
    Bernard against Wilcox.
    A surviving partner may maintain a suit in his own name, for a debt incurred to the partnership after the death of his co-partner, and also where the debt was contracted in the lifetime of the partner.
    This was an action of assumpsit for goods sold and delivered. The evidence was, that the account rendered to the defendant, and a letter demanding payment, were in the name of William Bernard & Son. That the plaintiff and his father, whose name was also William, had been formerly co-partners in trade, under the said firm; but that the father had withdrawn from the partnership for some years, and previous to the sale of the goods for which this action is brought; and the plaintiff had continued to do business under the same *firm. The amount of the account, and the sum due thereon, were not disputed ; but the defendant contended, that the plaintiff could not maintain this action in his own name, without stating that he carried on trade under the firm aforesaid ; and on this ground, an application was made to set aside the verdict, and for a new trial.
    
      Woods, for the plaintiff.
    
      Munro, contra.
   Lewis, Ch. J.

delivered the opinion of the court. The decisions in the case of Smith v. Barrow, (2 Term Rep. 476,) and Hyat v. Hare, (Comb. 382,) come fully up to this case. In the first, it is determined that a surviving partner may maintain a suit in his own name, for a debt incurred to the partnership, after the death of his co-partner; and in the second, that he may maintain such suit after the death of his partner, though the debt was contracted during the life-time of such partner.()

Motion denied. 
      
      
        (a) See 1 Chitt. PI. Am. ed. 1828, p. 11, and references. Broom on Parties, 65,97. Penn v. Butler, 4 Dall. 354. Nixon v. M’Carthy, 2 Dallas, 65, 66, note; 1 Dallas, 250 ; 5 Serg. & Rawle, 86. Murray v. Mumford, 6 Cowen, 441. Hill v. McNeil, 6 Porter, 29. Allen v. Blanchard, 9 Cowen, 681. Collyer on Partn. Perk. ed. 666, 7, 674, and authorities. See, however, per Spencer, J. in Holmes and Drake v. De Camp, 1 Johns. Rep. 84.
     