Trustees of the Leake & Watts Orphan House v. Lawrence , 4 Sarat. Ch. Sent. 17 ( 1844 )

Decided that a judgment ed against a surviving copartner, in a suit to which the representatives of the deceased copartner were not parties, is not evidonce against such representatives, of the indebtedness of the decedent.

In this case the question arose whether a creditor of a co-partnership firm, one member of which has died, can file a bill'in chancery against the representatives of the and the surviving members of the firm, for payment, without averring in the bill that such surviving members are insolvent. The chancellor decided that, as the remedy at law survives, the creditor is bound to resort to his legal remedy against the surviving debtors; unless he can show somé' ground of necessity for coming into this court for relief against the estate of the deceased debtor. And that the es-atéof the deceased copartner, in the hands-of Eis personal1 representatives, cannot be reached by a suit in this court, un-ess the complainant’s bill states a sufficient excuse for not proceeding at law against the surviving debtors to obtain payment.

Decree appealed from affirmed with costs, and with interest on the amount, by way of damages.