delivered the opinion of the court. The court are of opinion, that the act of limitations doe3 not operate to extinguish the debt, but to bar the remedy. The act of limitations is predicated on the principle, that from length of time a presumption is created that the debt has been paid, and that the debtor is deprived of his proof by the death of his witnesses or the loss of receipts. It is the design of the act -of limitations to protect and shield debtors in such a situation; and consistent j with this principle, and this view, the decisions have been made, that the acknowledgment or admission of the debtor will take the case out of the act of limitations, because if the money is still due and owing, the defendant has not suffered from lapse of time, nor has any inconvenience resulted to him therefrom.
The case of a surviving partner is distinguishable from that of an executor. An express promise made to an executor creates an assumpsit to him, and is founded on the antecedent consideration of a debt due to the testator; and a count in the declaration must be framed on it, and the proof must correspond with and be adapted to it. The money, when recovered, will be assets in the hands of the executor, and he will be accountable for it. A surviving partner has a right to all the effects belonging to the part» nership, and to receive, sue for and recover, all the debts due to the partnership. The right and remedy are united in him, the original promise made to him, and his deceased copartner, still exists, and the right of action with the remedy survived to him. The acknowledgment to the surviving partner saves and preserves the remedy in the survivor, and avoids the bar by the act of limitations. It does not create a new assumpsit, but is a saving of the remedy on the original promise. The surviving partner is acconntay ble to the creditors of tiie firm, and to the representatives of the deceased partner.
The court are of opinion, that the judgment of the court below be affirmed on both bills of exceptions.
Jqhnsos, J.TEhis was an action on the case for money had and received by the defendant below, (the appellant,*) for die use of the plaintiff, in which the plaintiff recovered. The defendant pleaded thegeneral issue, and theact oflimi-tations, on which issues were joined. Two questions arise on the exception relied on. First, was the evidence sufficient to establish the claim on the general issue? On the argument this ground was not. much relied on by the appellant; and on an examination of the proof produced by the plaintiff, the court are satisfied that it was fully adequate to sus tai a the plaintiff’s claim on the general issue.
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But it is contended, on the part ot the appellant, before the surviving partner can recover on promises or admissions made to him, he must insert a special count re? lying on the promise made to himself; and it is contended, on the part of the appellant, that an executor could not recover a debt due to the deceased, relying for such recovery on a promise made to the executor to take it out of the act of limitations, without a special count on such promise, and therefore the surviving partner, before he can recover, must also specially declare on the promise made to him.
It appears to me that the decisions made in the case of executors must have been founded on a supposed necessity that the proof should correspond with the issue, to wit, the promise to the deceased. The case before the court is not that of an executor suing to recover a debt due to the testator, relying on a promise made to himself, without declaring on it, to avoid the act of limitations. We have seen, that the bar presented by the act of limitations may be removed without a new promise, and that any declarations made by the defendant, from which it. is to be inferred that the demand is just, or that he is in possession of the documents to come to a settlement, are sufficient to remove the act of limitations; 1 am therefore of opinion that the admissions made in this case, although after the death of John Smith, were sufficient on the issue joined on the act of limitations.
JUDGMEK'l' AFFJHP.iEn.