
    Carter’s Ex’or v. Currie.
    [April, 1804.]
    Partnership — Parties to Suit against.— In a suit against a mercantile firm, the executors of the deceased partners, ought to he made parties.
    Carter and Trent, were partners in trade. Carter died, leaving Carter his executor. Currie filed a bill in chancery against Trent, as surviving partner, and Carter, the executor, for relief concerning a lost bill of exchange. Pending the suit, Trent died. Carter’s answer stated that Trent had agreed to pay the partnership debts; and that the plaintiff might have made his debt out of the partnership effects. The plaintiff demurred as well as replied to the answer. *The suit was not revived against Trent’s executors; and the chancellor decreed paj'ment of the debt against Carter’s executors, who appealed to the court of appeals.
    Randolph, for the appellant.
    The protest is not properly verified; for a copy by the executors was not sufficient.
    Wickham, contra.
    It is to be presumed that there was an affidavit that the bill was lost; and it is too late to make the objection after the answer is filed. The notarial copy is evidence of the protest; and indeed the only evidence of it when the original is lost; for the notary is bound to make a record. The writ was against Carter & Trent, and the judgment was against both: and therefore, although the declaration is imperfect and leaves a blank, it is not material; for the judgment is good until it is reversed. At any rate, the judgment is evidence of the bill; and the course of the court of chancery is to presume exhibits proved until an objection is made. Therefore, as no objection appears in the record, it will be presumed by this court, that the necessary proofs were made. Carter is liable, because he was a partner, and the b'ill is for a partnership transaction. He should have shewn that Trent had effects to satisfy the claim.
    Randolph, in reply.
    The jurisdiction may be admitted, and the want of the affidavit waved: But the bill was not verified, because it is not shewn that the copy was taken from the books of the notary; for, at law, it would have been necessary to prove it; and the same ■ rule holds in equity. The presumption of probat is only that it was proved to be such a paper as it purports to be, and not that it was derived from a more authentic source. The declaration is against Trent, surviving partner of- — ; and it is an office judgment only, which could not be filled up, for want of the bill. This drove them into equity; and now the attempt is to support the suit in chancery by the imperfect judgment at law, . or, in other words, to prove the propriety of the defective ^judgment by the judgment itself, which cannot be done. Trent’s representatives should have been parties to the suit, or the omission accounted for.
   LYONS, President,

delivered the resolution of the court: That the decree was erroneous, as Trent’s executors had not been made parties; and therefore that it was to be reversed, and the cause sent back to the court of chancery for the proper parties to be made, and further proceedings had. _  