its business, using its officers to carry out their plans. The stockholders held no meetings until November 27, 1891, when they assembled to vote to make a general assignment to the survivor of the creditors' committee. The manufactory was shut down before the appointment of the committee, and was only run afterwards under their control. The directors of the corporation ceased to meet, and took no part in the management of the business. The creditors, by their committee, took actual possession and control of all the property of the company and out of the proceeds of the property paid themselves three dividends, amounting in all to fifty per cent. of the indebtedness. It is the payments of these dividends— August 15, 1882, February 9, 1885, and December 5, 1885that the plaintiffs rely upon as grounds for inferring a new promise by the company.

It may not be easy to define the exact legal status of this committee with reference to the corporation and the creditors. It is very plain that in fact they assumed the place and performed the duties which assignees have and perform in winding up the affairs of an insolvent debtor. After July, 1882, when the plan for a three years' extension and a conveyance of the property to trustees was abandoned (see circular), there was no hope or expectation that anything else could be accomplished than to make the most of the assets for the benefit of the creditors, and the committee were left in charge to do this. In the scope of this employment they managed the business, sold the property, and divided out the proceeds amongst the creditors who had appointed them. We do not see how the creditors who appointed them, who directed their action, and who shared in the dividends, can question their title or say that they were not assignees of the company de jure as well as de facto; but if we fall back upon the proposition that in what the committee did with the assets of the corporation by its sufferance they were in law the agents of the corporation, we must still limit their agency by reference to the object of their appointment, which was to do these acts, as assignees, for the purpose only of disposing of the assets and dividing them amongst the creditors; and so we

do not think that we can give to their acts, under this limited agency, any different construction than the law attaches to similar acts when performed by an assignee duly constituted. It is not enough that the agent is authorized to make the payment; his authority must bind the principal by a promise to pay, and such authority cannot be implied from the bare authority to make a payment. Winchell v. Hicks, 18 N. Y. 558; Brown v. Latham. 58 N. H. 30, 35.

The agreement that they should act virtually as assignees was proposed by the creditors, assented to by the president of the company in its behalf, ratified by the silence of the directors and stockholders, and made binding on all parties by acts performed.

A fair deduction from the conduct of the parties is that the acts which the committee performed in the capacity of assignees should be given the same force and credit as if the legal title to the property had been conveyed to them in trust for the benefit of the creditors, but we do not think that the law requires us to give to their acts an interpretation which is not necessarily implied from the nature of their employment.

It is well settled that payments to a creditor by an assignee out of an assigned estate do not avoid the statute. 1 Wood on Lim., p. 278, § 99; p. 281, § 101; Roosevelt v. Marks, 6 Johns. Ch. 266; Pickett v. Leonard, 34 N. Y. 175; Pickett v. King, 34 Barb. 193, overruling Barger v. Durvin, 22 Barb. 68; Davies v. Edwards, 7 Exch. 22; Read v. Johnson, 1 R. I. 81; Marienthal v. Mosler, 16 O. St. 566; Roscoe v. Hale, 7 Gray, 274; Stoddard v. Doane, 7 Gray, 387; Richardson v. Thomas, 13 Gray, 381; Hidden v. Cozzens, 2 R. I. 401; 2 Smith Lead. Cas. 9 ed. 913.

Again, the corporation is entitled to have these payments interpreted in connection with the declarations of the president to the creditors when he, on behalf of the company, turned over the business and assets to them. If, in making this transfer of control, he acted as agent of the company, and this act was ratified by the company's silent acquiescence, his declarations on the company's behalf were its declarations also. It must be remembered that the payments were not made by any vote

of the directors or of the corporation, but by direction of the committee after the president had put them in control and submitted the corporation officers to their orders. If the silence of the corporation ratified the payments, it ratified them only coupled with the president's declarations.

It was early declared by this court that a partial payment is only prima facie ground for inferring a new promise. It is said by Chief Justice Job Durfee in Read v. Johnson, 1 R. I. 81, 82, decided in 1838: "Since the recent decisions. have given a new aspect to the statute of limitations, nothing but an express promise or that from which an express promise can be clearly inferred will take a demand out of its provisions. And in coming to a determination in a case like this, courts are governed by what appears to be the manifest intent and meaning of the party rather than by a meaning artificially forced from his words and acts, or which, by a constrained construction, may be supposed to be implied therein." Judge Haile, in Shaw v. Newell, decided in 1852, 2 R. I. 264, p. 267, says: "An acknowledgment to take a debt out of the operation of the statute must be an unqualified acknowledgment of a then-existing debt, for if the acknowledgment be accompanied by any qualification which shows that the defendant intends to rely on the statute or does not intend to pay, or will rebut the presumption of a promise to pay, it will not be sufficient." In Hidden v. Cozzens, decided in 1853, 2 R. I. 401, the court say: "Where the creditor does not rely upon an express promise, but upon a promise to be raised by implication from the acknowledgment of the party debtor, we think such acknowledgment ought to contain an unqualified and direct admission of a previous subsisting debt, which he is liable and willing to pay. If there be accompanying circumstances which repel the presumption of a promise or intention to pay, the admission is of no avail. If the acknowledgment be accompanied by the declaration of the debtor that he is unwilling or unable to pay the debt, the declaration neutralizes the effect of the acknowledgment," citing Bell v. Morrison, 1 Pet. 362; Hancock v. Bliss, 7 Wend. 267.

It is said in Wood on Limitations, section 104: "The principle upon which a part payment of principal or interest by a debtor will prevent his availing himself of the bar of the statute is that such a payment amounts to an acknowledgment of the debt, and from an absolute acknowledgment, as we have seen, the law implies a new promise founded in an old consideration to pay," citing, among other cases, Turner v. Ross, 1 R. I. 88.

And in section 105, page 289: "The rule is that a partial payment on a debt, whether of principal or interest, is prima facie evidence of an acknowledgment that the residue is unpaid, and suspends the running of the statute from that date, and such payment may be proved by parol. It follows, therefore that the implication of a promise derived from part payment of principal or interest is liable to be rebutted, and it will not take the case out of the statute unless under circumstances which do not negative the implied promise to pay the residue." See, also, 2 Smith's Lead. Cas., 9th Am. Ed.

909.

Now, nothing could be plainer than the declarations in the circular of August 21, 1882, which, according to the evidence, was sent to every creditor. It notified them, in substance, that every effort had been made so to continue the business as to pay the debts in full; that these efforts had been frustrated, and the company had turned over all its assets and had given the services of its officers into the hands of the committee for the purpose of turning all its property into money and dividing the proceeds amongst its creditors. It promised, in effect, to allow the committee to pay out the assets, but notified the creditors that beyond this the company could do nothing.

Such expressions as these: "The company, however, regrets to announce that it is now powerless, as, while its first object has been to pay its debts in full, the obstructive course taken by some of its creditors makes this impossible,” and "The company is utterly discouraged from further attempting a settlement of its affairs," and "We believed our property to be ample to pay all debts; we offered our best

services in accomplishing such a result, but we have been prevented from doing this," &c., and "This statement is made in the hope that the large body of creditors will understand that the company has done its utmost to obtain the best results from its property and to pay all proper claims in full," and, finally, "The up-town factory is now running, under the authority of the committee, for the purpose of completing some unfinished work, but it will be again stopped within a few days, and what remains of a business built up by thirty years' labor will be lost," are equivalent to saying, what was obvious to all the creditors as the simple truth, that the corporation could not pay any balance that might remain of its debts after the property then in the control of the creditors' committee should have been distributed. And the payments which were made afterwards from that fund were received by the creditors with this notice that the corporation undertook to do nothing further.

In the light of these declarations, we do not see how it is possible to infer a new promise from these payments. Such could not have been, in the words of Chief Justice Job Durfee, “the intent and meaning of the party." As was said in Phelps v. Stewart, 12 Vt. 256, "We are not at libberty, therefore, when all the declarations are considered, to raise an implied promise in direct opposition to the party's declared intention."

So it was held in Manning v. Wheeler, 13 N. H. 486: That an admission that a party owes a debt with an assertion that he is unable to pay it, is insufficient to take a case out of the operation of the statute of limitations.

Having reached this conclusion, we need not discuss the further defences raised by different defendants. As the debts on which the bill is brought are barred by the statute of limitations, the bill must be dismissed.

Tillinghast & Tillinghast, for complainants.

Herbert Almy, Alexander L. Churchill, A. S. Miller, J. M. Ripley, John Henshaw, Cooke & Angell, Bassett & Mitchell, Edwards & Angell, J. D. Thurston, W. W. & E. W. Blodgett, and John A. Tillinghast, for respective respondents.