51. Part payment of a debt is evidence of a new promise to pay the remainder. 2 Dougl. 652. lt is, however, butprima facie evidence, and may be rebutted by other evidence. 28 Vt. 642 ; 27 Me. 370 ; 4 Mich. 580 ; 10 Ark. 638. Payment of the interest has the same effect as payment of part of the principal. 8 Bingh. 309 ; 14 Pick. Mass. 387. And the giving a note for part of a debt, 2 Mete. Mass. 168, or for accrued interest, is payment. 13 Wend. N. Y. 267 ; 6 Mete. Mass. 553 ; 24 Eng. L. & Eq. 92. And so is the credit of interest in an account stated, 6 Johns. N. Y. 267, and the delivery of goods on account. 4 Ad. & E. 71. But the payment of a dividend by the assignee of an insolvent debtor is no new pro mise to pay the remainder, 7 Gray, Mass. 387; 6 Eng. L. & Eq. 520; and it has recently been held by respectable authorities that new part ipayment is no new promise, but, in order to take the case out of the statute, the payment must be made on account of a sum admitted to be due, accompanied with a promise to pay the remainder. 1 Exch. 188 ; 6 Mees. & W.
Exch. 824; 6 Eng. L. & Eq. 520 ; 20 Miss. 663.
52. Part payment by a surety in the pre sence of his principal, and without dissent, is payment by the principal, 22 N. H. 219 ; but part payment by the surety after the sta tute has barred the debt, is not a new promise to pay the other part. 18 B. Monr. Ky. 643. A general payment on account of a debt for which several notes were given, without direc tion as to the application of the payment, may be applied by the creditor to either of the notes, so as to take the note to which the payment is applied out of the statute; but the payment cannot be apportioned to the several notes with the same effect. 19 Vt. 26; 31 Eog. L. & Eq. 55; 1 Gray, Mass. 630.
53. The payment may be rnadOto an agent, or even a stranger not authorized to receive it, but erroneonsly supposed to be authorized. It is as much an admission of the debt as if made to the principal himself. 1 Bingh. 480 ; 10 Barnew. & C.122. And so with reference to acknowledgments or new promises. 4 Pick. Mass. 110 ; 9 id. 488 ; 9 Wend. N. Y. 293 ; 11 Me. 152. And the weight of authority is in favor of the rule that part payment of a wit nessed note or bond will avoid the statute. 30 Me. 164 ; 9 B. Monr. Ky. 438; 12 Mo. 94; 18 Ark. 521: contra,1 Ala. x. s.482. Whe ther the new promise or paymept, if made after the debt is barred by the iftatute, will remove the bar, is also a mooted point, the weight of authority perhaps being in favor of the negative. 14 Pick. Mass. 387 ; 10 Ala. N. s. 959; 13 Miss. 564; 2 N. Y. 523; 12 id.
635 ; 14 Ark. 199. In Ohio it is so, by sta tute. 17 Ohio, 9. Forthe affirmative, see 18 Vt. 440; 20 Me. 176 ; 5 Ired. No. C. 341; 2 Tex. 501; 8 Humphr. Tenn. 656.
54. It was long held that an acknowledg ment or part payment by one of several joint contractors would take the claim out of the statute as to the other joint-contractors, 2 Dougl. 652; 2 H. Blackst. 340 ; but this cannot now be considered to be the law either in England or this country. 6 Eog. L. & Eq. 520 ; 10 Barb. N. Y. 566; 2 N. Y. 523 ; 11 id. 176 ; 22 N. H. 219 ; 10 Ark. 108; 7 Gill, Md. 857 ; 19 Miss. 275 ; 1 N. J. 677 ; 6 Cush. Mass. 360; 9 Ga. 467 ; 8 Penn. St. 337; 24 Ala. N. s. 474: 9 Rich. So. C. 44. A fortiori the ad mission or part payment by an executor or administrator of one joint-debtor will not revive the claim as against the other.
55. Of course an acknowledgment or part payment made by an agent acting within the scope of his authority is, upon the familiar maxim, qui facit per alium facit per se, an acknowledgment or part payment by the principal ; and hence if a partner has been appointed specially to settle the affairs of a dissolved partnership, his acknowledgment or part payment by virtue of his authority as such agent will take the claim out of the sta tute. 6 Johns. N. Y. 267 ; 1 Pet. 351 ; 20 Me. 347, And the wife may be such agent as to a claim for goods sold to her duriog the absence pf her husband, 1 Campb. 394 ; but a wife during coverture, not made specially or by implication of law an agent, cannot make a new promise effectual to take a claim to which she was a party dum sola out of the statute. 1 Barnew. & C. 248 ; 24 Vt. 89; 12 Eng. L. & Eq. 398. Not even though the co verture be removed before the expiration of six years after the alleged promise. 2 Penn. St. 490.
56. Nor is the husband an agent for the wife for such a purpose,15 Vt. 471 ; but he is an agent for the wife, payee of a note given to her dung sola, to whom a new promise or part pay ment may be made. 6 Q. B. 937. So a new promise to an executor or administrator is suffi cient, 8 Mass. 134 ; and the weight of author ity seems to be in favor of the biniling force of a promise or part payment made by an executor or administrator, 12 Cush. Masa. 324 ; 12 B. Monr. Ky. 408 ; 9 Ala. s. 502 ; 17 Ga. 96 ; 9 Eng. L. & Eq. 80 ; particularly if the promise be express. 15 Johns. N. Y. 3 ; 15 Me. 360. But there are highly respect able authorities to the contrary. Whart. Penn. 66 ; 23 Miss. 389 ; 7 Md. 442; 9 id. 317; 14 Tex. 312.