The City of Atlanta vs. Dooly, surviving partner. restoring their bill-board, or allowing them to do so, and remunerating them for a contract which they had secured, amounting to $125, and which they were compelled to relinquish, was rejected. It is evident that, without the permission of the authorities, they could not, without involving themselves in further difficulties, have replaced this bill-board, and that it was not their purpose to allow them to do so. 2. There is no error in the charges, or refusals to charge, at the request of the defendant, of which it has any right to complain; they were fully as favorable to it, and per haps more so, than it was entitled to under the law, and the merit of its exceptions thereto is not altogether apparent. 3. The evidence to which it objected was not amenable to the complaints made against it, and should not have been, as it was not, repelled, for the reasons urged for its rejection. 4. There was nothing in the motion to non-suit or to disallow the amendments offered to the declarations; these were certainly proper, though they may not have been indespensable to the maintenance of the suit. 5. The remaining question, that the surviving partner could not prosecute the suit for the benefit of the firm, has scarcely enough virtue in it to save the plaintiff in error from damages for bringing this writ of error here. "When one or more of several parties, jointly interested in the property at the time the injury was committed, is dead, the action," says Chitty (1 Plead., 76), "should be in the name of the survivor, and the executor or administrator of the deceased cannot be joined, nor can he sue separately; and therefore, to an action of trover brought by the survivor of three partners in trade, it cannot be objected that the two deceased partners and the plaintiff were joint merchants, and that, in respect to the lex mercatoria, the right of survivorship did not exist, for the legal right of action survives, though the beneficial inter Conley vs. Chapman. est may not." To the same effect, and also as to the right of the survivor to prosecute a joint action, where one of the plaintiffs dies during its pendency, see Dicey on Parties to Actions, 402, 405. In case of death, the surviving partner has the right to control the assets belonging to the firm, to the exclusion of the legal representatives of the deceased partner, he being primarily liable to the creditors of the firm for their debts, and until the interest of the deceased partner in the firm effects is ascertained and his portion is turned over to his representatives, they can maintain no suit for the recovery of the joint effects; after that is done, they have the right to sue in their own name for such choses in action as have been turned over to them. Code, $1907. Judgment affirmed. CONLEY vs. CHAPMAN. 1. The certificate of the clerk to a record from New Jersey was as follows: "That the pages 351 to 360, inclusive, in book No. 67 of judgments of said court, and now remaining on file in my office, contain a true and complete record of the plaint proceedings and judgment, of which the foregoing is a true copy, in the case of Ann Chapman against Benjamin Conley and others." In the record preceding, and attached to this certificate, the plaintiff is described as Julia A. Chapman and as Julia Ann Chapman : Held, that, taking the certificato in connection with the copy record, the latter was sufficiently identified, and the clerical mistake in the certificate did not vitiate it. JACKSON, C. J., dubitante. 2. Where suit was brought in the state of New Jersey against the members of a firm, one of whom was served, and a return of non est inventus made as to the others, and the judgment was entered, under the statute of that state, against all the co-partners, in a suit on such judgment brought in the state of Georgia, it was binding as to the partner who was served. (a.) Semble, that the co-partners who were not brought into court under the process would not be liable on the judgment, outside of the state of New Jersey. March 30, 1885. Conley vs. Chapman. Evidence. Records. Judgments. Partnership. Comity of States. New Jersey. Before Judge HAMMOND. Fulton Superior Court. October Term, 1884. Julia A. Chapman brought complaint against Benjamin Conley and B. W. and J. P. Force, on a judgment recovered against them in New Jersey, as partners. The sheriff returned non est inventus as to the Forces, serving Conley. On the trial, the case was submitted to the presiding judge without a jury. He rendered judgment for the plaintiff against the defendant served. The latter moved for a new trial, which, being refused, he excepted. For the other facts see the decision A. A. MANNING; CONLEY & SHUMATE, for plaintiff in error HOKE SMITH, for defendant. BLANDFORD, Justice. 1. This was an action of debt brought to recover a certain sum of money due on a judgment rendered in the circuit court of Essex county, state of New Jersey, recov ered by Julia A. Chapman against B. W. Force, J. P. Force and Benjamin Conley, copartners, using the firm name and style of B. W. & J. P. Force & Co., in which suit Conley was alone served, and non est returned as to the other defendants in that action, but judgment was rendered by said court against all of said defendants. The case was submitted to the presiding judge, without the intervention of a jury. The defendant in error, who was the plaintiff in the court below, tendered and offered in evidence an exemplified copy of the record of the judg ment rendered by the circuit court of Essex county, state of New Jersey, which was objected to, upon the ground that the certificate of the clerk of that court did not suffi ciently identify the record of the judgment, which certificate, among other things, was as follows. Conley vs. Chapman. "That the pages 351 to 360, inclusive, in book No. 67 of judgments of said court, and on file in my office, contain a true and complete record of the plaint proceedings and judgment, of which the foregoing is a true copy, in the case of Ann Chapman against Benjamin Conley and others." The record referred to, as contained in the exemplification, describes the plaintiff as Julia A. Chapman and as Julia Ann Chapman, which is attached to the certificate of the clerk. The court overruled this objection and admitted the evidence, and this is the first error assigned. My brother Hall and myself are of the opinion that, taking the certificate of the clerk in connection with the copy record, the mistake of the clerk in naming the parties to the case in his certificate does not vitiate the same; that the copy record and certificate, when taken and considered together, sufficiently identifies the copy record of the case of Julia A. Chapman vs. Benjamin Conley et al., to be the same judgment rendered in said circuit court of New Jersey in favor of said Julia A. Chapman, and that it is the same judgment sued on in this action. The chief justice does not fully agree with us on this point, but is rather inclined to the opinion that the certificate of the clerk, in referring to the record as being in the case of Ann Chapman against Benjamin Conley et al., does not sufficently identify the record of the judgment sued on in this case. 2. Next it is insisted by the counsel for the plaintiff in error, that the court erred in holding that the judgment rendered against Benjamin Conley, who was served with process, and B. W. and J. P. Force, who were not served with process in the New Jersey court, was not void, but of force against Conley, who was served with process, and in rendering judgment against said Conley. We are all agreed that there was no error in thus holding and giving judgment by the court, when viewed in the light of the statute of New Jersey, which is "all persons jointly indebted to any other person, upon any joint contract, obligation, matter or thing, for which a remedy might be had Cheeves vs. Danielly. at law against such debtors, in case all were taken by process issued out of any court of this state, shall be answerable to their creditors separately for such debt; that is to say, such creditor or creditors may issue process against such debtors, and in case any of such joint debtors shall be taken and brought into court by virtue of such process, such of them so taken and brought into court shall answer to the plaintiff or plaintiffs, and if judgment shall pass for the plaintiff or plaintiffs, he, she or they shall have his, her or their judgment and execution against such of them so brought into court, and against the other joint debtor or debtors named in the process, in the same manner as if they had been all taken and brought into court by virtue of said process." Whether the Forces, who were not taken and brought into court by virtue of the process which took and carried Benjamin Conley into the New Jersey court, would be bound by the judgment there rendered against them and Conley, is not before us to decide, but there is high authority for saying that they would not be liable on said judgment, outside of the state of New Jersey (11 Howard, 165; 17 Wallace, 510); but these authorities contain a very clear intimation that Conley, who was served in New Jersey, would be bound on the judgment in any of the courts of the United States. See also 2 Cur., 254; 1 Wend., 311; 6 Hill, 242; 1 Dal., 119; 2 Harr. (N. J.), 265; 36 Pa. St., 460; 10 Ohio, 271; 23 Ohio St., 181; 13 Iowa, 496; 10 Humph, 246; 130 Mass., 149. So the judgment of the court below must be affirmed. 74 712 14 265 CHEEVES VS. DANIELLY. 1. Where accord and satisfaction was pleaded, and the terms of the accord, and whether they had been complied with, were in issue, it was error to apply thereto the doctrine of estoppel, and, on the ground that it was not favored by the courts, to require a clearer and stronger degree of proof than in ordinary civil cases, and to |