W. B. Crane, having been appointed dative testamentary executor of J. H. Johnston, deceased, instituted this suit against Shepherd Brown to effect a partitition of certain real estate owned jointly by said Brown and Johnston, and had service made upon B. A. Bourke, as the attorney in fact of defendant, who was then absent.
Default was taken, and upon the subsequent procuration of evidence, the District Court ordered the property to be sold “in order to effect the partition.” The sale was made for cash, and a rule was then taken by the exeeutor on the Beeorder of Mortgages and the mortgagees to erase the mortgages existing on said property, which being made absolute, several of the mortgagees and the defendant appealedtherefrom and also from the judgments decreeing the sale.
Among the various grounds urged for the reversal, of said decrees, we think it necessary to notice one only, which is fatal, to wit: the want of citation to defendant.
The power of attorney, introduced in evidence by plaintiff, to establish Bourke’s authority to represent Brown in this action, is one from the commercial firm of Botchford, Brown & Co., composed of Philip Botchford, Shepherd Brown, the defendant, and Joseph H. Johnston, the deceased, and constitutes Bourke the agent of said firm, but not of the individual members. We call find nothing in it authorizing him to represent any *337one of the persons composing the firm in relation to their separate individual interests. The agent of a partnership is not an agent of the partners individually. Under the act of procuration before us, Bourke could not transfer the interest of one of the partners in the real estate owned jointly by them to another partner; for under it he represents one as much as another, and he cannot combine in himself the character of vendor and vendee. And, besides, the firm being dissolved by the death of Johnston, and the mandate being thus terminated as to the firm, it can not retain vigor as to either of the surviving members,
We think it clear that Bourke is without authority to represent Brown in this action, and that, consequently, all the proceedings based on the citation to him, as the agent of Brown, are null.
When' there is an utter absence of legal service, the case will be remanded. 3 A. 453.
It is therefore ordered that the several judgments appealed from herein be annulled, and that the petition be dismissed; the plaintiff, as executor, paying the costs of both Courts, his right of action, if any he have, being reserved.