
    *Sells, administrator of Sells, against The Administrators of Hubbell and others.
    [ * 394 ]
    Where a party has been discharged under the insolvent act, and assigned his property pursuant to the act, an application cannot be sustained, in relation to his property or interest, without making his assignees parties.
    
      March 11th.
    [ * 395 ]
    
      JOHN BEDIENT and Walter Hubbell were copartners in trade. Hubbell died in August, ] 803, intestate, leaving a widow and two children. Bedient was discharged under the insolvent act, on the 24th of October, 1807, and David R. Lambert and Wm. M Intire were his assignees. The partnership, in the lifetime of Hubbell, was indebted to John Sells, deceased, in two notes, on which separate judgments were obtained at law, against Bedient, as surviving partner, in May, 1807. On these judgments executions were issued, and returned nulla bona. In the inventory which Bedient exhibited, as insolvent debtor, no real property was mentioned, nor was it mentioned that he was a creditor of the firm of Bedient 8f Hubbell. Sells then filed his bill in chancery against all the defendants, and, after his death, the plaintiff, as his administrator, obtained satisfaction of the judgments, from the representatives of Hubbell, under a decree of this Court. In the suit in chancery, thus instituted by Sells, Bedient in his answer set up his discharge under the insolvent act, and his assignees pleaded no assets.
    It being since discovered, according to a suggestion on the part of the representatives of Hubbell, that Bedient had real property in the city of New-Yor'/c, at the time of the docketing of the two judgments, in May, 1807, which was not mentioned in his inventory, exhibited under the insolvent act, nor claimed by, and probably not known to, *his assignees; the representatives of Hubbell applied to this Court for an order, requiring Sells, the administrator, &c., to assign over to them the judgments, so obtained at law against Bedient, and so satisfied under a decree in chancery, out of the assets of Hubbell, the deceased partner. A copy of the petition, with notice of the application, was served upon E. W. King, the solicitor of Sells, in the above suit, and no opposition being made, an order was obtained, as by default, on the 13th of May last, directing such an assignment.
    The assignment was not, in fact, made, and Sells, the administrator, in his affidavit of the 26th of December last, stated, that he had never assigned the judgments, nor had notice of any order to assign. It appeared, however, that A. Burr, as attorney for the representatives of Hubbell, had revived the judgments, by scire facias, at law, in the name of Sells, since the 13th of May last, and had obtained judgments on two notes, and issued executions against real property in the city of New-Torlc, said to belong to Bedient, since the original judgments were obtained in May, 1807, and prior to his discharge under the insolvent act, in October, 1807.
    
      E. W. King, as solicitor for “ Bedient, and his assignees,”
    [ * 396 ]
    now moved to vacate the order of the 13 th May, as irregularly obtained, on an affidavit by Bedient, that he had no knowledge of the order of the 13th of May last, or that the same was about to be applied for, until after the revival of the judgment by scire facias, as aforesaid, and executions taken out against certain real property of his wife, and that he was not indebted to the firm of Bedient f Hubbell, at the time of the death of Hubbell, but he believed that, upon a fair statement of accounts, there was a considerable balance due from the estate of Hubbell to him, or his assignees, in-eluding the amount of the said judgments. *The names of the assignees were not mentioned, and no affidavit by them was produced.
    
      Burr, contra,
    opposed the motion: the affidavits which he read related only to the fact of the service of the notice on King, the solicitor for Sells, and as to the improbability . that the firm of Bedient &f Hubbell should have been indebted to Bedient.
    
    It was not pretended that Bedient, or his assignees, had any notice, in fact, of the motion for the order of the 13th of May, unless the service on King was good notice to them.
    In the answer of “ John Bedient, (who was impleaded with John Sells,) to the bill of complaint of James Robertson, John Brown, and Nancy, his wife, (which said Robertson and Nancy are administrators of Walter Hubbell, deceased,) Horatio William Law Hubbell, and Ferdinand Hub-bell, infants and heirs at law of Walter Hubbell, deceased,” (to which answer King is solicitor,) Bedient, among other things, stated as follows : “ and he likewise admits, that in his statement made to the said recorder, at the time of presenting his aforesaid petition, he made no statement of the accounts between himself, the said John Bedient, and the estate of the said W. Hubbell, deceased, because all such accounts had been previously closed and balanced.”
   The Chancellor.

[ * 397 ]

The application to vacate the order of the 13th of May last, is made on behalf of John Bedient. But provided the executions, to be issued at law, in the name of Sells, are confined (as the order of the Supreme Court, of the last term, made before this present application was made, confines them) to real property, whereof Bedient was seised between the date of the judgments and the date of his discharge under the insolvent act, he has no concern with this question. If he owned any such property, it must have passed to his assignees, *or been by him sold in the mean time, subject to the judgments. It is, therefore, the assignees, or the purchasers, who have an interest in discharging that order, and they are not parties to this application. It is true, that the notice of the motion is stated to be by the solicitor for “ John Bedient and his assigneesbut the assignees are not so much as named, and we have no affidavit denying that they were not apprized of the intended application for the order in May, or that they have any ground to object to the claim for contribution set up by the representatives of Hubbell. I cannot, therefore, consider that the motion ought to prevail, in respect to the assignees, for they are not properly parties to the motion; and if they were, they have shown nothing entitling them to prevail.

[ * 398 ]

If this was a case in which Bedient had an interest in the question, I should think it would not be very extravagant to consider the service of the notice of the motion, in May, on E. W. King, as sufficient notice to him, because it appears that E. W. King was his solicitor to an answer put in by him to a bill, by these very representatives of Hubbell, on the subject matter of these judgments. With respect to any equitable objection to the claim for contribution, I think it is clear that Bedient has none, nor have those who now represent him. The debt of Sells was the debt of the co-partnership of Bedient Hubbell. It was the common equal debt of both the partners, and the consideration for which it was created is presumed to have enured equally to the benefit of both, and the contribution ought to be equal. The estate of each partner ought to be charged with the debt in equal portions, provided their interests in the co-partnership were equal, and their accounts as between each other were equal. This is the intendment, in the first instance ; and it would be a thing almost of course for equity to allow the representatives of a deceased partner who had to pay the whole debt to be substituted in the place of the creditor in order to *recover, from the surviving partner, or his estate, a moiety of what they had paid. Nothing could stay this proceeding but the allegation of the surviving partner that he was the creditor partner, and that the estate of the deceased partner owed him a balance, as much or more than it had been obliged to pay. This would render it requisite to take and state an account between the partners, before this Court could interfere, in any way, to enforce the claim for contribution.

But, in the present case, the evidence before me is against any such well-founded pretension on the part of Bedient. In his affidavit on this motion, taken on the 16th of January last, he does, indeed, say, that he was not indebted to Walter Hubbell at the time of his decease, nor to the firm, and that, upon a fair statement of accounts, he believes there is a considerable balance due from the estate of Walter Hubbell to him, or his assignees, including the amount of the said judgments.” If this was all he had ever said, I should think an account ought to be previously taken; but his language, on other occasions, equally solemn, has been different. In his affidavit, made on the 27th December last, in the Supreme Court, in order to set aside the proceedings at law, under the order of the 13th of May, he stated, “ that, at the death of Hubbell, the copartnership property was insufficient to pay the debts of the firm, and that, on the final settlement of the concern, he was not indebted to the estate of the deceased partner.

He here admitted that there had been a final settlement of the copartnership, and he made no pretence that the deceased partner was a debtor to the firm. And in his answer in chancery, to which I have already alluded, he admits, that in his proceedings under the insolvent act, he made no statement of the accounts between himself and the estate of Walter Hubbell, deceased, because all such accounts had been previously closed and balanced.”

[ * 399 ]

*I need not, however, pursue this point. I have only looked into the facts, so far as to satisfy myself, that no injustice will probably follow from denying the motion, on the strict formal ground, that Bedient is not entitled to make the motion, and that his assignees, who represent his interests, are not parties to the motion, and have not shown any want of notice.

But the order for the assignment must be so taken as to operate only on a moiety of the judgments; and if it was not so done, it was taken to an extent beyond what the party was entitled to, even upon his own showing. It is not alleged, or proved, that on a settlement of accounts, Bedient was indebted to Hubbell; and all that the representatives of Hubbell could ask for, in the first instance, was contribution for a moiety of what they had paid upon the judgments.

The motion, on the part of Bedient, to set aside the order of the 13th of May last, is, consequently, denied, with costs; and it is declared that the representatives of Hubbell are entitled to recover from the estate of Bedient, under the assignment of the judgments, a moiety only of the debt which the representatives of Hubbell have been obliged to pay to Sells, under the decree of this Court. That is what the counsel for these representatives admits to be the extent of their claim, and that is the extent to which the order of the 13th of May is to be carried.

Order accordingly.  