
    National Exchange Bank vs. Catherine Galvin, Executrix.
    NEWPORT
    JUNE 25, 1897.
    Present : Malteson, C. J., Stiness and Tillinghast, JJ.
    Gen. Laws R. I. cap. 233, § 21, provides that in an action on any contract or specialty the court “may order other parties to the contract or specialty to be made defendants and to be summoned in to answer to such action or suit: ”— Held, that this implies a judicial and not an absolute discretion, and hence is reviewable.
    A partnership creditor must exhaust the partnership estate before he can charge the representative of a deceased partner for a partnership debt.
    A surviving partner is primarily liable for the partnership debts and should be made a party defendant in an action to recover sufch debts.
    Assumpsit on promissory notes.
    Heard on defendant’s petition for a new trial.
   Per Curiam.

The notes in suit were made and declared on as original promises by Daniel Galvin, the defendant’s intestate, jointly with the Newport Laundry Co. At the trial in the Common Pleas Division the defendant moved that Patrick Horgan be summoned in as a codefendant, on the ground that the Newport Laundry Co. was a copartnership, of which he and Daniel Galvin were members. The court denied the motion.

Though the statute (Gen. Laws R. I. cap. 233, § 21) provides that the court may on motion of a defendant order other parties to the contract to be made defendants, we think that this implies a judicial'and not an absolute discretion, and hence that it is reviewable. The statute was evidently intended to give a right to the defendant in a proper case. In the present case the representative of Daniel Galvin cannot be charged for a partnership debt on which he was jointly liable till the plaintiff shall have first exhausted the partnership estate. Gen. Laws R. I. cap. 233, § 17. ■ In this state of facts, Horgan, as surviving partner, is primarily liable. We think, therefore, that- the motion should have been granted.

William P. Sheffield, Jr., for plaintiff.

Charles Acton Ives, for defendant.

Defendant’s petition for a new trial granted, and case remitted to the Common Pleas Division for further proceedings.  