Williams v. Hodgson , 2 H. & J. 474 ( 1806 )

Buchanan, J.

I consider the partnership, alleged in , this case to have existed between the defendants below, as sufficiently established to the extent charged in the bill, and that the delivery of tlie goods, and merchandise, said to have been sold to Clarke, as acting partner, is fully-proved.

But if the bonds charged iu the bill to have been passed by Clarke, in behalf of Williams and himself, were exeeuied by him for the amount of tiróse goods, the simple contract debts were not thereby severed, and continued open as to Williams, and destroyed as to Clarke, (ou whom such bonds would be obligatory;) but being respectively joint, they became in law extinguished as to both. And though equity will interpose its aid where a remedy is wanting at law, the demand continuing, yet it cannot revive a debt which in law is extinguished.

If, however, such a bond could be construed to extinguish a simple contract debt as to the party signing it only, leaving it open as to the other partner for the interposition of a court of chancery, yet in this case the complainant has failed in proof to lay a foundation for a decree against Williams; for, as against him, the bonds in question which are set up in the bill as the very ground of the relief prayed, are not proven by any legal evidence exhibited in the record; and it cannot be seriously contended, that in the absence of such proof, the chancellor could hold jurisdiction over the case; for if no such bonds were executed by Clarke, the simple contract debt remains unimpaired, and the proper remedy is in a court of law.

Upon the whole, I am of opinion that the chancellor’» decree, however consonant to strict justice, ought to be reversed.

¡DECREE REVERSES,