An examination of all the questions which the record suggests, and which might be considered in disposing of the case, would lead to an extensive inquiry into the law and practice of the court, particularly respecting the rights and remedies of the creditors of a partnership, upon its dissolution by the death of one of its members, and the powers of the court in administering those remedies. But as the examination of these questions is not necessary to a decision, it is not thought advisable to enter upon such an examination without further argument.
The proceedings in the case seem to us quite anomalous, and we think the judgment wholly erroneous. Counsel for the plaintiffs and appellees have furnished us with no precedent for such a proceeding, in the decisions or practice of courts of law or chancery. It cannot be supported as a creditor’s bill, as they suppose, if that remedy were not superseded by our law for the settlement of deceased person’s estate; for it seeks to subject the partnership property by a proceeding against the surviving partner. It makes the court take upon itself the administration and settlement of the partnership concerns, out of the hands, both of the surviving partner, and the representative of the deceased; and places all the partnership effects, consisting of tangible property in the hands of the sheriff, with directions to sell sufficient
We see nothing in the evidence to warrant the jury in their finding, that the property and effects, transferred and assigned by the surviving partner, to the representatives of the deceased, were partnership property and effects, and that the survivor was not indebted to the deceased. The evidence establishes the contrary. By the articles of partnership, upon the death of the one partner, the title to the property became vested in the survivor, and he became indebted, as therein stipulated, to the representatives of the deceased. That such an agreement, made bond fide, and for a valuable consideration, is valid and effectual, to transfer the title to the property, is well settled. (Story on Part. § 358.) It is not questioned, that the agreement contained in the articles of partnership, was made bond fide, and for a valuable consideration. The property was thereby transferred to the survivor, and he had the right to dispose of it, by' a bond fide sale and transfer to any person, and as well to the representatives of the deceased, as to a stranger. (Id.) If the partnership was insolvent, his assignment of the property, though honestly intended to discharge a debt due from him to the representatives of the deceased, growing out of the partnership business, might not affect the right of creditors to have the property subjected to the satisfaction of their demands. But if it became necessary to proceed against the estate of the deceased partner, payment could only be enforced through the Probate Court.
Whether, after thus taking judgment against one of the partners, the plaintiffs could maintain an action upon the note, as the joint contract of the firm, is a question on which there has been some diversity of decision. But the great weight of authority seems to be against a second recovery upon the contract.' Mr. Collyer, in his Treatise on Partnership, lays it down, that the first judgment is a bar to the second action; and the American editor, in a learned note, in which he reviews the authorities, concludes, that the doctrine of the text is well supported by the authorities, and that the cases which seem to hold the contrary, have not sufficient support to stand upon. (Collyer on Part., Book 3, ch. 6, § 7, 8th edit., p. 688, n.; but see 3 Kent, Com., 8th edit., p. 30, n.)
If, however, the plaintiffs could have recovered a second judgment upon the note, upon the joint liability of the firm, they have not done so. They have taken judgment upon the note, against the maker only, and individually; and it appears to be well settled, without any diversity of opinion, that equity will not aid them to subject the partnership property to the payment of that judgment. Thus, in Penny v. Martin, 4 Johns. Ch. Rep. 566,
Here the plaintiffs have not even the excuse of ignorance of the fact; for although they may have been ignorant of the partnership, when they brought their suit, their pleadings show that they were fully apprised of it before taking their judgment. They ought, then,- either to have dismissed their suit, and brought suit against the defendant, as surviving partner, or, at least, having amended, by charging the defendant as surviving partner, they should have proceeded to judgment against him, as such, and not as sole contractor. (Willings v. Consequa, supra.) Had they done so, they might have proceeded at once against the estate of the deceased partner. For it is the well settled doctrine in equity, that every partnership debt is joint and several; and therefore the creditor may, at the same time, sue the survivor as such, and proceed against the estate of the deceased partner. (Collyer on Part., 4th Am. from 2d Eng. edit., p. 554, 555, n.; 3 Kent, 63, 64, n.; 1 Story, Eq. 676.) If the plain
It is not for us to indicate to the plaintiffs what their remedy may be, if any they have. It will be seen, by consulting the references we have given, that it might involve a question of no little difficulty and embarrassment. (And see Nichols v. Anguera, 2 Miles, 290; Ward v. Johnson, 13 Mass. 148; Anderson v. Levan, 1 Watts & Serg. 339; Pearce v. Kearney, 5 Hill, 94.) It may suffice upon this subject to say, that it is the course of legal judgment to decide cases only as they arise, and are presented for adjudication. The cause will be remanded, to afford the plaintiffs an opportunity to amend, or take such other proceeding as to them may seem advisable.
Reversed and remanded.