Merriam v. Bayley

Metcalf, J. The only question in this case is, whether a jury ought to infer, from the facts agreed, that the defendant has made such an acknowledgment or promise as binds him to pay the sum which remains unpaid on his note. . The plaintiff’s counsel rely on the effect given to part payment, in taking a case out of the operation of the statute of limitations, and insist that the same effect should be given to the payment made in this case. The only authority cited, which tends to support this position, is Alsop v. Brown, 1 Doug. 192, where lord Mansfield is reported to have said, that if a certificated bankrupt had paid interest on his bond, “ he might be liable, as on a new contract,” to pay the principal. But it was afterwards held by lord Ellenborough, that in a suit on a new promise, made by a bankrupt, to pay a debt from which he had been discharged, the plaintiff must prove a distinct and unequivocal promise to pay it. Lynbuy v. Weightman, 5 Esp. R. 198; Fleming v. Hayne, 1 Stark. R. 370. And so the recent English writers state the law to have been, before St. 6 Geo. IT. c. 16, <§> 131, required such promises to be in writing, and signed by the party, or by some person thereto authorized by him in writing. Esp. on Bankrupt Laws, 340 ; 1 Cooke’s Bankrupt Laws, (8th ed.) 504; Wilkinson on Lim. 152; 1 Steph. N. P. 148. The same strict rule of proof is applied to new promises alleged to have been made by discharged insolvent debtors. Mucklow v. St. John, 4 Taunt. 613; Brook v. Wood, 13 Price, 667; Depuy v. Swart, 3 Wend. 139; Moore v. Viele, 4 Wend. 422. We think this is a fit and salutary rule, and that it must be applied to the case before us. It therefore follows, that a jury ought not to infer, from the mere fact that the defendant paid part 79 of his note to the plaintiff, and indorsed thereon the sum paid, that he made a distinct and unequivocal promise to pay the rest of it. Part payment is not of itself conclusive, even to take a case out of the statute of limitations. The circumstances that attend such a payment may wholly disprove a promise to pay any more. Wainman v. Kynman, 1 Welsh. Hurlst. & Gord. 118. Judgment for the defendant.