
    Brockenbrough v. Hackley.
    [April, 1806.]
    Partnership — Assumption of Debt by One after Dissolution-Plea of Statute of Limitations — Effect.— If there be several partners, and one of them, alter the co-partnery is dissolved, assumes a partnership debt, but afterwards pleads the act of limitations jointly with tile other partners, the assumpsit maybe given in evidence ; for the plea of non assumpsit admits that the defendants did once assume.
    Hackley brought case in the county court against Morton and Brockenbrough, as surviving partners of William Brock & Co. The declaration was upon an account stated, and a joint assumpsit of the defendants; who pleaded the act of limitations. Upon the trial of the cause, the plaintiff offered in evidence an account against the company, signed by Brockenbrough after the dissolution of the co-partnery: *To which the defendant excepted; but the court suffered it to go to the jury. Verdict and judgment for the plaintiff. The district court reversed the judgment; and the plaintiff appealed to the court of appeals.
    Warden, for the appellant.
    It does not sufficiently appear, that the partnership was dissolved. But, if it did, the act of the assuming partner would be considered as authorized by the others. Besides the plea of the act of limitations is an admission, that the assumpsit was once properly made.
    Botts, contra.
    One partner cannot bind the rest after a dissolution of the firm: and the consequences would be ruinous, if it were otherwise; for it would enable him to charge them after their confidence in him had ceased, and for debts which were not, in fact, due.
    Randolph, in reply.
    The defendants have all united in the single plea of the act of limitations; and therefore have all admitted, that the assumpsit was once properly made. Besides, as this was a debt antecedently due from the whole, the revival of the remedy by one was lawful, and his assumpsit bound the rent.
    Cur. adv. vult.
    
      
      Partnership — Dissolution—Admission of One Partner-New Liability. — Tn Davis v. Poland, 98 Va. 226, 23 S. E. Rep. 292, it is said, after dissolution of a partnership, one partner cannot by his own act bind his co-partners, against their consent, so as to fix upon them a new liability, nor revive an old liability barred by the statute of limitations. Woodson v. Wood. 84 Va. 478, 5 S. E. Rep. 277. His admission or declaration cannot be received as the only evidence of the existence of a debt against, tiie partnership, such debt must be first proved by other testimony or admitted by the pleadings. Shelton v. Cocke, 3 Munf. 191: Rootes v. Wellford. 4 Munf. 215; Brockenbrough v. Hackley, 6 Call 51.
      Pleading — Plea of the Statute of Limitations —Effect. —The plea of the statute of limitations is by way of confession and avoidance, and of course admits the cause of action stated In the declaration to have been originally valid. 4 Min. Inst. (2d Ed.) 720. citing Brockenbrough v. Hackley, 6 Call 51. The principal case is also cited in Goodell v. Gibbons, 91 Va. 611, 22 S. E. Rep. 504. See monographic note on ‘'Limitation of Actions.”
    
   LYONS, President,

delivered the resolution of the court, that the judgment of the district court was to be reversed, and that of the county court affirmed. That the defendants had all pleaded that they did not assume within five years; which Was an admission that they had once assumed. That the evidence was therefore properly admitted; and consequently, .that the judgment of the district court was erroneous, and that of the county court clearly right.  