Smith v. Ludlow , 6 Johns. 267 ( 1810 )

Per Curiam.

This case has been submitted to the court, on the question, whether the evidence was sufficient to take the demand out of the statute of limitations. But the case hardly affords room for a plausible doubt. It has been long settled, that an acknowledgment of the debt, within six years, will take it out of the statute. This was so ruled in this court, in the late case of Sluby v. Champlin; (4 Johns. Rep. 461.) and the authorities on the point are well collected and arranged in 2 Saund. 63. note 6. The acknowledgment here, by the defendant Gulian, was as strong as that in the case of Sluby v. Champlin. He admitted that the account presented had been made out by himself, in which the intestate was charged with ,the purchase of three bank shares, which had never been received by the intestate, or transferred to him ; and he added, that he thought the account had been settled, and that he would see his late partner on the subject, and communicate the result to the plaintiff, if he would call again upon him. This was equivalent to saying, that if the account had not been settled, it should be settled and paid.

But the acknowledgment by Daniel Ludloxo, the other partner, was more decisive. He made out an account with the plaintiff, as late as 1st of January, 1808, in which the intestate was credited with the cash advanced for the bank shares. This account was made out after the dissolution of the copartnership; but in the notice of dissolution it was announced to the public, that the de„ fendant Daniel was authorized to adjust all accounts relating to the partnership. Without this express authority, the confession of one partner, after the dissolution, will take a debt out of the statute. The acknowledgment will not, of itself, be evidence of an original debt, for that would enable one party to bind the other in new contracts. (Hackley v. Patrick, 3 Johns. Rep. 536.)

But the original debt being proved, or admitted, the confession of one will bind the other, so as to prevent him. from availing himself of the statute of limitations. This is evident from the cases of Whitcomb v. Whitney, and of Jackson v. Fairbank; (Doug. 652. 2 H. Black. 340.) and it results necessarily from the power given to adjust accounts.

The motion, therefore, on the part of the defendants,'1 for a hew trial, is denied.