Where the Sheriff returned upon an execution against two surviving partners that he could find no property of either of them within his precinct, and that one of the defendants was not in the State, and the other was so sick that without endangering his life he could not be committed to jail: Held, that the creditor had satisfied the requirements of the statute prescribing that surviving partners shall be pursued to final judgment and execution, before a claim against the firm shall be valid against a representative of a deceased co-partner.
But the Court held that this return was evidence that the plaintiffs had done all that under the laws they could do to obtain payment from the surviving debtors, and thus had complied with the requirement of the statute cited, and gave judgment for the plaintiffs.
Lapham for plaintiffs.