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assigned to the creditor, to be applied, without special direction, to four notes, he may apply them upon all, so as to take them all out of the statute.369 And where A. makes a note to B., and afterwards lends him money payable on demand, and payments are made by him on the note until it is reduced to an amount which would be extinguished (as he intended) by the loan, the money lent will be available as a set-off in an action upon the note, although it was payable on demand, and had never been demanded, and would have been barred, except for the payments made on the note.3

370

Only voluntary payments, however, imply a promise to pay the balance of the debt. Thus, the collection of collateral given with the original debt will not affect the statute.371 So, a payment of money into court will only take a bill or note out of the statute to the extent of the actual payment.372 So, a payment allowed by the court against the estate of a deceased maker, and indorsed on a note, will not affect the liability of a guarantor.373 So, a compulsory payment of interest by a judgment does not amount to an acknowledgment of the debt.37+ Nor the payment of a dividend by the assignee of an insolvent or bankrupt maker.375 And such dividend made on the original consideration will not bar the statute as to the co-drawer of a bill given and accepted for it.37 And, in general, a dividend from the estate of a

376

369 Taylor v. Foster, 132 Mass. 30.

370 Perkins v. Coleman, 51 Miss. 298.

371 Wolford v. Cook (Minn.) 73 N. W. 706; Moffitt v. Carr, 48 Neb. 403, 67 N. W. 150.

372 Byles, Bills, 357; Chit. Bills, 692; 2 Pars. Notes & B. 660; Reid v. Dickons, 5 Barn. & Adol. 499, 2 Nev. & M. 369; Long v. Greville, 3 Barn. & C. 10, 4 Dowl. & R. 632.

373 Root v. Bradley, 1 Kan. 437.

374 Morgan v. Rowlands, L. R. 7 Q. B. 493. So, money collected by fi. fa. against the co-obligor of a bond. Disborough v. Bidleman, 20 N. J. Law, 275: Moffitt v. Carr, supra.

375 Roscoe v. Hale, 7 Gray (Mass.) 274; Pine River Bank v. Swazey, 47 N. H. 154; Merchants' & M. Bank of Pittsburgh v. Watson, 46 Pa. St. 310. But see, contra, Letson v. Kenyon, 31 Kan. 301, 1 Pac. 562, where the note was included in the maker's schedule of creditors, and a dividend was afterwards

paid on it by the assignee.

376 Chit. Bills, 688; Brandram v. Wharton, 1 Barn. & Ald. 463; Ex parte Woodward, Mont. & A. 609.

bankrupt maker is not such acknowledgment as to render a co-maker liable. 377

Manner of Payment.

§ 1623. The debtor's bill of exchange, 378 or promissory note,379 is a sufficient payment, as made at the time of drawing, and not at the time of maturity; 380 but if it is given as collateral, to be collected and applied on the debt, it will be a payment when the money is received. 381 Part payment may also be made by the note of a third person. 382 And even an indorsement correcting and reducing the amount will act as a payment.3

383

If a payment in Confederate currency is accepted by the creditor, it will bar the statute, as a valid payment.384 So, if a payment is made and received in goods; 385 or if the support of a child is paid under

377 Byles, Bills, 360; Chit. Bills, 688; Jackson v. Fairbank, 2 H. Bl. 340. But see Davies v. Edwards, 21 Law J. Exch. 4.

378 Byles, Bills, 356; 2 Pars. Notes & B. 655; Turney v. Dodwell, 3 El. & Bl. 136; Irving v. Veitch, 3 Mees. & W. 90. So, a bill which was paid, coupled with a request to take the balance in horse hire. Walker v. Butler, 6 El. & Bl. 506.

379 Either of the debtor himself, Ilsley v. Jewett, 2 Metc. (Mass.) 168; or of another person, Smith v. Ryan, 66 N. Y. 352; but where a surety gives his note, with an oral condition for suit on the original note and payment of the proceeds to the holder, it is not a new promise to take the original note out of the statute, Gragg v. Barnes, 32 Kan. 301, 4 Pac. 276.

380 Byles, Bills, 356; Chit. Bills, 692; Hart v. Nash, 2 Cromp. M. & R. 337; Hooper v. Stephens, 7 Car. & P. 260, 4 Adol. & E. 71; Irving v. Veitch, 3 Mees. & W. 90. So, a note payable at a distant day, Harper v. Fairley, 53 N. Y. 442; Smith v. Ryan, supra; or a bill collected several years after its date, Gowan v. Forster, 3 Barn. & Adol. 510; so, an agreement to take property in payment is a payment from its date, not from the indorsement on the note, nor from the delivery of the property, Lincoln v. Johnson, 43 Vt. 74.

381 Haven v. Hathaway, 20 Me. 345. The money being afterwards collected on it by the debtor as agent of the creditor, and paid over. Whipple v. Blackington, 97 Mass. 476.

382 Buffinton v. Chase, 152 Mass. 534, 25 N. E. 977. But see Whitcher v. McConnell, 59 N. H. 470.

383 Bouton v. Hill, 4 App. Div. 251, 38 N. Y. Supp. 498.

384 Dupre v. Lumpkin, 28 La. Ann. 584.

385 Hooper v. Stephens. 7 Car. & P. 260, 4 Adol. & E. 71; Hart v. Nash, 2 Cromp. M. & R. 337. Especially when the note was so payable. Clapp v. In

gersol, 11 Me. 83.

an agreement to allow it as a payment of interest on the note.386 So, where the maker suffers the holder to overdraw his account with him to the amount of the interest due on the note.387 So, an indorsement by consent of a credit for overcharges in the original consideration is a sufficient acknowledgment, although not properly a pay

ment.3

388

Proof of Payment-Indorsement by Debtor.

§ 1624. The payment may now be proved, like any other fact, by parol evidence.389 But it must be proved as a fact by the party relying on it.390 And the fact is for the jury to determine.391 It was formerly held that mere verbal admissions by the debtor were not sufficient,392 A verbal acknowledgment is sufficient to prove the appropriation of a payment to the debt in question,393 as well as to prove the payment. So, an agreement for satisfaction by paying for the support of a child may be proved by evidence of a former settlement and receipt on that basis.394 And the payment of interest on a note may be proved by entries made at the maker's request in the deceased payee's books.395

The indorsement of payment on a note may be a sufficient acknowl

386 Bodger v. Arch, 10 Exch. 333.

387 In re Baldwin, 11 App. Div. 551, 42 N. Y. Supp. 642.

388 Phillips v. Mahan, 52 Mo. 197. But an offer of the holder (refused by the creditor after refusing payment of the note) to credit on it a charge for a night's lodging is not sufficient. Kyger v. Ryley, 2 Neb. 20.

389 Byles, Bills, 361; Cleave v. Jones, Me. 392; Sibley v. Lumbert, 30 Me. 253. Curtis v. Nash, 88 Me. 476, 34 Atl. 273;

S. W. 1057.

6 Exch. 573; Egery v. Decrew, 53 Although not indorsed on the note. Henry v. Diviney, 101 Mo. 378, 13

399 McGehee v. Greer, 7 Port. (Ala.) 537; Bender v. Blessing, 91 Hun, 73, 36 N. Y. Supp. 162.

391 Gibson v. Peebles, 2 McCord (S. C.) 418.

392 Byles, Bills, 361; Chit. Bills. 691; Willis v. Newham, 3 Younge & J. 518; Baildon v. Walton, 1 Exch. 632; Waters v. Tompkins, 2 Cromp. M. &

R. 723.

303 Byles, Bills, 361; Waters v. Tompkins, supra; Bevan v. Gething, 3 Q. B. 740; Baildon v. Walton, supra.

394 Bodger v. Arch, 10 Exch. 333. 185 Bradley v. James, 13 C. B. 822.

edgment to take it out of the statute; 396 but, if made by the holder, it must be shown to have been made before the statute had barred the note.397 And it is sufficient, in the absence of any statute to the contrary, if it is made in the payee's handwriting.398 And, if the indorsement is admissible, the date is presumptive evidence of the time when it was made." It must be shown, however, that such indorsement was made by the maker, or with his consent." And, if no payment was actually made, the statute will not be stayed by an unsigned indorsement of payment. 401 The maker's own indorsement, or other admission of payment, is sufficient proof.402 And, if the maker is dead, his signature and handwriting in the indorsement may be proved by parol.40

399

403

400

Indorsement by Holder.

404

§ 1625. The holder's receipt, indorsed without the maker's knowledge, and without other proof of payment, is insufficient. And it is now provided in Great Britain, and in many of the United States, that no indorsement or memorandum of payment on a bill or note,

396 Hopkins v. Stout, 6 Bush (Ky.) 375; Carter v. Carter, 44 Mo. 195. In Georgia it must be signed by the party to be bound. Civ. Code, § 2034; Obear v. Bank, 97 Ga. 587, 25 S. E. 335. And the holder cannot sign it as agent for the maker. Wright v. Bessman, 55 Ga. 187. An indorsement may apply to several notes written on one sheet. Sanborn v. Cole, 63 Vt. 590, 22 Atl. 716.

397 White v. Beaman, 85 N. C. 3; Young v. Perkins, 29 Minn. 173, 12 N. W. 515; Mills v. Davis, 113 N. Y. 243, 21 N. E. 68; Harding v. Grim, 25 Or. 506, 36 Pac. 634; Young v. Alford, 118 N. C. 215, 23 S. E. 973; Bailey v. Danforth, 53 Vt. 504.

398 But the date does not prove payment or indorsement at that time, Shaffer v. Shaffer, 41 Pa. St. 51; and the date of the payment, not that of the indorsement, determines the effect, Young v. Alford, 118 N. C. 215, 23 S. E. 973; unless otherwise agreed, Manson v. Lancey, 84 Me. 380, 24 Atl. 880.

399 Byles, Bills, 262; Chit. Bills, 693; Smith v. Battens, 1 Moody & R. 341; Anderson v. Weston, 6 Bing. N. C. 296.

400 Boulin v. Rainey, 21 La. Ann. 335.

401 Blanchard v. Blanchard, 122 Mass. 558.

402 Chandler v. Lawrence, 3 Mich. 261..

403 Gordon v. Knox, 31 La. Ann. 284.

404 Whitney v. Bigelow, 4 Pick. (Mass.) 110.

written or made by or on behalf of the party to whom the payment is made, "shall be deemed sufficient proof of such payment" to take it out of the statute.405 And an indorsement in the writing of the payee is no evidence of payment, without proof that it was made with the knowledge of the maker. 406 Payment indorsed must be duly proved. 407 An indorsement in the holder's handwriting is admissible, but must be supported by other evidence.108 But an indorsement in the handwriting of a friend, accustomed to act as agent for the maker as well as for the payee, is prima facie sufficient.* too, an indorsement by the holder at the maker's request.410 receipt for interest, indorsed by the holder to the maker as received from the indorser, will bind the indorser, if he afterwards assents to it on a copy being shown him.*

411

Part Payment by Joint Maker.

409

So,

And a

$ 1626. Payment by one maker of a joint or joint and several note stops the running of the statute as to all, where there is no statutory 4059 Geo. IV. c. 14; ARKANSAS (Sand. & H. Dig. § 4849); COLORADO (Mills' Ann. St. § 2921); INDIANA (Horner's Rev. St. § 303); MAINE (Rev. St. c. 81, § 100); MASSACHUSETTS (Pub. St. c. 197, § 16); MICHIGAN How. Ann. St. § 8729); NEW JERSEY (2 Gen. St. p. 1976, § 18); VERMONT V. S. § 1216); WISCONSIN (Sanb. & B. Ann. St. § 4247). So, Rogers v. Anderson, 40 Mich. 290; Hulbert v. Nichol, 20 Hun (N. Y.) 454; Davidson V. Delano, 11 Allen (Mass.) 523; Concklin v. Pearson, 1 Rich. Law (S. C.) 391; Parker v. Butterworth, 46 N. J. Law, 244; Cleaveland v. Dinsmore, 59 Vt. 436, 8 Atl. 279, as to law of Maine; Green v. Hall, 36 Ga. 538: George v. Gardner, 49 Ga. 441; Schlottfeldt v. Bull, 18 Wash. 64, 50 Pac. 500; Davidson v. Harrisson, 33 Miss. 41; especially when there was other evidence tending to show it was not indorsed bona fide, Chambers v. Walker, 4 Rich. Law (S. C.) 548; so, where the signature was by a mark, and the rest of the indorsement was in the holder's handwriting, Eastwood v. Saville, 9 Mees. & W. 615.

40€ Davidson v. Delano, 11 Allen (Mass.) 523; Connelly v. Pierson, 9 Ill. 108.

407 Snyder v. Winsor, 44 Mich. 140, 6 N. W. 197.

498 Clapp v. Ingersol, 11 Me. 83.

409 Briggs v. Wilson, 17 Beav. 330.

410 Sibley v. Phelps, 6 Cush. (Mass.) 172. So, an indorsement by the payee's agent at the request and in the presence of the maker and surety. Green V. Juhan, 66 Ga. 531.

411 Huntington v. Ballou, 2 Lans. (N. Y.) 120.

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