now that I have got the ball rolling, am in hopes to do good business in the future.. "69 "I am ashamed the account has stood so long;" 70 a promise to make a due bill though accompanied with a refusal to sign promissory notes; 71 a request for an extension of time; 72 a request from a surety that the creditor should get all he could from the principals, coupled with the statement that he himself would be home in two weeks and see the creditor; 73 a promise to "settle "; 74 a promise to renew a note.75 But renewal notes cannot be considered promises to pay the original notes.76 A promise to pay interest indicates sufficiently an intention to pay the principal." Where a debtor in making out a statement of his affairs for a creditor inserts therein a barred debt as due to the creditor the statute begins to run afresh.78 Asking for an account of specified indebtedness since it implies an admission of its existence revives the debt; 79 and so does assent to the correctness of an account presented by the

69 Wright v. Parmenter, 23 N. Y. Misc. 629, 52 N. Y. S. 99. See also as to expression of hope of ability Sidwell v. Mason, 2 H. & N. 306, 310.

70 Cornforth v. Smithard, 5 H. & N. 13.

71 Benedict v. Slocum, 95 N. Y. App. Div. 602, 88 N. Y. S. 1052.

72 Clayton v. Watkins, 19 Tex. Civ. App. 133, 47 S. W. 810.

73 Woodsville Guaranty Sav. Bank v Ricker, 85 Vt. 340, 82 Atl. 2.

74 Mowry v. Saunders, 33 R. I. 45, 80 Atl. 421. See also Hopkins v. Warner, 109 Cal. 133, 41 Pac. 868; Brody v. Doherty, 30 Miss. 40, 44; Edson v. Fuller, 22 N. H. 183, 190; Stilwell v. Coope, 4 Denio, 225, 226; Taylor v. Miller, 113 N. C. 340, 18 S. E. 504. But see contra, Bell v. Crawford, 8 Gratt. 110, 123.

75 Peavey v. Brown, 22 Me. 100; Rumsey v. Settle's Est., 120 Mich. 372, 79 N. W. 579; Hart v. Boyt, 54 Miss. 547; Bowman v. Rector (Tenn. Ch.), 59 S. W. 389. In Hartranft's Est. 153 Pa. 530, 26 Atl. 104, 34 Am. St. Rep.

717, the court said: "To make a re-
newal note or to waive the Statute by
an instrument in writing to be exe-
cuted in future, will not amount to a
renewal or a waiver when it appears
that the instrument was prepared but
its execution postponed or put off, from
time to time, and finally left undone."
See also Ritter's Estate, 161 Pa. 79, 28
Atl. 1011; Alexander v. Muse, 112 Tenn.
233, 79 S. W. 117. The fact, however,
that the debtor refused or failed to
give the promised renewal note merely
shows that he had changed his mind
since he made the original promise.
76 Foster v. Dawber, 6 Exch. 839.
77 Taylor v. Steele, 16 M. & W. 665.
See also cases infra, § 174, of actual
payment of interest.

78 Holmes v. Mackrell, 3 C. B. (N. S.) 789.

creditor, which includes a barred debt.80 But the debtor's failure to object to such an account submitted by his creditor will not do so.81

§ 172. Illustrations of insufficient acknowledgment.

In the following cases the acknowledgments were held not sufficiently positive to justify the inference of a new implied promise: A letter from the debtor in reply to a claim for $77.91 saying in substance, that the debtor could not pay at once and did not know when he could, adding "furthermore the bill is $55.70 in all, deducting $20 on my last payment;" 82 a letter from the debtor saying "I think a little later as soon as things start up I may be able to do something for you;" 83 a letter from the debtor offering to endeavor to raise a certain sum if the creditor would accept it in full satisfaction of certain notes, adding "I am not backing up or repudiating anything;" 84 a delivery by the maker of a note at the request of the payee's executor of a true copy of the note to the executor; 85 a letter by the maker of a note saying that if he could keep the land which was mortgaged to secure the note a year longer, he thought he could make a half payment in the year and if he could not, he would be glad to give up the land, further asking that he be given a show; a promise to try to pay a debt if sickness did not continue too long, and that the debtor wanted to pay the debt in the current season; 87 an offer to arbitrate, since it does not involve an admission of liability; 87 a promise to leave money by will unless it is

80 Elliott v. Mills, 10 Ind. 368;

81 Re McHenry, 71 L. T. Rep. 146; Verrier v. Guillou, 97 Pa. 63; Robinson v. Monroe (Tex. Civ. App.), 25 S. W. 53.

82 Wald v. Arnold, 168 Mass. 134, 46 N. E. 419. See also France v. Ruby, 93 Neb. 214, 140 N. W. 175.

"Gill v. Gibson, 225 Mass. 226, 114 N. E. 198.

4 Throop v. Russell, 145 Mich. 482, 108 N. W. 1013, 116 Am. St. Rep. 314. 85 Goodrich v. Case, 68 Oh. St. 187, 67 N. E. 295.

86

86 Wood v. Merrietta, 66 Kans. 748, 71 Pac. 579. In Kansas an acknowledgment must apparently be more direct and explicit than in most States, though, as has been seen (supra, § 167), no new promise needs to be implied. See McMillan v. Leeds, 58 Kans. 815, 49 Pac. 159; Cooper v. Haythorn, 65 Kans. 860, 70 Pac. 581; Durban v. Knowles, 66 Kans. 397, 71 Pac. 829. Cf. decisions stated supra, § 171.

87 Koop v. Cook, 67 Or. 93, 135 Pac. 317.

87a Curtis v. Sacramento, 70 Cal. 412,

clear that the money is to be left, not as a gift, but as payment of an obligation; 88 an acknowledgment of the debt as having once existed. "There must be a distinct and unequivocal acknowledgment of the debt as still subsisting as a personal obligation of the debtor." 89 Therefore, an acknowledgment that a debt subsisted formerly, accompanied with a statement that it has been paid or discharged will not revive a debt, though in fact it has not been paid or discharged.90

§ 173. Giving security is an effective acknowledgment.

The giving of a pledge or other security for a debt is such an acknowledgment of it as a still subsisting obligation as to imply a promise of payment.91 So far as concerns the implication of a new promise, there seems no reason why

11 Pac. 748; Rossiter v. Colby, 71 N. H. 386, 52 Atl. 927. See also Linderman v. Pomeroy, 142 Pa. 168, 21 Atl. 820, 24 Am. St. Rep. 494.

88 Outwaters v. Brownlee, 22 Cal. App. 535, 135 Pac. 300; Schonbachler v. Schonbachler, 22 Ky. L. Rep. 314, 57 S. W. 232; Watson v. Barber, 105 La. 799, 30 So. 127; Gill v. Staylor, 97 Md. 665, 55 Atl. 398. As a new promise to pay a discharged debt in the future is binding, see infra, §§ 179 et seq., it follows that a promise to pay a debt as such at the promisor's death, that is by will, is binding. See Gill v. Donovan, 96 Md. 518, 54 Atl. 117.

89 Shepherd v. Thompson, 122 U. S. 231, 235, 30 L. Ed. 1156, 7 Sup. Ct. 1229, per Gray, J. See also Cooper v. Haythorn, 65 Kans. 860, 70 Pac. 581; Durban v. Knowles, 66 Kans. 397, 71 Pac. 829.

90 Birk v. Guy, 4 Esp. 184; Brydges v. Plumptre, 1 D. & R. 746; Buckmaster v. Russell, 10 C. B. (N. S.) 745; Marshall v. Dalliber, 5 Conn. 480; Kelly v. Strouse, 116 Ga. 872, 43 S. E. 280; New Orleans & Carrollton R. Co. v. Harper, 11 La. Ann. 212; Lombard v. Pease, 14 Me. 349; Higdon's Admrs. v. Stewart, 17 Md. 105; Bailey v. Bailey, 14 S. & R. 195; George v. Ver

mont Farm Machine Co., 65 Vt. 287, 26 Atl. 722. And see decisions supra, § 169, to the effect that an admission coupled with a claim of set-off equal to the creditor's claim will not revive a debt. But see Partington v. Butcher, 6 Esp. 66; Stimis v. Stimis, 60 N. J. Eq. 313, 47 Atl. 20.

91 Russell v. LaRoque, 11 Ala. 352; Merrills v. Swift, 18 Conn. 257, 46 Am. Dec. 315; Maddox v. Walker's Exr., 25 Ky. L. Rep. 124, 74 S. W. 741; Balch v. Onion, 4 Cush. 559; First Nat. Bank v. Bell, 141 La. 53, 74 So. 628; Smith v. Ryan, 66 N. Y. 352, 23 Am. Rep. 60; Miller v. McGee, 2 N. Y. Supp. 156; Souder's Estate, 169 Pa. 239, 32 Atl. 417; Stanford v. Andrews, 12 Heisk. 664; Grayson v. Taylor, 14 Tex. 672. But see Shepherd v. Thompson, 122 U. S. 231, 30 L. Ed. 1156, 7 S. Ct. 1229. The taking by a surety of security from the principal debtor is not an acknowledgment of liability by the surety to the creditor. Holt v. Gage, 60 N. H. 536. In Louisiana it seems to be the law that so long as the creditor retains possession of security belonging to the debtor there is a continuing acknowledgment of the debt. See Taylor v. Vossberg Mineral Springs Co., 128 La. 364, 54 So. 907.

an invalid attempt to give security should not be as effectual as a valid pledge; 92 nor why an offer to give security should not be as unequivocal an acknowledgment of a debt as the actual giving of the security, unless the offer is in the nature of a proposed compromise, which would require acceptance.93 The giving, or the offer to give security may be accompanied with such terms as to negative any implication of an unqualified new promise; 94 and an agreement which goes no further than to provide that certain property shall be applied to the payment of a debt carries with it no implication of a personal promise to pay.95 On the other hand, if there is an unqualified acknowledgment or new promise, the effect of it will not be diminished by the further promise to pay in a certain mode or from specified property.96

§ 174. Partial payment amounts to an acknowledgment.

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," and has continuously represented the generally accepted law.98 In Lord Tenterden's Act," which 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

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. 145; Gill v. Donovan, 96 Md. 518, 54 Atl. 117.

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

999 George IV, c. 14, § 1.

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. 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; and as only a partial payment of it. 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. If, however, it