Opinion
August, 1818.
Jonathan Allee and G. P. Dains were in partnership, dissolved in 1811 by death of J. Allee. Dains carried on the business and made purchases of the complainants in his own name. Dains made several payments, the greater part of which the complainants applied to Dains' individual account with them — some to the account of the Allee and Dains, the last of which was in 1813 and reduced the debt from $1500 to $670. This bill was filed within three years from the date of the credit in 1813. Dains became insolvent. Dains, by his answer, confessed the debt. P. Allee, administrator of J. Allee, plead Act of Limitations and insisted by his answer that the complainants had no equities against him.
Ridgely for complainants. The confession of Dains avoids the plea of Statute of Limitations. So does the payment in 1813. Whitcomb v. Whiting, Doug. 629. Jackson v. Fairbank, 2 H.Bl. 342. As to the equities of this case, P. Allee stands in the shoes of his intestate.
Hall for Allee. Where defendants sever[al], the answer of one cannot affect the others. This is not like the cases cited. There the partnership continued when the payments were made; here it was dissolved by the death of Jonathan Allee, when the last payment was made. In 8 Cranch, one late partner admitted that he had not paid a debt; held not sufficient to take the case out of the Statute, for perhaps the other had.
This case is like Whitcomb, etc., Doug. 629, and 2 H.Bl. Complainant too has equities. Heath v. Percival, 1 Str. 403. Allee ought to have called Dains to account.
Decree for complainants.