may seem, he said, at first sight against the interest of the obligee to admit part payment, he may thereby, in many cases, set up the bond for the residue of the sum secured. If such indorsements, he continued, were receivable whensoever they may have been written, this would be allowing the obligee to manufacture evidence for himself to contradict the fact of payment. And he had been at a loss to see the principle on which these receipts, in the handwriting of the creditor, have sometimes been admitted as evidence against the debtor; and he was of opinion that they could not properly be admitted, unless they were proved to have been written at a time when the effect of them was clearly in contradiction to the writer's interest. And it has ever since been held that it cannot be taken for granted, in all cases, because a person admits that any portion of an amount due him has been paid, that it in reality has been; and that the mere indorsement of a payment upon a promissory note by the holder, after the expiration of the time limited by the statute, affords no legal evidence that such payment was in fact made.

While the indorsement of a payment made after the note is barred does not furnish evidence sufficient to establish the fact of payment, yet the party seeking its benefit is not deprived thereof, if he can establish such fact by other competent evidence, as it is well settled that, except where the statute otherwise expressly provides, the fact of part payment may be established by parol, and that, too, even though it is evidenced by a writing, which is not produced. But, as previously stated, an in

Crisp, 2 Strange, 287; Sigourney v. Drury, 14 Pick. (Mass.) 387; Gale v. Capron, 1 Ad. & El. 102; Hathaway v. Haskell, 9 Pick. (Mass.) 42; Illsley v. Jewett, 2 Met. (Mass.) 168; Dowling v. Ford, 1 M. & W. 325; Howe v. Thompson, 11 Me. 152; Hunt v. Brigham, 2 Pick. (Mass.) 581.

1 Rose v. Bryant, 2 Camp. 321; Briggs v. Wilson, 39 Eng. L. & Eq. 62; Beatty v. Clement, 12 La. An. 18; Beltzhoover v. Yewell, 11 G. & J. (Md.) 212; Vaughan v. Hankinson, 35 N. J. L. 79; Waters v. Tomkins, 2 C. M. & R. 723.

2 Rose v. Bryant, 2 Camp. 321.
8 Wolf v. Foster, ante. In Eastwood v.

dorsement made a sufficient time before the statute has run to repel any idea that it was made solely with a view to prolong the life of the note, being against the interest of the payee, will keep the note on foot. Thus, in an action by an administrator on a promissory note commenced more than six years after the date of the note, an indorsement in the handwriting of the intestate of a payment purporting to have been made more than two years before the statute of limitations would attach, and six months prior to his death, it was held the jury might regard it as evidence of a new promise, though there was no proof other than as above of the time when said indorsement was actually made.1 The effect of an indorsement may be repelled as proof that no payment was in fact made, or that it was made without the payee's assent. Thus, if the holder of a promissory note receives goods from the promisor, which at his request are sold, and the proceeds indorsed on the note within a reasonable time, it will be considered, in reference to the statute of limitations, as a payment by the maker's order. But if the holder makes such sale and indorsement after a reasonable time has elapsed, without the assent of or notice to the maker, this will not take the note out of the statute. The fact that the rule in relation to indorsements made before the statute has run upon a note or other obligation is prima facie evidence of a payment, being predicated upon the circumstance that it is against the interest of the payee, it follows that the force of this presumption depends upon the time when it was made in reference to the

Saville, 9 M. & W. 615, in an action on a promissory note, made by the defendant, dated the 6th of June, 1834, whereby he promised to pay the plaintiff on demand £35, with lawful interest. There was also a count upon an account stated. Pleas, first, to the first count, that the defendant did not make the note; secondly, to the second count, non-assumpsit; thirdly, to the whole declaration, actio non accrevit infra sex annos. Issues thereon.

The particulars stated, that the plaintiff sought to recover £28, and interest from the 4th of August, 1837, being the balance due on the promissory note, after giving the defendant credit for the sum of £7 paid on account of the note, and also all interest due thereon up to the said 4th of August, 1837.

At the trial before ROLFE, B., on the note in question being produced in evidence by the plaintiff, it bore an indorsement as follows:

"4th August, 1837. "Received of John Saville, £6. "BETTY EASTWOOD."

There was no attestation to this indorsement, nor any proof that the cross was made by the plaintiff; and the whole of it, except the cross, was proved to be in the handwriting of the defendant. There was no proof of any payment by the defendant on account of the note; but to take the case out of the Stat. 9 Geo. IV. c. 14, the plaintiff relied solely on the above indorse

ment.

For the defendant, it was contended that it was an indorsement charging the plaintiff with the receipt of the money, and not an acknowledgment or promise to charge the defendant, within the meaning of Lord Tenterden's act; and that it was necessary to prove a payment of money in fact, to take the case out of the statute. But ROLFE, B., directed a verdict for the plaintiff, which was set aside in Exchequer upon the ground that the indorsement was not evidence of a part payment sufficient to take the case out of the statute, and in the absence of any proof of the fact of pay. ment the plaintiff could not recover.

1 Coffin v. Bucknam, 12 Me. 471.
2 Porter v. Blood, 5 Pick. (Mass.) 54.