Warner v. Allee

One principal question in this cause rests on the Act of Limitations. Jonathan Allee died about the 1st July, 1811. At the time of his death the account was unpaid, and was not barred by any limitation. Daines, the surviving partner, in 1811, and in 1812,1813 and *541814, paid several sums of money. On the 8th of March, 1814, he paid $100,00, and in May of the same year, $12.00 more. These are facts proved in the cause, and not depending on the admission of Daines in his answer. That is laid out of the case as to these defendants.

The case of Whitcomb vs. Whiting, Doug. 651, goes the whole length of this now before the Court, unless the death of Jonathan Allee shall make a difference. There, the payment by one of the drawers of a joint and several promissory note, was adjudged sufficient to prevent the Act of Limitations from barring the recovery. And in Jackson vs. Fairbank, 2 H. Blackstone, 340, where one of the makers of a promissory note had become bankrupt, a payment made under a commission of bankruptcy prevented the other maker of the note from availing himself of the Statute of Limitations The opinion of the Supreme Court of the United States, in Clementson vs. Williams, 8 Cranch, 72, cited in argument, goes upon the ground that the special acknowledgement of one of the partners, made in the manner there stated, was no proof that the debt remained due at the time of such acknowledgment, and did not take the case out of the Statute of Limitations. “ The acknowledgement,” say the court, “ must go to the fact that a debt is due.” Here, there can be no doubt, that the debt was fully admitted to be due by the payments made in March and May, of the year 1814, and consequently was at the time a subsisting debt against the surviving partner and the administrator of the deceased partner. If, then, the demand was not barred in 1814, and was then admitted indisputably by the act of the surviving partner, what can prevent a recovery now ? Certainly, no lapse of time between that period and the time at which the bill was filed and process served in the cause. When will the Act begin to run ? Hot in the life-time of Jonathan Allee; for the partnership began in 1810, and in that year, and in every year after, there was a running account between the creditor *55and the debtors: and payments were made,and so continued, till Allee’s death ; and then the surviving partner went on paying until May, 1814. ¡Now, here is strong, conclusive evidence of a subsisting, unsatisfied, admitted claim until May, 1814; and since that time three years had not elapsed before this suit was commenced. The Act of Limitations, therefore, cannot avail the defendants.

¡Next, as to the equity of the case. This is a fair and honest debt, due from the partners in their life-time. The creditor comes into the court for satisfaction out of the assets of Jonathan Allee, and this he may fairly do, although there may be a legal remedy against Daines. 1 Ves. Sr. 106. As the demand survived against Daines, there was no remedy at law against the representatives of Allee, and as Daines’ insolvency is admitted on all sides, this is the only remedy which the creditor can have to obtain satisfaction. He is clearly entitled to the assistance of this Court, unless his equity is rebutted by the superior equity of the defendants, arising from the loches of the complainant. Daines and Allee were partners in trade, indebted to Warner at the time of Allee’s death in July,1811, in $1507.38. Daines, the survivor, went on paying until May, 1814, when he reduced the debt to about $600 : at which time his failure unfortunately happened,—a failure sudden and unexpected, and without any doubt having been entertained by Warner, or, as far as we know, by Allee’s representatives. Daines’ nearest neighbors, and those most intimately acquainted with him, never suspected danger. The representatives of Allee never suggested a doubt to Warner; and yet, without a single circumstance of alarm, it is insisted that Warner’s forbearance shall be deemed such unwarrantable negligence as to discharge Allee’s estate from any responsibility, or to cause him to lose his remedy, in this court as well as at law. Considering the credit given by merchants, and the policy sometimes of forbearance-, and the circumstances of this case, I am very far from thinking that the *56delay of Warner can be considered so gross as to deny to him the aid of this court, or perhaps that it can be imputed to him as a fault at all. But, it may fairly be asked, why the defendants lay still after the death of their ini estate ? Why did they not inquire into Baines’ management of the partnership ? They had an ample remedy against him. They might have filed-a bill in this court to call him to an account about the affairs of the partnership, and to compel him to pay the partnership debts. They had a remedy adequate to the exigency of the case. They should have proceeded in this way, and thereby all loss might have been prevented. This case is stronger than Bishop vs. Cranch, 2 Ves. Sr. 100, 371: and yet there, a court of equity set up the demand of an obligee against the heir and executor of a deceased joint obligor, when the other obligor had become bankrupt. The case of Jacomb vs. Harwood 2 Ves. Sr. 265, so far as it bears on this case, supports the opinion here given. Hankey vs. Garret, 1 Ves. Jr. 236, turned on a question which does not here arise. Daniel vs. Gross 3 Ves. Jr. 277, shows clearly the liability of the assets of the deceased partner, Allee. And as the defendants have not been able to rebut the equity of the complainants, it must be decreed that the representatives of Allee, the deceased partner, pay the balance of this account.

Decree accordingly.