Partial payment of a debt is regarded as equivalent to an admission of the debt and, therefore, a new promise is implied therefrom. This doctrine was early established in England,66 and has continuously represented the generally accepte law 96 In Lord Tenterden's Act+hich required that new promises to be effective must be in writing, it was expressly provided that nothing in the Act should alter the effect of any payment of principal or interest. This English statute has generally been copied in the United States, but not in identical language. The omission from the statute in some States of the proviso saving the effect of partial payment has been held to involve a repeal of the common-law rule by which such a payment revived the debt, or at least to require such written evidence of the partial payment as would amount to an acknowledgment in writing signed by the debtor.1 But generally no writing is necessary.2 In order that a debt should be renewed by a payment, it must be established that the payment was made on account of the debt in question;3 and as only a partial payment of it4 Accordingly, if the only evidence in a case is the making of a payment, and the further fact that a larger sum was due the creditor, there is not sufficient evidence to submit to the jury in an action by the creditor for the remainder of his claim.5 If, however, it

93 contrary was, however, held in Scott v. Shreveport, 20 Fed. 714 (D. C. La).

93infra, 5 180. Such was the nature of the offer in Exeter Bank v. Sullivan, 6N. H. 124.

94See Cawley v. Fumell, 12C. B. 291; Wella v. Hill, 118 N. G. 900, 24 S. . 771.

95 Rutledge v. Ramsay, S A. & E. 221; Howcutt v. Bonser, 3 Exch. 491; Cawley v. Fumell, 12 C. B 291; Hughes v. Panmore, 7 DeG. M. & 0.229; Everett v. Robertson, I. E. ft E. 16; Shepherd v. Thompson, 122 U. S. 231, 238, 30

L. Ed. 1156, 7 S. Ct. 1229; Cook v. Farley, 1 Neb. Unof. 540,95 N. W. 683.

96 Southern Pacific Co. v. Prosser, 122 Cal. 413, 52 Pac. 836, 55 Pac. 146; Gill v. Donovan, 96 Md. 518, 54 Atl. 117. „

97 Dickson v. Thomson, 2 Show. 126. 98 Hollifs v. Palmer, 2 Bing. (N. C.) 713; Bealy tr. Greenslade, 2 C. & 3. 61; Purdon v. Purdon, 10 M. 4 W. 562; Ridd v. Moggridge, 2 H. & N. 567; In re Salmon, 239 Fed. 413. And see American cases cited in this section.

999 George IV, v. 14, 11.

1Kirk v. Williams, 24 Fed. 437 (Tain.); Peffa v. Vance, 21 Gal. 142; Moore v. Moore, 103 Ga. 517, 521, 30 S. E. 535; Gray v. Pierson, 7 Idaho, 540, 64 Pac. 233; Hale v. Wilson, 70 Ia. 311, 30 N. W. 739; Kleis v. McGrath, 127 Ia. 459, 103 N. W. 371, 69 L. R. A. 260, 109 Am. St. Rep. 396; Anderson v. Robertson, 24 Miss. 389; McCul-lough v. Henderson, 24 Miss. 92; Perry v. Ellis, 62 Miss. 711; Wilcox v. Williams, 5 Nev. 206; Taylor v. Hendrie, S Nov. 243; Lock v. Wilson, 9 Heiak. 784; Locke o. Wilson, 10 Heisk. 441; Polk v. Russell, 7 Baxt. 591; Tilliard v. Hall, 11 Tex. Civ. App. 381, 32 S. W. 863. But even in such States it should be noticed that a writing accompanying the payment and characterizing it may be such an acknowledgment as the law requires. Thus in Campbell v. Campbell, 118 Ia. 131, 91 N. W. 894, a letter enclosing a check and containing these words "which I think pays the interest on my note" was held a sufficient acknowledgment.

2 Walker v. Chicago etc. R, 277 111. 451, 115 N. E. 659; Haslam v. Perry, 115 Me. 295, 98 Atl. 812; Thompson v. Richardson (Mo.), 195 S. W. 1039; Eureka etc. Shingle Co. v. Knack, 95 Wash. 339, 163 Pac. 753, and see cases cited on part payment, passim.

3Waters v. Tompkins, 2 C. M. A R.

723, 726; In re Salmon, 239 Fed. 413; Toothaker v. Boulder, 13 Col. 219, 22 Pac. 468; Reed v. Thomas ft McNeal, 66 Ga. 595; Rothschild v. Sessell, 103 111. App. 274; Ketcham v. Hill, 42 Ind. 64; Good v. Ehrlich, 67 Kana. 94, 72 Pac. 545; Pond v. French, 97 Me. 403, 54 Atl. 920; Day v. Mayo, 154 Mass. 472,28 N. E. 898; Crow v. Gleason, 141 N. Y. 489, 36 N. E. 497; Barnes v. Pickett Hardware Co., 203 Pa. St. 570, 53 Atl. 378; Austin v. MeClure, 60 Vt. 453, 15 Atl. 161; Bell v. Crawford, 8 Gratt. 110.

4 See cases cited in the previous note; also Tippets v. Heane, 1 C. M. & R. 252; Wainman v. Kynman, 1 Exch. 118; Richardson v. Chanalor's Trustee, 103 Ky. 425, 20 Ky. L. Rep. 121, 45 S. W. 774; McCarthy Bros. Co. v. Hanskutt, 29 S. Dak. 535, 137 N. W. 286; Hebin-ger v. Ross, 175 Mich. 241, 141 N. W. 629; Brown v. Latham, 58 N. H. 30; Rogers v. Newton, 71 N. J. L. 469, 58 Atl. 1100; Burdick v. Hicks, 29 N. Y. App. Div. 205, 51 N. Y. S. 789; Notman v. Crooks, 10 U. C. Q. B. 105.

5 Tippets v. Heane, 1 C. M. & R. 252; Brisbin v. Farmer, 16 Minn. 215; Chadwick v. Cornish, 26 Minn. 28; Crow v. Gleason, 141 N. Y. 489, 36 N. E. 497; Burdick v. Hicks, 29 N. Y. App. Div. 205, 51 N. Y. S. 789; Steel v. Matthews, 7 Yerg. 313. In is clear that a payment is made as a partial payment of what the debtor owes, in some jurisdictions at least, it is not essential that the debtor shall indicate to which of several debts which he owes, the payment shall be applied. Under the law governing application of payments6 the creditor may apply the payment to any indebtedness which is not barred or tainted with illegality, or in part to each enforceable debt with the effect of extending the period of limitation on all the indebtedness.7 The propriety of such decisions seems to turn on whether the creditor's right of application is based on assent of the debtor implied in fact or on a rule enforced irrespective of his intention. The payment must be made by the debtor or with his knowledge and acquiescence.8 If there are any words or circumstances tending to negative the implication naturally to be drawn from a partial payment, the debt will not be revived. Thus if the debtor asserts when making the payment that it is made as payment in full,9 or as a gratuity,10 or if he refuses to pay more, no new promises can be implied. So if the debtor promises when making a partial payment, to pay in instalments he can only be held liable to that extent and no general promise can be implied.11 Payment of interest

Mississippi it is held that there must be an express acknowledgment or express promise accompanying the part payment. McCullough v. Henderson, 24 Miss. 92; Anderson v. Robertson, 24 Miss. 389.

6 See infra, Sec.5 1795 et seq.

7 Walker v. Butler, 6 E. & B. 606; Armour Packing Go. v. Vinegar Bend Lumber Co., 149 Ala. 205, 42 So. 866; Samuels v. Samuel's Admr., 151 Ky. 236, 151 S. W. 676, 42 L. R. A. (N. S.) 1165; Blake v. Sawyer, 83 Me. 129, 21 All. 834, 12 L. R. A. 712, 23 Am. St Rep. 762; Ramsay v. Warner, 97 Mass. 8; Kennedy p. Drake, 226 Mass. 303,

. 114 N. E. 310; Anderson v. Nystrom, 103 Minn. 168,172, 114 N. W. 742, 13 L. R. A. (N. S.) 1141,123 Am. St. Rep. 320; Beck v. Haas, 111 Mo. 264, 20 S. W. 19, 33 Am. St. Rep. 516; Wright v. Wayland (Mo.), 188 S. W. 928.

Cf. infra, Sec. 178, as to the law where one of the debts is barred; also supra, Sec. 105, collecting cases where instead of malting & part payment, a debtor who owes several debts makes a general promise of payment.

8 Myers v. Erwin, 180 Mich. 469, 147 N. W. 458; Security Bank v. Finkel-stein, 76 N. Y. Misc. 461, 136 N. Y. S. 640; Union Natl. Bank v. Dean, 139 N. Y. S. 835, 154 N. Y. App. Div. 869.

9Richardson v. Chanalor's Trustee, 103 Ky. 426, 20 Ky. L. Rep. 121, 45 S. W. 774; Hebinger v. Ross, 175 Mich. 241, 141 N. W. 629.

10 Ryan v. Canton Nat. Bank, 103 Md. 428, 63 Atl. 1062; Quincy v. Blanchard, 36 R, I. 296, 90 Atl. 209.

11 Gillingham v. Brown, 178 Mass. 417, 60 N. E. 122, 55 L. R. A. 320.

revives the obligation to pay the principal; 12 and a note for interest is as effectual as cash.12a But an overdue interest coupon on a bond is for this purpose regarded as a separate instrument, and payment of it will not interrupt the running of the statute against the bond.13 Partial payment of the principal revives the obligation to pay the whole remaining debt including interest.14