
    *Rootes’ Ex’x v. Tompkins’Trustees.
    
    April Term, 1846,
    Richmond.
    (Absent Cabell, P.)
    1. Decrees against Absent Debtors — How Far Absolute after Seven Years. — The provision of the act, 1 Rev. Code, ch. 123, § 4, p. 476, directing the decree against an absent debtor to stand absolutely confirmed against the absent debtor who shall not within seven years appear and petition to have the cause reheard, only applies to so much of such decree as operated upon the estate or effects of such absent debtor, subject to the jurisdiction of the Courts of this Commonwealth.
    
    3.Personal Decrees against Absent Debtors — How Far Respected in Collateral Controversies. — A decree in personam against an absent debtor, is entitled to all the respect to which any other decree is entitled. in all collateral controversies. So that if property is sold under an execution issued thereon, the'title to said property cannot be impeached by objections to the form or merits of the decree.
    3. Decrees against Absent Debtors — How Far the Original Cause of Actions Merged. — A decree against an absent debtor merges the original cause of action, so far as to enable the plaintiff to rely thereon, in any subsequent proceeding to enforce it, as prima facie evidence of the demand it establishes ; and to repeal the statute of limitations, except so far as the statute may apply to judgments or decrees.
    4. Same — How Far Not Conclusive after Seven Years.— Such a decree, so far as it reaches beyond the cause or thing subject to the jurisdiction of the Court, and purports to operate in personam merely, so as to create a personal charge alone, is not of such binding and conclusive character as to preclude all enquiry into the merits thereof ; notwithstanding more than seven 'fyears have elapsed since it was pronounced. But it may be shewn to be erroneous, either upon its face, or by evidence aliunde.
    
    5. Decrees against Absent Defendants— How Far Conclusive after Seven Years, — Decrees against absent defendants have the same effect as decrees against absent debtors. And so far as the decree operates upon a subject within the jurisdiction of the Court, the interests of such absent defendant therein are conclusively bound by the decree, unless he shall appear and petition for a rehearing within seven years. But the limitation of seven years has no application to so much of the decree as acts in personam,, an d establishes a personal demand.
    Prior to the year 1801, James Dunlop, David Buchanan and Robert Pollock were merchants and partners, doing business in the towns of Petersburg and Manchester, and in the City of Richmond: in Manchester, under the name of Robert Pollock & Co. In that year they dissolved their partnership; and a new firm was formed by David Buchanan and Robert & Allan Pollock, under the name of Robert & Allan Pollock & Co.
    At the time of the dissolution of the first partnership, John & Cornelius Pate & Co. of Bedford county, were their debtors. After the formation of the new partnership, the Pates became the debtors of that house ; and in 1804, transferred to Robert & Allan Pollock & Co. debts amounting to near ^1000, which, when collected, were to be applied to the satisfaction pro tanto of the debts due the old and new firms. These debts were, by consent of the parties, placed in the hands of Col. William Hancock, for collection.
    Soon after this transfer by the Pates, James Dunlop purchased the interest of his former partners in the debts then due the old concern; and in 1807, he filed a bill in the Chancery Court at Richmond, against Robert & Allan Pollock & Co. and others, seeking, among other things, to have his due proportion of the claims transferred by the Pates applied to the payment of the debt due the first partnership. In the progress of this cause, a compromise was made between Dunlop and Robert & '*Allan Pollock & Co. by which it was agreed that this last firm should be allowed out of the claims transferred by the Pates, the amount of their debt; and the remainder of the fund should be transferred to James Dunlop. In pursuance of this agreement, Allan Pollock wrote to Col. Hancock, requesting him to make a statement of the amount which his firm had received ; and if it did not amount to as much as their debt, to retain enough to discharge it; and pay over the balance of the fund to Dunlop. •
    In 1817, Tompkins & Murray, claiming to be the assignees of James Dunlop, filed their bill in the Chancery Court of Lynch-burg, against Col. Hancock, David Buchanan as the surviving partner of Robert Pollock & Co. and Edmund W. Rootes as the executor of Allan Pollock, who was the executor of Robert Pollock, seeking to recover from Hancock the amount of moneys in his hands belonging to James Dunlop, and from Buchanan as the surviving partner of Robert Pollock & Co. and Rootes as the executor of Allan Pollock, who was the executor of Robert Pollock, the amount then in their hands, to which, as the assignees of Dunlop, Tompkins & Murray were entitled. In this case, Buchanan being a citizen and subject of Great Britain, and not residing in the State of Virginia, was proceeded, against as an absent defendant, under the Act of Assembly. The accounts were referred to a commissioner, who made a report to which both parties filed exceptions ; and the cause coming on to be finally heard, the Court made a decree against Hancock’s representative in favour of the plaintiffs for 6404 dollars 52 cents; and also made a personal decree against the absent defendant David Buchanan, as the surviving partner of Robert & Allan Pollock & Co. in favour of Hancock’s representative, for 3950 dollars 41 cents. After this decree, a compromise was made by the plaintiffs and Hancock’s representative, by which he assigned to the plaintiffs, ^without recourse to him, his decree against Buchanan; and the decree entered in the cause was modified; and the plaintiffs took a decree against Hancock’s representative for 1109 dollars 84 cents.
    David Buchanan died subsequent to the final decree in the cause in the Lynchburg Chancery Court. In his' lifetime, Rootes had acted as his agent in Virginia; and had collected considerable sums of money, and transmitted them to him in Great Britain., And after the death of David Buchanan, Rootes acted as the agent of Robert Carrick Buchanan, who was the donee or legatee of David, and transmitted moneys to him; and at the time of the decree appealed from in this case, Rootes’ executrix had in her hands the sum of 438 dollars, which he had collected for Robert Carrick Buchanan. The moneys so collected and transmitted were moneys of the firm of Robert & Allan Pollock & Co. ; to which Buchanan was entitled as surviving partner.
    After the decree in the Lynchburg Chancery Court, Tompkins & Murray failed in business, and conveyed their effects in trust for their creditors; and in 1835, the surviving trustees Philip Norborne Nicholas and Richard Anderson, filed their bill in the Superior Court of Law and Chancery for the count}- of Amherst, against Edmund Winston, sheriff of 'that county, to whom the estate of David Buchanan had been committed, Edmund W. Rootes, in his own right, and as executor of Allan Pollock, who was executor of Robert Pollock, and Chiswell Dabney, who as attorney for Rootes, the agent of Buchanan, had collected and then held a small sum of money in his hands. The object of this suit was to recover the amount of the decree rendered against David Buchanan in the Lynchburg Chancery Court, which remained unsatisfied, from Rootes, as the representative of the Pollocks.
    Rootes died soon after the institution of the suit; and it was revived against Mrs. Rootes as his executrix and *sole devisee. Mrs. Rootes answered the bill, admitting that she had in her hands the sum of 438 dollars, collected by her testator for Robert Carrick Buchanan, but insisted that the decree against Buchanan, as the surviving partner of Robert & Allan Pollock & Co., was coram non judice, and null and void; because it was a personal decree against an absent defendant; and he was not a party to the suit as the surviving partner of Robert & Allan Pollock & Co., but of the former firm of Robert Pollock & Co.; and that no claim against him as a member of the firm of Robert & Allan Pollock & Co. was set up in the bill; in which indeed they were not named; and there was no prayer for relief against him as a member of that firm; but the prayer for relief was specific against Hancock and the Pates.
    She insisted further, that if the decree was obligatory upon Buchanan, it was in no wise binding upon the representatives of the deceased partners; and was not evidence against them of the existence of a debt from the firm of Robert & Allan Pollock & Co. And she insisted that Rootes was not a party as executor of Allan Pollock; but simply as the representative of Robert Pollock, a member of the old firm of Robert Pollock & Co. ; and that he had fully administered the estates of Robert and Allan Pollock before the institution of this suit. And further, that the report of the commissioner, and the vouchers filed in the cause in the Lynchburg Court, shewed that the decree was erroneous.
    Dabney answered, admitting that there was in his hands the sum of 28 dollars 38 cents, collected for Robert Carrick Buchanan.
    The cause came on to be heard in 1837, when the Court made a decree, directing Dabney to pay to Edmund Winston, as the administrator of David Buchanan, the sum of 28 dollars 38 cents, with interest; and directing Rootes’ executrix, out of the estate of her testator in her hands, to pay to Winston the sum of 438 *dollars, with interest from the time the same was received: and also directing Winston to render an account of his administration before a commissioner of the Court; and that Rootes’ executrix should render before the same commissioner an account of all sums of money, debts, or other estate, either real or personal, which remained in at the time or came to his hands after the death of Buchanan.
    The decree then declared, that if upon the coming in of the report, there should not be sufficient assets found in the hands of the defendant Winston, of the assets of David Buchanan, to satisfy the balance of the plaintiffs’ claim, satisfaction thereof would be decreed out of the estate of Robert 6 Allan Pollock, if the plaintiffs would make their representatives parties defendants ; and if that fund was inadequate, satisfaction would be decreed out of the estate of Rootes in the hands of his executrix.
    Prom this decree Rootes’ executrix applied to this Court for an appeal, which was allowed.
    G. N. Johnson, for the appellant.
    The question involved in this cause is, whether a personal decree against a party proceeded against as an absent defendant, is conclusive against him.
    It has been a vexed question whether a decree or judgment against a person upon whom process was served, and who appeared in the cause, is prima facie or conclusive against him in another country: but the weight of authority is against the conclusiveness of the judgment. Bissell v. Briggs, 9 Mass. R. 462; Walker v. Witter, Doug. R. 1; Arnott v. Redfern, 13 Eng. C. L. R. 1. But a judgment against a person not a resident in the country where the judgment was rendered, upon whom no process -was served, will not raise an as-sumpsit; though the judgment was rendered upon a proceeding prescribed by the law of the place where it *was rendered. Buchanan v. Rucker, 9 East’s R. 192. And the American cases are unanimous, that where process has not been served on a defendant, and he has not appeared in the cause, a Court cannot render a judgment which will bind him. Borden v. Eitch, IS John. R. 121; Mills v. Duryee, 7 Cranch’s R. 181; Hampton v. M’Connell, 3 Wheat. R. 234; Aldrich v. Kinney, 4 Conn. R. 380; Hall v. Williams, 6 Pick. R. 232; Shumway v. Stillman, 6 Wend. R. 447.
    The only difference in the effect of the judgment in the State where it is rendered, and in another State, is, that it may operate in rem when the property is there; .and possibly, under our statute, a decree after seven years might prevent the setting aside what had been done under it. The cases of Bissell v. Briggs, and Hall v. Williams, supra, shew that the proceeding is a!s in rem. And so is Phelps v. Holker, 1 Dall. R. 261.
    If the suit upon the decree is brought in, the State in which it was rendered, on principle, the force and validity of the decree must be the same. The decree is not obligatory abroad because the party was not before the Court either by service of process or appearance; and this is equally the case where the suit is brought in the State in which the first decree was rendered. If, therefore, for the reason assigned, the decree is null in the first case; for the same reason it must be null in the second.
    The act 1 Rev. Code, ch. 66, \ 46, p. 205, and the act, ch. 123, $ 5, p. 476, authorizes an absent person to be made a party, when he is a necessary party to a controversy depending in the Courts of this State. But it was not intended to make all absent debtors parties to suits instituted here. The object was to remove an obstacle to the administration of justice between parties here. Sometimes an absent person is a necessary party to enable the Court to decide upon the rights of parties who áre present. But where there is but one person *against whom a right or a claim is to be enforced, and he is absent, a suit cannot be sustained against’ him. Miller v. Sharp, 3 Rand. 41; Hopkirk v. Bridges, 4 Hen. & Munf. 413; 1 Rob. Pr. 3.
    The jurisdiction taken against absent defendants, being onlj' ex necessitate rei, to administer the rights of others, it can never be necessary to make a personal decree against such absent defendant; and unless the Court shall be of opinion that the act intended to give to our Courts authority to administer justice over all persons, wherever living, and whatever their rights, station, or condition, a mere personal decree in such case must be void.
    Robinson, for the appellees.
    The question submitted to the Court by the counsel for the appellant is, whether the decree rendered against Buchanan, an absent defendant, is void. It was said by the Vice Chancellor in the case of Martin v. Nicolls, 5 Cond. Eng. Ch. R. 198, that a foreign judgment was not examinable in Westminster Hall. And so says Story in his Conflict of Eaws, ch. 15, {j 606, p. 506.
    The case of Buchanan v. Rucker, 9 East’s R. 192, relied on by the appellant’s counsel, was a simple suit against one person having no property within the jurisdiction of the Court. But the Courts both of England and Scotland recognize the validity of a judgment against a person who has an interest in the country which may be affected by it: and that not only to the extent of the property, but also as a personal judgment. Douglas v. Forrest, 15 Eng. C. E. R. 113; Becquet v. M’Carthy, 22 Id. 20; Ferguson v. Mahon, 39 Id. 38.
    In this country, it has been held that a judgment in one State is not binding in another, where the defendant has not been served with process. And the same rule has been applied to judgments and decrees in attachment cases. The Courts of this country have given less *effect to such judgments than was given in England in the case of Douglas v. Forrest. But these Courts have not anticipated from their decisions the conclusion which has been deduced from them by the counsel for the appellant; but have expressly disavowed it. Kilburn v. Woodworth, S John. R. 37; Robinson v. Ward, 8 Id. 67; Borden v. Fitch, IS Id. 121; Andrews v. Montgomery, 19 Id. 162.
    There is certainly great difficulty in reconciling the decisions relied on by the appellant’s counsel, with the Constitution of the United States: but whatever may be thought about their soundness, it does not follow that because such a judgment will be treated as null in another State, it will be so considered in our own. Here the Court must give it effect according to the laws of Virginia, whatever may be done elsewhere; and the whole question is, what is the intent and meaning of the Virginia statute?
    The preamble to the statute speaks of persons; and the statute gives jurisdiction against all nonresident persons. In Williamson v. Bowe, 6 Munf. 176, the absent defendant was an inhabitant of Maryland. In Peter v. Butler, 1 Ueigh 285, the absent defendant resided in the District of Columbia. In the Merchants Bank v. The Bank of the U. S., 1 Rob. R. 573, the case was put upon the ground that the corporation was a foreign corporation.
    The act 1 Rev. Code, ch. 123, § 2, p. 475, says: “If such absent defendant shall not appear and give security, wi hin the time limited, or such further time as the Court may allow for good cause shewn, the Court may proceed to take such proof as the complainant shall offer; and if they shall thereupon, be satisfied of the justice of the demand, they may order the bill to be taken for confessed, and make such order and decree therein, as may appear just, and may enforce due performance and execution thereof by such ways and means as have heretofore *been used for enforcing other decrees.” Thus it is apparent that there can be no decree against a home defendant in favour of the plaintiff unless there is proof of the debt against the absent defendant: and in fact the case must be settled precisely as if the plaintiff and the absent defendant were the only parties in the cause. Gibson v. White, 3 Munf. 94; Glassell v. Thomas, 3 Heigh 113. Suppose that the absent defendant after-wards comes into the State, and an action is brought against him upon the decree, would not this be as good ground of action as that on which the cases of Douglas v. Forrest, and Becquet v. M’Carthy, were founded.
    The acts 1 Rev. Code, ch. 66, § 46, p. 205, and ch. 123, (j 5, p. 476, are the statutes under which the proceedings in this case were had. By these statutes the Court is authorized to proceed to a hearing and decree against absent defendants, as in cases of absent debtors. Williams v. Donaghe’s ex’or, 1 Rand. 300; Dunlop v. Keith, 1 Heigh 430. In the present case the Court exercised jurisdiction over Buchanan on matters in which he was jointly interested with others. And in a case in which the Court properly had jurisdiction, Tompkins & Murray came into Court to have an account of what had been received by Robert & Allan Pollock & Co. of which firm Buchanan was the surviving partner; and the decree was such as if he had been here, he would have been amenable to it.
    Heigh, for the appellan.t. Upon the statute no Court has authority to make a decree against an absent defendant, unless he has effects here or his rights are so mixed up with those of a home defendant that a decree against this last will be a decree against him. The preamble of the statute states the mischief and the remedy; the difficulty of recovering debts from persons residing out of the State who have effects here.
    *The first section of the statute relates to what is called a foreign attachment; and proceeds in rem and in personam. The second requires security to be given by the absent debtor on his appearance ; or if he does not appear, and a decree is rendered against the home defendant, requires the plaintiff to give security for abiding such future order as may be made for restoring the estate or effects to the absent defendant, upon his appearance and answering the bill. The third section relates to the proceeding to subject the land of the absent debtor. The fourth section authorizes the absent defendant to come in and set aside the decree. The fifth section authorizes the same proceedings against other absent defendants as is authorized in the case of absent debtors. The statute obviously refers to persons who once resided here; and who have effects in the Commonwealth. The plaintiff must give bond to restore the effects. If there are no effects here, how is such bond to be given?
    The act 1 Rev. Code, ch. 66, § 46, has reference to the same subject; though the language is broader. But the whole effect of the statute is to change the English practice, so that whenever the interest of the absent defendant and that of the home defendant is so connected that the one cannot be decreed against without decreeing against the other, the Court may proceed in the case.
    The act 5 Hen. St. 320, is the first statute found on the subject. This statute only refers to persons residing in some other part of the King’s dominions, or who had resided here and left effects here. The next act is found in 9 Hen. St. 396. This statute has no preamble. The Court is authorized to proceed against absent defendants having effects here. The act makes the same provision as to other absent defendants; but keeps up the idea that his interests are so interwoven with the interests of the home defendant that a decree against the one must affect the rights of the other. The Legislature which ^passed the present law, struck out that part of the act relating to persons residing in some other parts of his majesty’s dominions, and confined it to absent defendants having effects here; or whose interests are identified with that of home defendants. All the cases of foreign attachment referred to by the counsel for the appellee, will be found to be embraced in one or other of the provisions stated, and to come precisely within it.
    Assuming that it has been proved that the Court had no jurisdiction to pronounce the decree against Buchanan, what is its effect in Virginia?
    The Constitution of the United States declares, that the acts and records of one State shall have the same effect in other States. The effect of this provision is, that a Virginia judgment is valid to the same extent in Maryland or New York as it is in Virginia. If invalid in New York, it must be because it is invalid here. Story’s Conflict of Laws, ch. IS, p. 508-9. In support of this doctrine, Story refers to many cases, and among others to Aldrich v. Kinney, 4 Conn. R. 380, in which the subject is most fully considered; and it is held that a party not served with process is not concluded by the judgment. The counsel for the appellee has referred to Martin v. Nicolls, 5 Cond. Eng. Ch. R. 198, for authority to shew that a foreign judgment is not examinable. Story examines this question in the work before referred to, p. 602, 608, and says, the general doctrine in this country is, that a foreign judgment is examinable. The question is not, whether an action may be maintained upon a foreign judgment, but whether it is examinable. An examination of the cases referred to by the counsel for the appellee, will shew that none of them establish the conclusiveness of the foreign judgment; but in most of them, evidence to support or contest it, was admitted. And the conclusion to which Judge Story comes, after a careful consideration of the subject, is, that foreign judgments are not conclusive; and in the *cases of judgments where the process has not been served upon the defendant, the effect of such proceeding is purely local; and in other countries would be void. Story’s Conflict of Laws, § 546, 549, citing Cavan v. Stewart, 2 Eng. C. L. R. 496.
    
      
      
        Note by the reporter. This is the last case reported in which Stanard sat.
    
    
      
      The fourth section of the act, after providing that any absent defendant may come in within seven years after the decree pronounced, and obtain a rehearing, then provides that if such defendant "shall not within seven years from the time of the decree pronounced, appear and petition to have the cause reheard as aforesaid, and pay, or secure to be paid, such costs as the Court shall think reasonable, all and every decree, to be made in pursuance of this act against any defendant or defendants so failing, shall stand absolutely confirmed against him, her or them ; and at the end of such term, the Court may make such further order for quieting the plaintiff or plaintiffs in any such suits, ir their possession or title in the estate or effects so ■sequestered or made liable, as to them shall seem reasonable.”
    
    
      
      Personal Decrees — Absent Defendants, — The absent defendant is proceeded against without notice by service of process, and, it may be, without any actual knowledge of the suit. The court can make no personal decree against him that will be binding upon him. James River, etc., Co. v. Littlejohn, 18 Gratt. 74, citing the principal case. To the same effect, the principal case is cited in Hall v. Lowther, 22 W. Va. 579. See also, principal case cited in Burtners v. Keran, 24 Gratt. 61.
      See generally, monographic note on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.
    
   ALLEN, J.,

delivered the opinion of the Court.

The Court is of opinion, that according to the true construction of the act reducing into one, the several acts, directing the method of proceeding in Courts of Equity against absent debtors and other absent defendants, 1 Rev. Code, ch. 123, g 4, p. 475; the provision of the 4th section, directing the decree to stand absolutely confirmed against the absent debtor, who shall not within seven years appear and petition to have the cause reheard, applies to and should be restricted to so much of said decree as operated upon the estate or effects of such absent debtor, subject to the jurisdiction of the Courts of this Commonwealth : the interest of the creditors and the public requiring, that so far as the decree operated upon a cause or matter subject to the jurisdiction of the Court, rights thereto acquired under the proceedings had, should be quieted within a reasonable time. And in this, but little hazard was encountered of doing injustice to the absent debtor, as it was but a fair presumption, that if he owned estate or effects of value, he would have notice of the proceeding within the time limited. This construction is sustained by the last clause of the said 4th section, which authorizes the Court, at the end of such term, to make such further order for quieting the plaintiff or plaintiffs in any such suits, in their possession and title to the estate or effects so sequestered or made liable, as may seem reasonable. Thus referring the limitation of seven years to the possession and title to the estate or effects sequestered; and making the decree absolute to the extent requisite to quiet the same.

*The Court is further of opinion, that such decree, so far as it extends beyond the cause or thing subject to the jurisdiction of the Courts of this Commonwealth, and operates as a decree in per-sonam merely, is entitled to all the respect to which any other decree is entitled in all collateral controversies; so that, if property should be sold under an execution issued thereon, the title could not be impeached by objections to the form or merits of the decree. The Court is further of opinion, that as the statute authorizes the proceeding, the decree when rendered, merges the original cause of action, so far as to enable the plaintiff to rely thereon in any subsequent proceeding to enforce it, as prima facie evidence of the demand it establishes; and to repel the defence of the statute of limitations; except so far as said statute may apply to judgments or decrees. But the Court is further of opinion, that such decree so far as it reaches beyond the cause or thing subject to the jurisdiction of the Court, and purports to operate in personam merely, so as to create a personal charge alone, is not of such binding and conclusive character as to preclude all enquiry into the merits thereof, notwithstanding more than seven years have elapsed since it was pronounced. A construction which would lead to a different result would violate the principles of natural justice, which forbid that any man should be condemned unheard ; and would impute to the Legislature the intention of giving to the Courts of this Commonwealth jurisdiction over persons throughout the earth. The Court is therefore of opinion, it is competent for ■the defendant, where it is attempted to enforce such decree against him as a personal demand, to shew in his defence, that the said decree was erroneous or unjust upon .the face of the proceedings; or to prove by evidence aliunde, that it was against equity ■and good conscience: and that it ■ivould be .equally competent for hi°m to impeach the same,., for similar causes, in a proper pro- • 1 ' ceeding to be instituted by him.

*The Court is further of opinion, , ■ that by the Sth section of the said act," decrees against absent defendants should receive the same effect as decrees ¡against absent debtors are entitled to. So far ais the decree operates upon a subject within the jurisdiction of the State, the .interests-of such absentee therein are con-clusiyely bound by the decree, unless he 'shall1 appear arid petition for a rehearing within the ' seven years. This is made manifest by the concluding clause of the •5th section, which directs that the proceedings in relation to such absent defendants, shall in all respects be the same, both before and after the decree, as are prescribed •in relation to absent debtors, so far as such proceedings against absent debtors shall be ápplicable to other absent defendants. The. proceedings after decree, in the case of absent debtors, are the proceedings for quieting the title or possession to the estate or 'effects sequestered. The proceedings analogous thereto, in the case of other absent'defendants, after decree, would ' be to quiet the possession or title to the interest of the absent defendant to any matter within the'jurisdiction of the Court involved in the suit and passed upon by the decree. But the limitation of seven years has no application to the decree, or so much thereof as acts in personam, and establishes a personal demand.

The Court is further of opinion, that as this was a bill filed to enforce a decree rendered against David Buchanan, proceeded against, not as an absent debtor having effects within the Commonwealth, but as an ajbsent defendant merely, the merits of the whole decree are open for investigation ; and that it is competent for his representative, and the representatives of the deceased partners, and the representative of Rootes, to shew from the face of the proceedings, or from any other evidence to be adduced, that said decree was erroneous or illegal; or against equity.

The Court is further of opinion, that as ‘ by the opinion and decree of the Court 'below the said decree against *the ’■ said David Buchanan was treated as conclusively establishing the demand against him, as surviving partner, and against the estates of the deceased partners, and as in this respect said opinion and decree-are erroneous, it would be improper in this stage of the cause to pronounce any opinion upon any other question involved in the case, before the representatives of Allan and Robert Pollock have been brought before ' the Court, and an opportunity afforded them and the representative of said David Buchanan, and the representative of said Rootes 'of controverting said decree upon the matters appearing on the face thereof, or any other matter to be adduced by them.

The decree reversed; and the cause re-mandéd to make the representatives of Robert and Allan Pollock, parties; and for farther proceedings.  