Burgwin v. . Hostler ( 1799 )

It is true that where one of two partners is sued by a joint transaction, he might, before the Act of 1789, cap. 57, have pleaded this circumstance in abatement; because the plaintiff had made a contract, not singly with him, but with him and another, who was equally bound to contribute to the performance of it. Still, however, the defendant might have severed the contract, and rendered himself alone liable, which he effectually did, if he omitted to plead in abatement; for at no subsequent stage of the proceedings could he avail himself of the objection. But where one partner dies, the whole debt survives against the other, and the executors of the deceased partner, not being originally liable, cannot be made so by suing them. Hence, as the fact has appeared in evidence that there is a surviving partner, the legal consequence must be applied to it, which is, that he alone is liable.

Nonsuit.

NOTE. — See the Acts of 1789 (1 Rev. Stat., ch. 31, sec. 90), which, it is believed, extends to partners as well as other joint obligors.

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