A part payment of a debt has always been held to take it out of the statute; (e)1 the six years being counted from such * payment And this is so, though the payment is made by goods or chattels, which it is agreed shall be given and received as payment. (f)2 And even where the debtor gives the tance of the principle involved, and a high respect for the learned tribunals whose decisions have been adverse to the opinion now expressed, demands of us. Consistently with the principles of repeated decisions in this court, that in order to raise a new promise by implication from an acknowledgment, it must contain a direct and unqualified admission of a subsisting debt, which the party is liable and willing to pay; we cannot hold that one item in an account has of itself any force or effect to take other items, which would otherwise be barred, out of the statute." See also Livermore v. Rand, 6 Foster, 85. And the same view is adopted in Kentucky. Lans-dale v. Brashear, 3 T. B. Mon. 330; Smith v Dawson, 10 B. Mon. 112. And in Tennessee: Craigheld v. The Bank, 7 Yerg. 399. But it must be admitted that the main current of American decisions is still in accordance with Catling v. Skoulding. See Kimball p. Brown, 7 Wend. 322; Chamberlain v. Cuvler, 9 id. 126; Sickles v. Mather, 20 id. 72; Todd v. Todd, 15 Ala. 743; Wilson v. Calvert, 18 id. 274; Cogswell v. Dolliver, 2 Mass. 217; Davis a. Smith 4 Greenl. 337; Abbott v. Keith, 11 Vt. 529; Hodge v. Manly, 25 id. 210. Bat see the opinions of the learned judges in the last two cases. In England, this question was set at rest by Lord Tenterden's act, very soon after Tanner p. Smart was decided. See Williams v. Griffiths, 2 Cramp. M. & K. 45; Mills v. Fowkes, 7 Scott, 444; Cottam v. Partridge, 4 Scott, N. R. 819. Care must be taken not to confound the above cases with cases concerning "merchants' accounts,"which we shall consider hereafter.

(e) Whipple v. Stevens, 2 Foster, 219 In this case the court say: "It is well settled that a partial payment of a debt amounts to an acknowledgment of a present subsisting debt, which the party is liable and willing to pay; from which, in the absence of any act or declaration on the part of the party making the payment, inconsistent with the idea of a liability and willingness to pay, a jury may and ought to infer a new promise." And see Stump v. Henry, 6 Md. 201, and cases cited infra. And part payment to an ad-ministrator has the same effect to extend the statute as if made to the creditor himself. Baxter v. Penniman, 8 Mass. 134; Bodger v. Arch, 10 Exch. 333, 28 Eng. L. & Eq. 464.

(f) Hart v. Nash, 2 Cromp. M. & R. 337; Hooper v. Stevens, 4 A. & E. 71; Cottam v. Partridge, 4 Scott, N. R. 819.

1 Under the construction given the statutes of limitations in some States, part payment does not revive a barred debt unless evidenced by writing. Pena v. Vance, 21 Cal 142; Perry v. Ellis, 62 Miss. 711; Wilcox v. Williams, 5 New 206. And in Iowa and Tennessee even if so evidenced it is ineffectual. Kirk v. Williams, (Tenn.) 24 Fed. Rep. 437; Hale v Wilson, 70 la, 311.

2 The delivery by a debtor to a creditor of a promissory note of a third perron as collateral security for, or as conditional payment, in part, of his debt, is equally an acknowledgment of liability for the whole debt, as would be an absolute payment, and is equally effectual to suspend the operation of the statute of limitations. Smith v. Ryan, 66 N. Y. 352. See, also, Manchester v Braedner, 107 N. Y. 346. In Whipple s.Blackington, 97 Mass. 476, the court decided that where collateral was given, it operated only as part payment from the time when a payment was received on the collateral. In Buffinton v. Chase, 152 Mass. 534, the debtor gave the creditor an order on a third person, and the creditor accepted this person's note for an amount less than hit claim; this was held a part payment of the claim.

creditor his negotiable promissory note or bill of exchange, on account of a larger debt, (g) it is held to operate as part payment

(g) This was decided in Massachusetts in the case of llaley v. Jewett, 2 Met. 168* But the decision was put upon the ground, that in that State the giving of such note or bill is prima facie evidence of payment and discharge of the debt for which it is given. A similar decision, however, has been made in the recent case of Turney v. Dodwell, 3 Ellis & B. 136, 24 Eng. L. & Eq. 92, in England, where no such rule prevails. That was an action by the plaintiff, and payee of a promissory note, against the defendant as maker. The defendant pleaded the statute of limitations. It appeared upon the trial, that the defendant, being indebted to the plaintiff, on the 5th of May, 1843, gave to him the note sued on, for £108 15s. In February, 1848, the defendant having been pressed to pay part of the debt, accepted a bill of exchange, drawn upon him by the plaintiff, for £30, in part payment of the promissory note. And this was held sufficient to take the note out of the statute of limitations. Lord Campbell, in delivering the judgment of the court, said. "The only question in this case was, whether a part payment by a bill of exchange, drawn by the plaintiff and accepted by the defendant, was sufficient to take the case out of the statute of limitations. The circumstances under which the acceptance was given, were such as to show that the payment was made as a part payment of the whole amount due, so as to raise the implication of a fresh promise, and therefore to be an answer to the defence of the statute of limitations, if the part payment by bill were a part payment within the 9 Geo. IV. c 14. It was said, on the part of the defendant, and we think correctly, that we ought to assume that the payment in question was not an absolute payment in satisfaction, so as to be a discharge if the bill were dishonored. If the payment had been one of absolute satisfaction no question could have arisen; and we have, therefore, to consider whether the payment in the usual manner in which bills of exchange are given and taken in payment, is a payment within the proviso of the 9 Geo. IV. c. 14, by which the effect of part payment is preserved. The counsel for the defendant referred us to the case of Gowan v. Forster, 3 B. & Ad. 507, where a doubt was expressed as to whether the drawing of a bill was a sufficient acknowledgment, within the 9 Geo. IV. c. 14, and to the case of Foster v Dawber, 6 Exch. 839, where the Court of Exchequer thought that, under the circumstances, no promise to pay any balance could be implied in the particular case; but there is nothing to show that they thought that a part payment by bill might not be an acknowledgment, to take the case out of the statute of limitations, as to the remainder. On the other hand, in the case of Irving v. Veitch, 3 M. & W. 90, the expressions used by the learned barons lead us to suppose that they thought such part payment by bill sufficient. In both Gowan v. Forster, and Irving v. Veitch, it was unnecessary to determine the point now in question, as the courts most properly held, that the acknowledgment, if any, was at the time of delivering the bills in part payment, and not at their subsequent payment by the parties on whom the bills in those cases were drawn. At the trial, in the present case, the Lord Chief Justice of the Common Pleas held, that the part payment was sufficient to take the case out of the statute of limitations, and we entirely concur in that ruling. Before the statute 9 Geo. IV., such a part payment was clearly sufficient to take the case out of the statute of limitations as amounting to an acknowledgment of the balance being due, and the real question is, whether such payment by bill, though not received in absolute satisfaction, is not a payment within the proviso in that statute. The effect of giving a bill of exchange on account of a debt, is laid down in Maule, J., in the recent case of Belshaw v. Bush, 11 C. B. 191, approving the doctrine of the Court of Exchequer, in Griffiths v. Owen, 13 M. & W. 58, and of Alderaon, B., in James v. Williams, 13 M. & W. 833. In all those authorities such a delivery of a bill is laid down as a conditional payment We do not see why its immediate operation as an acknowledgment of the balance of the demand being due, is at all affected by its operation as a payment being liable to be defeated at a future time. The statutes intending to make a distinction between mere acknowledgments, by word of mouth, and acknowledgments proved by the act of payment, it surely cannot be material whether such payment may afterwards be avoided by the thing paid turning out to be worthless. The intention and the act by which it is evinced remain the same. We think that the word 'payment' must be taken to be used by the legislature in a popular sense, and in a sense large enough to include the species of payment in question;