1 Bell v. Morrison, 1 Pet. 351, 360; Clementson v. Williams, 8 Cranch, 72; Tanner v. Smart, 6 B. & C. 609; A'Court v. Cross, 3 Bing. 329. A simple acknowledgment of a debt without any qualification may be sufficient to defeat the statute, because the law will imply a promise to pay; but if the acknowledgment be coupled with any thing which negatives such an implication, the implication cannot be made. As when the debtor makes a proposal that if so much be allowed upon one side, he will allow so much on the other, which is not acceded to. Francis v. Hawkesley, 1 El. & E. 1050 (1859). And see Goate v. Goate, 1H.&N. 29.
2 Cornforth v. Smithard, 5 H. & N. 13. And see Sidwell v. Mason, 2 H. & N. 306; Godwin v. Culley, 4 H. & N. 373. A debtor testified in court that an account against him, which was barred by the Statute of Limitations, was a just one, and that he had never paid it, but at the same time claimed that it was barred by the statute, and it was found that he did not intend, in what he said, to promise to pay it. It was held that the admission was not sufficient to remove the bar. Sanford v. Clark, 29 Conn. 457 (1861).
3 Bell v. Morrison, 1 Pet. 362; Bangs v. Hall, 2 Pick. 368; Sumner v. Sumner, 1 Met. 394; Allcock v. Ewen, 2 Hill (S. C), 326; Humphreys v. Jones. 14 M. & W. 1; 2 Greenleaf on Evid. § 440; Perley v. Little, 3 Greenl. 97; Stanton v. Stanton, 2 N. H. 426; A'Court v. Cross, 3 Bing. 829. See Lee v. Wilmot, Law R. 1 Exch. 364. If the fair effect of a letter is that the writer is not certain whether the debt is owing or not, but expressing regret that it has "been so long unsettled," it is not sufficient. Collinson v. Margesson, 27 Law J. Ex. 305; 3 H. & N. 954, Am. ed. The language, "I repeat my assurance of the certainty of your being repaid. Let matters remain as they are a short time," has been held any specific sum should be acknowledged to be due,1 if the acknowledgment be sufficiently broad to include the debt, and sufficiently particular to show that it was the subject-matter of the acknowledgment.2 But if only one debt is proved to exist, the acknowledgment will be presumed to refer to that.3 If there be more than one debt, and it be doubtful upon which the acknowledgment or payment be made, neither of them is effected by the acknowledgment.4
§ 1429. The acknowledgment or promise must be by a party fully authorized to make it at the time it is made,5 or it will not avail as against the party from whom the debt is due. Whether, where there is a privity of parties, an acknowledgment and new promise by one is sufficient to revive the debt as to all, is very questionable. In some cases it has been held that if an acknowledgment and promise be made by a principal debtor, it binds his surety;6 if by one of several joint good. Collis v. Stack, 1 H. & N. 605 (1857). And see Edmonds v. Goater, 15 Beav. 415.
1 Dinsmore v. Dinsmore, 21 Me. 433; Davis v. Steiner, 14 Penn. St. 275; Williams v. Griffith, 3 Exch. 335; Gardner v. McMahon, 3 Q. B. 561; Walker v. Butler, 6 El. & B. 506; 37 Eng. Law & Eq. 13; Lechmere v. Fletcher, 1 C. & M. 623.
2 Barnard v. Bartholomew, 22 Pick. 291; Ilsley v. Jewett, 2 Met. 168; Arey v. Stephenson, 11 Ired. 86; Martin v. Broach, 6 Ga. 21. See Buckingham v. Smith, 23 Conn. 453. Thus, the defendant owed the plaintiff on a note and on an account, and made a general acknowledgment of indebtedness to the plaintiff, and promised to pay him what he owed him. And it was held that this evidence was not to be rejected on the ground that the promise was too general and indefinite, but that the question of its application was one for the jury. Cook v. Martin, 29 Conn. 63 (1860). But an acknowledgment of an indebtedness upon the aggregate of several claims, but which neither refers to any particular claim nor to one debt only, is not sufficient to take a case out of the statute. Buckingham v. Smith, 23 Conn. 453 (1855).
3 Guy v. Tarns, 6 Gill, 82; Woodbridge v. Allen, 12 Met. 470.
4 Burn v. Boulton, 2 Com. B. 476; Nash v. Hodgson, 6 De G., M. & G. 474; 31 Eng. Law & Eq. 555.
5 A third person said in the presence of the plaintiff and defendant, "If W. (the defendant) owes you any thing, he will pay you," to which the defendant assented; and it was held a sufficient acknowledgment to remove the bar of the Statute of Limitations. Lee v. Wyse, 35 Conn. 384 (1868).
6 Frye v. Barker, 4 Pick. 382.
debtors, it binds all;1 if by a guardian, it binds the ward;2 and if by one partner, it binds all.3 But this doctrine has been strenuously denied, and with great cogency of reasoning, and the whole tendency of the modern decisions upon the statute would seem to be against the validity of such a promise in respect to any one except the party promising.4
1 Patterson v. Choate, 7 Wend. 441; 1 Greenleaf on Evid. § 174, 176; Goddard v. Ingram, 3 Q. B. 839.
2 Manson v. Felton, 13 Pick. 206.
3 Wood v. Braddick, 1 Taunt. 104; Walton v. Robinson, 5 Ired. 341; Wheelock v Doolittle, 18 Vt. 440. But see Clark v. Alexander, 8 Scott, N. R. 147. As to executors, qucere. Scholey v. Walton, 12 M. & W. 510; Foster v. Starkey, 12 Cush. 324 (1853); Baxter v. Penniman, 8 Mass. 133; Emerson v. Thompson, 16 Ib. 429, that executors or administrators have the power to revive the liability of the estate by their acknowledgment. But see Peck v. Botsford, 7 Conn. 176; Tullock v. Dunn, R. & M. 416; Oakes v. Mitchell, 15 Me. 360; Forney v. Benedict, 5 Barr, 225; Sanders v. Robertson, 23 Miss. 389; McLaren v. McMartin, 36 N. Y. 88.
4 In the case of Bell v. Morrison, 1 Pet. 351, Mr. Justice Story, delivering the judgment of the court, says: "It still remains to consider whether the acknowledgment of one partner, after the dissolution of the copartnership, is sufficient to take the case out of the statute as to all the partners. How far it may bind the partner making the acknowledgment to pay the debt need not be inquired into; to maintain the present action, it must be binding upon all.