| Ohio | Dec 15, 1832
delivered the opinion of the court:
If/is not necessary to recapitulate the evidence in this case. It satisfies us that Heath and Littler were jointly concerned in the drove of cattle purchased, and that, the money was borrowed at •the bank on their joint responsibility, and for their joint use and 'benefit, and also that the superior credit and responsibility of Littler was the security most relied upon by the indorsers in lending
Upon this state of the case, no good objection to the complainant’s coming upon the estate of Littler is perceived. It is urged that he is bound to pursue the surviving partner, and prosecute at law, to insolvency. We know of no rule in equity winch requires •of a' security the pursuit of claim upon the partnership against •the survivor to judgment, when that survivor is insolvent, has absconded from the country, and it is evident such pursuit would be fruitless. The complainant became bound for Littler as well as Heath, and has been compelled, in consequence, to pay money. Both were equally liable to him, and at law, as well as on the plainest principles of justice, he has a right to proceed against both until made whole, and to recover from either or both. Where ■one of several who are jointly liable dies, leaving a solvent survivor, for good reason the law requires the pursuit of the survivor before you resort to the estate of the deceased; but the insolvency of the survivor, in our opinion, would exonerate the security from such pursuit, for the simple reason that the sole object and end of such pursuit, the obtaining satisfaction, is put beyond attainment by the insolvency; and neither law nor equity requires a vain thing. This would hold even if the survivor were within the jurisdiction of the court, and could be reached and coerced by legal process; and by much stronger and more equitable reasons shall the security be held discharged from the pursuit of an insolvent partner into another jurisdiction, when there.is a solvent estate of the deceased partner within the jurisdiction that can be reached. Justice would seem to require of those representing the estate of .the deceased partner in such cases, to apply the effects of the de
But it is said the partnership between Littler and Heath was-limited, and was dissolved, and that the complainant knowing the dissolution, became security for'Heath alone. The partnership-was, indeed, limited in its subjects, the dealing in cattle and the-procuring the means of attaining stock, but as to those subjects it had all the incidents of a general partnership. If dissolved, that fact must have been known to the respondents, and they are-bound to prove it. There is not only no evidence of that fact, but there is, on the contrary, the declaration of Littler in effect, that, it was not dissolved, and that his name had been left off the note-by his own partner with intent to defraud him ! The fact of dissolution, and the proof of notice of it to the complainant, are very different things. If the dissolution were known, then resort might be had to circumstances to establish a knowledge of it in the complainant ; but it is not admissible for Littler’s representatives, against the declarations of their intestate, wholly to omit proof of' the principal facts, and deduce it from the act of the copartner in-having a separate note, and of the complainant in indorsing it, when the intestate proclaims the act of his partner to have been done in fraud of his own rights, and the proof and circumstances-show, either that the complainant did not notice the change, or,, having noticed it,.was lulled to quiet by the assurance of Heath that all were to sign. If, as claimed, this was a limited partnership, and was dissolved, would that put an end to the joint validity of the partner for their partnership debts. The fact of notice would not affect the question. No new debt was created at bank. The old one remained outstanding, although, to conform to the custom of business in the bank, when continued and further time was given, the evidence of the debt was, from time to time, changed. This was perfectly understood by all the parties. No-
Upon the whole, this case, stripped of technicalities and words, is a very simple one. Horsey became security for Heath and Littler, and had to pay the money for them; Heath being insolvent, has run away; Littler is dead, but has left a solvent estate; and Horsey now asks to have his claim admitted as a valid one upon the estate of Littler. It appears to us a clear ease for relief against Littler. But, inasmuch as we are not fully advised of all the facts necessary to a final decree, we refer the case to a master, with directions to take and state:
1. The account paid by the complainant, on account of the loan of the bank, with interest up to the first day of the next term.
2. The time when the administrator of Littler had notice of the complainant’s claims.
3. The value of the assets, real and personal, of the intestate, which have or may come into the hands of the administrator.
*1. The claims upon these assets, showing in distinct items those by law preferred to creditors.
5. The amount of disbursements made by the administrator, ■•and the time each was made.