WALLACE furv. part. vs. FITZSIMMONS fp.bail.
T
HE cafe was this : Hoe and Harriʃon of Virginia being indebted to Wallace and Smith, Wallace, as furviving partner of Smith iffued a foreign attachment againft them, and attached their effects in the hands of Fitzʃimmons entered fpecial bail. The caufe then proceeded, till judgment was finally 
obtained againft Hoe and Harriʃon, and upon the return of a Ca. Sa. non ʃunt invenerant, an amicable Scire Facias was entered againft Fitzʃimmons, judgment was thereupon obtained, and an execution iffued, for the whole fum recovered againft the principals in the original fuit. It appeared, that during thefe proceedings, the executor (who was alfo the brother) of Smith, the deceafed partner, applied to Fitzʃimmons, and forbade his paying more than one half of the money to Wallace ; offering an indemnification for the payment of the reft to him, and alledging that the Partnerfhip was confiderably indebted to the eftatic of the deceafed. Fitzʃimmons accordingly gave notice of this application to Wallace, and, afterwards, paid one half of the money to the executor ; although aletter from him to Wallace was produced in which he had declared, that he would not pay it either to him or to Smith, but that the law fhould take its courfe, and determine the right between the executor and the partner.
A rule was obtained, which in the argument, the counfel confented to confider, either, as a rule to fhew caufe why on paying to the Plaintiff Ł.715 (being one half of the fum recovered from Hoe and Harriʃon) the proceedings on the execution fhould not be faid: or, as a rule to fhew caufe, why the execution fhould not be fet afide, and the judgment opened, in order to let the Defendant into a trial on the plea of payment.
On this rule, two queftions were brought before the Court: 1ft, In point of fact, whether Wallace had acquiefced in the payment to the executor? and 2dly, in point of law, whether the payment to the executor did not difcharge Fitzʃimmons from the demand of the furviving partner?
The Defendant's counfel endeavoured to fhew, that Wallace's filence, after he was informed of the executor's claim, amounted to an acquiefcance in the payment ; and, confequently, that Fitzʃimmons, who was an innocent ftake-holder, ought not to be made liable for the repayment of the money. 4 Burr. 1985. 2 Ld. Raym. 1210. Bull. L.N.P. 133.
But as this argument, in point of fact, did not feem to be fupported by the teftimony, they contended, that, in point of law, the payment of a debt to the executor, or other reprefentative of a deceafed Perfon, was a good payment ; and that the Courts of Juftice would not unravel it, in an action by a furviving partner to compel a fecond payment of the fame debt. In this cafe, they faid, it was to be prefumed the deceafed did not die infolvent, becaufe he had left a will ; and whatever property he was worth, after payment of his debts, the executor, who was alfo his heir at law, was clearly entitled to receive. They allowed that the furviving partner was the proper perfon to collect the joint credits ; but urged, that, when they were collected, he became merely a truftee for the executor, or next of kin ; and hence, they inferred, that if there was really a balance on the company accounts in favor of the deceafed partner, a ftrong principal of equity interpofed, that his reprefentatives
1788.
fhould not be compelled to take a circuitous route to obtain it ; more particularly, when it muft affect the intereft of a third perfon.
But it was anfwered for, the Plaintiƒƒ, that an executor of one partner could , in this way, fettled the partnerfhip accounts. The law, which makes the furviving partner liable for the joint debts, by a neceffary confequence, gives him the exclufive controul over the partnerfhip effects, and every action, founded on a joint owners, is, that the intereft itfelf fhall furvive; but, in the cafe of partners in trade, it is only the right of action, and not the intereft, to which the furvivor is entitled. This right, however, is effential to juftice, and for the benefit of commerce ; for, the inconveniency would be inconceiveable, if, upon every fuggeftion of a balance due to a deceafed partner, it was incumbent on the furvivor to travel into all the circumftances of the company. In the action between M‘Cartey, furviving partner of Cummings, againft Nixon, it appeared partner, and retained the company effects for a feperate debt due to him from Cummings; but the Supreme Court determine that the adminiftrator, in that cafe, had no right to retain ; and that he muft refort to his action of account render againft M‘Cartey, in order to obtain fatisfaction from the joint ftock.
With refpect to the prefumed acquiefcene of Wallace, it was obferved that the evidence contradicted the prefumption ; and that, independent of every other confideration. Wallace's continuing to profecute the fuit, amounted to a prohibition. There is, therefore, no fact upon which the caufe could be fubmitted to a Jury ; whether the payment to the executor is good, or not, being a matter of law.
SHIPPEN, Preʃident.–It may probably be a hardfhip upon the Defendant, but he has certainly made himfelf liable to the Plaintiff's demand. A payment to an executor, or adminiftrator, can be no fatisfaction to a furviving partner, who has the fole right of fuing for, and of receiving the monies, due to the company. The point of law is, therefore, exceedingly clear. Nor can we in this manner attempt to inveftigate the parnterfhip accounts.
With refpect to the point of fact, it does not feem to be at all eftablifhed. If, indeed, the acquiefcence of the Plaintiff had been proved, we fhould have thought it a proper fubject for a Jury to determine. But, as the matter ftands, we muft leave the Defendant to this confolation, that, even if he has not already taken an indemnification, he may recover the money back from the executor, having paid it in his own wrong
Lewis for the Plaintiff.–Wilʃon and Rawle, for the Defendant.