Lang v. Keppele , 1 Binn. 123 ( 1804 )

Smith J.

The reasons assigned in support of this action I have all along thought of much force; but I at first doubted whether sitting as a court of law we could give relief to the plaintiffs. I now think however that we are not controlled by the technical objection. The equity of the case is clearly with the plaintiffs, for the contract entered into with partners is alwaysyomi and several, each partner is liable to pay the whole, and contribution lies entirely among themselves. The partner who survives is in this case a certificated bankrupt, who can no longer be pursued; the partner who is dead has left assets in the hands of the defendant, which can be reached only in this way. It is therefore a fair case for controlling the form of action so as to give effect to the equity powers of this court.

Per Curiam. Judgment for plaintiffs.