On general principles a new promise either express or implied from an acknowledgment or part payment to be effective must be made by the debtor or by his authorized agent.20 A promise made by a stranger is obviously unsupported by consideration of any kind, and can no more be enforced than any other gratuitous promise.21 The right of an agent to bind his principal by a new promise was cut off by Lord Tenterden's Act.22 This statute, however, did not require a writing to evidence a part payment, which, therefore, continued to have the effect of reviving a barred debt though made by an agent; 23 and as most American courts give the same effect as the English courts to a part payment not evidenced by writing,24 in the United States also part payment made by an agent will revive a debt.25 By a later English statute 26 Lord Tenterden's Act was amended by adding the words "or by his agent duly authorized." Some American States have copied the language of the earlier English statute without the later amendment. In such States, if the English construction is followed, whatever may be the power of an agent to bind his principal by part payment, he cannot do so by a new promise or acknowledgment.27 It may, however,
20Pfenninger v. Kokesch, 68 Minn. 81, 70 N. W. 867; Miser v. Emigh, 63 Neb. 246, 88 N. W. 479; Smith v. Carpenter, 48 N. Y. App. Div. 350, 63 N. Y. 8. 47; Cone v. Hyatt, 132 N. C. 810, 44 S. E. 678, and see cases infra, Sec.Sec. 191-195. Apart from the effect of Lord Tenterden's Act referred to in this section, there is no doubt that an agent acting within the scope of his authority may bind his principal by a new promise, or part payment. New-bould v. Smith, 29 Ch. D. 882; Mc-Abee v. Wiley, 92 Ark. 245, 122 S. W. 623; Blanchard v. Jefferson, 162 N. Y. 630, 57 N. E. 1104, affirming s. c 13 N. Y. App. Div. 314, 43 N. Y. S. 152; Walker v. Caasels, 70 S. Car. 271, 49 S. E. 862.
21Pitsgerald v. Flannagan (Ia), 125
N. W. 995; Morris v. Hailehurst, 30 Md. 362.
229 Geo. IV, c. 14. See supra, Sec. 104.
23Rew v. Pettet, 1 A. & E. 196; Jones v. Hughes, 5 Exch. 104; New-bould v. Smith, 29 Ch. D. 882.
24 See supra, Sec. 174.
25 Cook v. Atkins, 173 Ala. 363, 56 So. 224; Boulder Natl. Bank v. Row-land, 1 Col. App. 468; First Natl. Bank v. Ballou, 49 N. Y. 155; Clute v. Clute, 197 N. Y. 439, 90 N. E. 988, 134 Am. St. Rep. 891; and see cases in the following section. Where an agent authorized only to make a payment in full satisfaction makes payment on account, the debt is not revived. Lin-sell v. Bonsor, 2 Bing. (N. C.) 241.
26 Mercantile Law Amendment Act, 19 & 20 Vict., c. 97.
27 DeRaismes v. DeRaismes, 70 N, J.
be thought that the construction by the English court of the earlier statute was unduly narrow, and that even if the words of that statute are substantially copied, an agent should have the same power to bind his principal in this case as in others.28 Whether a particular person who purports to act as agent has power to do so in a particular case, is mainly a question of fact and need not be here considered.