332

So, a promise by one maker of a joint and several note.s But not so an acknowledgment made by one joint maker by indorsing payment after he had transferred his interest.333 On the other hand, even after dissolution of a firm, the joint obligation was held to continue, and one partner might bind the other by his promise upon making a part payment.3 But a contrary rule is now established in many states. 33 And a distinction is made under the statute of 9 Geo. IV. c. 14, between verbal and written acknowledgments; and a written acknowledgment (which must be signed by the party to be charged) cannot be made binding upon a partner or joint maker who did not sign it.33 And

334

in many of the United States it is expressly provided that the statute shall not be barred as to any party by the acknowledgment or promise of another, who is jointly liable.337 This applies also to a promise

832 Sifton v. McCabe, 6 U. C. Q. B. 294; Dinsmore v. Dinsmore, 21 Me. 433. Although the maker, against whom the note was revived, was only a surety. Shepley v. Waterhouse, 22 Me. 497.

333 Wellman v. Southard, 30 Me. 425.

334 Byles, Bills, 358; 2 Pars. Notes & B. 657; Wood v. Braddick, 1 Taunt. 104. So, by an acknowledgment of the debt. McIntire v. Oliver, 9 N. C. 209; Wheelock v. Doolittle, 18 Vt. 440; Walton v. Robinson's Adm'r, 27 N. C. 341. Or a new promise. Clement v. Clement, 69 Wis. 602, 35 N. W. 17. And he might bind a dormant partner. Bridge v. Gray, 14 Pick. (Mass.) 55.

335 Van Keuren v. Parmelee, 2 N. Y. 523; Whitney v. Reese, 11 Minn. 138 (Gil. 87); Ellicott v. Nichols, 7 Gill (Md.) 85. So, as to an acknowledgment. Bell v. Morrison, 1 Pet. 351; Levy v. Cadet, 17 Serg. & R. (Pa.) 126; Belote's Ex'rs v. Wynne, 7 Yerg. (Tenn.) 533; Muse v. Donelson, 2 Humph. (Tenn.) 166; Stelle v. Jennings, 1 McMul. (S. C.) 297; Yandes v. Lefavour, 2 Blackf. (Ind.) 371; Terry v. Platt (Del. Super.) 40 Atl. 243. Or an alteration extending the time of payment (and, with it, the statute). Mitchell v. McHenry, 62 Iowa, 352, 17 N. W. 578.

336 Martin v. Bridges, 3 Car. & P. 83.

COL

337 ARKANSAS (Sand. & H. Dig. § 4838), but not as to payments. ORADO (Mills' Ann. St. §§ 2918, 2922). GEORGIA (Civ. Code, $$ 3791, 3792). INDIANA (Horner's Rev. St. § 302). MAINE (Rev. St. c. 81, §§ 97, 100), and payments. MASSACHUSETTS (Pub. St. c. 197, § 17). MICHIGAN (2 How. Ann. St. §§ 8726, 8727). MISSISSIPPI (Ann. Code, § 2757). As to a written promise by one joint promisor, Foute v. Bacon, 24 Miss. 156. So, Briscoe v. Anketell, 28 Miss. 361, whether promise or acknowledgment. MISSOURI (Rev. St. § 6794). NEW JERSEY (2 Gen. St. p. 1976, § 17). NORTH CAROLINA (Code, § 171). VERMONT (V. S. § 1217). VIRGINIA (Code, § 2923). WEST VIRGINIA (Code, c. 104, § 9). WISCONSIN (Sanb. & B. Ann. St. § 4244). So, in PENNSYLVANIA. Bush v. Stowell, 71 Pa. St. 208. So, as to a sealed note in NORTH

So, an

made by one joint maker after the note has become barred.338 acknowledgment by one surety will not be binding upon the cosurety, 339

Acknowledgment-To Whom and How Made.

340

341

§ 1619. The acknowledgment or promise may be made to an agent; or even, it has been held, to one who is a stranger to the paper. Thus, a recital in a deed to a third party, that the bill was outstanding and unpaid, has been held sufficient.342 And an acknowledgment or promise made to a party inures to the benefit of subsequent holders. 343 And even a letter by one maker of a joint and several note to another has been held to bar the statute as against the writer.344

Upon an agreement after maturity to pay a bill in installments the statute will run from the maturity of the installment.34 But upon

a general promise of payment it will run from, and include, the date

CAROLINA. Campbell v. Brown, 86 N. C. 376. And judgment suffered by one of several joint makers of a sealed note will not be an acknowledgment to bind the others. Lane v. Richardson, 79 N. C. 159. Mitchell v. McHenry, 62 Iowa, 352, 17 N. W. 578.

338 Parker v. Butterworth, 46 N. J. Law, 244.

339 Winchell v. Hicks, 18 N. Y. 558.

340 Burt v. Palmer, 5 Esp. 145. Or an attorney having the note for collection. Sennott v. Horner, 30 Ill. 429.

341 Peters v. Brown, 4 Esp. 46; Oliver v. Gray, 1 Har. & G. (Md.) 204. But in New York it has been held that it must be to the creditor or his agent. Wakeman v. Sherman, 9 N. Y. 85. And see Whitney v. Bigelow, 4 Pick. (Mass.) 110. See, too, § 155 n., supra.

342 Byles, Bills, 361; Mountstephen v. Brooke, 1 Barn. & Ald. 224. So, in New York, if the recital is intended to be communicated to the creditor and the grantee assumes the payment of the note. De Freest v. Warner, 98 N.

Y. 217.

343 Byles, Bills, 361; Benj. Chalm. Dig. art. 253; Gale v. Capern, 1 Adol. & E. 102, 3 Nev. & M. 863; Cripps v. Davis, 12 Mees. & W. 159; Dean v. Hewit, 5 Wend. (N. Y.) 257; Marshall v. Smith, 20 U. C. C. P. 356.

344 Byles, Bills, 361; Chit. Bills, 687; Halliday v. Ward, 3 Camp. 32. But a promise by the assignee of one partner to his co-maker will not be sufficient. Wellman v. Southard, 30 Me. 425.

345 Irving v. Veitch, 3 Mees. & W. 90.

of the promise.346 So, it runs from the date of an indorsement to pay "in any time within six years." 347 But if the maker promises not to set up the statute, if the holder wait until his circumstances enable him to pay, the statute will begin to run in his favor from the time he becomes able, although the holder received no notice and had no knowledge of it until many years afterwards.348

Proof of Acknowledgement.

351

§ 1620. The burden of proving a promise to bar the statute is upon the party alleging it.349 If only one debt is shown, the defendant has the burden of proving that the promise did not relate to that debt, but to some other.350 But it may be shown that the acknowledgment related to a debt of approximately the same amount.3 A simple indorsement, unexplained, is not sufficient evidence of itself to bar the statute,352 although formerly an indorsement in the handwriting of a deceased payee was held to be sufficient in Maine.35 Where the statute requires the acknowledgment to be in writing, signed by the party to be bound, a mere indorsement of payment is not sufficient.354 But, if there has been a sufficient written acknowledgment, its contents may be proved by parol evidence, where admissible, as in other cases.3

355

346 Presbrey v. Williams, 15 Mass. 193. Or if the maker is then out of the state, as soon as he comes into it. Little v. Blunt, 9 Pick. (Mass.) 488. 347 Young v. Weston, 39 Me. 492. 348 Waters v. Thanet, 2 Q. B. 757. 349 Riser v. Snoddy, 7 Ind. 442. And it is not enough to prove an acknowledgment that the debt is not paid, without acknowledgment or proof of its existence. Oliver v. Gray, 1 Har. & G. (Md.) 204.

350 Guy v. Tams, 6 Gill (Md.) 82. Although the acknowledgment was of a general indebtedness. Whitney v. Bigelow, 4 Pick. (Mass.) 110.

351 Dinsmore v. Dinsmore, 21 Me. 433.

352 Rogers v. Anderson, 40 Mich. 290. So, an indorsement signed by the payee "Credit $15 by J. S." Guignard v. Parr, 4 Rich. Law (S. C.) 184. 353 Coffin v. Bucknam, 12 Me. 471.

354 Parker v. Butterworth, 46 N. J. Law, 244; Hale v. Wilson (Iowa) 3 N. W. 739.

355 Haydon v. Williams, 7 Bing. 163, 4 Moore & P. S11. E. g. to prove the date of a letter acknowledging a debt. Edmunds v. Downes, 2 Cromp. & M. 459.

(2312)

Acknowledgment by Payment.

356

§ 1621. Part payment of a bill or note amounts to an acknowledgment of the debt, from which a promise will be implied. And a payment of interest is, in general, sufficient to take the principal debt out of the statute,357 although the payment was made within the six years, but the interest was due long before.3 358 And it has been suggested, although without apparent good reason, that a payment of the principal will, in like manner, take the unpaid interest out of the statute.35 The act of 9 Geo. IV. leaves the effect of a part payment as it was before, unchanged.36 But in some of the United

3 Byles, Bills, 352; Hollis v. Palmer, 2 Bing. N. C. 713, 3 Scatt, 265; Willey v. State, 105 Ind. 453, 5 N. E. 884; Evans v. Smith, 34 Me. 33; Eaton v. Gillet. 17 Wis. 435; Allen v. Clark, 49 Vt. 390; Buckingham v. Orr, 6 Colo. 587: Engmann v. Immel, 59 Wis. 249, 18 N. W. 182; Newlin v. Duncan, 1 Har. (Del.) 204. So, a payment within 20 years on a witnessed note, Estes v. Blake, 30 Me. 164; especially where it is accompanied by an express agreement for another payment, McGehee v. Blackwell, 28 Ark. 27; but the action is on the original debt, and not on the subsequent promise, Biscoe v. Stone, 11 Ark. ; although it may be set out in the pleading, according to its effect, as a new promise. Willey v. State, 105 Ind. 453, 5 N. E. 884. The statutory, requirement that an acknowledgment or new promise shall be in writing does not change the effect of a part payment. Mills v. Davis, 113 N. Y. 243, 21 N. E. 68; Lyle v. Esser, 98 Wis. 234, 73 N. W. 1008.

357 Byles, Bills, 357; Chit. Bills, 693; 2 Pars. Notes & B. 656; Purdon v. Purdon, 10 Mees. & W. 562; Bamfield v. Tupper. 7 Exch. 27; Hollis v. Palmer, 2 Bing. N. C. 713; 3 Scott, 265; Anthony v. Fritts, 45 N. J. Law, 1; Sanford v. Hayes, 19 Conn. 591; Trustees of Real Estate Bank v. Hartfield, 5 Ark. 551; Taylor v. Perry, 48 Ala. 240; Koslowski v. Yesler, 2 Wash. T. 407, 8 Pac. 493. So, too, a payment of interest, tendered to, and released, receipted, and indorsed by, the payee, who said he would present it to his daughter-in-law, the maker's wife, and so wrote her. Maber v. Maber. L. R. 2 Exch. 153.

33 Bealy v. Greenslade, 2 Cromp. & J. 61; the payment being made within six years, Trustees of Parsonage Fund in Fryeburg v. Osgood, 21 Me. 176; So, where the maker paid £1 and said, “This puts us straight for last year's interest, all but 18s.; some day next week I will bring that up," Evans v. Davies, 4 Adol. & El. 840.

259 Byles, Bills, 357. But see 2 Pars. Notes & B. 656.

360 2 Pars. Notes & B. 631; Nash v. Hodgson, 6 De Gex, M. & G. 474, reviewing Bevan v. Gething, 3 Q. B. 740; Tippets v. Hearne, 1 Cromp. M. & R. 252: Waters v. Tompkins, 2 Cromp., M. & R. 723; Mills v. Fowkes, 5 Bing. N. C. 455; Waugh v. Cope, 6 Mees. & W. 824; Burn v. Boulton, 2 C. B. 476.

States a payment has been held to be insufficient under statutes then in force. 361

364

A part payment, in general, takes a bill or note out of the statute, whether made before it was barred,3 362 or afterwards.363 But a payment made on Sunday will have no such effect.3 And neither a part payment nor an acknowledgment of the debt will bar the statute, if accompanied by words or circumstances showing a contrary intention.365 So, if the payment is not intended to be applied on the note, it cannot be used to take it out of the statute.366

Payment on Collateral-Involuntary.

§ 1622. Where the same debt is secured by different instruments, payment of interest on one will take the others out of the statute.367 And a general payment, applied by the creditor to a note which was not barred at the time, in preference to one that was barred, will take the former out of the statute, although the creditor might have applied the payment to the other note.368

So, if securities are

361 Fairbanks v. Dawson, 9 Cal. 89, as to a payment made before the statute expired; Shumate v. Williams, 34 Ga. 245, under the act of 1856, no longer in force; Parsons v. Carey, 28 Iowa, 431; Harrencourt v. Merritt, 29 Iowa. 71; Roberts v. Hammon, Id. 128; Anderson v. Robertson, 24 Miss. 389; Smith v. Westmoreland, 12 Smedes & M. (Miss.) 663; Taylor v. Hendrie, 8 Nev. 243. 862 English v. Wathen, 9 Bush (Ky.) 387. But see, contra, Emmons v. Overton, 18 B. Mon. (Ky.) 643.

363 Sinnett v. Sinnett, 82 Me. 278, 19 Atl. 458. And if the time of the indorsement is proved, the payment will be presumed to have been made then. In re Kellogg, 104 N. Y. 648, 10 N. E. 152.

364 Clapp v. Hale, 112 Mass. 368; Dennis v. Sharman, 31 Ga. 607.

365 Jewett v. Petit, 4 Mich. 508. E. g. by saying he owed more, but would not pay. Wainman v. Kynman, 1 Exch. 118.

366 Krone v. Krone, 38 Mich. 661. But where the application of a payment has been disputed, the maker cannot set it up more than six years afterwards against a bona fide holder. Murphy v. Reedy (Miss.) 2 South. 167.

367 Byles, Bills, 361; 2 Pars. Notes & B. 662; Dowling v. Ford, 11 Mees. & W. 329. And where it revives a note, it will also revive the collateral mortgage. Schmucker v. Sibert, 18 Kan. 104. But a note is not revived by a payment credited upon a sale under a collateral mortgage where the land was conveyed to, and the mortgage assumed by, another. Campbell v. Baldwin, 130 Mass. 199.

868 Nash v. Hodgson, 6 De Gex, M. & G. 474.