
    BABCOCK ET AL. vs. BRASHEAR.
    Westers- Bis.
    September,1841.
    appear prom the court op the piptii district por the parish oí st, MART, THE JUDGE THEREOP PRESIDING.
    The representatives of the deceased partner must he joined, or authority from the Court of Probates obtained, in a suit by the surviving partners, due the partnership.
    This is an action against the surety iu a curator’s bond. The plaintiffs, Charles Gardiner and R. Watson, sue as the surviving partners of Babcock, Gardiner & Co., for a debt due said firm, f$om the estate of R. B. Barr, deceased, of which the defendant is surety L the curator’s bond. The plaiifffs allege said surety is liable for the mis-management of said estate fry the curator, and they pray judgment for the amount of their Claim.
    The defendant pleaded the general issue, and set up some special matters in defence, but said nothing as to the capacity of the plaintiffs to sue. There was judgment for the plaintiffs, and the defendant appealed.
    
      Splane, for the plaintiffs,
    'insisted on the affirmance of the judgment.
    
      Dwight, contra,
    assigned errors apparent on the face of the record ; and one was, that the plaintiffs had no capacity to recover ; having sued as the surviving partners, without joining the representatives of the deceased partner, &c.
   Morphy, J.

delivered' the opinion of the court.

This case is not to be distinguished from that of Hyde & Co. vs. Brashear, this day decided ; ante 40?. It must be viewed as precisely similar to that case, and receive the same judgment.

It is therefore ordered, that the judgment of the District Court be annulled, avoided and reversed; and that there be judgment against the plaintiffs as in a case of non-suit, with costs in both courts.  