delivered the opinion of the court, February 18, 1884.
The mutual accounts and dealings which will save a balance on either side from the bar of the Statute of Limitations, must be those between the accounting parties, and the whole transaction must be of such a character as to raise a legal presumption that the accounts are intended to apply to the payT ment or extinguishment of each other, and thus, like payments on a note, operate as an acknowledgment of the precedent indebtedness: Van Swearingen v. Harris, 1 W. & S., 356. But running accounts with a partner, though he be a surviving partner, and as such has the collection of the partnership assets, certainly cannot be called an account with the firm, and can therefore be of no avail to stop'the running of the statute against a partnership claim.
In the case in hand, there is no doubt that much more than the time necessary to bar the account of J. B. & A. Howell had passed before the death of Andrew Stewart. That firm had been dissolved in 1862, and J. B. Howell died in 1864. But from the time of the dissolution there could be no mutual dealings between that firm and Stewart or any one else, for, as in the case of the death of a natural person, there was nothing left with which to deal.
It is therefore somewhat remarkable that the auditor and the court below should have come to the conclusion that there were mutual accounts between Stewart and the dead firm down to January 16, 1867. Stewart, of course, might have continued to pay on the partnership account, but as the firm itself was dead and gone, I cannot see how they could have any such new accounts against him as to give to any subsequent dealings the character of mutuality. That was not among the possibilities.
But,even this charge of the 16th of January, 1867, which is here lugged in to toll the statute,, was.not made by Stewart against the firm of J. B. & A. Howell, but against Alfred *311Ho won individually. How then can this be said to be the continuation of a mutual account with the partnership?
That Alfred Howell was the surviving member of the firm, and that upon him devolved the settlement of its accounts, can make no difference. As well might an individual charge against an administrator be regarded as a charge against the decedent whose estate he represents.
Alfred Howell, with the assent of Stewart, might have applied this charge as a payment to the firm account, and in that case, had Stewart been fully informed of the condition and extent of that account, it might have amounted to such an acknowledgment of his indebtedness as would have tolled the statute ; but of this there was no evidence, hence the position assumed by the appellee cannot bo sustained.
The decree of the court below is now reversed so far as it awards the sum of $1,265.14, to Alfred Howell, Esq., surviving member of the firm of J. B. & A. Howell, and it is now ordered that sum be paid over to the appellant, Mrs. Elizabeth Stewart. Ordered also that the appellee pay the costs of this appeal.