Roosvelt & Barker v. McDowell

By the Court Warner, Judge. This action was instituted on a promissory note, signed with the co-partnership name of Walker and Leak. The defendant in error was sued thereon, ss the executor of Walker — Leak, the other copartner, being still in life ; and the question is, whether the executor of a do494 ceased copartner can be sued at law, for a copartnership debt; or whether the surviving copartner is alone liable to be sued therefor. By the common law it is admitted, the representative of the deceased partner could not be sued for a copartnership debt; but that the survivor was alone liable to be sued. It is, however, contended that the act of 19th December, 1818, (Prince’s Dig. 443,) alters the common law in this respect. That act declares, “ Where any person shall be in possession (either in his own right or in any other capacity) of any note, bill, bond, or other obligation, in writing;, signed by two or more persons, and one or more of the persons whose names are so signed as aforesaid, shall die before the payment of the money, or the compliance with the condition of such bond or other obligation in writing, the person, or persons, holding such note, bill, bond, or other obligation in writing, shall not be compelled, as heretofore, to sue the survivor, or survivors, alone, but may at his, her, or their discretion, sue the survivor, or survivors, or the representatives of such deceased person, or persons, or the survivor, or survivors, in the same ad,ion with the representative or representatives of such deceased person or persons, any law, usage or custom, to the contrary notwithstanding. ” This act declares, when any note, &c. shall be signed by “ two or more persons,” that is, when two or more individuals shall sign a note, as two obligors, or joint promisers, with their separate names, the repretentative maybe sued, &e. This act being in derogation of the common law, must receive a strict construction, and, in pur judgment, was not intruded to embrace partners, where the partnership name alone is used. Bj the common law, when one or two coobligors died, his executor, or administrator, was discharged from liability, and the survivor alone was lia'tie to be sued. — 1 Chitty Pl. 37. We are the more to give act a construction, so as not to include partners, for the reason the surviving partner has the right to control the partnership effects, for the purpose of paying the copartnership debts; and as copartners are not included within the letter of the statute. We think it can have effect without including them, and there are strong reasons why the executor of a deceased partner, who has none of the .copartnership effects in his possession, should not be sued at law for a partnership debt. Therefore, let the judgment of the court below be affirmed.