4 Grenfell v. Girdlestone, 2 Y. & C. 662; Wakeman v. Sherman, 5 Seld. 86; Godwin v. Culley, 4 H. & N. 373.
5 Mountstephen v. Brooke, 3 B. & Ald. 141; Peters v. Brown, 4 Esp. 46; Clark v. Hougham, 2 B. & C. 119; Soulden v. Van Rensselaer, 9 Wend. 293; Whitney v. Bigelow, 4 Pick. 110; Watkins v. Steveus, 4 Barb. 168; Bloodgood v. Bruen, 4 Sandf. 427; Carshore v. Huyck, 6 Barb. 583; St. John v. Garrow, 4 Porter, 223; Oliver v. Gray, 1 H. & G. 204.
6 In Pennsylvania the promise must be to the creditor. Farmers & Mechanics' Bank v. Wilson, 10 Watts, 261; Morgan v. Walton, 1 Penn. St. 323; Christy v. Flemington, 10 Ib. 129; Kyle v. Wells, 17 Ib. 286; Gillingham v. Gillingham, Ib. 302. See, also, as to the effect of an acknowledgment by the maker to the payee of negotiable paper held by a subsequent party, Gale v;. Capern, 1 Ad. & El. 102; Cripps v. Davis, 12 M. & W. 159; Dean v. Hewit, 5 Wend. 257; Little v. Blunt, 9 Pick. 488; Bird v. Adams, 7 Ga. 505; Howe v. Thompson, 2 Fairf. 152.
§ 1431. Whether part payment or payment of interest by one of joint promisors would create a new promise by implication so as to bind all, is also a question of much difficulty. Upon principle, it is difficult to see why a partial payment or a payment of interest should have a different effect from an express promise, the question apparently being one of agency in both cases, and depending upon the authority of the one joint debtor to bind his co-debtors. But the distinction has been clearly taken, and even since the passage of Lord Tenterden's Act the weight of authority is certainly to the effect that a part payment or payment of interest by one is sufficient to render all liable, although by that Act a mere acknowledgment or promise would not have such an effect.3
1 Megginson v. Harper, 2 C. & M. 322; Hill v. Kendall, 25 Vt. 528. See, as to administrators, Baxter v. Penniman, 8 Mass. 133; Jones v. Moore, 5 Binn. 573.
2 Little v. Blunt, 9 Pick. 488; Dean v. Hewit, 5 Wend. 257; Bird v. Adams, 7 Ga. 505; Howe v. Thompson, 2 Fairf. 152. But it would seem necessary, at all events, that the acknowledgment or promise to the prior party should have been made while he was the holder of the paper.
3 Dowling v. Ford, 11 M. & W. 329; Goddard v. Ingram, 3 Q. B. 839; Wyatt v. Hodson, 8 Bing. 309; Manderston v. Robertson, 4 Man. & R. 440; Channell v. Ditchburn, 5 M. & W. 494; Pease v. Hirst, 10 B. & C. 122. These cases are since the Statute of 9 Geo. IV. ch. 14. See, also, Burleigh v. Stott, 8 B. & C. 36; Sigourney v. Drury, 14 Pick. 387; Joslyn v. Smith, 13 Vt. 353; Bogert v. Vermilya, 10 Barb. 32; Dunham v. Dodge, Ib. 566; Reid v. McNaughton, 15 Ib. 168. In Van Keuren v. Parmelee, 2 Comst. 523, it was held that a promise or acknowledgment by one partner, after dissolution of the firm, would not revive against his copartners a debt barred by the statute. And in Shoemaker v. Benedict, 1 Kern. 176, the question came up whether the same rule applied to payments by one partner, it was held that it did. Allen, J., after examining the case of Van Keuren v. Parmelee, said: " Do the points in which this case differs from that decided by the court of appeals, take it without the principles decided and without the Statute of Limitations? I think not.
"First. One point of difference is, that in this case partial payments, and not a promise or naked acknowledgment of the existence of the debt, such time. In both cases the operation would be the same in respect to joint debtors, for the statute is said not to operate upon the debt but only upon the remedy; and if the promise or payment by one of the joint promisors would not revive the debt against his co-promisors when made after the statute attaches, it would not, though made before the statute attached.1
But the English law now is that a pa}-ment by the principal debtor only, does not take a case out of the statute as to a surety, though made with his knowledge and assent, if made wholly out of the principal's funds.1
§ 1432. It seems not to be material whether the new promise or the payment of interest, or part payment, be made before the Statute of Limitations attaches to the debt or after are relied upon to take the case out of the statute. But partial payments are only available as facts from which an admission of the existence of the entire debt and a present liability to pay may be inferred. As a fact by itself a payment only proves the existence of the debt to the amount paid; but from that fact courts and juries have inferred a promise to pay the residue. In some cases it is said to be an unequivocal admission of the existence of the debt; and in the case of the payment of money as interest, it would be such an admission in respect to the principal sum. Again, it is said to be a more reliable circumstance than a naked promise, and the reason assigned is that it is a deliberate act, less liable to misconstruction and misstatement than a verbal acknowledgment. So be it. It is, nevertheless, only reliable as evidence of a promise, or from which a promise may be implied. Any other evidence which establishes such promise would be equally efficacious, and most assuredly a deliberate written acknowledgment of the existence of a debt and promise to pay is of as high a character as evidence of a partial payment, to defeat the Statute of Limitations. In either case the question is as to the weight to be given to evidence, and if a new promise is satisfactorily proved in either method the debt is renewed; and without a promise express or implied, it is not renewed. The question still recurs, who is authorized to make such promise? If one joint debtor could bind his co-debtors to a new contract by implication, as by a payment of a part of a debt for which they were jointly liable, he could do it directly by an express contract. The law will hardly be charged with the inconsistency of authorizing that to be done indirectly which cannot be done directly. If one debtor could bind his co-debtors by an unconditional promise, he could by a conditional promise; and a man might find himself a party to a contract to the condition of which he would be a stranger." See, also, Bell v. Morrison, 1 Pet. 368; Exeter Bank v. Sullivan, 6 N. H. 121; Kelley v. Sanborn, 9 Ib. 46; Whipple v. Stevens, 2 Foster, 219; Belote v. Wynne, 7 Yerg. 534; Graham v. Selover, 59 Barb. 316; Winchell v. Hicks, 18 N. Y. 558. 1 Cockrill v. Sparkes, 1 H. & C. 699 (1863). If a surety on a note indorses thereon a payment as having been made by himself, the Statute of Limitations will be no bar to an action against him, commenced within six years from the time of such payment, notwithstanding he may have paid the money as the agent of the principal, if he did not disclose that fact. Holmes v. Durell, 51 Me. 201 (1861).