
    HYDE ET AL. vs. BRASHEAR.
    Wesíejust Dis.
    
      September,1841.
    APPEAL FROM THE COURT OF THE FIFTH DISTRICT, FOR THE PARISH OF ST. JIART, THE JUDGE OF THE DISTRICT PRESIDING.
    All the partners of a commercial firm must join in an action or an obligation due to the partnership; and on the dissolution of the partnership by the death of one of the partners, the surviving ones must join the representatives of the deceased, or obtain authority from the proper tribunal, before they can sue for a debt of tine partnership.
    The incapacity of surviving partners, to sue without obtaining authority or joining the representatives of the deceased, need not be specially denied. It may he assigned as error.
    This is an action on a curator’s bond, against the surety.
    The plaintiffs, W. F. Hyde and E. D. Hyde, sue as the surviving partners of the late firm of W. F. & E. D. Hyde & Co.; claiming the sum. of $543 63, due their said firm by-the estate of R. S. Barr, deceased. They allege, the curator and his surety have become liable to pay said debt, and they pray judgment against the defendant as such surety.
    nevs of^com-musHcm in"an o^Mgaiion1” due t0 ti>e partnership; and on the dissolution of j^nF^deatlíof oae ners, the aurviv-in§' ones must join the representatives of the tal^auftority before ^e partnership.
    The defence was a general denial; and that the action could not be maintained until the estate of Barr was definitively settled, and a tableau of distribution filed and homologated; that there were funds sufficient to pay off the debts, when the estate shall have been finally settled.
    On the trial the plaintiffs made proof of their claim-, and showed the failure of the curator to pay over the funds, &c. There was judgment in their favor, and the defendant appealed.
    
      Splane, for the plaintiff,
    urged the affirmance of the judg". ment.
    
      Dwight, for defendant,
    assigned errors apparent in the record. First, that the plaintiffs could not sue as surviving partners, without joining the representatives of the deceased one,. &c.
   Morphy, J.

delivered the opinion of the court.

The defendant who is sued as surety on a bond given by Robert B. Brashear, as curator of the estate of Wm. S. Barr, relies for the reversal of a judgment rendered against him on assignment of errors, apparent on the face of the record. C)f these, we deem it necessary to notice only that'which shows . . . _ . the want of capacity of the surviving partners of the firm of W. F. & E. D. Hyde & Co., to sue without joining the representatives of the deceased. In the case of Crozier vs. Hodge, 3 La. Rep., 357, we held, that “ where the obligation is made . . to a commercial firm, the partners composing it must join in the action ; for the debt is due to the partnership collectively, and not to one or other of the partners, as creditors in solido.” On the dissolution of a partnership by the death of a partner, the surviving partners have no right to sue for the debts to the late firm, unless they obtain authority to do so from the proper or be joined in the suit by the representatives of the estate of the deceased. 13 La. Rep., 484; 16 Idem, 31. It is said, that the capacity of the plaintiffs to sue, is not specially denied, and that the general issue does not put them on the . . , . . . proof of that capacity. We conceive, that in this case it is quite immaterial, whether .their capacity be specially denied, or not> because they could not prove a capacity, -which is de-nje¿[ t0 them by law. It would have been different, had the/ J ' sued in a capacity susceptible of being proved, if spepially denied. Under a general issue such capacity would have been considered as admitted. It appears to us, that this action is not maintainable.

The incapacity of survmrg partners, to sue ing authority or I)°respntativesrof the deceased, need not be spe-¡cialiy denied, sígnelas error,

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