This is a suit upon an account running from March 1, 1850, to June 13, 1858. The defendant relies upon the statute of limitations. To this plea the plaintiff replies that, on the 15th of September, 1856, defendant, by his note, paid him one hundred dollars; and the only question involved, is as to the effect of this payment. It is now well settled that a partial payment of a preexisting debt, made within six years, unconditional and unqualified, creates a new promise and removes the bar arising from the statute of limitations. "The payment here was unconditional, and within six years of the date of the writ. If made upon” the account generally, it was a partial payment of a larger demand. The evidence is clear that it was made xipon- an account, and, as it do es not appear that plaintiff had any other account than the one in suit, the presumption is that the payment was upon that. If not so, the burden is upon the defendant to show it. Woodbridge v. Allen, 12 Met., 475.
But it is said the account in suit is made up of many items, each one of which is a contract of itself, and it does not appear to which of them the payment was intended to apply. It is true there are many items, and each may be considered a contract; but it is also true, that there is but one account. The items are the elements of which the account is made up, and while singly they are many, taken together they constitute one. It is also true, that the defendant might have appropriated his payment to any one or more of the items, but there is no proof tending to show that he did *23so. On the other hand, the testimony is clear and uncon-troverted, that the payment was appropriated toward the payment of the account as a whole, and not to any one or any number of items. The report of the auditor so finds, and the testimony of the plaintiff is to the same effect. If it were not so, the defendant coold have so testified. The admission of the defendant as to the correctness of the bill, and bis promise^ to pay it, cannot be taken to prove a new promise, but it is important testimony to show the object and appropriation of the payments subsequently made. For whatever it may have formerly been supposed that the law was, or whatever it may now be in England, it is well settled in this State and in Massachusetts that payments may be proved by parol. Williams v. Gridley, 9 Met., 482; Sibley v. Lumbert, 30 Maine, 253.
In the latter case three notes were sued, all of which were payable more than six years before the suit. The defendant made two payments in part satisfaction of the notes. "No direction was made by him, upon which of the notes he would have the payments applied, nor were they indorsed upon either of the notes.”
The Court held the payments sufficient to take them all out of the statute. It would be difficult to distinguish the case at bar, in principle from that. In this the payment was made in part satisfaction of the account as a whole. No direction was given by defendant upon which of the items it should be applied, and no application of it was made to either, but it was credited to the whole indebtedness.
Judgment for plaintiff for balance found due by the auditor, five hundred, twenty-four dollars (8524,17,) and interest from the date of the writ.