little to be said. It is obvious, however, that in an action by partners for a tort, it must be made clear to the jury that the tort affected the plaintiffs jointly. In Solomons v. Medex (a), the declaration alleged that the defendant spoke of and concerning the plaintiffs, in their trade, these words:-"You (meaning the said partners) have bought a pearl necklace, which was stolen from me, for less than one seventh of the value. Will you give up the necklace, otherwise I will take you to Bow Street?" It appeared that the three plaintiffs carried on business in partnership as silversmiths, and that the words were spoken by the defendant in their shop, and addressed to J. S. (one of the plaintiffs) alone, the other plaintiffs not being present. Lord Ellenborough held this evidence insufficient to support the declaration, and nonsuited the plaintiffs.

SECTION VI.

Of Indictments by Partners.

A FEW remarks relative to indictments by partners should not be omitted.

By the 7 Geo. 4, c. 64, s. 14, it is enacted-"That in any indictment or information for any felony or misdemeanor, wherein it shall be requisite to state the ownership of any property whatsoever, whether real or personal, which shall belong to or be in the possession of more than one person, whether such persons be partners in trade, joint tenants, parceners, or tenants in common, it shall be sufficient to name one of such persons, and to state such property to belong to the person so named, and another or others, as the case may be; and whenever, in any indictment or information for any felony or misdemeanor, it shall be necessary to mention, for any purpose whatsoever, any partners, joint tenants, parceners, or tenants in common, it shall be sufficient to describe them in the manner aforesaid; and this provision shall be construed to extend to all joint-stock companies and trustees."

(a) 1 Stark. 191.

But although it is not necessary to name all the partners, yet, where there are other partners, that fact should appear in the indictment, otherwise the prisoner must be acquitted (a).

It is not necessary that the property of the thing taken should be the strict legal property of the partners. Thus, in Scott's case (b), a father and son carried on business as farmers; the son died intestate, and his wife shortly after. The father then carried on the business, for the joint benefit of himself and his grandchildren, his son's next of kin. Some of the sheep were stolen, and were laid as the property of the father and his son's children, and it was held to be rightly laid. And actual possession is sufficient. D. and C. were partners. C. died intestate, leaving a widow and children. From the time of his death, the widow acted as partner with D., and attended the business in the shop. Some time after C.'s death, goods were stolen. A description of them in the indictment, as the goods of D. and the widow, was held correct (c).

By the 7 & 8 Geo. 4, c. 29, s. 47, founded on 39 Geo. 3, c. 85, it is enacted——“That if any clerk or servant, &c., shall receive or take into his possession any chattel, money, or valuable security, for, or in the name, or on account of his master, and shall fraudulently embezzle the same, every such offender shall be deemed to have feloniously stolen the same from his master, although such chattel, &c., was not received into the possession of such master, otherwise than by the actual possession of his clerk, servant," &c. Now, as a servant in the employment of A. and B., who are partners, is the servant of each, it has been held, that if he embezzle the private money of one, he may be charged, under the above enactment, as the servant of that individual partner (d).

(a) See Arch. Peel's Acts, 11,
(6) Russ. & Ryan, Cr. Ca. 13.
(c) Rex v. Gaby, Russ. & Ryan,

178.

(d) Rex v. Leech, 3 Stark. 70.

488

CHAPTER VI.

OF ACTIONS AGAINST PARTNERS.

SECTION I.

Of Process.

ALL personal actions in the superior Courts of law must now be commenced by writ of summons (a).

The ordinary process by which this writ is followed is simply that which is necessary to compel an appearance, or serviceable process; but it may also be the foundation, in certain cases, of bailable process.

First, of process to compel an appearance.

The form of the writ of summons is contained in the statute 2 Will. 4, c. 39, and requires the defendant, within eight days of service of it, to enter an appearance; or, on default thereof, to take notice that the plaintiff may cause an appearance to be entered for him, and proceed to judgment and execution. The words used in the form of the writ, as prescribed by the Act of Parliament, are, "may cause an appearance to be entered for you;" and the word "you," in the case of several defendants, has been held equivalent to "you and each of you (b).”

It seems that each of the defendants should be served personally with a copy of this writ (c). But it may be remarked, that before the Uniformity of Process Act (d), a writ of venire facias ad respondendum served on one of several partners at the counting-house of the firm, with copies left for the absent part

(a) Stat. 1 & 2 Vict. c. 110, s. 2. But see some special exceptions mentioned in Arch. Pr. Book I, Chap. 1, edit. Chitty.

(b) Engleheart v. Eyre, 2 Dowl.

Pr. C. 145.

(c) Arch. Pr. Vol. 1, p. 117; Tidd. Pr. 169.

(d) 2 Will. 4, c. 39.

ners as service on them, was held to be a sufficient service (a); though a venire issued against one of several partners who was abroad, for a separate debt, could not be served at the counting-house of the partnership (b).

If the defendant, or in case of several defendants, if all of them be not served with the copy of the writ of summons within four calendar months from the day of the date of it, the plaintiff may continue the writ by and sue out an alias writ of summons, and after that a pluries, as the case may require, until the defendant, or all the defendants, be served (c).

It has been said, that if an action be brought against several partners, one may enter an appearance for the rest, which may, in its consequences, lead to judgment against all (d). But one partner cannot be compelled to enter an appearance, or, where the process is bailable, to give bail for his copartners. Therefore, if any of the copartners, though resident in England, either abscond, or, for other reasons, cannot be made to appear to the writ of summons, the plaintiff must issue a writ of distringas against them.

The writ of distringas is authorized by the stat. 2 Will. 4, c. 39, by which it is enacted that in case it shall be made appear by affidavit, to the satisfaction of the Court out of which the process issued, or, in vacation, of any Judge of any of the superior Courts, that any defendant has not been personally served with the writ of summons, and has not, according to the exigency thereof, appeared to the action, and cannot be compelled so to do, without some more efficacious process, then it shall be lawful for such Court or Judge to order a writ of distringas to be issued, directed to the sheriff of the county wherein the dwelling-house or place of abode of such defendant shall be situate, or to the sheriff of any other county, or to any other officer to be named by such Court or Judge, in order to compel the appearance of such defendant. The act then, after providing for the form of the writ, directs that the writ, with the notice attached, or a copy thereof, shall be served on such defendant, if he can be met with, or, if not, shall be left at the place where

(a) Dwerryhouse v. Graham, 3 Price, 266.

(b) Petty v. Smith, 2 You. & Jer. 111.

(c) Archb. 114; Christie v. Walker, 8 Moore, 33.

(d) Per Dampier arg. Harrison v. Jackson, 7 T. R. 207.

such distringas shall be executed; and that a true copy of every such writ and notice shall be delivered together therewith to the sheriff or other officer to whom such writ shall be directed; and that every such writ shall be made returnable on some day in Term, not being less than fifteen days after the teste thereof, and shall bear teste on the day of the issuing thereof, whether in Term or in Vacation.

A notice is subscribed to this writ, stating that in default of the defendant's appearance within eight days after the return of the writ, the plaintiff will cause an appearance to be entered for him, and proceed thereon to judgment and execution; but if it is the plaintiff's intention to proceed to outlawry, the notice specifies, that in default of appearance before mentioned, the plaintiff will cause proceedings to be taken to outlaw the defendant.

The Act which has been referred to (a), further provides, that if the writ of distringas shall be returned non est inventus and nulla bona, and the party suing out such writ shall not intend to proceed to outlawry or waiver, according to the authority thereinafter given, and any defendant against whom such writ of distringas issued, shall not appear at or within eight days inclusive after the return thereof, and it shall be made appear by affidavit, to the satisfaction of the Court or Judge, that due and proper means were taken and used to serve and execute such writ of distringas, it shall be lawful for such Court or Judge to authorize the party suing out such writ to enter an appearance for such defendant, and to proceed thereon to judgment and execution.

It is further enacted (b), that upon the return of non est inventus and nulla bona, as to any defendant against whom such writ of distringas as hereinbefore mentioned shall have issued, whether such distringas shall have issued against such defendant only, or against such defendant and any other person or persons, it shall be lawful to proceed to outlaw or waive such defendant by writs of exigi facias and proclamation, and otherwise, in such and the same manner as might, at the time of passing the statute, be lawfully done upon the return of non est inventus to a pluries writ of capias ad respondendum, issued after an original writ: Provided, that every such writ of exigent pro