The rule is well settled that a creditor of a copartnership, one member of which has died, can not sustain a suit in chancery against the representatives of the deceased partner without averring and proving that the surviving partners are insolvent. (Trustees of Leake Watts' Orphan house v. Lawrence, 11Paige, 80; S.C. on appeal, 2 Denio, 577.) And where a surviving partner is solvent at the death of the decedent, and afterwards fails, the time allowed for filing a bill to reach the assets of the latter commences at the time of the failure. This case being one of equitable cognizance the limitation expired in ten years. (2 R.S. 301, § 50, 52.) The defendant has undoubtedly mistaken the statute. He has alleged in his answer that the plaintiff's cause of action did not accrue within six years before the commencement of the suit, and he insists upon this objection. The bill was filed against the representatives of a deceased partner by a creditor, upon the ground that the surviving partner was insolvent. Assuming that at the time the insolvency of George W. Bruen occurred, and which was in the year 1841, the plaintiff had a valid subsisting demand against the firm of Thomas H. Smith Son, then as we have already seen the statute of limitations set up in the defendant's answer is no bar, as well for the reason that the defendant has pleaded the wrong statute, as for the reason that even six years had not elapsed from the accruing of the cause of action to the filing of the bill.
The only remaining question is, whether, upon the case made by the pleadings and proofs, the plaintiff shows a valid demand in law against the firm. The sole demand *Page 372 of the plaintiff is a promissory note, dated June 21, 1828, payable some thirteen years prior to the failure of George W. Bruen the surviving partner. If the case rested here, the plaintiff's demand against the firm would be barred by the statute. The plaintiff seeks to take the case out of the statute by alleging in his bill new promises. In the first place it is alleged that George W. Bruen has on repeated occasions and to divers persons since the date of the note admitted that the amount thereof with the interest thereon remained due, and promised to pay the same. But it is not alleged that the admissions were made within six years prior to 1841, nor is any time whatever alleged, excepting that they were made since the date of the note. It is further alleged that George W. Bruen in an answer to a bill in chancery, filed before the chancellor by James Iddings, which answer was sworn to on the 18th of June, 1842, alleged that there was a considerable amount of debts outstanding against the firm of Thomas H. Smith Co., and among them a debt due by the firm of Thomas Bloodgood, amounting to $20,000 and upwards, including interest. The bill then states that the allegations so made in the answer in the Iddings suit were not accompanied by any qualification or condition, or any thing from which it could be inferred that George W. Bruen was unwilling to pay such debt whenever it should be demanded. The defendant in this action, in his answer, admits the making of the note by the firm as alleged in the bill, and that it remains unpaid. He also admits that he heard George W. Bruen, prior to 1835, say that the note had not been paid, but he states that he had not since then heard any statements or admissions from him respecting it. He also admits the admissions alleged to have been made by George W. Bruen in his answer to the bill filed by Iddings.
It should be borne in mind that the statements in the last mentioned bill, to which George W. Bruen's answer was responsive, related to the debts and funds of the firm, and the dealings of Bruen with them as surviving partner. *Page 373 The bill made no statements and required no answer concerning his proceedings as the executor of Thomas H. Smith. The answer as to its admissions must be construed as affecting the firm merely, and be deemed the admissions of a surviving partner and not of George W. Bruen as the executor of Thomas H. Smith. Now, in order to take a case out of the statute of limitations, there must be a new promise — a new contract, although founded upon the original consideration. If the promise is not an express one the circumstances must be such that it can be fairly implied. There must at least be a plain admission that the debt is due and the party is willing to pay it. (Allen v. Webster, 15 Wend. 284; Stafford v. Richardson, ib. 302; Bell v. Morrison, 1Peters, 351; 2 Com. 531.) I do not think the admission in the answer to the bill filed by Iddings can be brought within this rule. It was a compulsory statement under oath, but the occasion when and all the circumstances under which it was made repel any implication of a promise to pay the demand. The admission in its terms expresses no promise nor expectation nor intention to pay the debt. An admission of the debt in such a manner as to indicate an intent to pay is necessary to take the case out of the statute. (11 Barb. 554; 19 Wend. 491.)
The bill does not state the date of any other admissions of the indebtedness, and the general allegations contained in it are insufficient to bar the operation of the statute. But if it should be admitted that the defendant has waived this objection by allowing the proof upon the subject of the admissions to be given, I do not see that it helps the plaintiff's case, for the admissions proved are insufficient to uphold a new promise to bar the statute. There was nothing said of the amount of the debt to Thomas Bloodgood on either of the occasions mentioned in the proofs, and no description of the character or nature of the debt was given, except that it was an old claim against the firm. This is not sufficient to take such a demand out of the statute. But again; Thomas H. Smith died in September, *Page 374 1827, and the firm was by his death dissolved. One of the partners after the dissolution of a copartnership can not by a new promise revive a debt against the firm which has been barred by the statute of limitations. (Van Keuren v. Parmele, 2Coms. 532.) It would be manifestly unjust in the present case to allow the admissions of George W. Bruen made more than a year after he was declared a bankrupt, to revive this debt against the firm and thereby create an equity in favor of the plaintiff against the estate of his deceased partner. As we have seen, the equitable cause of action against the estate of Thomas H. Smith, could only arise upon the insolvency or bankruptcy of George W. Bruen. Now the latter was declared a bankrupt more than a year before swearing to the answer in the Iddings suit, in which the admission was contained. I assume that if the debt against the firm was barred by the statute at the time George W. Bruen became a bankrupt, the plaintiff can not sustain a bill in equity against the representatives of Thomas H. Smith to enforce its payment. I am not aware that this question has been determined in our courts; but it seems to me that if the note is not a legal debt against the firm, it can not be a valid claim in equity against the estate of the deceased partner. For these reasons I am of the opinion that the debt against the firm was barred by the statute of limitations at the time George W. Bruen became a bankrupt, and consequently that there was never any equitable cause of action in favor of the plaintiff against the estate of Thomas H. Smith the deceased partner; and that the judgment of the superior court should be reversed and the bill of complaint be dismissed with costs.
RUGGLES, Ch. J., and JEWETT, MORSE and WILLARD, JJ., concurred in the conclusions of judges Gardiner and Mason.
TAGGART, J., gave no opinion.
JOHNSON, J., took no part in the hearing of the case
Judgment reversed and bill of complaint dismissed. *Page 375