*American courts. The more recent cases have very considerably relaxed the former strictness on this subject; and while they profess to retain the rule itself, they qualify it exceedingly, in order to make it suit the exigencies of commercial associations. An absent partner may be bound by a deed executed on behalf of the firm, by his co-partner, provided there be either a previous parol authority or a subsequent parol adoption of the act.b

One partner may, by deed, execute the ordinary release of a debt belonging to the co-partnership, and thereby bar the firm of a right which it possessed

Green v. Beals, 2 Caines' Rep.
Mackay v. Bloodgood, 9 Johns.
Mills v. Barber, 4 Day's Rep.
Hart v. Withers, 1 Penn.
Rep. 99. Skinner v. Day-
Nunnely v. Do.

• Gerard v. Basse, 1 Dallas' Rep. 119. 254. Clement v. Brush, 3 Johns. Cas. 180. Rep. 285. Anon., 2 Hayw. N. C. Rep. 99. 428. Garland v. Davidson, 3 Munf. Rep. 189. Rep. 285. Posey v. Bullitt, 1 Blackford's Ind. ton, 19 Johns. Rep. 515. 1 Wendell, 326. 9 ibid. 439. herty, 1 Yerger's Tenn. Rep. 26. Swan v. Stedman, 4 Metcalf, 548..

Skinner v. Dayton, 19 Johnson's R. 512. Anderson v. Tompkins, 1 Brock. C. Rep. 462. Story on Partnership, pp. 176–181. Cady v. Shepherd, 11 Pick. 405, 406. Bond v. Aitkin, 6 Watts & Serg. 165. In Jackson v. Porter, 20 Martin's L. Rep. 200, it was admitted, that where a deed was executed by one partner in the name of the firm, parol evidence was receiv able to show the written assent of the other partner. The case of Gram v. Seton and Bunker, in the city of New-York, (1 Hall's N. Y. Rep. 262,) goes a great deal further, and holds that one partner may execute, in the name of the firm, an instrument under seal, necessary in the usual course of business, which will be binding upon the firm, provided the partner had previous authority for that purpose; and such authority need not be under seal, nor in writing, nor specially communicated for the specific purpose, but it may be inferred from the partnership itself, and from the subsequent conduct of the co-partner implying an assent to the act. In Tennessee, the doctrine, that a subsequent ratification or a parol authority will render valid the act of one partner to bind the other by deed, is rejected, as being contrary to their established decisions. Turbeville v. Ryan, 1 Humphrey, 113. This was adhering to the stern doctrine of the common law, that it required a prior authority, under seal, or a subsequent ratification, under seal, to make a sealed instrument, executed by one partner only, binding on the firm, and which doctrine has become essentially relaxed in the commercial states.

jointly. This is within the general control of the partnership funds, and within the right which each partner possesses, to collect debts and receive payment, and to give a discharge. The rule of law and equity is the same; and it must be a case of collusion for fraudulent purposes, between the partner and the debtor, that will

destroy the effect of the release. A release by *49 one partner, to a "partnership debtor, after the dissolution of the partnership, has been held to be a bar of any action at law against the debtor. So, also, in bankruptcy, one partner may execute a deed, and do any other act requisite in proceedings in bankruptcy, and thereby bind the partnership. This is another exception to the general rule, that one partner cannot bind the company by deed. Nor can one partner bind the firm by a submission to arbitration, even of matters arising out of the business of the firm. The principle is, that there is no implied authority, except so far as it is necessary to carry on the business of the firm. It would also go to deprive the other parties of their legal rights and remedies in the ordinary course of justice.e

Ruddock's case, 6 Co. 25. Lord Kenyon, in
Stead v. Salt, 3 Bingham, 101. Hawshaw
Pierson v. Hooker, 3 Johns. Rep. 68.
Salmon v. Davis, 4 Binney, 375.
Smith v. Stone, 4 Gill & Johns.

Tooker's case, 2 Co. 68. Perry v. Jackson, 4 Term, 519. v. Parkins, 2 Swanst. Rep. 576-580. Bruen v. Marquand, 17 Johns. Rep. 58. Halsey v. Whitney, 4 Mason, 206. 232. 310.

b Salmon v. Davis, 4 Binney, 375.

• Ex parte Hodgkinson, 19 Vesey, 291. d Stead v. Salt, 3 Bingham's Rep. 101. Karthaus v. Ferrer, 1 Peters' U. S. Rep. 221. Buchanan v. Curry, 19 Johnson's R. 137. Lumsden v. Gordon, cited in 1 Stairs' Institutions of the Law of Scoltand, p. 141; edit. by More, 1832. Contra, Taylor v. Coryell, 12 Serg. & R. 243. Southard v. Steele, 3 Munroe's R. 433.

• Story on Partnership, 170. By the civil and the French law, one partner cannot compromise a suit, or submit a controversy to arbitration, without the consent of his associates. Dig. 3. 3. 60. Pothier, de Societié, n. 68. Nor can one partner retain an attorney, with power to appear and act for the

(7.) How far by admissions of debt.

The acknowledgment of an antecedent debt by a single partner, during the continuance of the partnership, will bind the firm equally with the creation of the debt in the first instance; and it will take the case out of the statute of limitations, if it be a clear and unqualified acknowledgment of the debt. Whether any such acknowledgment, or promise to pay, if made by one partner after the dissolution of the partnership, will bind a firm, or take a case out of the statute, as to the other partners, has been for some time an unsettled, and quite a vexed question, in the books. In Whitcomb v. Whiting, it was held, that the admission of one joint maker of a note took the case out of the statute as to the other maker, and that decision has been followed in this country. The doctrine of that case has even been extended to acknowledgments by a partner after the dissolution of the partnership, in relation to antecedent transactions, on the ground that as *50 to them, the partnership still continued.d

But

firm in an action against it, for this would be beyond the ordinary duties of the relationship, and would expose the innocent partner to judgment and execution without his knowledge or consent. Hambridge v. De la Cronee, (cited in the Law Magazine for Feb'y, 1847, p. 73.)

■ Pittam v. Foster, 1 B. & Cress. 248. Burleigh v. Stott, 8 id. 36. Collyer on Partn. 286-290. The same principle applies as to the admission or misrepresentation of facts by one partner relative to a partnership transaction. Collyer on Part. 290. Story on Partnership, 160. Doug. Rep. 652.

• Bound v. Lathrop, 4 Conn. Rep. 336. Hunt v. Bridgham, 2 Pick. Rep. 581. Ward v. Howell, 5 Harr. & Johns. 60. Walton v. Robinson, 5 Iredell, N. C. Law Rep. 341. By Mass. R. S. c. 120. sec. 14, one joint promissor is not affected by the admission of the other.

Lacey v. M'Niell, 4 Dowl. f Austin v. Bostwick, 9 Conn. Clarke, 1 Bailey's S. C. Rep. 522. Fisher v. Tucker, 1 M'Cord's Ch.

a Wood v. Braddick, 1 Taunt. Rep. 104. Ryl. 7. Cady v. Shepherd, 11 Pick. 408. Rep. 496. Hendricks v. Campbell & Simpson v. Geddes, 2 Bay's Rep. 533. Rep. 190. Fellows v. Guimarin, Dudley's Geo. Rep. 100. Brewster v. Hardeman, ibid. 140. Greenleaf v. Quincy, 3 Fairfield, 11.

a

OF PERSONAL PROPERTY.

[Part V. there have been qualifications annexed to the general principle; for, after the dissolution of a partnership, the power of the members to bind the firm ceases, and an acknowledgment of a debt will not, of itself, be sufficient, inasmuch as that would, in effect, be keeping the firm in life and activity. To give that acknowledgment any force, the existence of the original partnership debt must be proved, or admitted aliunde; and then the confession of a partner, after the dissolution, is admissible, as to demands not barred by the statute of limitations.b Of late, however, the decision in Whitcomb v. Whiting has been very much questioned in England; and it seems now to be considered as an unsound authority by the court which originally pronounced it. And we have high authority in this country for the conclusion, that the acknowledgment by a partner, after the dissolution of the partnership, of a debt barred by the statute of limitations, will be of no avail against the statute, so as to take the debt out of it as to the other partner, on the ground that the power to create a new right against the partnership does not exist in any partner after the dissolution of it; and the acknowledgment of a debt,

Walden v. Sherburne, 15 ibid. Shelton v. Cocke, 3 Munf. 191. Fisher v. Tucker, 1 M'Cord's

Hackey v. Patrick, 3 Johns. Rep. 536. 409. Baker v. Stackpole, 9 Cowen, 420. Chardon v. Colder, 2 Const. Rep. S. C. 685. Ch. Rep. S. C. 177. 179. Walker v. Duberry, 1 Marsh. Rep. 189. Lacko. mette v. Thomas, 5 Rob. Louis. R. 172.

b Smith v. Ludlows, 6 Johns. Rep. 267. Johnson v. Beardslee, 15 ibid. 3. Cady v. Shepherd, 11 Pick. 400. Brisban v. Boyd, 4 Paige, 17. Green. leaf v. Quincy, 3 Fairfield, 11.

• Brandram v. Wharton, 1 B. & Ald. 463. Atkins v. Tredgold, 2 Barnw. Cress. 23. But in Perham v. Raynall, 9 Moore's C. B. Rep. 566, the authority of the case of Whitcomb v. Whiting is reinstated; and it was held to contain sound doctrine to the extent, that an acknowledgment within the six years, by one of two makers of a joint and several note, revives the debt against both, though the other had signed the note as a surety. Pease v. Hirst, 10 Burnw. & Cress. 122. Pritchar v. Draper, 1 Russell & Mylne, 191. S. P.

barred by the statute of limitations, is not the mere continuation of the original promise, but a new contract, springing out of, and supported by, the original consideration. This is the doctrine, not only in New-York, Indiana, Pennsylvania, Tennessee, Georgia and Louisiana, but in the Supreme Court of the United *States ; and the law in England, and in this *51 country, seem equally to be tending to this conclusion. But there is a distinction between an acknowledgment which goes to create a new contract, and the declarations of a partner, made after the dissolution of the partnership, concerning facts which transpired previous to that event; and declarations of that character are held to be admissible.c

■ Bell v. Morrison, 1 Peters' U. S. Rep. 351. Levy v. Cadet, 17 Serg. & Rawle, 126. Searight v. Craighead, 1 Penn. Rep. 135. Yandes v. Le. favour, 2 Blackf. Ind. Rep. 371. Hopkins v. Banks, 7 Cowen, 650. Baker v. Stackpoole, 9 ibid. 420. Brewster v. Hardeman, Dudley's Rep. 138. Lambeth v. Vawter, 6 Robinson, Louis. R. 128. Vandyck v. Novoell, 2 Humph. 192. Bispham v. Patterson, 2 M'Lean's R. 87. In this last case, Mr. Justice M'Lean considers the English rule, that the admission of one partner, made after the dissolution of the partnership, and even of a payment made to him after the dissolution, is good evidence to bind the other partners, to be well settled and upon sound principles; but he yields his better judgment to the contrary doctrine, settled by the weight of American authority.

This is contrary to a decision in North Carolina, in M'Intyre v. Oliver, 2 Hawks, 200, and recognised in Willis v. Hill, 2 Dev. & Battle, 234, and in Walton v. Robinson, 5 Iredell, L. Rep. 341; but it may, now be considered as the better and more authoritative, and perhaps the settled doctrine. By the English statute of 9th May, 1828, entitled, "An act rendering a writ ten memorandum necessary to the validity of certain promises and engage. ments," it is declared, in reference to acknowledgments and promises. offered in evidence to take cases out of the statute of limitations, that joint. contractors, or executors, or administrators of any contractor, shall not be chargeable in respect of any written acknowledgment of his co-contractor, &c., though such co-contractor, his executors, &c., may be rendered liable by virtue of such new acknowledgment or promise. The like law in Mass.. R. S. c. 120. sec. 14. Gay v. Bowen, 8 Metc. R. 100. Cady v. Shepherd, 11 Pick. 400.

• Parker v. Merrill, 6 Greenleaf, 41. Mann v. Locke, 11 N. H. Rep. 216 VOL. III. 5