DAVID FLOWER vs. RACHEL O'CONNER, 7 La. 194

Martin, J., delivered the opinion of the court. In this case the defendant and appellant has assigned as errors on the face of the record, the following: 1. That there was a total incapacity or want of right in the plaintiff to sue in the manner and form in which he has done, because he was not the surviving partner of the firm of D. B. Finley & Co., which was composed of four members, two of whom were living at the institution of the suit. 2.

That at the time the suit was instituted, a living partner could not exercise the rights of a deceased one, without having been authorised todo so by the Court of Probates, and giving bond as required by law. 0i the deathof a partner leaving ones, neitherhas ing Sf™^ living partner; n°r has one the right to sue as tie useof *{iem yhen there are two surviving. ,1"a11 comma--the surviving to^Tecehre^he portion of the and hold it submentof the partn1ffebopl plication^to^the bates, have such £“nadn aildsc^aI }ued> and S'ivc bond with security.

A surviving partner does not ^ntu ryed by the Court ot Probates, to sue for nership debt&t_ pieas ^ exoep. tions that are not nof’be^íéatied m limme llüs' The counsel for the plaintiff and appellee has replied, that the surviving partners D. & W. Flower, are parties to the present suit, which is brought by D. Flower, for the use of W. & D. Flower.

That the want of authority from the Court of Probates, ought to have been presented as exceptions in limine litis, which would have afforded to the plaintiffs the opportunity of showing they had obtained such authority, and given bond accordingly. _ It is very clear that on the death of one partner, leaving . . J . several surviving ones, neither has the right of suemg alone, as surviving partner, and we are not prepared to say that when a suit is brought by A, for the use of B, the latter" is ° J , necessarily a party to the suit, so as to be concluded by the judgment.

The second error assigned is certainly fatal. The Code in all commercial partnerships, gives to the surviving partner, after the portion of the deceased partner, in the partnership effects, has been ascertained and estimated, the right to require that this portion should remain with his own, in order that the whole may be applied to the discharge of the partnership debts, if necessary. La. Code, art. 1131. The next succeeding

article requires him to give bond for that purpose. Accordingly this court held in the case of Crozier vs. Hodge, 3 La. Reports. 357, that a surviving partner does not possess the right, until he is authorised by the Court r . of Probates, to sue for, or receive partnership debts. There was no necessity of pleading this matter in limine litis. This was not a declinatory exception, Code of Practice, arts. 335, 336.

Indeed the application of the partner, the ascertainment and valuation of the portion of the deceas- ... „ _ „ , -, ed partner, the requisition of the Court of Probates, and the giving bond, were conditions precedent, without which, the right of mixing this portion with those of the other partners did not vest.

It is clear the District Court erred, in disregarding the plea of the defendant in this respect; „ It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that there be judgment for the defendant as in case of a non-suit, with costs in both courts.