1 As to the construction to be placed upon these words, see Smith v. Thome, 18 Q. B. 131; Sidwell v. Mason, 2 H. & N. 306, 310.
"In the American courts, so far as our researches have extended, few cases have been litigated upon this question. In Smith, Adm. v. D. & G. Ludlow, 6 Johns. 267, the suit was brought against both partners, and one of them pleaded the statute. Upon the dissolution of partnership, public notice was given that the other partner was authorized to adjust all accounts, and an account signed by him after such advertisement and within six years was introduced. It was also proved that the plaintiff called on the partner, who pleaded the statute before the commencement of the suit, and requested a settlement, and that he then admitted an account, dated in 1797, to have been made out by him; that he thought the account had been settled by the other defendant, in whose hands the books of the partnership were, and that he would see the other defendant on the subject, and communicate the result to the plaintiff. The court held that this was sufficient to take the case out of the statute, and said that, without any 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. 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. This is evident from the cases of Whitcomb v. Whiting and Jackson v. Fairbank, and it results necessarily from the power given to adjust accounts. The court also thought the acknowledgment of the partner setting up the statute was sideration.1 If this be so, how can one of several joint debtors make a new promise, upon a debt extinguished by sufficient of itself to sustain the action. This case has the peculiarity of an acknowledgment made by both partners, and a formal acknowledgment by the partner who was authorized to adjust the accounts after the dissolution of the partnership. There was not, therefore, a virtual, but an express and notorious agency, devolved on him to settle the account. The correctness of the decision cannot, upon the general view taken by the court, be questioned. In Roosevelt v. Mark, 6 Johns. Ch. 266, 291, Mr. Chancellor Kent admitted the authority of Whitcomb v. Whiting, but denied that of Jackson v. Fairbank, for reasons which appear to us solid and satisfactory. Upon some other cases in New York we shall have occasion hereafter to comment. In Hunt v. Bridgham, 2 Pick. 581, the Supreme Court of Massachusetts, upon the authority of the cases in Douglas, H. Blackstone, and Johnson, held that a partial payment by the principal debtor on a note took the case out of the Statute of Limitations as against a surety. The court do not proceed to any reasoning to establish the principle, considering it as the result of the authorities. Shelton v. Cocke, 3 Munf. 191, is to the same effect, and contains a mere annunciation of the rule, without any discussion of its principle. Simpson v. Geddes, 2 Bay, 533, proceeded on a broader ground, and assumes the doctrine of the case in 1 Taunt. 101, hereinafter noticed, to be correct. Whatever may be the just influence of such recognitions of the principles of the English cases in other States, as the doctrine is not so settled in Kentucky, we must resort to such recognition only as furnishing illustrations to assist our reasoning, and decide the case now as if it had never been decided before.
"By the general law of partnership the act of each partner, during the continuance of the partnership, and within the scope of its objects, binds all the others. It is considered the act of each and of all, resulting from a general and mutual delegation of authority. Each partner may, therefore, bind the partnership by his contracts in the partnership business, but he cannot bind it by any contracts beyond those limits. A dissoluthe statute without authority so to do from his co-debtors ? If express authority be shown, the new promise would be tion, however, puts an end to the authority. By the force of its terms it operates as a revocation of all power to create new contracts, and the right of partners as such can extend no further than to settle the partnership concerns already existing, and to distribute the remaining funds. Even this right may be qualified and restrained by the express delegation of the whole authority to one of the partners.
1 In Boydell v. Drummond, 2 Camp. 157, Lord Ellenborough says: "If a man acknowledges the existence of a debt barred by the statute, the law has been supposed to raise a new promise to pay it, and thus the remedy is revived." So, also, in Jones v. Moore, 5 Binn. 573, Mr. Chief Justice Tilghman, after an elaborate review of all the cases, says: "I cannot comprehend the meaning of reviving the old debt in any other manner than by a new promise." See, also, Hackley v. Patrick, 3 Johns. 536; Walker v. Duberry, 1 A. K. Marsh. 189, and cases before cited; Patterson v. Choate, 7 Wend. 411.
"The question is not, however, as to the authority of a partner after the dissolution to adjust an admitted and subsisting debt, - we mean admitted by the whole partnership, or unbarred by the statute, - but whether he can by his sole act, after the action is barred by lapse of time, revive it against all the partners, without any new authority communicated to him for this purpose. We think the proper resolution of this point depends upon another, that is, whether the acknowledgment or promise is to be deemed a mere continuation of the original promise, or a new contract springing out of and supported by the original consideration. We think it is the latter, both upon principle and authority; and if so, as after the dissolution no one partner can create a new contract binding upon the others, his acknowledgment is inoperative and void as to them." See, also, Hackley v. Patrick, 3 Johns. 536; Walden v. Sherburne, 15 Ib. 409. The same view has been followed in Van Keuren v. Parmelee, 2 Comst. 523; and in Shoemaker v. Benedict, 1 Kernan, 176, the Court of Appeals of New York held that payments by one of several joint and several promisors did not affect the right of the other promisors to plead the statute, although payment took place before the debt was barred by the statute. In New Hampshire the same rule has been held in Exeter Bank v. Sullivan, 6 N. H. 124; Kelley v. Sanborn, 9 Ib. 46; Whipple v. Stevens, 2 Foster, 219. And in Tennessee in Belote v. Wynne, 7 Yerg. 534; Muse v. Donelson, 2 Humph. 166. But in England the rule as laid down in Whitcomb v. Whiting, 2 Doug. 652, that an acknowledgment or new promise or part payment by one of several joint debtors takes the debt out of the statute as to all, has, with few exceptions, been constantly held. See Perham v. Raynal, 2 Bing. 306; Wyatt v. Hodson, 8 Ib. 309; Manderston v. Robertson, 4 M. & R. 440; Burleigh v. Stott, 8 B. & C 36; Pease v. Hirst, 10 Ib. 122; Channell v. Ditchburn, 5 M. & W. 494. But in Brandram v. Wharton, 1 B. & Ald. 463, and Atkins v. Tredgold, 2 B. & C. 23, the decision of Whitcomb v. Whiting was doubted; and in Channell v. Ditchburn, Mr. Baron Parke, in speaking of these cases, says: "After those two cases undoubtedly some degree of doubt might fairly exist as to the propriety of the decision in the case of Whitcomb v. Whiting; and it does seem a strange thing to say that where a person has entered into a joint and several promissory note with another person, he thereby makes that other his agent with authority, by acknowledgment or payment of interest, to enter into a new contract for him.