
    Executors of Fisher v. Representatives of Tucker.
    The bill in this case stated, that George Heriot and Daniel Tucker were copartners in trade, under the firm Heriot and Tucker; that they became indebted to James Fisher in the sum of ¿61,100 sterling; that Tucker died the year 1798, and that in 1800 Heriot, the surviving part-ñer, executed a bond to Fisher m behalf of the firm for the > said debt; that in 1805 Heriot was applied to for payment, and he replied by letter that he was insolvent and unable to pay any thing, but that Tucker’s estate was good, and that Fisher should be paid out' of the next crop of that estate. The bill further stated that on the dissolution of the partnership in the life time of Tucker, he received a considerable dividend from the partnership funds, and that his representatives, the defendants, were then in the possession and enjoyment of the same. The bill therefore prayed that they should account for the said dividend, and that they should pay the amount of the bond.
    
      What ae-a to tdk6 r cld^t out of the ata-í?te of limita“ turns.
    
      The general rule is, that the power of one partner to hind the firm ceases with the existence of the partnership.
    After dissolution a power to receive and pay all debts will not authorize one partner to endorse a bill of exchange.
    1826.
    
      Columbia.
    
    The defendants rested their defence on the statute of limitations, and they proved that the partnership was dissolved in 1794, and urged that the debt to Fisher must therefore have been contracted before that time to render them liable. The only evidence offered to establish the debt was the bond given by Heriot, and no proof was produced of its prior existence, and no demand of it made against the defendants, until the filing of this bill in 1814. It appeared further, that the estate of Tucker was divided among his heirs soon after his death.
    The question raised on these facts was, whether the. bond given by Heriot, the surviving partner, would bind the estate of the deceased partner Tucker.
    
    Waties, Chancellor.
    There appeared to me at first considerable difficulty in this question; for no case was produced, and perhaps none can be found, in which a similar question has been directly decided. But after giving it a more full consideration I am of opinion, that there are clear and well settled principles which apply to the case and which govern it. After a careful examination of all the cases which have any relation to the subject, the general law appears to me to be this. The power of one partner to bind the firm ceases with the existence of the partnership. The partnership being dissolved, even a power to receive and pay all debts due to and from the partnership will not authorize one of the late partners to endorse a bill of exchange in the name of the copartnership. The moment the partnership ceases the partners become distinct persons with respect to each other. 1 H. Black. 155. 3 Esp. Rep. 108.
    cau”ot bind6' another by
    The death of dUsoivesTthe firm> and the executor of the deceased |5ee™^¡^ a common with the survivor, But they can ?®^® ®^w-ifthesuwi-sthe"
    vepresenta-deceasedmay °*> may avail themselves of statute of
    
      dictum in Higginson Mr, i De-^qucsdon-j®jEpei^A" ceiior.
    But one partner cannot, even during the existence of the partnership, bind another by deed; and this both for technical reasons and on the general policy of the law. Such a power would have the most mischievous tendency; for as the want of consideration in a deed could not be enquired into, it might extend to mortgages, and would enable one partner to give to a favourite creditor a real lien on the estate of his copartner. 7 Term Rep. 207. 2 Caines’ Rep. 256. It has also been established, that the contract of partnership is entirely dissolved by the death of one of the partners, and his repre- . J . 1 • . i sentatives become tenants in common with the survivor, And therefore at law the executor of the deceased partner is not liable to be proceeded against by the partner- , . ,. „ , . . ... , ship creditors; tor the surviving partner must be joined in the action, and different judgments would be rendered. 2 Vern. 292. 1 Raym. 340. 2 Ves. 268. If, however, the surviving partner should be insolvent, the may resort to the estate of the deceased partner in equity. " 9 Ves. 125. 17 Ves. 519.
    And here occurs the question, whether the tatives of the deceased partner may avail themselves of , „.. . . ' the statute oi limitations. , •
    It is contended for the complainants, that the is no bar to their demand, and they rely chiefly on certain decisions in our Courts, and also on the ground that the defendants are to be regarded as trustees. .1 have formed a different opinion, and will proceed to examine both of , , T . ii, , , tnese grounds. 1st. It is contended that the acknowledgments of the debt by the surviving partner will prevent the statute-of limitations from running against it and the case of Higginson and others v. Mr and others, 
      1 Desaus. Rep. 427, has been cited in support of this p0Sjt¡0n> The Court said in that case, “ That the assumptions of the surviving partner, as to the affairs of the copartnership, bound the other partner’s estate, and that the law had fixed no limitations of time as to the surviving partner’s reviving partnership debts by his acknowledgments.” The case also of Simpson and Morrison v. Geddes, 2 Bay, 533, has been relied on, in which the acknowledgment by one partner of a debt after the dissolution of the partnership was held sufficient to charge his copartner with the payment of it.
    tion the ad-" mission of one partner will bind his co-to prevent the”statute*ng
    admissions5 *° made after the operation or the statutory peiiod’
    tracttwbur*11" then can be note'given"01'
    The dictum in the first case certainly appears to favour the position taken for the complainants, but it refers to no authorities; and it may be confidently said that none can be found to support it in the extent in which it is laid down. On the contrary it is opposed by subsequent decisions in our Courts, and by general principles on the subject.
    The same objections might be fairly made to the other case, which was determined at law; but it is sufficient to say of that case that the question of limitations was not before the Court, and it must be presumed that the admission of the debt was made within the legal period, or the statute no doubt would have been pleaded.
    It will not be denied that the admission of one partner will bind his copartners so as to prevent them from the statute. It was so ruled in Whitcomb v. Whiting, Doug. 629; and in Smith v. Ludlow, 6 Johns. Rep. 269, this effect was given to an admission made by one partner after the dissolution of the partnership. But these cases the admissions were before the statute had attached, and were allowed to bind the other partners because they created no new engagements.
    Every act however of one partner which may charge the others with any new contract, or impose on them any new burthen, must be done while the partnership exists. This principle has been fully settled both own Courts and in those of England. in pur
    opinion of Chancellor Kx’Tvrrp
    In Foltz v. Pourie and Dawson, 2 Desaus. 43, held by the Court “ that one copartner cannot bind another by giving notes in the copartnership name after it is dissolved.” The same rule has been laid down by the Constitutional Court in the case of White v. The Union Insurance Company, 1 Nott & M’Cord’s Rep. 556, also in the case of The Bank of South Carolina v. Humphreys and Matthews, 1 M’Cord’s Rep. 388. In Abel v. Sutton, 3 Esp. Rep. 108, it was determined, that after the dissolution of a partnership, one of the partners cannot put the partnership name on a negotiable security, so as to charge the others, even though it existed prior to the dissolution, notwithstanding such partner may have had authority to settle the copartnership concerns. it Was
    “ To contend,” says Lord Kenyon, “ that the liability of one partner to be bound by the acts of his copartner extends to a time subsequent to the dissolution would be a monstrous proposition. A man in that case could never know when he was to be at peace and retired from all the concerns of the partnership, if one partner was to have the power of binding another long after the dissolution of the partnership.” 2d. Great stress has been laid on the opinion of Chancellor Kent on this subject, who has said that “ no period has been fixed within which * a creditor, by not making his demand upoii a surviving partner, should be held to have waived his equity against the estate of a deceased partner.” Hammersly v. Lambert, 2 Johns. Cha. Rep. 508. No one can entertain a higher respect than I do for the opinions of this accurate and enlightened Judge. But it appears to me, that he has laid down a rule which is not authorized in its extent by either cases or principles. He professes to deduce the rule from the opinion of the Master of the Rolls in the case of Devaynes v. Noble, 1 Meriv. Rep. 569; but all that the Master of the Rolls has said in that case is, “ that it is supposed that there is a rule of convenience which requires that the creditors of a banking house shall make their demand for their balances upon the surviving partners within some very short period of time, or else be held to have waived their recourse against the estate of the deceased partner.” He thén proceeds to shew that so rigorous a course might be ruinous to the surviving partners by the sudden and concurrent pressure which it would bring on them, and ought not to be imposed on creditors as the condition on which their remedy against the estate of a deceased partner should depend. The laches there complained of was a forbearance of only eight months, and in none of the cases cited in support of that ground was the lapse of time sufficient to amount to a legal bar.
    Equity does with th^ope-rations of the statute of hnn-tations, unless thorize it.
    The statute is obligatory upon all legal ti-mands.nd de"
    The books furnish no case in which a Court of Equity has ever felt at liberty to dispense with the operation of statute against a legal demand, unless there has been . ° . ° ... some extrinsic equity to authorize it. I he cases are to the contrary, but I will only refer to the following.
    In Reade v. Reade, 5 Ves. 744, the Court would not on a bill for mesne profits decree . an account for more than six years, because more could not be recovered at law. And it is there said that the circumstance of being obliged to sue in equity does not alter the legal nature of the action for mesne profits. And in Hovenden v. Annesly, 2 Scho. & Lefr. 630, Lord Rede sdale says, / . ’ “ Courts of Equity are bound to yield obedience to the statute of limitations upon all legal titles and legal demands.”
    It is manifest that the present demand was originally a legal one,- and the circumstance of bringing it into this Court will not, as was said by the Court in Reade v. Reade, alter its original nature. It is stated to have been for goods sold to the firm oí Ileriot and Tucker, the remedy for which was exclusively a legal one, while the partners were alive, or while the survivor of them was solvent. It must it appears have been contracted before 1794. Both partners lived more than four years after- • • * wards, and the surviving partner Ileriot continued solvent many years longer; but no suit was brought during either period. The demand was therefore legally barred before the death of Tucker, and it was not in the power of the surviving partner to revive it afterwards against his representatives. The putting the debt in the form a bond does not exempt it from the operation of the statute. One partner it is settled cannot bind another by deed, and the bond is void as such with respect to the cfeceased partner, fit can only then be regarded as acknowledgment of the original debt, but this it has also been shewn cannot avail because it was not made within four years, /it is however contended that Ileriot was executor of Tucker, and that he has bound the estate the bond to Fisher, and by the letter promising payment out of the estate. It would be sufficient to oppose to this argument the fact that the bond was not as . , . . _ _T tor, but as surviving partner in behalí oí the firm oí riot and Tucker. But if it had been given in the character of executor it would not charge the estate of Tucker, for it has been repeatedly decided that an executor not possess such a power. He cannot vary in any way the actual state of his testator’s debts, and therefore cannot revive a claim on the estate which has been barred i i v • , „ by the limitation act, or even prevent the running oí the act by his acknowledgment of it within the period limitation.
    Waties, Ch. j^ing legally before one partner, cannotTevive by a subsement
    Appeal Court
    
      Bond given suéiTdebt v,oid as such, but may-evidence J^g^en™ but not condu-
    
    An executor the estate'by |ivinS ab°nd. He cannot vary in any of^atTof&e testator’s debts.
    I refer to the following cases decided by the constitutional Court, Knox v. M’Call in 1805. 2 Brev. MS. 266; Pearce v. Smith in 1810; and M'Beth v. Smith, 1 Const. Rep. 676, Tread. Edition, decided in 1816.
    
      Chancery law uST some peculiar equity in a case should exception
    Construe-live trust not allowed to be •Iny'distance of time.
    Trusts are only an exception from the statute of limitations as between trustee and cestui que trust.
    
    What trusts the statute will apply to.
    1 am not apprized of any decisions of this Court on the subject, but I consider it bound to follow the law, unless some peculiar equity in a case should make it an exception.
    The second ground insisted on for the complainants is, that the defendants are trustees for this demand.
    This ground appears to me as untenable as the first, jt is very clear that there is no express trust, and if one ....... . . can only be raised by implication, it is no exception to statui:e- In Beckford v. Wade, 17 Ves. 97, the Master of the Rolls says, “ It is true that no time bars a direct trust, as between a cestui que trust and trustee ; but if it is meant to be asserted that a Court of Equity allows a man to make out a case of constructive trust at .. „ . T * , , . any distance of time, 1 am not aware that there is any groun(I f°»‘ a doctrine so fatal to the security of property as that would be.”
    In Andrew v. Wrigley, 4 Bro. C. C. 425, Lord An-vaNley recognized this rule and acted upon it; and in Townshend v. Townshend, 1 Bro. C. C. 544, Lord Commissioner Ash huh st takes the same distinction between express trusts and trusts by implication. He says, “ the rule, as to trusts being an exception to the statute of limitations, holds only as between cestui que trust and trustee.”
    In all cases therefore of constructive trust, a Court of Equity has constantly applied the statutory limitation.
    In Lockey v. Lockey, Prec. Ch. 518, the Lord Chancellor was of opinion, that where one receives the profits of an infant’s estate, and six years after his coming of age, he brings a bill for an account, the statute of limitations is as much a bar to the suit as it would be to an account at common law, “ It is not such a trust as the statute will apply to.”
    In Webster v. Webster, 10 Ves. 93, a bill was brought against an executor for an account and payment of a debt due to the plaintiff. He pleaded the statute, and although regarded in equity as a trustee for the payment of debts, yet the Court thought his plea a good one, because it appeared that he had been possessed of the effects of his testator more than six years, and the plaintiff might have brought his action of account within that time. If then by any possible construction the original nature of the demand could be converted into a trust, yet according to these cases it would be barred by the statute.
    After disso-P>'°ve<J>be-ofacknowledgment‘
    
      Laches in this toSbarU«>m-nt
    But there is another objection to the demand, which I think fatal to it. There had been no proof of any ginal debt. The acknowledgment by Mr Heriot, although it may have been sufficient to prevent the operation the statute if a debt had been proved, yet being made after the dissolution of the partnership, it does not dispense with the necessity of further proof. It was so ruled in the case of Hackley v. Patrick, 3 Johns. Rep. 528. Also in Smith v. Ludlow, before quoted.
    It would indeed be a most alarming doctrine to the mercantile world, if one partner had the power, after the partnership was dissolved, to charge his former partners to any amount by his bare admission of a debt. Such a power would expose every man who had retired from trade to the collusions of a dishonest copartner, who might ruin him by the admission of fictitious demands which could not be disproved.
    There is one more view of the case which the defenT dants ought to have the benefit of. They have not only a legal but a good equitable defence.
    The estate of their father was divided soon after his death in 1789 ; they have been in the enjoyment of their shares ever since, looking to them for their own port, and as a resource for future portions to their children. There is reason to presume that a sufficient amount of the partnership funds was reserved in the hands of the surviving partner Mr Heriot, to discharge t])e 0f tiie firm, This was the belief of one of the witnesses; and it is the usual practice of merchants on dissolving their partnerships. But no demand was made 0n the defendants until the filing of this bill.
    This laches of the complainants, although it may not amount to a bar in equity, yet gives to the legal bar a strong equitable sanction.
    It is therefore ordered and decreed that the bill be dismissed.
    This case was argued before the late Court of Appeals in Equity, but before the cause was decided that Court was abolished, and the cause transferred to the docket of the present Court of Appeals. The following argument was delivered before the former Court, but the same arguments were used before the latter.
    
      King, for the appellants,
    after repeating the facts of the case, contended on the first ground, that there was sufficient proof to establish this as a partnership debt. He referred to 3 Johns. 528. 6 Johns. 269. He acknowledged that the first case decided that one partner could not bind the other by the acknowledgment of a debt. But in that case there was no proof that it was by a surviving partner. Both were living. Here the promise had been made by the only person liable at law. This Court was not to be governed by New York decisions, but by the common law and decisions of this state. The case of Foltz v. Pourie and Dawson, 2 Desaus. Rep. 40, differed from this. The copartner in that case made a note, which was a new contract after the partnership was dissolved. But this was only the recognition of an old one. The case of White v. Insurance Company, 1 Nott & M’Cord’s Rep. 556, differed also from this. The company took an indorsement from the surviving partner. Besides, the party had shares on the books, which he had assigned to partnership creditors. He cited The Bank v. Humphries et al. 1 M’Cord’s Rep. 388. 3 Esp. Rep. 108. All of which he said were new contracts. The case in 3 Johns. 528 he said was not law, and he cited Simpson and Morrison v. Geddes, 2 Bay, 533, to shew that one party to a joint contract may recognize the debt to bind the other, after the dissolution of a partnership ; a fortiori might a surviving partner do it ? There was no other person to recognize it; he charged himself by it. The case in Bay was for goods sold to the partnership, and the acknowledgment made after the dissolution, and all the Judges concurred : it was therefore the express law of our own state. The same point was ruled in England, 1 Taunt.. 104. The case in Tread-way’s Edition of the Constitutional Reports he said was only ruled by three Judges. In Britz v. Fuller, 1 M’Cord’s Rep. 541, in 1820, it was held that acknowledgments by one maker of a joint and several promissory note saved the case from the statute of limitations. Treadway’s book he said was not authority.
    Gail LARD, Chancellor.
    Is that book considered authority? There is but one equity case in the book, and' it falsely reported.
    
      King cited 1 Desaus. Rep. 429". If he shewed that they have proved the debt once due, the law had fixed no limits to the acknowledgment by a surviving partner. He cited 1 Gallison, 330 — 5. 1 Taunt. 104.
    The admissions of an agent bind, much more must those of an agent who had joint interest. The true principle is, that though the partnership be dissolved as to subsequent transactions, yet it continued as to the partnership affairs till they were settled. This admission was competent and plenary evidence in absence of fraud.
    
      Here the admissions were made not only by a surviving partner, but also an executor. The making him executor was a strong proof of his confidence in his character and honesty. There was no other person to make an acknowledgment. He was making himself also liable: it was not denied by the answer of the infants. The executor pleaded the statute of limitations which admitted assets, and the plea was overruled. As to the effect of a plea in bar, he cited Coop. Eq. Plead. 223. 231. It reduced the cause to a single point. The point here is, “ whether the debt is barred or not ¶” The plea admitted the debt due. He was entitled to a decree pro confesso, as a judgment by default. He admitted that he could not have a decree against the infants, but that he might against the executors. Coop. Eq. Plead. 231. For the purpose of deciding the plea the bill was admitted to be true, Coop. Eq. Plead. 251, thereby giving an acknowledgment of the right independently of the answer. See also 6 Ves. 594 — 5. Ball, on Limitations, 209. The plea of the statute admitted the cause of action. 1 Johns. Cha. Rep. 10. The defendant was precluded by neglecting to answer. 2 Atk. 23. 1 Harper’s Rep. 87.
    He recapitulated that the debt was sufficiently proved as a partnership contract; and that it was admitted by the plea and established by the order pro confesso.
    
    As to the second ground, he contended that the acknowledgment was good to save the statute of limitations, whether made within or after the four years. He had found no authority supporting a distinction. It did not exist in law. It was too subtle. The cases were contrary. Whitcomb v. Whiting, Doug. Rep. 629, laid down the principle broadly without the distinction. The act of one’s paying, &c. was the act .of all. The dicta to the contrary of this position were all general. The next case he cited he said was more in point, viz. Jackson v. Fairbanks, 2 H. Black. 340, Payment by the assignees of bankrupt partners nine years after debt was held to take the case out of the statute. 1 Gall. Rep. 635, 6. In Higginson v. Air, 1 Desaus. Rep. 426, thirteen years had elapsed. So in the case in 2 Bay’s Rep. 533. In 6 Johns. Rep. 269, the Court decided without saying any thing about the distinction. In 1 M’Cord’s Rep. 541, the same question was made: a note dated 1808, part payments made in 1814 and in 1821, the acknowledgments were held to take it out of the statute.
    As to the third ground, he said the partnership existed in 1794. The copartner died in 1797. There was no doubt about the debt in Tucker's life time; and the debt was not barred at Tucker's death. It was valid against his estate, or Heriot's admission rendered it so.
    As to the fourth ground, he said, there was no waiver of the equitable right, for having pursued the estate of the solvent partner — it was always reserved. The bond and the letter all speak of a copartnership debt. They always trusted to copartnership assets. As to laches there was none; up to 1807 the debt was constantly recognized. The executor pledged, as far as he could pledge, the crops. The laches could only be from 1807 to 1814, when the bill was filed. Independently of the statute twenty years were always required as to a bond. Nemo debet completan aliena jactura.
    
    In 4 Desaus. Rep. 429, thirty years had elapsed from the accruing of the debt to filing of the bill, seventeen years before the war had elapsed.
    In Lane v. Williams, 2 Vern. 292, it appeared considerable time had elapsed. 2 John. Cha. Rep. 508. 1 Meriv. 529. 4 Day’s Con. Rep. 476.
    In Heath v. Percival, 1 P. Wms, 682, twenty-seven years had elapsed between the making of the bond and the decree. Percival died the same year.
    In Ilammersly v. Lambert, 2 John. Ch. Rep. 508, the lapse of time was as great as in this case.
    
      On the fifth ground, he said, the possession of the bond was conclusi Ve proof .that the debt was due, and rebutted the presumption of payment under the statute. The r 1 „ , bond spoke of the partnership. Binding one partner it binds the other. The act of one was the act of both, Partners were identified. Suppose both alive, or Heriot called upon to pay the whole, he would have a right to contribution — the other might be compelled to pay. The statute of limitations would not begin to run till he paid, His client stood in the situation of Heriot.. Jacob v. Harwood, 2 Yes. Sen. 265, he thought was conclusive on the whole case.
    This Court, he said, was not bound by the statute of limitations if they saw clearly that the debt was unpaid. He had shewn a debt against the copartnership. The surviving partner represented the copartnership. He was bound and therefore both were bound.
    
      Abel v. Sutton was not a case of a surviving copart-ner, but was a contract after the dissolution. The case of Jacob v. Harwood was recognized by Sir Wicliam Grant, 1 Meriv. 565. He cited Wodrop v. Ward, 3 Desaus. Rep. 203, to shew that if one was bound both were bound. If a surviving copartner give a bond or mortgage or judgment, though it extinguishes the simple contract debt, yet it would remain a copart-nership debt. Norton v. Turville, 2 P. Wms, 144. 2 P. Wms, 241. The rule that one partner cannot bind another did not apply to a surviving copartner. The Court would look at the substance. Would not Tucker have joined if he had been alive1?
    The reason in England why one partner could not bind by bond was because real estate would be bound. It did not apply here where simple contracts bind lands. These reasons were sanctioned’in the case of Harrison v. Jackson. • The Court would say here is substantially a partnership debt.
    
      The English rule was a barbarous feudality. Inequity a bond given by a partner was a partnership debt, even in England. Ex parte Roberts, Coop. Rep. 102. Ord v. Chase, 1 Meriv. 729. A fortiori by a surviving partner. But here it was not only a surviving partner, it was the executor who signed.
    On the sixth ground he said these were the acknowledgments of the executor, and his acknowledgments took it out of the statute. Some cases did say he cannot bind the estate by a new contract. But it was not so in this case, if the debt be bona fide. He understood in the case of Knox v. M’Call, the debts were barred in the life time of the deceased; but here it was not barred in Heriot’s life time. If the decree was founded on those cases, it must be overruled.
    On the ground that the defendants were trustees, he said they could not be sued at law till Heriot’s death or insolvency. He inferred from the facts of the case that complainants were ignorant of these facts till the letter in 1815. In analogy to cases of fraud, &c. the statute could not run till discovery.
    The funds going into Tucker’s hands were res inter alios acta. The letter says the funds were divided. 1 P. Wins, 682. 1 M’Cord’s Rep. 541.
    Besides, the defendants took as trustees for the payment of debts under their, father’s will. This was a subsisting debt at his death. Against such a trust the statute of limitations will not run. It is a declared trust. He cited 2 Ves. & Beames, 274, to shew that words in a will, directing that debts shall be paid, create a trust. 8 Ves. 574.
    There were numerous authorities. It has been held at law that a trust for the payment of debts did not revive a debt barred, but it protected one in existence. The statute of limitations does not bar legacies. But there was more equity for debts as to the executor. 1 Scho. &. Lefr. 107. Where there is a trust for payment of debts, the statute does not run, if not barred before the testator’s death. 2 Ves. & Beames, 281.
    S'. D. Miller, contra.
    He said after a dissolution of a . . . copartnership, one party may recognize, whilst alive, a responsibility which lies on himself: therefore it was laid down that he shall not create a debt to bind the copart-nership. The case from 3 Johns. Rep. 528, he said, was conclusive. The right to make an acknowledgment of an account was no more admitted than the right to make a note. He cited 2 Johns. Rep. 300. It would be putting all one’s rights in the power of a partner for an unlimited time. The powers given were mutually given as far as related to business. On dissolution the business must be wound up. Foltz v. Pourie and Dawson, 2 Desaus. Rep. 40. One partner cquld only bind during the partnership — not after. It was admitted during the partnership only for the benefit of the concern. 2 Const. Rep. Tread. Edit. 685. The original entries should have been proved. It was many years after the dissolution before the bond was given. Heriofs letter induced the conclusion that the firm of Heriot and Tucker was solvent at the.dissolution, and that funds were set apart to pay debts. He afterwards went into partnership with another. The Court should be cautious of establishing a rule which would be subversive of mercantile interests. The partnership was dissolved in 1794. Fisher died in January 1798. Let the death of Tucker be considered the time when the debt became due, and it was barred. The copartnership expired in January 1794 by its own limitation. The letter was written in 1805, and the suit brought in 1814. One partner could not bind another by deed. Watson, 164. It was not a nullity as to Heriot. He referred to the cases cited by Watson. If one partner does execute a bond, it binds himself. There was nothing to shew the debt unsatisfied up to 1805 but the letter. The Court therefore would conclude that the letter was not . , sufficient proof of an original debt. By such evidence he lost the right of cross examination. It is an ex parte statement to relieve himself.
    If the original debt was proved, would the letter revive it after it was barred by the statute "?
    The case in Johnson’s Chancery Reports was a mercantile transaction, and was decided on the ground of laches. The statute of limitations was not in question. 1 Meriv. 567.
    The true principle is, that there is no necessity for the utmost diligence against a surviving partner.
    As to the statute of limitations — if the bond be not a recognition, but the letter is, is not the demand barred after the date of the letter"? 2 Scho. & Lefr. 632. Equities are barred by analogy to the statute of limitations. It operates on all legal questions. If it were barred after the letter, it is not material whether the letter revived it or not. He presumed the trust was discharged in four years : by analogy a promise not to take advantage of the statute is barred in four years.
    An executor could not admit a debt already barred. Knox\. M’Call, 2 Brev. MS. Rep. decided in 1805. All the reasoning that applied to a partner after dissolu-lution applied to executors. In 2 Const. Rep. Tread. Edit. 767, it is said that'an acknowledgment that a debt is just by an executor is not sufficient proof. The doctrine at law is, that the contract of an executor can not charge the estate. M’Beth v. Goddard’s Adm. 2 Const. Rep. Tread. Edit. 677. Pearce v. Smith.
    
    The bond was a contraction of a new debt, if there was no proof of antecedent debt, the bond was the creation of a new one. The rule, that where a trustee assumes the debt he discharges the trust estate, applied to executors. If the debt is not due, and the executor promises, and the party forbears to sue, the statute does not run. Pearce v. Zimmerman, decided at the last Court. jy t|ie were not barred before the intestate’s death, the lapse of twenty years would raise the presumption of payment. From 1794 to 1814 were twenty years — Vigi~ lantibus non dormientibus jura subveniunt. If Tucker left funds in Heriot’s hands and complainants have waited till,he became insolvent, it was their own fault. Hammond’s Dig. 348. Merchants’ accounts are within the statute, the accounts having ceased six years.
    
      Tucker’s executor was notified till 1814. It was nothing to say that they had his bond and letter. It was good against him; but it gave no claim on Tucker’s estate; at all events from 1807. Equity adopts the statute by analogy. 10 Ves. 466. The case from Scho. &. Lefr. 110 shews that a devise in trust does not revive a debt before barred. It was not to be taken for granted that the debt was created at the dissolution. It might have been four years before. The Court would conclude that Heriot, having funds, made it a personal debt, and that the parties looked to him.
    There was no express devise for the payment of debts. It was a mere implication; the estate was to be divided. It was divided: and would not the Court presume that payment had been made before that period1?
    
      Gadsden, in reply.
    The case stood on the naked plea of the statute of limitations. We are entitled to a decree stricti juris. This claim is equitable, if the conscience of the Court be satisfied.
    .The bond and letter are no evidence of a partnership debt. It is only a question of evidence. The debt must be proved in one of two ways, by acknowledgment or by the books. The only surviving partner admitting the debt would only bind himself. 1 Gall. Rep. 636. The answer of a bankrupt partner, made before discharge, was held good. It was the best evidence that could be had. 2 Bay’s Rep. 533. 1 Gall. Rep. 635. * * The confession of one partner was sufficient, not only as to the amount, but as to the existence of the debt. 1 Taunt. 104. Did any one doubt Heriot's honesty 1
    The bill having been taken pro confesso furnished evidence. This was different from a bill of discovery. The party admitted what he did not deny. It was similar to a judgment by default at law. He cited 1 Desaus. Rep. 429. Doug. 630.
    With regard to the distinction between acknowledgments made as to a debt barred and not barred. Where did they find this doctrine % It would be extraordinary in a Court of Equity that payment was presumed in four years. The pleadings were against such a conclusion. Whitcomb v. Whiting, Doug. 65i.
    In the case in 6 Johns. Rep. 269, it appeared that the promise had been made after the six years: neither of the cases support the decree.
    The Judge seems to have thought the acknowledgment analogous to giving a note, a new undertaking, or one imposing an obligation which did not exist before. 1 Desaus. Rep. 429. This distinction does not exist. There are no limits to acknowledgments. It can not be doubted but there were demands in 1800, not long after the death of the party. It is but fair to infer the debt then alive.
    The statute does not run against merchants’ accounts until the-dealings have ceased. From whence it may be inferred that it did not begin to run till the death of the copartner.
    As to the fourth ground, he said that long indulgence to a surviving partner would not discharge the equity against the other. They could not come into the Court of Equity until the surviving partner was insolvent. There was great diligence used against the surviving partner. It was for the benefit of the deceased partner’s estate to indulge. Outstanding debts were to be collected which might have been lost by pressing.
    As a motive for indulgence the surviving partner gave the bond. If the concern could not pay the debt the estate must. If Heriot could not pay, what was the course1? Was it more for the benefit of a retiring partner to pay or to wait contingencies'?
    No indulgence given to one joint obligor was considered at law indulgence to the other. If the representatives of the deceased feared that the funds would be wasted, they might have had security. 1 Desaus. Rep. 429.
    Although funds were left, yet the acting partner ought to be indulged. 1 P. Wms, 682.
    So was the case in Johnson’s Reports. The demand was made on the deceased thirteen years after the death of the copartner. There was no period fixed by Sir William Grant in his opinion. It was not laches to indulge the survivor. Almost unlimited indulgence might be given.
    As to the effect of the bond, Heriot had a right to give it, and it would prevent the statute. Might he not give a security to obtain indulgence1? With regard to the settlement of past transactions, the. partnership exists. Heriot alone- could act for the firm after the death of his copartner. The representatives of a firm must have the means of obtaining indulgence. A creditor would not have rested without some other evidence. The statute could not have been pleaded at law by Heriot against the bond.
    If Heriot had paid the bond and filed a bill for contribution, the representatives of Tucker could not have pleaded the statute. Could they say it was barred notwithstanding the bond? Equity cannot dispense with the statute to a legal demand, but coming into equity, would it be said that the statute bars ? It was .only on J the ground of insolvency that he had a right to come into this court. It was demonstrative proof that the debt was not paid. He insisted that the survivor had a right to give the bond, that the statute would not avail at law, and that the insolvency was the ground of jurisdiction. Was there any hardship on the representatives of the deceased ?
    But funds were left to pay the debts. Why were they not applied? No evidence was given that his client knew the cause. Heriot was the agent and trustee of the other, not his client’s. As to the executor’s acknowledgments, he asked who was the executor in this case ? The surviving partner. All things were done by the surviving partner with the knowledge and assent of the executor. It was not like an executor admitting a demand he knew nothing about. He must have known whether the estate was liable or not, otherwise he deluded the creditor. Could this' be called a case of laches? The party resorted to the estate as soon as he could. An executor was not bound to plead the statute. 15 Vps. 498. That the acknowledgment took the case out of the statute, he cited BriggsStarke, 2 Const. Rep. Ill;
    As to the trust, the statute only could begin to run from the time of the discovery that the partnership funds had been taken in trust liable to lien of debts. It was an implied trust. 2 Scho. & Lefr. 634. 2 Ball & Beat. 129.
    No agreement between partners can affect creditors. Leaving funds to pay can not discharge the retiring partner. i P. Wms, 682.
    There was no distinction between an express and implied trust under a will. This is express, as in 2 Scho. &. Lefr. 634.
    
      
      Qua>re, how far the ac-knowledgment of one partner after dissolution will bind the other.
    It will save a operations oF limitations6 and is admis-eristence of6 debt, but it is not conclusive, and the give'it 'such credit as it may be enti-tied to under stancesUm"
    Wherethe ment°wasdS" made several dissolution, ofthe copart-1 ner, by a bond given by the survivor, who came'insol-6" suttnotd the brought for afterthe'dea'th ofthe partner, it was held insufficient, per se.
    
   Curia, per

Nott, J.

I concur in the general course of respecting which different opinions have been entertained. In the cases of Hackley v. Patrick, 3 Johns. Rep. 536, Smith v. Ludlow, 6 Johns. Rep. 267, and Chardon v. Calder, &c. 2 Const. Rep. Tread. Edit. 685, the Court seem-reasoning which the Chancellor has adopted in this case, and the conclusion at which he has arrived. How far t]10 acknowledgments of one partner of the existence and amount of a debt may be evidence to bind another, after a dissolution of the copartnership, is a question ed to have thought that the confession of one could not bind the other. But in the cases of Wood v. Braddick, 1 Taunt. 104, Simpson & Morrison v. Geddes, 2 Bay, 533, and Reimsdyk v. Kane and others, 1 Gallison, 630, contrary opinions are expressed. Such evidence is unquestionably sufficient to save a case from the operation of J ..... . . the statute of limitations; and I think it admissible as to the existence of the debt, but I cannot think it conclusive. The Court must be allowed to give it such credit . . . . . . , only as under the circumstances it appears entitled to. ^ not think that it was sufficient in the present case to entitled the complainants to a decree. The defendants’ ancestor had been dead about twenty years when this bill was filed. How long the demand had existed before his- death does not appear. The acknowledg-mcnt relied on was made several years after his death by a partner, who afterwards became insolvent, and had 1 ' been dead several years before the filing of the bill. These defendants knew nothing of the transaction; they a therefore to call upon the plaintiffs to adduce some other evidence of the existence of the debt. And without such evidence the complainants had no right to expect a decree. The motion therefore must be refused.

Decree affirmed.  