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.