HARRINGTON v. HERRICK, 64 F. 468

After stating the case as above, MeKENNA, Circuit Judge, delivered the following opinion: It is conceded by plaintiff in error that according to the common law the action was properly brought, and to establish it defendant in error quotes a number of text writers and decisions. We may therefore start with this rule as established.

It is expressed in Bates on Partnership (section 746), as follows: “In collecting claims due from the firm by action against tlie surviving partner the remedy is at law, and not in chancery, for the survivor has all the assets, and there is no need to apply to equity, and the creditor has no lien; and the same principles apply, as nearly as possible, that govern an action by the surviving partner to collect a claim. The surviving partner is severally liable, in all jurisdictions, whether tlie administrator can also be sued or not.

Death severs the promise, and, though it may become joint and several by statute or decision, it is, after death, nowhere joint.” The plaintiff in error, however, contends that the rule has been changed by the Washington statute. Counsel say ou pages 9 and 10 of brief: “In Story on Partnership (section it is said: ‘The joint creditors of the partnership, while all partners are living and solvent, can enforce no claim against the joint effects or separate effects of the partners except by a common action at law.

It is only in cases where there is a dissolution by the death or bankruptcy of one partner that the right of the joint creditors can attach as a quasi lien upon the partnership effects, as a derivative subordinate right, under and through the lien and equity of the partners.’ It is our contention that it was upon this principle, and this alone, that the right of the partnership creditor to prosecute his demaud against the surviving partner was originally recognized by tiie courts.

The creditor was deemed to have an equitable right through the lien and equity of the partners to have his demand satisfied out of tlie copartnership estate. As tlie surviving partner had the entire control and power of disposition over this estate, the creditor was permitted to proceed directly against the survivor. In this state, however, a. complete substitute is provided by statute for the common-law method of settling copartnership estates.” Counsel, however, do not establish their deduction by any case, and their reasoning is not satisfactory.

The Washington statute does not take away the right a surviving partner has of administering the assets of the firm, but only guards it in the interests of representatives of the deceased partners, by requiring a bond, and substitutes the supervision of the probate court for a court of equity. The obligations of the surviving partner are not released, and the remedies of the creditors are not changed. If this had been the intention, surely it would have been clearly expressed, as counsel for the defendant rightly urges. “No statute,” said Mr. Jusiice Strong in Shaw v. Railroad Co., 101 U.

S. 565, “is to be construed as altering the common law, further than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express.” See, also, Burnside v. Whitney, 21 N. Y. 148. Cook v. Lewis, 36 Me. 340, and Putnam v. Parker, 55 Me. 235, are not opposed to this

interpretation of the Washington statute. As the statute requires a bond from the surviving partner as a condition, it follows that until he gives it he may not dispose of any part of the partnership property, nor is he entitled to its possession, as respectively declared in those cases. It was decided, however, in Strang v. Hirst, 61 Me. 10, that after giving bond a suit for the recovery of assets must be prosecuted in the name of the surviving partners; citing Putnam v. Parker, supra.

It is not necessary to pass on the point made by defendant that there can be no reversal in this court for error in ruling on any plea in abatement other than a plea to the jurisdiction of the court. But see Stephens v. Bank, 111 U. S. 197, 4 Sup. Ct. 336, 337. The judgment of the circuit court is affirmed.