Burgwin v. Administrator of Hostler, 1 N.C. 124, 1 Tay. 124 (1799)

May 1799 · North Carolina Superior Court

1 N.C. 124, 1 Tay. 124

Burgwin versus Administrator of Hostler.

The representative of a partner cannot be sued while there is a surviving partner.

ONE of several partners drew a bill of exchange in the name of the company ; the bill came by indorsement to the plaintiff, who brought this suit against the administrator of a deceased partner ; there being another partner still alive. Upon the general issue being pleaded, this objection was taken by the defendant's counsel ; to which the plaintiff replied, that it ought to have been taken advantage of by a plea in abatement, in proof of which was cited the case of Rice versus Shute, 5 Burr. 2611.

By

The Court.

It is true that where one of two partners is sued, upon a joint transaction, he might, before the act of 1789. cap. 57, have pleaded this circumstance in abatement ; because the plaintiff had made a contrast, 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.

Non-suit.