Conklin v. Harris

ORMOND, J. If it were admitted that a writ of error can be prosecuted to a judgment of the court below, refusing to quash an attachment, we are of opinion there was no error in this case. The supposed error was the omission to state «that the ordinary process of law could not be served on the defendant. This is not necessary where the defendant is a non resident. The objection to the bond is for the first time taken in this court, and although the bond is certainly defective, advantage could only be taken of it in the court below, as was held in Jackson v. Stanley, [2 Ala. 326,] where an opportunity would be afforded of substituting a perfect bond. No objection can be taken in this court, because the issue was upon the plea of non assumpsit instead of nil debet; it was an issue tendered by the plaintiff in error himself, and cannot now be objected to by him. It was, moreover, a substantial denial and traverse of the facts alleged in the declaration, the form of which was waived by the defendant in error taking issue upon it. There was no error in the judgment of the court on the demurrers to the special pleas. The facts relied on in the pleas to bar [216] the action, are, that the makers of the note were partners, and that one of them was a resident of the State, and subject to the ordinary process of the law. A debt due from co-partners is the several debt of each, and each may be sued separately. The proceeding by attachment is merely a mode of compelling an appearance, and is to all intents a suit, as much so as if commenced by writ. This was expressly decided in Greene v. Pyne, [1 Ala. Rep. 235,] when it was held, that an attachment might be sued out againstone of several partners, without joining the others. In Winston v. Ewing, [1 Ala. 129,] it was held that a debt due the partnership could not be attached by process at law, to pay the separate debt of a partner; but that does not appear to be the case here, nor is such alleged to be the fact in the plea, but on the contrary, so far as we can judge from the answer of the garnishee and the form of the note, it is an attempt to subject the partnership property to the payment of a partnership debt. We can see no reason for refusing the remedy by attachment, to a creditor, because one of the partners resides within the State, and may be sued in the ordinary mode. The statute expressly gives the right to sue each partner separately, and in fact makes the partnership debt the separate debt of each. It results necessarily from tins that whenever the affidavit, which the statute requires to authorize the suit to be commenced by attachment, can be made, as either partner could be sued in the ordinary mode, so may either be sued by original attachment. In addition to these objections, the pleas we have been commenting on should have been pleaded in abatement, as they do not deny the plaintiffs the right to recover the debt, but merely question the right to maintain an action in this particular mode. It is supposed, however, that the declaration is defective, and that although the pleas may be bad, as the declaration is bad also, the demurrer will reach that defect. The supposed error in the declaration is, in not alledging a promise from the makers to pay the endorsers. Tins was not necessary in debt, as the statute gives the assignee the same rights against the maker as the payee would have had. [Aik. Dig. 330.] Certainly the payee could have maintained debt without alledging any promise to pay other than that contained in the note. Even if the action had been as-sumpsit, the objection could not have been reached by general demurrer, and special demurrers are abolished by statute. [217] It was not necessary for the plaintiff to prove any fact under the issue in this case, beyond the production of the note sued on, and the indorsements, to entitle him to recover. As the making of the note and indorsements were not denied by plea, they were proved by the note itself, under the influence of our statute. Let the judgment be affirmed.