In this case the defendant has moved for a non-suit on the ground that the plaintiff’s evidence discloses that it is brought against the surety company on a bond given under Section *4301 of the Act entitled “An Act in Relation to a Deceased Person’s Interest in Firms and Co-partnerships,” passed May 2, 1903, being Chap. 774, Vol. 19, Laws of Delaware (Rev. Code, 685).
After a careful examination and consideration of the various provisions of said act, we have reached the conclusion that their design and purpose was solely to secure the ascertainment and the payment, after the due and final settlement of the partnership indebtedness and affairs, of the individual share, if any, of a deceased partner in the partnership assets, to any person having an interest in the estate of such deceased partner as heir, devisee or otherwise.
In our judgment, the bond prescribed in Section 1 of said act was intended to be especially and exclusively for the benefit of any person having such interest in such individual share of deceased partners, and not for the benefit of partnership creditors; and consequently that such creditors cannot, within the intent and meaning of the act, lawfully sue upon such bond.
Partnership creditors may resort, for the preservation of their interests and the enforcement of their rights, to such remedies and proceedings as they may be entitled to outside of the said act now in question. And on this ground the motion for a nonsuit is therefore granted.
Lore, C. J.:I am not prepared to go to the extent that a creditor lias no remedy upon bonds of this character; but I do agree that the motion for a nonsuit should be granted, on the ground that the plaintiff has entirely failed to show that there were assets in the hands of the surviving partner at the time applicable to the debt. Therefore, there has been no breach of the condition of the bond shown.
Mr. Jones:—We refuse to take a nonsuit.
Grubb, J.:Gentlemen of the jury, the Court instruct you to
render a verdict in this case in favor of the defendant.
Verdict for defendant.