
    HOGAN vs. REYNOLDS.
    1. When a judgment is recovered against the surviving partners on a firm debt, and the amount of the judgment is afterwards paid to the plaintiff by a stranger, with money furnished him for that purpose by one of the defendants and the executor of the deceased partner, the judgment is satisfied, and it cannot be kept alive, by assignment to sueli third person, for the purpose of enforcing the collection of it from the other defendant.
    Error to the Circuit Court of Talladega.
    Tried before the Hon. E. Pickeíts.
    Walker Reynolds commenced a suit, on a firm debt, against the firm of James A. Hogan & Co., which was composed of James A. Hogan, John F. Tompkies and John Hardie. Har-die died pending the suit, and judgment was afterwards rendered against tbe two surviving partners. After tbe rendition of tbe judgment, Benjamin A. Smoot paid tbe full amount of it to the plaintiff, and took from him an assignment of tbe judgment. Tbe money so paid to Beynolds by Smoot did not belong to tbe latter, but was furnished to him by Tompkies and tbe executor of Hardie, each furnishing one half; and tbe money advanced by Hardie’s executor belonged to tbe estate of bis testator.
    Upon this state of facts, James A. Hogan moved tbe Circuit Court to have satisfaction of tb® judgment entered. A jury was empannelled to try tbe issue; and tbe court charged them, that tbe money furnished to Smoot by Tompkies operated as a satisfaction pro tanto of tbe judgment, but that tbe money furnished by Hardie’s executor did not; to which charge Hogan excepted. Tbe jury returned a verdict, that tbe cost and one half of the principal was unpaid; whereupon tbe court ordered tbe judgment to be satisfied according to tbe verdict, leaving unsatisfied tbe cost and one half tbe amount of tbe judgment.
    Hogan now brings tbe case to this court, and assigns for error; 1. Tbe charge of tbe court; 2. The matters disclosed by tbe bill of exceptions.
    Watts, Judge & Jacksoh, for plaintiff in error:
    Tbe question presented by tbe record, is this: Does a payment by, or a transfer to, tbe representative of' a deceased partner of a judgment obtained against tbe surviving copart-ners, on an indebtedness upon which tbe estate of such decedent is liable, operate as an extinguishment of tbe same?
    In case of a judgment against all tbe co-partners, it is clear that one could not thus purchase and use tbe judgment; and tbe principle applies in full force, where there is no judgment, but, as in this case, an admitted liability.
    
    It is a familiar principle, that one co-partner cannot sue another at law, whilst the partnership affairs are unsettled, and no balance struck.
    This court has held, too, in many cases, that a sheriff paying a judgment, cannot use tbe execution against tbe defendant. Eutland’s Admr. v. Pippin, 7 Ala. 469; Roundtree v. Weaver, 8 Ala. 314; Crutchfield v. Haynes et al. 14 Ala. 49.
    
      And eren a surety, whose equity is certainly equal to that of a co-partner, cannot pay the judgment and use the execution to reimburse himself out of his principal. Morrison et al. v. Marvin, 6 Ala. 797; Abercrombie v. Connor, 10 Ala. 293; Thompson v. Wallace, 3 Ala. 132. See, also, Chandler et al. Exrs. v. Shehan, 7 Ala. 251, deciding that a party liable to pay a debt cannot sue upon it.
    But the following citations are deemed to be more in point, and, m principle, conclusive: Bartlett & Waring v. McRae, 4 Ala. 688; Avery & Woodcock v. D. & B. Petten, 7 John. Ch. Rep. 211; Milton v. Codd et al., 7 Bam. & Cres., 419; Teague v. Hubbord, 8 Barn. & Cres. 345; Bank IT. S. v. Winston’s Exr. et al., 2 Brock. 232.
    Rice & MORGAN, contra:
    
    L Even if it be conceded that the payment of a judgment by one who is technically a party to the note or bill or receipt on which the judgment is founded, and also a party to the judgment, is, per se, a satisfaction, yet it is clear, that an advance of the money by one who is not a party to the judgment, or the cause of action on which it is founded, to the plaintiff in the judgment, does not annul or satisfy the judgment; especially if the plaintiff agrees or consents that the judgment shall stand open, for the re-imbursement of the person making such advance. Olason v. Morris, 10 Johns. R. 525; Lyon v. Bolling, 9 Ala. 463; Leach v. Williams, 8 Ala. 764.
    2. Hogan and Tompkies were surviving partners, and the only defendants in the judgment. As surviving partners and defendants in the judgment, they were bound to pay off the debt, and were entitled to all the partnership property for that purpose. There was no duty on JohnT. Hardie to pay. He was not a partner, nor a party to the debt or judgment. And although he may have been executor of the deceased partner, that did not affect the case.
    It is clear there is no error in the judgment below, of which Iiogan, a surviving partner and defendant in the judgment, can be heard to complain.
   BARGAN, C. J.

— The case of Bartlett & Waring v. Lang, 4 Ala. 688, fully sustains the plaintiff in error, and shows that tbe court erred in tbe charge given to the jury. In that case, Bartlett & Waring had recovered a judgment against McRae, as surviving partner of McRae & Lang, on which execution had been issued, and was returned no property. After this, they sued Mrs. Lang, as the administratrix of Willis Lang, the deceased partner, and obtained judgment against her. She .then paid the amount of the judgment to Bartlett & Waring against McRae, and took an assignment of it to herself. McRae afterwards moved the court to quash the execution, and to have satisfaction of the judgment entered. This court held, that Mrs. Lang could not, by paying the amount due on the judgment, and taking an assignment of it, continue it-in force for the purpose of having execution against McRae, the surviving partner. The case at bar falls directly within this decision; for, though the judgment was assigned to Smoot, it was paid, in part, by Tompkies, and in part by John T. Hardie, as executor of John Hardie, deceased; that is, Tompkies and John T. Har-die furnished the money to Smoot, who paid the judgment to Reynolds, and the money furnished by John T. Hardie belonged to the estate of John Hardie, deceased, who was bound for the debt as a co-partner. Reynolds, therefore, has received his money, and from those who were liable to pay it. This is a satisfaction, and the judgment cannot be kept on foot to coerce collection out of Hogan, for the benefit of the other members of the firm.

The rule established by the case of Bartlett & Waring v. Lang, may be thus stated: If a judgment is paid by one who ■is a principal in the debt, and, as such, is bound to pay, he cannot, by obtaining an assignment of the judgment, keep it alive in order to coerce payment from his co-principal; and we cannot permit him to do, in the name of another, what he would not be allowed to do in-his own.

Let the judgment be reversed, and the cause remanded.

CHILTON, J., did not sit in this case.  