
    Harvey Chapin versus Thaddeus Coleman et al.
    
    Where the defendant-pleads the statute of limitations in bar to the whole of a bill in equity, he must, in his answer in support of the plea, answer all the charges in the bill which may avoid the bar oy showing a new promise; but he is not bound to answer to the original cause of action.
    Upon a bill in equity by one partner against his co-partners for an account, the answer of one of the defendants will not be evidence to charge another.
    But if it appears that the defendants as constituting a partnership among themselves, of the one part, were in partnership with the plaintiff, of the other part, the answer of one of the defendants would be evidence to charge the others.
    Bill in equity against Thaddeus Coleman, Charles Thompson and Thomas W. Thompson.
    Chapin alleges, that on September 22, 1821, he was engaged in the business of buying, driving and selling cattle ; that Charles Thompson and Thomas W. Thompson then were in a general partnership in trade, at Coleraine ; that on September 26, 1821, it was agreed by Thaddeus Coleman, and Thomas W. Thompson for the firm of Charles and Thomas, that Coleman and Thomas should go to New York and Vermont and purchase cattle for market on the joint account of Coleman, Charles and Thomas ; that Coleman and Thomas went forthwith to Rome in New York ; that Chapin on the 2d of October, at the same place, had purchased about 150 head of cattle on his own account, when he met Coleman and Thomas, and the latter stated to him the agreement, and proposed that he should unite with them in the adventure, and Chapin assented, and it was agreed by Chapin on one part, and by Coleman and Thomas for themselves and Charles, that they should purchase more cattle for Brighton market, and that Chapin should own one third, and Coleman, Thomas and Charles, the other two thirds ; that the parties should pay, and lose or gain, in the same proportions; that in pursuance of this arrangement, • Coleman and Thomas bought in Vermont 126 head of cattle, and drove them to Coleraine, where they were put by Charles and Thomas upon their farm, and kept four days, and then were driven by Chapin, Coleman and Thomas to Brighton, and were sold ; that while the cattle were in Coleraine, Charles and Thomas informed Chapin, that they had another drove of about 50 head, which Charles had purchased for himself and Thomas, which would soon be at Coleraine, and they proposed to Chapin and Coleman to become interested equally with them, each one fourth, and Coleman and Chapin assented; and it was agreed that Charles should take them to Brighton and sell .them on joint account; that Charles soon afterward, in pursuance of this agreement, drove them to Brighton, and there, with the aid of Chapin, sold them ; that the proceeds of this drove were received by Charles and Thomas, and exceeded all expenses by $ 150, and one fourth of the same ought to have been paid to Chapin, but has not been so paid ; that the proceeds of the first drove, which was sold at a loss, amounted to $ 3,200, of which Chapin received $ 516, and the residue was received by Coleman, Charles and Thomas, and the part received by Thomas was applied for the benefit of the firm of Charles and Thomas; that Coleman, Charles and Thomas, in consequence of Chapin’s payments beyond his receipts and his share of the loss, became indebted to him in the sum of $ 500, which they ought to pay 'with interest. Chapin further alleges, that he has made attempts for a settlement; that in December 1824, he and Coleman called upon Charles for a settlement in respect to the first drove ; that Charles said he had no papers, and desired them to call upon Thomas, which they did; that Charles declined to close the concern, saying he had no account of sales ; that in 1828, Chapin and Coleman again called on Charles for a settlement; that he replied he supposed their old beef concern was settled, he had no papers and did not know how it stood, and he desired them to call on Thomas who had all the papers; that they applied to Thomas, and Chapin stated his claim, and Thomas proposed to submit all the accounts to one Drury, to ascertain the sum due to Chanin and the proportions of each party, — to which they assented; that the accounts were laid before Drury, who attempted an adjustment, but not being able to effect one, Thomas procured Charles, who proceeded to do it, but was suddenly called off; that some further attempts were made, but Thomas objected to proceeding without Charles, as he was interested ; that Thomas and Cole man proposed to have all the papers left with Drury, to make a computation, and that on December 10, 1828, Drury made a statement, by which Coleman, Charles and Thomas were indebted to Chapin $ 487-87 ; that this statement was shown to them and was assented to as correct; that this statement was a correct one of the relative liabilities and interests of the parties ; that Thomas, Charles and Coleman have in their possession divers vouchers, &c. upon which the statement was made ; and that Thomas has become insolvent, and says he cannot pay, and that Charles and Coleman refuse to pay. The bill charges that after the purchase of the first drove, Charles did not deny his interest, until recently, and has never denied the accuracy of Drury’s statement, but has assented to it, particularly on April 23, 1831, at Springfield; that Charles assured Chapin that he was perfectly satisfied there was money due to Chapin on account of the cattle, but that he felt as if it ought not to come from him, and that he would endeavour to make Thomas pay, &c. It further charges, that Coleman, Charles and Thomas were jointly interested in two thirds, and Coleman, as well as Charles and Thomas, is liable to pay Chapin, and that Coleman never denied the accuracy o"f Drury’s statement. The prayer of the bill is, that the defendants may disclose papers &c. relating to the purchase of the first drove, or contracts between Charles, Thomas and Coleman, or any two of them, or between other persons and them, and contracts of partnership, and the terms upon which Charles and Thomas engaged in purchasing cattle, &c. and the mode of doing that business, and by whose agency, &c. and for whose benefit the proceeds were applied, the expenses, &c. of each drove, and the proceeds ; and that the defendants may pay what may be found due.
    Charles Thompson pleaded the statute of limitations, and filed an answer in support of his plea. In the answer he admits that there was a partnership, but only a limited one, between himself and Thomas ; denies that either partner, without the consent of the other, had a right to bind the firm in any business connexion xvith any other person ; says he believes that Chapm, Coleman and Thomas, in the autumn of 1821, were connected in purchasing &c. a large drove of cattle, but that he knows not the terms of the connexion ; does not admit that Thomas acted as agent of the firm, but states the contrary to be true, from a receipt from Chapin to Thomas dated December 31, 1824, for money on account of this adventure, and also states that Thomas professed and xvas understood to act on his individual account; denies that any of the proceeds were appropriated for the benefit of the firm ; admits that in the autumn of 1821, he, xvith Thomas, purchased 114 cattle, which he drove to Brighton, while Chapin, Coleman and Thomas were there, but denies that he ever made or consented to any proposition, that Chapin and Coleman should be interested in this drove; does not admit nor believe, that in the autumn of 1824, Chapin and Coleman called upon him to settle the business of the first drove, or that he then had any conversation xvith them about that business ; denies that he assisted as a party interested, in making the computations between Chapin, Coleman and Thomas, but on the contrary, he expressly stated that he xvas not interested ; denies that he ever assented to the correctness of Drury’s statement; states that he never has admitted any liability to account with Cha pin, but has uniformly denied all interest in the concern ; that on September 15, 1826, the partnership between him and Thomas xvas dissolved, and that no acts or admissions of Thomas after that time, could deprive him (Charles) of the benefit of the plea of the statute of limitations.
    To this ansxver the complainant filed exceptions ; — because it does not state whether the first drove was put upon the farm of Charles and Thomas by Charles and Thomas and there kept, as in the bill is alleged, nor whether any, and if any, what amount they claimed or were allowed for the keeping, nor how the same was paid; — and because it sets forth that Charles has seen a receipt from the complainant to Thomas, dated December 31, 1824, acknowledging payment of some money on account of the transaction first mentioned in the bill, and other documents relating thereto, yet it does not state in whose custody the receipt or other documents are, and whether they or some of them, are not in custody of Charles, or among the papers of Charles and Thomas, and if so, the same, or copies, are not annexed to the answer.
    Coleman pleaded the statute of limitations, and filed an answer in support of the plea. He admits that in September 1821 he went with Thomas to Rome, New York, to purchase cattle ; that they there met Chapin, and it was agreed that they should unite, and the adventure should be on their joint ac-. count, and accordingly a drove was purchased and sold ; but he does not admit that Charles and Thomas and himself were to' be one party to the adventure, and Chapin the other party ; and he states that he never considered himself as any more connected with Charles and Thomas than with Chapin ; that according to his understanding he was interested to the amount of one third, and that he assumed no other obligations than the . law would impose on such a connexion; he admits that in 1824 and 1828, he went with Chapin to Coleraine to assist Chapin in obtaining a settlement with Thomas, but he denies that he was concerned in the settlement, or was so considered, „ or that he made any promise relating to it; but it was known to Thomas and Chapin long before, that he had never received his proportion, and that he had a claim upon the parties or some of them, and that in the several interviews Chapin stated that he had no claim upon him; and he denies that he ever assented to the correctness of Drury’s statement.
    The complainant excepted to this answer, because it does not state whether Charles was a party to the original contract for the first-mentioned drove, and whether the same was to be purchased on joint account of Coleman, Charles and Thomas; and because it does not state, whether Coleman, before September 22, 1821, had been jointly concerned with the firm of Charles and Thomas in the business of buying cattle, and if so, to what extent and upon what terms.
    Thomas filed an answer, in which he admits that Chapin, Coleman and himself purchased the first-mentioned drove of cattle ; he states that it was sold at a loss, one third of which was chargeable to Chapin, one third to Coleman, and one third to Charles and himself; that Chapin has received moneys at different times on account of this transaction, and that he does not believe that any thing is due to Chapin from Charles and himself; that he has never been unwilling to make a final set tlement with Chapin, but on the contrary, he had made efforts to have the business closed ; and that in 1808 there was a general unlimited partnership between Charles and himself, which continued until 1826.
    
      Sept. 30th, at Northampton.
    
    Numerous exceptions were taken to this answer, chiefly because it did not set forth certain facts and conversations referred to in the bill, the tendency of which would be to show whether Charles Thompson and Coleman were or were not interested in the drove of cattle first mentioned in the bill, and were or were not liable to the complainant on that account.
    
      J. H. Jlshmun and G. Bliss, for the plaintiff.
    
      Wells, for the defendants Charles Thompson and Coleman, on the point, that after a dissolution of a co-partnership, one partner cannot revive against another a debt barred by the statute of limitations, cited Bell v. Morrison, 1 Peters’s Sup. C. Rep. 351 ; Levy v. Cadet, 17 Serg. & Rawle, 126 ; 3 Kent, 25, 26 ; Thompson v. Peter, 12 Wheaton, 565 ; Peck v. Botsford's Ex'ors, 7 Connect. R. 172.
    
      Bates and Dewey for Thomas W. Thompson.
   The opinion of the Court was afterward drawn up by

Wilde J.

Two of the defendants, Charles Thompson and Thaddeus Coleman, have severally pleaded the statute of limitations, accompanied with answers in support of their respective pleas. The plaintiff excepts to these answers, on grounds independent of the bar set up, and referring to matter which has no tendency to avoid the operation of the statute. The defendants were bound to answer all the charges in the bill which may avoid the bar by showing a new. promise ; but they were not bound to answer to the original claim or cause of action. Where a new promise or an acknowledgment of an existing debt is charged in a bill, to avoid the operation of the statute, the defendant is bound to deny the promise or acknowledgment charged, by averment in the plea, and also by answer in support of the plea. Beames’s Pl. 164. And this i necessary, because, upon argument of a plea, every fact stated in the bill and not denied by answer in support of the plea, must be taken to be true. Beames, 34 ; Roche v. Morgell, 2 Sch. & Lefr. 727 ; Coop. Pl. 228. But the defendant is not bound to answer to the original cause, because that may well be admitted consistently with the bar pleaded; and the intent of the plea is to rest the defence on a single point, which may bar the whole demand, without going into an answer as to the rest of the bill. Beames, 29. It was formerly doubted, whether the statute was a bar to a bill of discovery ; but it is now well settled, that a plea, when good to the relief, is good also to the discovery ; Beames, 170, 274 ; Welford v. Liddel, 2 Ves. sen. 400 ; Mitford, 218 ; especially if the bill is for relief as well as discovery, which was the ancient doctrine ; and at the present time the same principle applies to a bill of discovery merely. Beames, 275. In the case of Baillie v. Sibbald, 15 Ves. 185, this principle seems to be taken for granted as a well settled rule of equity. So if discovery is sought merely to support an action at law, and the case stated will not support the action, the defendant may demur. Beames, 276 ; Mitford, 152 ; 3 Bro. C. C. 155, cites Debigge v. Howe. The general principle is, that the court will not compel a discovery, unless it can be used for some beneficial purpose. We think, therefore, that there is no deficiency in these answers. All the facts charged in the bill tending to obviate the pleas; and to show a new promise, are distinctly denied ; and this is sufficient, where the pleas are to the whole bill, as they are in the present case. For these reasons, the exceptions to the answers of Charles Thompson and Thaddeus -Coleman in support of their respective pleas, must be overruled, and the pleas allowed. The plaintiff, however, will be permitted to disprove the averments in the pleas, notwithstanding their allowance, if he has evidence to show a new promise ; if no such evidence can be offered, the bill, as to these defendants, will be dismissed.

As to the answer of Thomas W. Thompson, it might perhaps be more full and distinct in some particulars. But as to one of the droves of cattle he fully admits his liability as a partner, and as to the other drove he expressly denies that the plaintiff had any interest in it. The exceptions seem to relate to the first drove of cattle, and are unimportant, as T. W. Thompson fully admits his liability as to that drove.

The exceptions appear to be framed with a view to draw out evidence wherewith to charge the other defendants. But such evidence could not be admitted for that purpose.

Charles Thompson denies that he was a partner. The answer of Thomas therefore cannot be read in evidence to charge him. Coleman admits that he was a partner, but denies that he owes any balance to the firm ; and on this point the answer of a partner is not evidence to prove the indebtment of a co-partner. In an action between partners to settle and adjust the partnership concerns inter se, each partner has necessarily an interest adverse to the others, and the answer of one cannot be given in evidence to increase the liability of another, as he would thereby diminish his own liability, or increase his claim on the common fund. This principle would not apply, if the plaintiff was interested in one third of the partnership property, and the three defendants were jointly interested in the other two thirds as charged in the bill. But all the defendants deny that such were the terms of the partnership ; the plaintiff therefore is bound to prove his bill by other evidence than that of the admission of one of the defendants. Such an admission would not bind the other defendants. We can therefore see no good reason to require any further answer, and the exceptions are accordingly overmled 
      
       See Bayley v. Adams, 6 Vesey, 586; Cork v. Wilcock, 5 Madd. R. 329; James v. Ladgrove, 1 Sim. & Stu. 4 j Ferguson v. O'Hara, 1 Peters’s C. C M. 494.
     