
    R. H. & T. H. Allen vs. J. C. Farrington, et al., Ex’rs.
    
    1. Limitation. Statute of. Administrators and Executors. It is the residence of the persons who own a debt, and not their place of business that gives situs to the debt. Thus, where a cause of action accrued to a firm against an executor, one of the firm resided in this State, and the others beyond its limits, the resident partner is barred of his remedy, by the lapse of two years, and as the action must be in the name of all, it being on a joint demand, the bar of this one must operate as a bar to the others.
    2. Partnership. Firm not to be regarded, as an unit. A partnership firm is not in legal contemplation an unit, but is regarded as several persons associated in business as partners, with power in each member of the firm, in virtue of a mutual agency to manage its affairs, to receive payment of its debts, and in the name of the firm, if necessary, to enforce their collection.
    EKOM SIIELBY.
    Defendants’ testator was dormant partner in the firm of Farrington & Chiles, at Memphis, who were indebted to the plaintiffs as surviving partners of the firm of Hobson & Allen, in New Orleans, in the sum of $1,109 78. The defendants qualified as executors of J. F. Farrington, the alleged dormant partner, in April, 1851, and this suit, in assumpsit, was commenced against them in the court of common law at Memphis, on the 16th of August, 1853. It seems that Thos. H. Allen, one of the plaintiffs, had for more than two years before the bringing of the suit, and after the appointment and qualification of the executors, resided in Memphis, where the defendants also resided. It appears also, that the business house of Hobson & Allen had been throughout the entire period, in the city of New Orleans, where the other partners resided. The case was submitted to a jury before Oaruthers, judge, at the November term, 1854, of said comt. The defendants pleaded the statute of limitations of two years, which the court charged to be a bar to the action. There was a verdict and judgment for defendants, and a new trial being refused, the plaintiffs appealed in- error.
    T. L. SullivaN and Charles Kobtrecht, for the plaintiffs in error:
    The circuit judge charged the jury, among other matters, that if at the time of the qualification of the executors aforesaid, either one of said plaintiffs resided in Tennessee, then it was their duty to have made demand of said executors within two years from the date of their qualification, and if they failed to do so, then they would be barred by the statute of limitations of two years.
    
    The jury thereupon found a verdict against IE B. Chiles for the debt and damages, but discharged the executors of Jacob Farrington.
    The plaintiff thereupon moved for a new trial, but the same was overruled.
    _ Plaintiff insists there is error in the record in this cause, and the same ought to be reversed, because;
    1st. The plaintiffs are non-residents of the State of Tennessee, and were so at the time of the qualification of the executors of Jacob Farrington. If so, the statute of 1789, which limits the bringing of actions against executors and administrators to three years, does not affect the suit.
    
      The only question which can arise in the case is, whether, if a firm of merchants trading and doing business in a foreign State, have a debt due them in Tennessee by an intestate, and one of the firm reside in the State of Tennessee at the time of the qualification of the administrator, is that firm bound to sue within two . or three years.
    There can be no doubt but that they may sue within three years, and if suit is brought within three years, the statute does not apply.
    The statute provides “that the creditors of deceased persons,” if they reside within the State, shall within two years, and if without the State, within three years, make demand of their accounts, &c., or be forever barred, &c.
    Now what does the statute mean by the word “creditors” when those or editors are a firm of merchants? The word may apply to an individual, or to any number of persons, as to a corporation or a firm of merchants, but -when a firm of merchants are the plaintiffs, as in the present case, then the business place of the firm is the residence of the firm, more particularly is this the case when two out of three members of the firm reside out of the State.
    Suppose the Canal Bank of New ■ Orleans was the plaintiff in this suit, and the defence was, that one of the stockholders of said bank was a resident of this State, could it be pretended that the act of 1J89 would apply. I think it could not. The debt would be due to the Canal Bank, to the corporation at Orleans, they would be the creditors, and as such, might sue within three years.
    
      It is just so with a firm of merchants, one of the firm living in Tennessee, and knowing nothing of the debts or claims of the firm, cannot be required to make demand of a claim he knows nothing about.
    The case of Perry vs. Jaeleson, 4 Term. R., and which is relied on by the defendants, is not similar in any respect to this case. There, three partners, residing in London, sued for a debt which was barred by the statute of limitations, and on the proper issue being made, the court held that one of the firm being “beyond the seas” did not take the case out of the statute. This case is really an authority for plaintiffs in this suit. The firm was located in London, had its situs there, and was bound to sue by the laws of England within six years.
    In the present case, the plaintiffs as a firm, had their situs or location in a foreign State, and the debt-being due and payable in a foreign State, “they” the firm, have a right to sue at any time within three years.
    The case of Mar stiller vs. McLean, in 7th Cranch, is also relied on by the defendant, but on examination, the court will find the distinction between cases where all are iínder a disability at the time the action accrues, and where one is not under disability, was not taken or mentioned in the ease.
    See also the case of Shute vs. Wade, 5 Yerg. p. 9 and 10, where it is said by this court, that the word “ creditors” and the word “ they ” describes all the individuals entitled to a joint action. If such is the law, then there can be no doubt but that this case must be^ reversed.
    
      But again, the act under which this defence is attempted to be sustained, is not a statute of limitations; it is a complete bar to plaintiff’s demand, and must be specially pleaded. In order to make it a defence, the plea must negatiye all the requirements of the statute, i. e., it must ayer not only that suit was not ■brought within three years, but also that plaintiff’s did not, within that time “ exJiibit and malee demand or firing suit for their said claim.'’'1 Pleas in bar are taken most strongly against the party pleading; the law presumes that the pleader states his case most strongly in his own fayor. Whatever is necessary to be averred in pleading, is also necessary to be proved .on the trial.
    In the present case, there is no evidence to show the court that the plaintiffs did not exhibit and make demand of their claim within the time prescribed by law. Such being the case, the law will require of the defendant strict proof of the allegations in his plea, and if 'the same are not furnished, will render a judgment .against him.
    ;E. M. Yergee, for the defendants in error:
    In the case of Perry vs. Jackson, 4 Term Rep., 516, three plaintiffs, partners, brought their action. Two of them resided in England -at the time the cause of action accrued, the other resided abroad. The act of limitations of 21 Jac, 1, ch. 16, § 3, was pleaded in defence. It was contended, that as one of the plaintiffs resided abroad, the case was within the exception of the statute in favor of persons “beyond seas.” The court held otherwise, and said: “Now, two of the plaintiffs in tbis cause have always been resident here: and it was their duty to watch oyer their interests, in which they themselves were equally concerned with the partner who resided abroad. It is admitted, that one partner may do several acts to bind the interest of all; he may release a£ well as create a debt; he may also, by his acknowledgment, take a case out of the statute of limitations; and we see no reason why the same rule should not. hold also in the present instance.” “We are, therefore, clearly of opinion, both on the words of the act of Parliament, and on grounds of policy, that the plaintiffs are barred by the acts of James.”
    This ease was followed and adopted by the supreme court of the United States, in the case of Marstiller vs. MoLean, J Cranch, 156.
    And it has also been recognized and adopted by -our supreme court, in Shute vs. Wade, 5 Yerg., 10, where it was held, that where one of several joint plaintiffs was under no disability at the time the cause of action accrued, the statute runs against all, although the others are infants. This was a case where one of the joint plaintiffs was over the age of twenty-one years at the time the cause of action accrued, and the others were infants. The court said the statute run against all, “because ‘they’ who are entitled to .the action were not under twenty-one years of age, seeing one of them was not, and, therefore, none of them are within the saving.”
    This case has been recently approved and affirmed in Wells and others vs. Ragland, 1 Ew.an, 501.
    These authorities are decisive of this case; inasmuch as the plaintiff, Allen, was a resident of Tennessee at the time the cause of action accrued, and the statute running as against him, bars his partner, who resided without the State, the cause of action being joint.
   TotteN J.,

delivered the opinion of the court.

Assumpsit. Judgment for the defendants, and plaintiffs appealed in error.

The plaintiffs are surviving partners of the firm of Hobson & Allen, commission merchants at New Orleans, La., and sue for an alleged balance of $1109 78, due them by the firm of Farrington & Ohiles, merchants at Memphis, of which firm, it is insisted, that the defendant’s testator was a dormant partner.

The defendants were appointed and assumed the office of executors of Jacob F. Farrington, April 7, 1851, in the county of Shelby, where the testator resided at the time of his death; and this suit was instituted August 16, 1853, more than two years, and less than three, after the appointment of the executors.

It also appears, that Thomas H. Allen, one of the plaintiffs, a member of the firm of Eobson & Allen had his. residence in Memphis, in said county of Shelby, for more than three years next before the institution of this suit; that is, he had his residence there when the executors were appointed. The other members of the firm of Eobson & Allen, resided at New Orleans, La., their place of business. The executors pleaded in defence the limitation of two years as a bar to the action; and the judge instructed the jury, that under the circumstan-ees, it was a valid defence. The case turns upon the correctness of this instruction.

Tho act 1789, eh. 23, §4, provides that “the creditors of any person or persons deceased, if he or they reside within this State, shall within two years, and if they reside without the limits of this State, shall within three years from, the qualification of the executors or administrators, exhibit and make demand of their respective accounts, debts, &c. and if any creditor or creditors shall fail to demand and bring suit for the recovery of his, her or their debt, within the aforesaid term limited, the same shall be barred.

It is contended for the plaintiffs, that in the sense of the act, the firm of Robson & Allen is to be considered as an unit, as one creditor, residing at its place of business in New Orleans, La., and therefore, that three years, and not two, is the limitation in the case.

We do not concur in this view of the question; we do not regard the firm as an unit or a single person, but as several persons associated in business as partners, with power in each member of the firm in virtue of a mutual agency, to manage its affairs, to receive payment of its debts, and to institute suits if necessary, in the name of the firm to enforce their collection. It is not the place of business that gives situs to the debt, but the residence of the persons who own it. Bank U. S. vs. Dereaux, 2 Cond. U. S. R. Creditors who reside in the State and are mi juris, shall sue within two years, and those who reside out of the State, shall sue within three years from the time when the executor or administrator was appointed; such is the statute. It matters not where the debt was contracted, nor where the creditors may have then-place of business.

Now, in the present case, when the cause of action accrued, one of the creditors, who have a just demand, resided in the State, and the other two resided beyond its limits.

The resident creditor is barred of his remedy by the lapse of two years, and as the action must be in the name of all, it being on a joint demand, the bar of this one must operate as a bar to the others.

This construction is in accordance with the spirit and intent of the statute. Some time must be limited within which the estates of deceased persons ought to bo administered and settled. The term limited by the statute was deemed reasonable and convenient; and if creditors fail to present their demands within the time, the failure is to be imputed to their own negligence, and the settlement of the estate ought not to be delayed, except in the case of disability, and there the delay is excused. Here the resident member of the firm, who is presumed to have knowledge of its affairs, fails to give notice or make demand of his debt until the lapse of two years allowed the executors to close their administration. For tills delay, there is no excuse, and it must be imputed to the negligence of the creditor, and the consequences ought to be visited upon him and those whom he represented. We are of opinion that the action is barred by the statute. Perry vs. Jackson, 4 Term R., 517. Shute vs. Wade, 5 Yerg. R., 10. Marsteller vs. McLean, 2 Cond. U. S. R., 453.

Judgment affirmed.  