Stuart v. Corning

Butler, J. The statute of 1837, construed by the ordinary rules of interpretation, clearly authorizes the proposed amendment. As the law then stood, unless all the partners were named in the writ, although the partnership was averred and the partnership name given, it was, so far forth, an imperfect writ and abatable. Such was the old law. It often happened that negotiable and other contracts, executed by or to co-partnerships in the company name only, came into the hands of other parties, to whom the names of the partners, or a part of them, and their residence were unknown, and if it became necessary to sue upon the contract their names or residence could not always be ascertained with certainty, so as to make a perfect writ, without inconvenient or prejudicial delay. Such was the mischief to be remedied. It was and is notorious that the cases where all the partners were unknown were comparatively few, for the name of the firm in most cases contained the name or names of one or more of the partners, and the most serious and important part of the mischief, and that which we may well suppose mainly induced the action of the legislature, was the difficulty of ascertaining who the unnamed partners, included in and by the abbreviation “ Co.,” were. No reason has been or can be given for supposing that the legislature intended to remedy the lesser part of the mischief only; nor can we hold such to have been their intention without impugning their intelligence; nor at all unless the language of the law is so explicit and exclusive as to preclude [107] us from looking to the old law and the mischief for assistance in discovering that intention. Referring to the law of 1887 as it stood before the sections were distributed by the revisions in 1848, we find in the first section a general provision “ that all suits for or against a co-partnership may be commenced by the company name of the plaintiffs or defendants ; ” that is the remedy for the mischief, and there is nothing in the language used which is exclusive, or which requires that it should be by the company name alone, or which would render a writ abatable, which, like this, averred the existence of the co-partnership, and gave its name, and also the names of such of the co-partners as were known. But tins alteration of the law, to be in harmony with its principles, required two other provisions, (vi»;,) one authorizing an amendment of the writ by inserting the omitted names, and another providing for a notice to bring them .into court. The first is found in another clause of the first section, and is in these words :—aud the plaintiff or plaintiffs shall' have right, within the three first days of the court to which the writ is returnable, to amend the same, without cost, by inserting the names of the several persons composing such co-partnership.” The language of this provision is not exclusive. It is a clear authority to add the names, all of them, severally, and “ maftis in se continet minus” and therefore any number less than all. And it is obvious that if the defendants are right in their construction, that none of the names could be inserted originally unless all were, those which are may be stricken out as surplusage, and then the writ, as it avers the co-partnership, and its name, and a partnership debt, will be against the partnership alone, and all the names may be added at once. Clearly the construction claimed by the defendants is a strained and unreasonable one. The second incidental provision made necessary by the general one is in another section, and negatives the claim of the defendants. It contemplates three contingencies : first, where the plaintiff voluntarily inserts the names of the partners in a writ brought against the co-partnership by the partnership name alone; second, where the defendant or defend [108] ants upon whom service has been made appear and plead the non-joinder of a copartner in abatement; and third, where they appear and make affidavit of that fact instead of pleading it. Presumptively an officer will serve and has served the writ on the persons, or some of them, named in it, and no others; and the provision for the second contingency implies that part are named in the writ, and therefore have been served and appear, and contemplates the precise case before us. That fact, and the further one, that if the defendants’ claim is correct the provisions for the second and third contingencies are entirely superfluous, show conclusively that he is mistaken, and that the legislature intended to provide, and have provided expressly, for the case in hand. Moreover the act is remedial and to be liberally expounded; and a liberal intei’pretation would permit the amendment. For these reasons the amendment should be allowed, and we so advise. In this opinion the other judges concurred.