An acknowledgment or part payment made by an agent acting within the scope of his authority is, upon the familiar maxim, qui tacit per cilium tacit per se, an acknowl edgment or part payment by the principal ; see Tayl. Ev. 606; and hence if a partner has been appointed specially to settle the affairs of a dissolved partnership, his ac knowledgment or part payment by virtue of his authority as such agent will take the claim out of the statute ; Smith v. Ludlow, 6 Johns. (N. Y.) 267; Bell v. Morrison, 1 Pet. (U. S:) 351, 7 L. Ed. 174 ; as will part pay ment by a partner without special authority; Harding v. Butler, 156 Mass. 34, 30 N. E. 168. A written acknowledgment to take a barred demand out of the statute must be made to the creditor or his agent, and it must be made with knowledge of his agency ; Wil liamson v. Williamson, 50 Mo. App. 194. And the wife may be such agent as to a claim for goods sold to her during the absence of her husband ; 3 Bing. 119 ; but a wife during coverture, not made specially or by implica tion of law an agent, cannot make a new promise effectual to take a claim to which she was a party dun?, sola out of the statute ; 1 B. & C. 248 ; Farrar v. Bessey, 24 Vt. 89; not even though the coverture be removed before the expiration of six years after the alleged promise ; Kline v. Guthart, 2 Pen. & W. (Pa.) 490.
Nor is the husband an agent for the wife for such a purpose; Powers v. Southgate, 15 Vt. 471, 40 Am. Dec. 691; but he is an agent for the wife, payee of a note given to her dumb sola, to whom a new promise or part payment may be made ; 6 Q. B. 937 ; nor is the widow of the maker of notes, although she made payments before the cause of ac tion was barred; Gallagher v. Whalen, 9 S. W. 390, 701, 10 Ky. L. Rep. 458. So a new promise to an executor or administrator is sufficient ; Baxter v. Penniman, 8 Mass. 134; Peck v. Botsford, 7 Conn. 179, 18 Am. Dec. 92; and the weight of authority seems to be in favor of the binding force of a promise or part payment made by an executor or admin istrator; Foster v. Starkey, 12 Cush. (Mass.) 324 ; Hall v. Darrington, 9 Ala. 502 ; Griffin v. Justices of the Inferior Court of Baker County, 17 Ga. 96 ; Semmes v. Magruder, 10 Md. 242; particularly if the promise be ex press ; Johnson v. Beardslee, 15 Johns. (N. Y.) 3; Oakes v. Mitchell, 15 Me. 360; Shreve v. Joyce, 36 N. J. L. 44, 13 Am. Rep. 417. But see contra, Riser v. Snoddy, 7 Ind. 442, 65 Am. Dec. 740; Miller v. Dorsey, 9 Md. 317; Moore v. Hillebrant, 14 Tex. 312, 65 Am. Dec. 118 ; Clark v. Maguire's Adm'x, 35 Pa. 259 ; Henderson v. Ilsley, 11 Sm. & M. (Miss.) 9, 49 Am. Dec. 41; Peck v. Botsford, 7 Conn. 172, 18 Am. Dec. 92. A promise by the life tenant to pay taxes may be relied upon as against a remainderman, to remove the bar of the statute ; Duvall v. Perkins, 77 Md. 582, 26 Atl. 1085.
To put an end to all litigation in England as to the effect of a new promise or ac knowledgment, it was enacted by stat. 9, Geo. IV. c. 14, commonly known as Lord Tenterden's Act, that the new promise or acknowledgment by words only, in order to be effectual to take a case out of the statute of limitations, should be in writing, signed by the party chargeable thereby; and this statute has been substantially adopted by most of the states in this country. This statute affects merely the mode of proof. The same effect is to be given to the words reduced to writing as would, before the pass age of the statute, have been given to them when proved by oral testimony ; 7 Bingh. 163. See Pittman v. Elder, 76 Ga. 371. if part payment is alleged, "words only," ad mitting the fact of payment, though not in writing, are admissible to strengthen the proof of the fact of payment; 2 Gale & D. 59.
In construing these statutes it has been held that the return, under citation, by an administrator of the maker of a note, show ing the note as one of his intestate's debts, is in writing within the meaning of this statute ; 12 Sim. 17; and so is the entry by an insolvent debtor of the debt in his sched ule of liabilities ; Woodbridge v. Allen, 12
Mete. (Mass.) 470. It was held in the last case that the mere entry was not in itself a sufficient acknowledgment, but being in writ ing, within the meaning of the statute, it might be used with other written evidence to prove a new promise. But the making one note and tendering it in payment of another is not a new promise in writing; Smith v. Eastman, 3 Cush. (Mass.) 355; not even if the note be delivered, if it be redelivered to the maker for the purpose of restoring mat ters between the parties to the state they were in before the note was given; Sumner v. Sumner, 1 Mete. (Mass.) 394. An entry in a ledger of a balance due the owner's wife, made by the husband or under his direction, is such an admission that the amount is due as will raise an implied promise to pay the same and will bar the statute; Coulson v. Hartz, 47 Ill. App. 20; but see Adams v. Olin, 140 N. Y. 15p, 35 N. E. 448.
A and B had an unsettled account. In 1845, A signed the following : "It is agreed that B, in his general account, shall give credit to A for £10, for books delivered in 1834." Held, no acknowledgment in writ ing, so as to give B a right to an account against A's estate more than six years be fore A's death ; 35 E. L. & Eq. 195. The writing must be signed by the party him self. The signature of the husband's name by the wife, though at his request, is not a signing by the party to be charged; 2 Bingh. N. C. 776. Nor is the signature by a clerk sufficient ; 8 Scott 147. Nor is a promise in the handwriting of the defend ant sufficient ; it must be signed by him; 12 Ad. & E. 493. And a request by the defendant to the plaintiff to get certain moneys due the defendant from third par ties, does not charge the party making the request, because it is not apparent that the defendant intended to render himself per sonally liable ; 5 C. & P. 209. Since this statute, mutual accounts will not be taken out of the operation of the statute by any item on either sine, unless the item be the subject of a new promise in writing; 2 Cr. M. & R. 45 ; Chace v. Trafford, 116 Mass. 529, 17 Am. Rep. 171. The effect of part pay ment is left by the statute as before ; 10 B. & C. 122. And the fact of part payment, i is now held, contrary to some earlier cas may be proved by unsigned written evidence; 4 E. L. & Eq. 514; or by oral testimony ; Williams v. Gridley, 9 Mete. (Mass.) 482. As TO REAL PROPERTY AND. RIGHTS. The general if not universal limitation of the right to bring an action or to make entry, is to twenty or twenty-one years after the right to enter or to bring the action ac crues,. i. e. to twenty or twenty-one years after the cause of action accrues. As the rights and interests of different parties in real property are various, and attach at dif ferent periods, and successively, it follows that there may be a right of entry in a par ticular person, accruing after the expira tion of antecedent rights at a period from the beginning of the adverse possession, much exceeding twenty or twenty-one years. Thus, if an estate be limited to one in tail, and the tenant in tail be barred of his •remedy by the statute, yet, as the statute only affects the remedy, and the right or es tate still exists, the right of entry in the re mainuer man does not accrue until the fail ure of the issue of the tenant in tail, which may not happen for many years. The es tate still existing in the tenant in tail or his issue supports and keeps alive the remain der man's right of action till the expiration of twenty years after his right of entry accrues ; 1 Burr. 60 ; Lessee of Hall v. Van degrift, 3 Binn. (Pa.) 3'i4; 5 Bro. P. C. 689. The laches of the owner of a prior right in an estate cannot prejudice owner of a subsequently accruing right in the same estate ; Jackson v. Schoonmaker, 4 Johns. (N. Y.) 390; 3 Cruise, Dig. 403; 2 Stark. Ev. 887. And where there exist two distinct rights of entry in the same person, he may claim under either. He is not obliged to enter under his earlier right ; 5 C. & P. 563 ; Gwynn v. Jones' Lessee, 2 Gill & J. (Md.) 173.