Royston v. May

BRICKELL, C. J. When a debtor, owing more than one debt to the same creditor, makes a partial payment, not directing its application, the creditor has .the election to apply it to either of the debts which may be due, and not within the bar of the statute of limitations.-Callahan v. Bozeman, 21 Ala. 236; Bobe v. Stickney, 36 Ala. 482; Robinson v. Allison, 36 Ala. 525. The right of the creditor to apply the payment, and its effect otherwise than as an extinguishment pro tanto of the debt to which it is applied, are different questions. The precise question now presented is, whether such an application, the sole act of the creditor, in which the debtor does not participate, and of which he has no notice, will interrupt the running of the statute of limitations upon the debt to which the payment is applied. The reason and principle on which a partial payment operates to take a debt without the statute of limitations, is, that by the payment the party making it intends to acknowledge and admit the greater debt to be due; and, as is said in U. S. v. Wilder, 13 Wall. 254, “if it was not in the mind of the debtor to do this, then the statute, having begun to run, will not be stopped by reason of such payment.” In Mills v. Fowkes, 5 Bing. N. C. 455, it was said by TiNdal, C. J., that “in order to have that effect, the payment must expressly be made in discharge of part of a larger debt, which accrued six years or more before the payment.” And EesKINB, J., said: “In order, by a part payment, to take a case out of the operation of the statute, the payment should be made on account of the particular debt; the reason is, that the payment is taken as an acknowledgment, and, therefore, the inteution of the party making it is material.” In Pond v. Williams, 1 Gray, 630, Shaw, C. J., said, that a partial payment, to have the effect of interrupting the running, or of removing the bar of the statute, “ must be made by the defendant specifically on account of the debt . . . , because it is, by implication, the payment of a part of a larger subsisting debt, and, therefore, it is an admission, a conclusive admission on the part of the debtor, of the actual existence of the balance as a subsisting debt, notwithstanding the lapse of time, and the legal operation of the statute; from this acknowledgment of the defendant the law [401] implies a new promise, which prevents the operation of the statute.” It.is not a mere payment that interrupts the running of the statute, or removes -the bar of the statute when it is complete. The payment must be a partial payment of a debt the debtor recognizes as subsisting, and intends to extinguish in part. If this does not appear, an acknowledgment of an existing liability, and of a willingness to make further payment is not shown; the running of the statute is not interrupted, nor its bar, if complete, removed.-Brown v. Latham, 58 N. H. 30; S. C. 42 Am. Rep. 568. Tinder the present statute, a partial payment merely interrupts the running of the statute — it will not remove the bar of the statute when it has attached. And it must be a payment made “by the party sought to be charged.”-Code of 1876, § 3240. It is not open to controversy, that the partial payment now relied upon as an answer to the plea of the statute of limitations, was the act of the creditor, and not of the debtor, who did not participate in, or have any notice of it. While it may have-been an act the creditor could do lawfully, the only benefit he could derive from it was the payment partially of the debts to which he appropriated the payment in preference to the satisfaction of other debts. The debtor made no acknowledgment of the existence of the debt now sued upon ; it was not in his mind; and the running of the statute could not be arrested by the sole act of the creditor. The Circuit Court erred in the instructions given the jury, and, as this conclusion will most probably be decisive of the case upon another trial, we deem it unnecessary to consider the other assignments of error. Reversed and remanded.