
    
      GANIOTT vs. HAVARD.
    
    Appeal from the court of the sixth district*
    ... t Ajuagment against the oí a °ébt that^fie0 ac-terestbTthe foiis no ra asainst the original ere-ditor.
    After the death of a partner, the afeir; ot a tht^1 N-)i°iai'm bem-Vt'of t£,e surrivor theheirotthe deceased.
   Porter, J.

delivered tlie opinion of the court. This action is brought on a bond, by which the defendant bound himself as surety, to one McCrummin, who had replevied a quantitv ofcotton. seized in an action which the plaintiff instituted against him. The petition * ^ 1 states, that judgment was recovered against 7 J ^ c 3IcCnnmnin for 8800, with interest, and costs, amounting to $42 62 1-2—that he is insolvent, and that the defendant is responsi- , . . , . ^ _ ble íor tne amount, with the exception oí §300, which die plaintiffhas transferred to one Hol-laway, and which he does not make claim to. He states that he sues for the use of King &. Beatty, and Isaac Thomas.

The defendant pleads, diat the plaintiff never did transfer to King ⅜ Beatty, and Thomas. the balance due on die bond. Thar the matters and tilings growing out of the demand in the petition, have already been adjudicated on in the supreme court, and have acquired the force of res judicata. That the principal in the bond, McCrummin, has paid die plaintiff the amount claimed in the petition, and 'more, for which overplus, the defendant is en-⅝ . . titled to judgment in re-convention. And lastly, that the plaintiff cannot parcel out the bond , i-m , to different persons.

There was judgment in the district court, in favor of the plaintiff, for $542 62 1-2, with interest, at five percent, on $500, from the 26th November, 1823, until paid. The defendant' appealed.

In this court, the defendant has made the Allowing points:

1. The judgment is for $512 62 1-2, when the prayer was only for $500,

2. The attempt to prove, that the plaintiff had funds in the hands of the principal in the bond, is too vague to merit notice. C. Code, 2257.

3. Res judicata.

I. The prayer in the petition, is not for $500 alone; but for $500 and interest, and forty-twp dollars 62 1-2, the amount of costs incurred, in the suit wherein the sequestration issued. There is, therefore, no foundation for this objection.

II. We think the evidence fully justified the judge a quo, in concluding, that the sums pleaded as a set-off, by the defendant, were compensated by another sum, which the prin- . r cipal owed the plaintiff, on an account differ* ent from that for which this bond was given.

III. The plea of res judicata, is not supported. The judgment which is offered as evidence of it, was given in a suit where assignees of a part of this debt were plaintiffs, and their claim was rejected, on the ground, that a creditor could not, by assigning a portion of his claim to several persons, give a right of action to each against his debtor. In this case, the creditor himself, sues for the whole balance due. There are neither the same par ties, nor the same subject matter.

In addition to the points filed, it has been urged in argument, that there is no such person as Beatty; that he is dead. This may be true, and the plaintiff’s right to recover remain unaffected. The suit is not brought for the use of Beatty, but for the use of King & Beatty, and it is a frequent occurrence, that partnerships, by the terms of contract, last after the death of one of the members, and are continued under the nom social for the benefit of his heirs. The plea filed in this suit recog-nises this fact, for it does not assert there was no such firm as that set out in the petition, but there was no such person bers. asoné of its mem-

Thomas for the plaintiffs, Oakley for the defendants.

It is, therefore, ordered, adjudged, and decreed, that the judgment of the district court be affirmed, with costs.  