Fowlkes & Co. v. Baldwin, Kent & Co.

COLLIER, C. J. — By the eighth section of the act of 1818, “for the better-regulation of judicial proceedings” it is enacted, that “when a writ shall be issued against all the partners of any firm, service, of the same on any one of them shall be deemed equivalent to a service on all; and the plaintiff may file his declaration, and proceed to judgment, as if the said writ had been served on each defendant; and the judgment shall be equally valid and effectuál against all the defendants.” In the present case, the writ describes the plaintiffs in error as partners, and this in practice has been heretofore considered as sufficient prima facie evidence, that such is the relation of the defendants to each other. And a return by the sheriff that the writ in such case has been executed generally, or on either of the defendants, must consequently bring them into Court, so as to authorize a judgment by default against all. Whether the rights of the defendants not' personally served, would not have been better protected by requiring (even in the absence of a negative plea) proof to be made that the defendants were partners, we need not inquire, as the construction of the statute has always been otherwise. If a judgment has been rendered against a party who is not a partner, and who was not served with process, it will be competent for a Court of equity to afford him relief by perpetually injoining its recovery. It is enacted by á statute of this State, that it shall not be lawful for the defendant in any suit to deny the execution of any writing, the foundation of an action, unless it be by plea, supported by affidavit. [Aik. Dig. 283.] [707] In the case at bar it is alledged in' the declaration, that the defendants are partners, and that in that character they made the note declared on. Will not a plea, denying the existence of the partnership, put in issue the execution of the note, as much as if the latter fact was negatived by a direct and positive allegation ? It most certainly will. And if a different conclusion was attained, it would be very easy for defendants, when sued as partners, by a mere change of phraseology in their plea to evade to a great extent the act last cited. Again : the denial of the existence of a partnership does not respond to the entire declaration. By such a plea, the defendant does not in express terms deny the execution of the note, yet such an inference necessarily follows; for if the note was executed by the assent of both the defendants, with the understanding that it was to bind them, it would be quite as obligatory, as if it had been subscribed by them severally. • The demurrer then, to the plea of Henry A. Fowlkes was rightfully sustained. Where persons are sued as partners for the recovery of a demand, not evidenced by writing, they will be allowed to throw upon the plaintiff the proof of their joint liability, without filing a plea verified by affidavit. Thus, in an action of assumpsit, where the declaration merely contains the common counts, the plea of non assumpsit will be sufficient for that purpose. [Findley & Buchanan v. Stevenson, 3 Stew. Rep. 48.] This view may suffice to show, that both the defendants below were in contemplation of law served with process, and that the second plea interposed by the defendant who appeared, was bad, and the instructions to the jury properly refused. It remains but to add that the judgment of the County Court is affirmed.