
    Simpson & Choat vs. Young, et als.
    
    A joint action will lie against a surviving partner and the representative of tha deceased partner.
    In October, 1839, Simpson & Choat instituted an action of as-sumpsit in the circuit court of Wayne county, against R. Altom and C. Forsythe, administrator and administratrix of John For-sythe, deceased, and against Walker, Young & Polk, surviving partners of the firm of Forsythe, Walker & Go.
    The declaration showed, that the contract sued on, was a joint assumption of John Forsythe, deceased, and of Walker and the others, surviving partners of John Forsythe.
    A verdict was rendered in favor of the plaintiffs for the sum of fifty-nine dollars.
    The defendants moved an arrest of judgment, which motion, Totten, judge presiding, prevailed, and the judgment was arrested. The plaintiffs appealed in error.
    
      Rose, for the plaintiffs.
    
      R. Houston, for the defendants.
   Reese, ■ J.

delivered the opinion of the court.

The question in this case is, whether a joint action can be brought against the surviving partner of a partnership concern, and the representative of a deceased partner?

The act of 1789, ch. 57, sec. 5, provides, that a joint debt or contract shall survive against the representative of a deceased obligor, and that in all cases of joint obligations or assumptions of co-partners or others, suits may be brought and prosecuted on the same in the same manner as if such obligations or assumptions were joint and several.

But it is said, that at common law, if the contract were several, or joint and several, the executor of the deceased may be sued in a separate action, but he cannot be sued jointly with the survivor, because one is to be charged de bonis testatoris, and the other de bonis propriis, and that the statute produces no change in this respect.

This common law reason would prevent the revival of a suit pending under such circumstances against the' representative of the party dying, but we have various statutes providing for such revival; and our act of 1813, ch. 67, prevents separate suits being brought at the same time on joint obligations. Moreover, our practice is fixed and universal on the subject, and suits are constantly- brought, and without question from any quarter, against the surviving obligor or partner and the representative of the deceased, and judgments given against the one de bonis propriis, and against the other de bonis testatoris.

The judgment of the circuit court will be reversed.  