(dissenting.) The act of the legislature of New Jersey was proved as a fact, and found as a fact by the referee. He also found, that the plaintiffs and the defendants, in pursuance of the provisions of the act, made and executed a certificate for the formation of a limited partnership ; that the certificate was duly acknowledged; the affidavit required by the act duly made; that the certificate and affidavit were duly filed in the office of the clerk of the proper county; that they were recorded by the clerk as required by law; and that the terms of the partnership were published in the mantier required by law. It results from these findings of fact that the special partnership was duly formed; and the referee further found as a fact that, in pursuance of the terms of the certificate, the defendants were the general partners of said firm, and the plaintiff the special partner. I am inclined to think that the defendant’s exception, at the end of the case, is too general to authorize him to question any or either of the findings of fact, but, if otherwise, the findings appear to me to be authorized by the evidence.
In adopting the firm name of Darius B. J ones & Co., for the limited partnershijD, the directory provision of section 13 of the act was disregarded; but as the name of the plaintiff, the special partner,, was not used, such irregularity in the firm name did not make him a general partner under that section. I do not see how this irregularity affects any question in this case.
The only material question presented by the appeal is, I think, whether the plaintiff, having been a special partner *487when the notes were given, could bring an action at law upon the notes, against the defendants, the general partners; whether a special partner, upon loaning to, or paying money for, the general partners as a firm, outside of and beyond the amount to be contributed by him as capital, as a special partner, becomes a creditor of the firm, and has the rights of a creditor, the same as if he were a stranger. .Upon principle, I can not see why he does not. He is a partner only as to the specific sum contributed by him as capital. There is sufficient authority, I think, for holding that he may be such creditor, and may bring an action against the firm. (See Troubat’s Law of Limited Partnership, §§ 307, 320.)
[New York General Term, February 1, 1864The case of White v. Hackett, (24 Barb. 290,) it seems, was reversed in the court of appeals, (20 N. Y. Rep. 178;) but I do not see that there are properly in the case any questions growing out of the alleged insolvency of the limited partnership. There is no finding of the referee, nor was there any request for him to find, on that subject. There are no objections on the pleadings to raise the question, or an issue, as to the solvency or insolvency of the firm.
The judgment, I think, should be "affirmed, with costs.
Judgment reversed, and new trial granted.
Leonard, Clerlce and Suifterland, Justices.]