
    *Ebenezer S. Beach v. Joseph Hayward.
    After the death of an ostensible partner, a surviving dormant partner may sue alone upon a partnership contract.
    In such action the defendant, it seems, may set off a debt due from the firm.
    This is an action of assumpsit from the county of Cuyahoga.
    The suit is brought on the note of the defendant payable to R. H. Backus. Tho plaintiff avers he is the surviving partner of the late firm of R. H. Backus, composed of the plaintiff, as a dormant, and of Backus, as the ostensible partner. The declaration also sets out the promise as made to the firm, under the name of R. H. Backus. The general issue is pleaded, with a notice of set-off. Tho proof shows the note was given for partnership property, and the question is, if a sui’viving dormant partner may sue a negotiable note given in the name of one of the partners.
   Lane, C. J.

It has been held that in the case of dormant partners, not privy to the contract, the other members of the firm may omit their names in an action. 1 Chitty’s Pl. 13. But this is an exception to the general rule requiring the suit to be brought in the name of the firm, or, in case of death, by the survivors. The application of the general rule, in cases like this, can work no injustice to the defendant. It is of no moment to him who sues, as his right of set-off is preserved. The suit is well brought.

Remanded for trial.

No arguments came to the hands of the reporter. 
      
      In an action by a firm, the name of a dormant partner need not and ought not to be used. 4 Wend. 628; 3 Cowen, 84.
      In an action by ostensible and dormant partners, the defendant may set off a debt due from the ostensible partner only. 7 Term, 357; Montg. 182.
     