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Thompson, J., who gave the opinion of the court, holds, that there was no direct admission of a present subsisting debt. He held, also, that it was uncertain whether the conversation referred to the note in question. "The evidence that this was the only five hundred dollar note of his lying over in the bank, might afford a plausible conjecture that this was the one alluded to. But that is not enough, according to the rule laid down in Bell v. Morrison."1

§ 239. If the acknowledgment be indefinite as to the amount of the demand acknowledged, as if it be an acknowledgment of a balance, and it is left uncertain what that balance is, the plaintiff, it has been held, is entitled to nominal damages; 2 but there must be an absolute admission of some debt being due. But if the acknowledgment is broad and particular enough in its terms to include a particular debt, the amount actually due, it has been held, may be proved by extrinsic evidence. According to Bell v. Morrison, it is indispensable for the plaintiff to establish, by independent evidence, the extent

1 1 Peters, R. 351.

2 Per Lord Tenterden, in Dickinson v. Hatfield, 5 Car. & Payne, R.; Dodson v. Mackey, 4 Nev. & Man. R. 327.

8 Chesly v. Dalby, 4 Younge & Coll. R. 238. (Ex Eq. side.)

4 Barnard v. Bartholomew, 22 Pick. (Mass.), R. 291; Sumner v. Sumner, 1 Metcalf (Mass.), R. 394. In New Hampshire, in the case of a declaration by the maker of a promissory note, upon its being presented for payment, that he had paid part, and had certain demands against the holder, but that something was due, which he was ready to pay, without specifying any sum, it was held sufficient to take the case out of the statute, and entitle the plaintiff, at least, to nominal damages. If any thing was due, the plaintiff was entitled to recover; and if he failed in rendering the amount certain, he must suffer the loss so far as the uncertainty extends, but an uncertainty as to the amount of damages is no bar to the plaintiff's recovery, if any thing is due. Eastman v. Walker, 6 N. Hamp. R. 367. The principle was considered well settled, in Dixon v. Deveridge, 12 Car. & Payne, R. 104; Fierze v. Thompson, 1 Taunt. R. 121. The court also, cite Dickinson v. Hatfield, 1 Moody & Mal. 141. A similar decision was made in New Hampshire, in Kittredge v. Brown, 9 N. Hamp. R. 377; and that where the amount is due is admitted, it will be evidence to show the extent of the promise, and that the party designed to hold himself liable in such sum. It was held, in Maine, in Dinsmore v. Dinsmore, that the precise amount due need not have been named by the party to be charged in his acknowledgment; and that it is sufficient if he admits an amount approximating to the amount claimed; and the precise amount may be proved aliunde. Dinsmore v. Dinsmore, 8 Shep. (Me.), R. 433. [But see, Suter v. Sheeler, 22 Penn. St. 308; McRea v. Leary, 1 Jones (N. C.), Law, 91; Shaw v. Allen, Busbee (N. C.), Law, 58; Huff v. Richardson, 19 Penn. St. 388; Shitler v. Bremer, 23 id. 416.]

5 1 Peters (U. S.), R. 351.

of the balance due him before there can arise any promise to pay it as a subsisting debt. "The evidence," says Mr. Justice Story, in delivering the opinion of the court, "is clear of the admission of an unsettled account, as well from the letters of Butler, as the conversations of Morrison. The letter acknowledged that the partnership 'was owing' the plaintiff, but as he had not the books, he could not settle with him. If this evidence stood alone, it would be too loose to entitle the plaintiff to recover any thing. The language might be equally true, whether the debt were one dollar or ten thousand dollars." "If it be not indispensable for the plaintiff to show the extent of the balance," says the learned judge, "does it not let in the whole mischief intended to be guarded against by the statute? Does it not enable the party to bring forward stale demands after a lapse of time, when the proper evidence of the real state of the transaction cannot be produced? Does it not tend to encourage perjury, by removing the bar upon slight acknowledgments of an indeterminate nature? Can an admission that something is due, or some balance accruing, be justly construed into a promise to pay any debt, or balance which the party may assert or prove before a jury? If there be an express promise to such an effect, that might be pressed as a dispensation with the statute; but the question here is, whether the law will imply such a promise from language so doubtful and general." Parker, J., in the Court of Appeals, of Virginia,1 takes a like view of the subject: "To allow an acknowledgment of an unsettled demand, liable to be diminished by offsets, to take a case out of the statute, lets in most unsatisfactory proof of the quantum of damages, and has induced the jury in this very case to imply a promise to pay the whole amount of the account, although the defendant insisted he had some offsets against it, which, after the lapse of time, he might have been unable to prove." Mr. J. Cabell, in the same case, stated, that the utmost that even a jury could infer from the acknowledgment proved in the case, was a promise to pay an unascertained balance. Then he proceeds, "That balance might be one cent only, or it might be within one cent of the original amount of the plaintiff's demand, what it really was depended upon testimony aliunde. This promise, then, certainly left the defendant exposed to all the inconveniences arising from the loss of testimony in relation to his offsets, and we cannot,

1 Sutton v. Burrus, 9 Leigh (Va.), R. 381.

therefore, give effect to it without frustrating the great object of the statute." 1

1 The reasoning and the views taken by the Supreme Court of the United States, and by the Court of Appeals of Virginia, are maintained in that State, in Aylett v. Robinson, 9 Leigh, R. 45; in North Carolina, in Smallwood v. Smallwood, 2 Dev. & Batt. R. 390, and in Peebles v. Mason, 2 Dev. 347; in Pennsylvania, in Magee v. Magee, 10 Watts, R. 172; in Maine, in Fray v. Garcelon, 5 Shep. R. 145; in Missouri, in Davis v. Herring, 6 Mo. R. [Where part of an account is barred by the statute, an admission of indebtedness and a general promise to settle and pay, is not such a new promise as will take the case out of the statute, for it may refer to that part unaffected by the statute. Morgan v. Walton, 4 Barr (Penn.), 521.]

CHAPTER XXII.

ACKNOWLEDGMENT BY PART PAYMENT.

§ 240. AN acknowledgment or new promise may be inferred from the fact of part payment of a contract within six years, or from the payment of a smaller, on account of a greater, sum of money due from the party making the payment to the party to whom it is made.1

1 See Whitcomb v. Whiting, 2 Doug. R. 652; [Rucker v. Frazier, 4 Strobh. (S. C.), 93; Ayer v. Hawkins, 19 Vt. (4 Washb.), 28; Carshore v. Huyck, 6 Barb. (N. Y.), Sup. Ct. 583; Smith v. Simms, 9 Geo. 418. But part payment is only primâ facie evidence and may be rebutted by other evidence and by the circumstances under which it is made. State Bank v. Wooddy, 5 Eng. (Ark.), 638; Arnold v. Downing, 11 Barb. (N. Y.), Sup. Ct. 554; Jewett v. Petit, 4 Mich. 508; Aldrich v. Morse, 28 Vt. (2 Wms.), 642. And the court cannot imply a promise from the mere fact of part payment, as an inference of law. It must be left to the jury. White v. Jordan, 27 Me. (14 Shep.), 370. Part payment on a note by a surety in the presence and with the knowledge and without any dissent of the principal, is equivalent to payment by the principal. Wilkins v. Stevens, 2 Foster (N. H.). But part payment by a surety after the action is barred, does not revive his liability for the other part. Emmons v. Overton, 18 B. Mon. (Ky.), 643. Part payment after action brought will not take a debt out of the statute. Bateman v. Pindar, 2 G. & D. 790. But see, contra, Love v. Hackett, 6 Geo. 486. And more recent cases, both in this country and England, have denied that from the mere fact of part payment of the principal, the jury are authorized to infer a promise to pay the rest. Smith v. Westmoreland, 12 S. & M. (Miss.), 663. And in Davies v. Edwards (6 Eng. Law & Eq. 520, s. c. 15 Jur. 1044), where the payment was by the assignee of the debtor, the court, per Parke, Baron, holds the following language: "I am of opinion that no rule ought to be granted in this case, and that the judge at nisi prius was right in nonsuiting the plaintiff. The last statute of limitations, applicable to this class of cases, is the 9 Geo. IV. c. 14, which makes a promise in writing requisite to take a case out of the operation of the statutes on this subject, but which enactment is followed by a proviso, that nothing therein contained 'shall alter or take away, or lessen, the effect of any payment of any principal or interest made by any person whatsoever.' The question is, whether there has been such a payment in the present case as will take it out of the statute of limitations in respect to the plaintiff. The subject was not so much considered at the time when Jackson v. Fairbank, and the subsequent case in the Queen's Bench of Brandram v. Wharton, were decided, as it has been since. It has more recently undergone much consideration, and the principle has been laid down in this court, that a part payment, in order to be sufficient to take a case out of the statute, must be made on account of a sum admitted to be due, accompanied by a promise to pay the remainder. The first case establishing

So, from giving security for a part or whole within six years,1 or a negotiable note; 2 and the payment of interest has the same effect as payment of a part of the principal.3 Thus, the payment of interest by the principal promisor, in a joint and several promissory note, an

that principle is Tippets v. Heane, 1 C. M. & R. 252, which was decided in 1834, where I delivered the judgment. The question there was, whether a sum of money, proved to have been paid to the plaintiff, on what account did not appear, was sufficient to take the case out of the statute of limitations. I am there reported, I dare say correctly, to have said, '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 the debt. Secondly, it must appear that it 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 part payment. Unless it amounts to an admission that more is due, it cannot operate as an admission of any still existing debt." The same rule was laid down by Lord Abinger, in 1840, in his judgment, in a case of Waugh v. Cope, 6 M. & W. 824, and afterwards in 1847, in Wainman v. Kynman, 1 Exch. 118; where it was held, that a part payment of a debt would not take a case out of the statute of limitations, unless there were also a promise in writing to pay the remainder.* If this doctrine is applicable to a payment made by the party himself, it is impossible to contend that a payment by the assignees of a bankrupt or insolvent involves a promise by him to pay the remainder of the debt, so as to enable the creditor to sue him for it after the expiration of the six years. If payment of this dividend would not have the effect of taking the case out of the statute, supposing it had been made by the party himself, a fortiori, it cannot have that effect when not made by the party or his agent, but by a third party, namely, an assignee appointed to distribute his effects. There has, therefore, been no part payment in this case sufficient to take it out of the statute; for the only one proved is one by a third party to the promissory note, under circumstances which show it is not binding either as against himself or the other makers." See also, Note by the Editors to Bradfield v. Tupper, 7 Eng. Law and Eq. 541; and S. P. Roscoe v. Hale, 6 Gray (Mass.), 274; Stoddard v. Downe, id. 387]. 1 Whitney v. Bigelow, 4 Pick. (Mass.), R. 110; Manderston v. Robertson, 4 Man. & Ryl. R. 410; [Balch v. Onion, 4 Cush. (Mass.), 559. But an undelivered mortgage, though executed, acknowledged, and recorded, is no security. Merriam v. Leonard, 6 Cush. (Mass.), 151].

2 Illsley v. Jewett, 2 Met. (Mass.), R. 168.

8 Wyatt v. Hodson, 8 Bing. R. 309. It makes no difference, that the interest paid within the time limited by the statute accrued before. Beasley v. Greenslade, 2 Tyrw. (Ex.), R. 121; Fryeburg v. Osgood, 8 Shep. (Me.), R. 176; [Bradfield v. Tupper, 7 Eng. Law & Eq. 541; Conwell v. Buchanan, 7 Blackf. (Ind.), 537; Sanford v. Hayes, 19 Conn. 591; Walton v. Robinson, 5 Ired. (N. C.), 341; Worthington v. Grimsditch, 15 L. J. (N. 8.), Q. B. 52; s. c. 10 Jur. 26; Braildon v. Walton, 1 Exch. 617].

In Willis v. Newham, 3 Y. & J. 519, it was held, that a verbal acknowledgment of a payment of part of a debt, within six years, is not sufficient, within the 6 Geo. IV., c. 14, to take the case out of the statute of limitations; but this has been recently overruled in Cleave v. Jones, 15 Jur. 515; s. c. 4 Eng. R. 514.

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