
    Belote’s Executors vs. Wynne aud others.
    
    A promise made by one partner after the dissolution of a partnership, that the firm would pay a debt of the partnership, which is harred by the statute of limitations, will not revive the debt against the other partners, unless such partner have a new authority given to him for that purpose by the others.
    An acknowledgment, or promise to pay a debt barred by the statute of limitations, is not a continuation of the old promise, but a new contract or agreement, springing out of and supported by the old consideration.
    A debt barred by the statute of limitations, is deemed in law extinguished and discharged.
    To revive a debt barred by the statute of limitations, there must be an express promise to pay, or an admission of an existing debt still due, which the debtor is willing to pay; and if the promise to- pay be made upon a condition, that condition must be shown to have been performed.
    An admission that a debt Í3 due, accompanied with a refusal to pay because the debt is barred, will not remove the bar.
    Stephen R. Roberts, Thomas Roberts, and Alfred R. Wynne, were partners in trade; during the partnership they borrowed from Belote $400, and gave a promissory note in the name of the firm, for the money. The trading was doae in the name of Stephen R. Roberts & Co. About 1827, Belote becoming unwilling longer to indulge the debtors, directed Swancy, who did business for him, to collect the note. Stephen R. Roberts, who seems to have been the active partner, being unwilling to be sued in court, offered to give small notes, and to confess judgments on them before a magistrate. Six notes for seventy-one dollars each were given, signed Stephen R. Roberts & Co. with a seal. They were due one day after date, and warranted upon. The warrants summon Stephen R. Roberts & Co. to appear &c. to answer Henry Belote; and on the face of the notes is endorsed by the justice, “judgment confessed, 27 January, 1827.” The former note without seal, was given up by Belote’s agent to Stephen R. Roberts and destroyed. Shortly after this, the partnership was dissolved, and S. R. Ro- , , , . , , , . T, berts agreed to settle the debts due irom the firm. He was then pretty largely in business, and ■for years after, amply able to pay this debt; but he craved indulgence from Belote’s executors, which was extended to him individually on the judgments for four years, and until he became insolvent. On the 11th of August, 1S32, a scire facias was run on each of the judgments to revive it; no execution having therefore issued against S. R.'Roberts, Thos. Roberts, and A. R. Wynne. The justice refused to give judgment against Wynne and Thomas Roberts; and this bill was filed, alleging that Stephen R. Roberts had executed the smaller notes under seal through mistake; that he had no power to bind the firm under seal; that it was not intended to discharge any member of the firm, and believed the new notes and judgments bound it; and it is prayed that Wynne and Thomas Roberts be decreed to pay the debt. To this bill, Wynne, among other defences set up, pleaded the statute of limitations; that the cause of action did not accrue within'three years next before the bill was filed.! To meet this objection, it was proved Stephen R. Roberts promised to pay, and that the firm should pay, within three years. Roberts did promise, and with the obvious intent to exonerate Wynne, but a few days before the bill was filed. The court below decreed in favor of the complainants, from which decree Wynne, one of the defendants, prosecuted an appeal to this court.
    
      Rucks and R. J. Meigs, for complainants.
    
      John J. White and J. S. Yergerf for defendants.
    There are several grounds relied upon by the defendant in this cause. 1st. That the six notes executed by Roberts on the 26th January, 1827, in the name of S'. R. Roberts & Co. under seal, was in law an extinguishment of the'original debt of the firm, contracted in 1825, and it thenceforward became the individual debt of Roberts. This principle is established in a variety of cases. 3d J. Cases, 180: 2d C. R. 254: 2d C. C. E. 1: 2d J. R. 213: Cox’s Digest, 515: referring to 3d Wash. C. C. R. 508: 3d Kent, 23: 1 Dallas, 119: 1 Yerger, 26, 31: 3d Bacon, 107: 6th Coke, 45, Higgins case.
    But 2d. If it was not an extinguishment of the original demand against Wynne, the complainant has mistaken his forum; be would have a plain and adequate remedy at law for the money lent, and cannot come into this court. See the authorities in 2d Comyn’s 624-5: and 4 Yerg. Rep. 107, 84, 98.
    3d. This bill is attempted to be sustained against Wynne upon the ground of mistake, that it was not the understanding either of complainant or Roberts, that any of the members of the firm was to be discharged, and that the old note was given up through a mistake, believing that the new notes and judgments were binding on all the firm; Wynne, in his answer, denies that there was any mistake, but that the old note was given up in consequence of its being settled by the six notes executed by Roberts; nor is there the slightest proof that the new notes were executed in any manner different from what they were intended to be by complainant and Roberts..
    The class of cases which is relied upon in Newland, 349, 2d Atkin 30, the case of Simpson vs. Vaughan: and 2d Do. 203: 2d Vez. senr. 100 and 371. Where a court of equity has rectified a bond, which, by mistake, was drawn as a joint bond, and given it the operation of a joint and several bond, cannot sustain this bill. In all these cases, the individual against whom relief was given executed the bond, but differently from what he intended.
    In the case before the court, these bonds of 26th of January, 1827, were never executed by Wynne, nor authorized by him to be executed, it was altogether a transaction between Swancy and Roberts; consequently there was no mistake so far as Wynne is concerned, for he , , . . , . . ... never gave these bonds, nor intended to give them. All that a' court of equity can do, is to decree that parties shall. execute their agreements according to their terms. 1 Peters, 14. This case rather ccmes within the principle of those cases which decide, that every man is to be charged with a knowledge of the law; and that a court will not undertake to relieve parties from their acts and deeds fairly done, though under a mistake of the law. 1. J. C. 516: 2d Do. 51, 60: 6 Do. 166: 3 Meriv. 271: 6 Yerger, Jones vs. Dickens. It is no ground for the interference of a court of equity to set aside a release, that it was given to one of two joint debtors, without any knowledge or intention that it should operate to discharge the other, there being no allegation of unfairness, or that the releasor was not fully acquainted with all the facts. Cox. Digest, 315, 145, 515: 2d Wash. C. C. R.271.
    If Swancy and Roberts believed that they had a right to change the original simple contract debt of the firm, and execute bonds for the amount, and confess judgments upon the same for the other members of the firm, and find themselves mistaken about the law, it seems to me they •cannot complain of any one but themselves: Wynne contributed in no way to mislead them. In a case like this, •equity follows the law, as slated by the court in 1 Yerg. 2S9: 2 Do. 397: 3 Peir Wms. 409. The excuse which complainant sets up, that he was merely acting as the agent of Beiote, without any interest in it himself, will not avail him any thing; the proof shows that he claimed these notes as his own, [see Carr’s and Brown’s depositions] and his conduct from that time to the present confirms it.
    4th. Suppose this bill could have been sustained originally, the statute of limitations affords an unanswerable bar to the complainant’s recovery, nearly seven years having elapsed before the bill was filed. If the original note could be set up according to the prayer of the bilí» , A, , Í. - . u -u r. then the statute of James, of six years, would be a bary 3Yerger, 320; or if the defendant could be made liable upon the ground that the money was lent to the firm, and that he, as one of the members of the firm, had the benefit of it, and therefore, that in equity and good conscience, he ought to pay it, (which is surely the only plausible ground on which to place it) then the statute of three years will apply. 2 Sch. & Lef. 630, Hovendem vs. Ansley: 1 Ball and Batey, 119: 7 J. C. R. 90: bl- and Y. 361: 3 Yerger, 231.
    It is said, however, that the acknowledgments of Roberts, made in the summer of 1832, is to take the case out of the statute as against Wynne; [see Guild' and Carr’s depositions, pages 17 and 19, to show his last statements not to be relied on] made, too, for the very purpose of enabling the complainant to file this bill.
    Can this be right, upon principle? The admission of one partner is not evidence against the other, on account of the identity and union of their interests. In this case, at the time of the acknowledgments of Roberts, it was no longer in law a partnership debt, it had become the individual debt of Roberts; and consequently, no statement of Roberts could be received to operate against Wynne,, and thereby shift the responsibility over from himself upon Wynne.
    Again: if Wynne is to be held responsible in equity, being discharged at law, it must be upon the ground that he received the benefit of the money, and therefore ought in equity to pay it; that it was his own debt, and not merely from its once having been a partnership debt.
    This fact, then, must be established by competent testimony. The declarations of Roberts could be no more regarded than the declarations of any one else, nor as much, because in favor of his own interest. The acknowledgments of Roberts cannot be received against Wynne .for another reason, because made after the disr. solution of the partnership. 3 Kent Com. 25-6: 1 Pet. 369 to 374: 1 Pennsylvania Rep. 135. s
    5th. There is another point of view in which this question is to be considered. If the complainant had once an equitable claim which could be asserted against the defendant, his conduct has been such as must deprive him of the aid of the court. See 1 Merivale, 547. In the case of principal and surety, when creditor gives time to the debtor, or varies the contract in any material manner it discharges the surety, 6 Dow 233: 6 Vez. 734: 2 Vez. Jr. 543, 539: 2 Brown, C. C. 579: [see Chitty’s Digest, 1175] 2 John Chan. 554‘ Cox’s Digest, 516. This to be sure is not the case of principal and surety, but it is one which is much more favorable for the defendant. In the former, the surety is endeavoring to discharge himself of an express legal obligation; while in the latter, the legal obligation is extinguished, and the party is to be rendered liable on account of the equity which the law creates against him; that in equity and good conscience, he ought to pay the money. This, equitable principle may be met by proof, that the conduct of the complainant has been such as to deprive him of its benefit; that it would be against conscience to take from the defendant the advantage which the law gives him.
    "What are the facts here? In January; 1827, Swancy makes an argreement with Roberts, which varies essentially the original contract; he converts the firm note into six separate bonds under seal, and confesses judgments upon them, not only for himself, but the other members of the firm; all which, it is probable, was done after the dissolution of the firm. He takes these notes and judgments into his own possession; Roberts has ample means and continues solvent for many years; Swancy is in his confidence, lending him money; he knows his situation; Wynne retires from the concern, and has nothing more to do- with it; leaves Roberts in possession of his capital of $2,500 and all the effects of the firm, which-are abun- ' dandy sufficient to pay all the debts, upon Roberts undertaking to pay the debts of the firm; with all which Swancy is acquainted, as we have a right to presume from the proof in the cause; lies by for many years with these notes and judgments in his pocket, when he could at any time have collected the money without ever mentioning it to Wynne; and when Wynne had a right to presume they had been satisfied from their having been taken from the magistrate; Roberts at last fails and Wynne is called upon to pay this money, which, if lost, is in consequence of complainant’s laches.
    It will be remembered, that at law, this is alone the obligation of Roberts; Wynne’s liability is gone. Will a court of conscience under these circumstances deprive-him of his legal advantage? It seems to me it ought not.
   GatRon, Ch. J.

delivered the opinion of the court.

A material question in this case is, whether after the-dissolution of a partnership, a debt barred by' time, can be revived by one of the late firm; and by such new promise to pay, grounded on the old consideration, every other partner will be bound.

Wynne is sought to be charged on the first note. This claim was clearly barred. Did the promise to pay off Stephen R. Roberts some five years after the partnership had been dissolved, bind Wynne? The British and American authorities are so confused and cpntradictory, that an attempt to reconcile them would be fruitless, and make an, opinion rather a treatise than an adjudication, limited to a particular point; and as this court has for several years set its face against long opinions, it will on the present occasion state the two principles, the adoption of the one or the other of which, has led to the conflicting results referred to, and then inquire which principle has been recognized by this court.

1. Is the acknowledgment, or promise to pay, a continuation of the old promise? Or, 2. Is it a new contract, springing out of and supported by the old consideration ?

The adjudications have been read with care, and will be found in Angel on Limitations, 274, 277. Gow on Partnership, 80; 3 Kent’s Com. 25, 1 Ed.

This court, in Russell vs. Gass, in 1826, (M. and Yerg. 272) followed the decision of the supreme court of the United States, in Clementson vs. Wilson, (8 Cra. 72) and held, “It is not sufficient to take the case out of the act, that the claim should be proved, or acknowledged to have been originally just, the acknowledgment must go to the fact that it is still due.”

The description of the acknowledgment, that the new promise to pay is to be inferred from, is not stated in the opinion with sufficient certaihty; this was supposed to be the case when the opinion was delivered by a part of the court, and the language employed by the supreme court of Kentucky (Bell vs. Bowland, Hard. 301) was desired to be adopted, but declined- by Judge White, who drew up the opinion, because of the superior dignity and authority of the supreme court of the United States. The principle declared by the supreme court of Kentucky, met with the approbation of. this court in 1826; and the adjudication is more respected at this time, because it has commanded_^conformity in the supreme court of the United States. That court has been reducing its decisions to more of precision and certainty. Thus, in Wetzell vs. Bussard, Whea. 309) it is declared, “an acknowledgment which will revive the original cause of action, must be unqualified and unconditional. It must show positively that the debt is due, in whole or in part. If it be connected with circumstances which in any manner affect the claim, or if it be conditional, it may amount to a new assumpsit, for which, the old debt is a sufficient consideration; or if it be construed to re-wive the original debt, that revival is conditional, and the performance of the condition, or readiness to perform it, must be shown. The rule, as here laid down, does not escape from confusion, and in Bell vs. Morrison, (1 Pet. 262) is explained. After citing it, the court say, “We adhere to the doctrine thus stated, and think it the only exposition of the statute, which is consistent with its true object and import. If the bar is sought to be removed by the proof of a new promise, that promise, as a new cause of action, ought to be proved in a clear and explicit manner, and be in its terms unequivocal and determinate; and, if any conditions are annexed, they ought to be shown to be performed.

“If there be no express promise, but a promise is to be raised by implication of law from the acknowledgment of the party, such acknowledgment ought to contain an unqualified and direct admission of a previous subsisting debt, which the party is liable and willing to pay.

The court further declare, that if the evidence is not of the explicit character above, it should be rejected from the jury. This was the point presented in Bell vs. Morrison. The federal circuit court of Kentucky had rejected all the evidence; that is, taken it from the jury, as upon a demurrer to it, because of its uncertainty and insufficiency to establish the new promise to pay; and the supreme court affirmed the decision. The court renews the Kentucky decisions, (which strictly follows the case of Bell vs. Bowland, decided in 1808) and assumes to ground its determination principally on those decisions; but it is manifest, had it followed its own, the result must have been the same. What are decisions of Kentucky? “We are of opinion,” says the court, Hard. R. 30, 31, “that the only safe rule that can be adopted, capable of any reasonable degreee of certainty, is, that in order to take the case out of the statute of limitations, an express acknowledgment of the debt, as due at that time, coupled with the original consideration, or an express promise to pay it, must be proved to have been made within the tune prescribed by the statute.

By this simple rule, has every case in Kentucky been tested for nearly thirty years; and which the supreme court of the United States and this court have directly followed, and with an extension of the principles assumed. In Bell vs. Morrison, (1 Peters, 362) it is in, substance holden, if there be no express promise to pay, but the promise is to be raised by implication of law from the acknowledgment of the party, the acknpwledgment ought to contain not only an unqualified and direct admission of a previous debt, antj that if was still due and owing, but that the party was then willing to pay it. If the party sought to be charged were to admit the debt then due, but declare it was barred by the statute of limitation, he certainly would not be bound, because unwilling to pay. 15 Johns. Rep. 511: 1 Serg. & Rawle, 176; 9 Serg. & Rawle, 128: 1 Peters, 361.

We hold it, that a claim barred by the act of limitations, is deemed in law extinguished and discharged. The courts have, by construction, declared that such claim still furnishes a sufficient consideration on which a new agreement may be grounded, binding the-parties; but this new agreement is just as much an original contract as the first agreement was, and is no continuation of the old promise. ''The debtor binds himself when hp.N was not bound before.

The firm of Stephen R. Roberts & Co. being discharged from any legal liability on the first note of Be-lote; after the dissolution of the partnership, could one of the partners re-acknowledge and anew execute the note in the name of himself and the other partners? If it be trud*that this was an original agreement, taking date from the time the new contract was made, he clearly could not; the partner having no agency to bind his former co-partners; or does this position naturally conflict with what was holden in Wood vs. Braddock (1 Taunt. R. 103). The court, in that case, do not decid that r a new contract can be made by one ot the partners alter the partnership is dissolved. The true rule is laid down in Bell vs. Morrison, (1 Peters, 373) that after-a dissolution of a partnership, no partner can create a cause of action against the other partners, except by a new authority communicated to him for that purpose. When the statute of limitations, says the court, has once run against a debt, the cause of action against the partnership is gone. The acknowledgment, if it is to operate at all, is to create a new cause of action. We think that the power to create such right does not exist after the dissolution of the partnership in any partner. With this opinion, this court concurs, and declares that the promise of Stephen R. Roberts on behalf of the firm, made years after it had been dissolved, and after the claim had been barred by the statute of limitation, did not bind Wynne, and that as to him, the decree must be reversed and the bill dismissed.

Thomas Roberts did not rely upon the act of limitations, or appeal from court below. The cause will be remanded to the Sumner circuit court, to be proceeded fn by discharging Alfred R. Wyyne, and letting the decree stand as to Thomas Roberts.  