Part payment of a debt is evidence of a new promise to pay the remainder ; Carshore v. Huyck, 6 Barb. (N. Y.) 583; Blaskower v. Steel, 23 Or. 106, 31 Pac. 253. It is, how ever, but prima facie evidence, and may be rebutted by other evidence; Aldrich v. Morse, 28 Vt. 642; White v. Jordan, 27 Me. 370; Jewett v. Petit, 4 Mich. 508; L. R. 7 Q. B. 493 ; U. S. v. Wilder, 13 Wall. (U. S.) 254, 20 L. Ed. 681; Harper v. Fairley, 53 N. Y. 442 ; Davidson v. Harrisson, 33 Miss. 41. The payment must be voluntary and made with the intent that it should be applied upon the debt ; Austin v. McClure, 60 Vt. 453, 15 Atl. 161. Payment of the interest has the same effect as payment of part of the principal; 8 Blngh. 309; Barron v. Kennedy, 17 Cal. 574; Town of Huntington v. Chesmore, 60 Vt. 566, 15 Atl. 173. And the giving a note for part of a debt ; Ilsley v. Jewett, 2 Mete. (Mass.) 168 ; Pracht v. McNee, 40 Kan. 1, 18 Pac. 925; or for accrued interest, is payment; Weuman v. Ins. Co., 13 Wend. (N. Y.) 267> 28 Am. Dec. 464; Sigourney v. Wetherell, 6 Mete. (Mass.) 553; and so is a second mort gage given as payment of interest on the first mortgage; Blair v. Carpenter, 75 Mich. 167, 42 N. W. 790; and so is the credit of interest in an account stated ; Smith v. Ludlow, 6 Johns. 267; and the delivery of goods on account; 4 Ad. & B. 71; Sibley v. Lum bert, '30 Me. 253 ; Randon v. Toby, 11 How. (U. S.) 493, 13 L. Ed. 784. But the pay ment of a dividend by the assignee of an insolvent debtor is no new promise to pay the remainder ; Stoddard v. Doane, 7 Gray (Mass.) 387; 6 E. L. & Eq. 520; and it has been held -by respectable authorities that new part payment is no new promise, but that iu order to take the case out of the statute, the payment must be made on ac count of a sum admitted to be due, accom panied with a,,proinise to pay the remainder ; 6 M. & W. 824; Smith v. Westmoreland, 12 Smedes & M. (Miss.) 663 ; Roscoe v. Hale, 7 Gray (Mass.) 274. Payments of part of the sum sued for do not take the case out of the statute, when the evidence does not show that at the time of such payment, the party knew that he owed the sum in suit and the payments were apparently made on account of bills that accrued after the accrual of the debt in suit ; Crow v. Gleason, 141 N. Y. 489, 36 N. E. 497. And a payment intended to cover the whole amount due is ineffectual as part payment to defeat the operation of the statute ; Compton v. Bowns, 5 Misc. 213, 25 N. Y. Supp. 465.
Part payment upon a mortgage debt will extend the limitation period for actions upon the mortgage as well as upon the debt; Hughes v. Thomas, 131 Wis. 315, 111 N. W. 474, 11 L. R. A. (N. S.) 744, 11 Ann. Cas. 673. Where stock is assigned as collateral security to the payee of a note, dividends thereon if applied are payments on the debt and will stay the running of the statute; Bosler v. McShane, 78 Neb. 86, 110 N. W. 726, 12 L. R. A. (N. S.) 1032; but paytnent of taxes on a mortgage does not prevent the running of a statute, nor is the mortgagor estopped from so pleading ; Snyder v. Miller, 71 Kam 410, 80 Pac. 970, 69 L. R. A. 250, 114 Am. St. Rep. 489.
Part payment by a surety in the presence of his principal, and without dissent, is payment by the principal; Whipple v.
Stevens, 22 N. H. 219 ; but part payment by the surety after the statute has barred the debt, is not a new promise to pay the other part ; Emmons v. Overton, 18 B. Monr. (Ky.) 643. A payment by the maker of a note cannot be relied on to take the note out of the 'statute as to the surety ; Davis v. Mann, 43 'Ill. App. 301. A general payment on ac count of a debt for which several notes were given, without direction as to the application of the payment, may be applied by the cred itor 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 ap portioned to the several notes with the same effect; Ayer v. Hawkins, 19 Vt. 26; 31 E. L. & Eq. 55; Pond v. Williams, 1 Gray (Mass.) 630. With respect to promissory notes and bonds, the general proof of part payment or of interest is the indorsement thereon ; 1 Ad. & B. 102 ; Hathaway v. Haskell, 9 Pick. (Mass.) 42; Roseboom v. Billington, 17 Johns. (N. Y.) 182. But it must be made bona fide, and with the privity of the debtor ; 2 Campb. 321; Read v. Hurd, 7 Wend. (N Y.) 408; President, etc., of Village Bank v. Arnold, 4 Mete. (Mass.) 587.
The payment may be made to an agent, or even a stranger not authorized to receive it, but erroneously supposed to be author ized. It is as much an admission of the debt as if made to the principal himself; 1 Bingh. 480; 10 B. & C. 122. And so with reference to acknowledgments or new prom ises; Whitney v. Bigelow, 4 Pick. (Mass.) 110; Howe v. Thompson, 11 Me. 152; Philips v. Peters, 21 Barb. (N. Y.) 351; Palmer v. Butler, 36 Ia. 576; Keener v. Crull, 19 Ill. 189. And the weight of authority is in favor of the rule that part payment of a witnessed note or bond will avoid the statute; Estes v. Blake, 30 Me. 164; Craig v. Callaway County Court, 12 Mo. 94 ; Armistead v. Brooke, 18 Ark. 521. Whether the new prom ise or payment, if made after the debt is barred by the statute, will remove the bar, is also a mooted point, the weight of authority perhaps being in favor of the negative ; Sigourney v. Drury, 14 Pick. (Mass.) 387; Deshler v. Cabiness, 10 Ala. 959; Davidson v. Morris, 5 Smedes & M. (Miss.) 564; Van. Keuren v. Parmelee, 2 N. Y. 523, 51 Am. Dec. 322 ; Mason v. Howell, 14 Ark. 199. In Ohio it is so, by statute; Hill v. Henry, 17 Ohio 9. For the affirmative, see Wheelock, Son & Co. v. Doolittle, 18 Vt. 440, 46 Am. Dec. 163; Walton v. Robinson's Adm'r, 27 N. C. 341; Hays v. Cage, 2 Tex. 501; Hunter v. Starkes, 8 Humphr. (Tenn.) 656; Yaw v, Kerr, 47 Pa. 333; Carshore v. Huyck, 6 Barb. (N. Y.) 583.
It was long held that an acknowledgment or part payment by one of several joint contractors would take the claim out of the statute as to the other joint-contractors ; Steph. Ey. § 17; 2 Greenl. Ev. 438; 2 H. Bla. 340; and such is the law in some parts of the Union ; Frye v. Barker, 4 Pick. (Mass.) 382; Noyes v. Cushman, 25 Vt. 390; Caldwell v. Sigourney, 19 Conn. 37; Turner v. Ross, 1 R. I. 88 ; Winchell v. Hicks, 18 N. Y. 559; contra, Bell v. Morrison, 1 Pet. (U. S.) 351, 7 L. Ed. 174; Exeter Bank v. Sulli van, 6 N. H. 124; Belote's Ex'rs v. Wynne, 7 Yerg. (Tenn.) 534; Levy v. Cadet, 17 S. & R. (Pa.) 17 Am. Dec. 650; Myatts v. Bell, 41 Ala. 222.