Appeal from a judgment of the Superior Court of San Mateo County, and from an order denying a new trial.

The facts are stated in the opinion.

The debts, liabilities, and obligations of a partnership are joint, and not joint and several. (Civ. Code, sec. 2442; Northern Ins. Go. v. Potter, 63 Cal. 157; Gray v. Palmer, 9 Cal. 616; 17 Am. & Eng. Ency. of Law, 1176; 1 Woerner’s Law of Administration, 287; Lindley on Partnership, sec. 597, note; Leake v. Lawrence, 11 Paige, 80; 2 Den. 577.) Upon the death of a partner, the surviving partners, and ultimately the last survivor, or his representatives, must be sued upon contracts made by the firm. (Benbow on Parties, 228, 234; Dicey on Parties, 293, and authorities; Pomeroy on Remedies and Remedial Rights, 302 and 303; Civ. Code, 2442; Voorhis V. Childs, 17 R. Y. 356.) The bank cannot proceed against the estate of the deceased partner without showing either that the surviving partners have been proceeded against to execution at law, or that they are bankrupt or insolvent, or inability of the bank to realize from the firm assets the amount alleged to be due. {Voorhis v. Childs, 17 R. Y. 356; Childs v. Hyde, 77 Am. Dec. 113, 114; Leake v. Lawrence, 11 Paige, 80; 2 Den. 577; Sherman v. Kreull, 42 Wis. 33, 38; Kendall v. Rider, 35 Barb. 100; Alsop v. Mather, 8 Conn. 584; 21 Am. Dec. 703; Beatonv. Wade, 14 Col. 4; Richter v. Poppenhausen, 42 R. Y. 373; McCulloh v. Dashiell, 18 Am. Dec. 280, and note; 1 Woerner’s Law of Administration, 287; Lindley on Partnership, 460,597,612; Graves v. Palmer’s Exrs., 26 111. 405; Higgins v. Freeman, 2 Duer, 650.) The surviving partner should have been made a party defendant.

The surviving partner was not a necessary party defendant. {Kearsing v. Kilian, 18 Cal. 491; Qutzeit v. Pennie, 98 Cal. 327.) The plaintiffs were not obliged to exhaust the partnership assets before enforcing the mortgage. (See Webb v. Smith, L. R. 30 Ch. Div. 192; Durham v. Williams, 39 Ga. 312; Tiffany v. Crawford, 14 R. J. Eq. 278; Pomeroy’s Equity Jurisprudence, sec. 1414; Tiedeman’s Equity Jurisprudence, sec. 532; Wolf y. Smith, 36 Iowa, 454.) A mortgage by one partner upon separate estate to secure firm debts is good. {Hardy v. Overman, 36 Ind. 549; McLntirc v. Yates, 104 111. 501.)