
    ALONZO C. YATES and another, Respondents, v. HENRY C. HOFFMAN and ISRAEL McDANOLDS, Appellants.
    
    
      Partnership — legal representatives of deceased partner — liability of — Executors— form of action against — costs against— Execution — effect of return milla bona.
    
    When tlie legal representatives of a deceased partner take proceedings for an accounting against the surviving'partner, and have a receiver appointed of the partnership assets, held, that a judgment creditor of the firm, who has issued execution against the survivor, which was returned nulla bona, although such execution was not issued until after the receiver was appointed, may maintain an action against the legal representatives oí the deceased partner.
    In an action against executors for the recovery of an indebtedness which accrued during the life of the testator, the complaint may allege that they are sued as executors, or may set out their representative character, to show that the action is brought to recover a demand owing by their testator in his lifetime.
    A return of nulla bona, by the sheriff, to an execution, is prima facie evidence of insolvency.
    Appeal from a judgment in favor of the plaintiff, entered on the decision of the court at Special Term.
    
      John 0. Hunt, for appellants. Win. (J. Ruger, for respondents.
    
      
       Decided at April term, 1875.
    
   Opinion by

MulliN, P. J.

Present — Mullin, P. J., SMITH and Gilbert, JJ.

Judgment affirmed, with costs.  