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SECTION II.

Of the Parties to Actions ex contractu.

In an action brought against a partnership firm, on a partnership contract, not in writing, all those who were partners at the time of the contract ought to be joined as defendants (a). For a contract, when made with partners, is originally a joint contract, though it may be separate as to its effects; and a creditor, being party to the contract, is bound both by law and conscience to do all that is necessary to effectuate the contract (6).

So, also, in an action against partners on a joint bond, or joint covenant, or other instrument in writing, although they alone can be sued who are parties to the instrument (c), yet all the co-obligors or co-covenantors should be made defendants (d).

But the omission of a party as co-defendant in these cases is not ground of nonsuit, and can only be taken advantage of by plea in abatement, verified by affidavit; unless it appear on the face of the declaration, or some other pleading of the plaintiff, that the party omitted jointly contracted and is still living, and also, as it is conceived, is resident within the jurisdiction (e) ; in which case the defendant may demur, or move in arrest of judgment, or sustain a writ of error (f). If, except under the

(a) Bristow v. James, 7 T. R. 257; Byers v. Dobie, 1 H. Bl. 236; Ditchburn v. Spracklin, 5 Esp. 31. Notwithstanding agreement between partners to the contrary. Lodge v. Dicas, 3 Barn. & Ald. 611.

(b) Per De Grey, C. J., Abbot v. Smith, 2 W. Bl. 947.

(c) Shack v. Anthony, 1 M. & S. 574. Per Lord Tenterden, Lefevre v. Boyle, 3 B. & Ad. 877 ; Beckham v. Knight, 4 Bing. N. C. 243.

(d) Horner v. Moore, 5 Burr. 2611; Vernon v. Jeffries, 2 Str. 1146.

(e) In 1 Saund. 291 c, note (4), it is stated, as a general principle, that unless those facts which are absolutely necessary to be averred by the defendant in his plea be admitted by the plaintiff in his declaration or other pleading, the action cannot, in the case above mentioned, be abated. If so, it ought to appear in the declaration, not only that the co-defendant is living, but that he is within the jurisdiction. See 2 & 3 Will. 4, c. 42, s. 8, and see post, Sect. 6.

(f) i Chit. Pl. 32.

circumstances just mentioned, the defendant does not plead the non-joinder in abatement, it is a waiver of the objection. For he ought not, as Lord Mansfield observed, to be permitted to lie by, and put the defendant to the delay and expense of a trial, and then set up a plea not founded in the merits of the case, but on the form of the proceeding (a). Nor is he entitled even to a plea in abatement, where the contract on which he is sued was entered into in fraud of his copartners (6).

It seems scarcely necessary to observe, that although the plaintiff may sue one of several joint debtors separately, leaving the defendant to plead in abatement, he has no right to sue all the parties separately for one and the same demand (c).

The necessity of pleading the non-joinder of defendants in abatement, seems to have been acknowledged in the case of joint bonds or deeds, from the 28th of Henry 6, down to the present time (d). The well-known case of Whelpdale (e) was in accordance with this doctrine. There the plaintiff had declared on a bond made by the defendant, to which the defendant pleaded non est factum; the jury found that the bond was a joint bond made by the defendant and another to the plaintiff ; and upon this special verdict it was adjudged by the Court, that the plaintiff should recover, “because, when two men are jointly bound in one bond, although neither of them is bound by himself, yet neither of them can say that the bond is not his deed, for he has sealed and delivered it, and each of them is bound in the whole. But in this case he might have pleaded in abatement of the writ."

The rule of law so applied to joint bonds has, since the case of Rice v. Shute, been extended to all joint contracts; not only to mere parol contracts made with partners, in which case the plaintiff may not know accurately all the parties with whom he dealt, but to written contracts, in which the parties who may be sued appear on the face of the paper, and are therefore

(a) Rice v. Shute, 5 Burr. 2611 ; Briefe, 37. 2 W. BI. 695.

(e) 5 Rep. 110.

See Stead v. (6) Hudson v. Robinson, 4 Mau. Mohun, Cro. Jac. 152; Cabell v. & Sel. 475.

Vaughan, 1 Saund. 299, 2 Keb. (c) Carne v. Legh, 6 Barn. & 525; Ascue and Hollingsworth's Cress. 124; 9 Dowl. & Ryl. 126. case, Cro. Eliz. 494; Sayer v. Chay

(d) Y. B. 28 Hen. 6, 3 a, pl. 11; tor, Lutw. 695. Y.B. Mich. 35 IIen. 6, pl. 38 ; Bro.

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known to the plaintiff. In such case, so long as the plaintiff does not declare jointly, the defect can only be pleaded in abatement; and in default of such plea, the joint contract may be given in evidence of the separate contract declared on. Thus, in Germain v. Frederick (a), assumpsit was brought against the defendant solely, for goods sold to him, and delivered on board the Lord Macartney. At the trial, the plaintiff failed in his parol proof, and then produced the following note, written by the defendant :-“Gravesend, March 29. Twenty carts on board the Lord Macartney, by order of H. Frederick and Capt. Neale.” The plaintiff was nonsuited. In support thereof it was said, that the declaration stated it to be a contract of the defendant alone, but the proof was of a joint contract. On the other side it was said, that the objection was only good if the fact had been pleaded in abatement. The Court stopped the argument, and made the rule absolute for a new trial; observing that the contract proved was the same as that laid, and the case was precisely that of Rice v. Shute.

So, in Dixon v. Bowman (6), which was "an action against two defendants on a promissory note made by them jointly and severally : in evidence it appeared that a third person had also signed the note. Aston, J., held this a variance, but the Court granted a new trial.” So, in Evans v. Lewis (c), which was an action against the defendant as drawer of a bill of exchange. On non-assumpsit pleaded, it appeared in evidence at the trial that the bill was drawn by the defendant and another jointly. It was objected, that there was a difference between the bill proved and the bill declared upon; and the Judge inclined to that opinion, but permitted the cause to proceed, with liberty for the defendant to move for a new trial. dict being found for the plaintiff, a rule was obtained to shew cause why it should not be set aside. On shewing cause, the Court was clearly of opinion that there was no variance between the bill of exchange proved, and that which was declared upon; but the defendant should have pleaded in abatement, that another person drew the bill jointly with the defendant, who is still alive. So, where a declaration against the acceptors of a bill of exchange stated the bill to be drawn upon and accepted by three persons, and it was proved to have been drawn upon (a) 1 Wms. Saund. 291 c

(c) Ibid. Wilson v. Reddall, Gow, (6) Id. 291 d.

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and accepted by three jointly with a fourth, it was held that this was no variance (a).

But though, subject to a plea in abatement, a separate contract may be declared on, and a joint one given in evidence, it will be error if a joint contract is set forth in the declaration, and any of those who joined in the contract are omitted as defendants, or some reason is not assigned why they cannot be included, such as that they are dead, or are outlawed, or have become bankrupt. There a difference appears upon the face of the record; the plaintiff himself shews that another ought to be joined ; and as it would be absurd to call upon the defendant to plead facts which are already admitted, no plea in abatement is necessary; but the omission may be taken advantage of by demurrer, in arrest of judgment, or upon a writ of error. Thus, in Horner v. Moore (6), which was debt on a joint bond against one obligor, to which the defendant pleaded non est factum, and the jury found it to be the deed of both, judgment was arrested, because it appeared on the face of the declaration that both had sealed the obligation, and both obligors were living.

The case just cited is usually considered to sanction the opinion, that, to enable the defendant to take advantage of the non-joinder of other defendants, otherwise than by plea in abatement, the declaration should in some manner expressly shew that the parties omitted are living, as well as that they sealed. But though this has been laid down by writers of great authority (c), it ought to be noticed, that the contrary opinion has been held in argument, on the ground that where it appears, by the plaintiff's own shewing, that there is a coobligor not sued, the presumption is, that the co-obligor is still alive, unless the plaintiff will rebut the presumption he himself has raised, by shewing that he is dead; and it has been contended that, as to this point, the case of Horner v. Moore must be a mistake ; for, that the fact of the co-obligor being alive could not appear on the declaration (d). Supposing this opinion to

(a) Mountstephen v. Brooke, i (d) Per Marryatt, arg. Rex v. Barn. & Ald. 224.

Chapman, 3 Anstr. 818. See also (6) Cited in Rice v. Shute, 5 Burr. Blackwell v. Ashton, Aleyn, 21 ; 2614.

South v. Tanner, 2 Taunt. 254, and (c) 1 Wms. Saund. 291 c; 1 Chit. Wats. Part. 438. Pl. 46, (6th ed.)

be correct, the case of The King v. Young appears to have been rightly decided. That case, according to one report of it (a), was scire facias against two defendants, stating that they and two other persons, (not averring such two other persons to be living), by bond sealed with their seals, became jointly and severally bound to the King in £4000, and stating non-performance, &c.; the Court were of opinion, that as abateable matter appeared on the scire facias, it was not necessary for the defendant to plead in abatement, and they gave judgment that the scire facias should be quashed.

But although, from the pleadings of the plaintiff, it may possibly be presumed in favour of the defendant who is sued, that another person who ought to be a co-defendant is still alive, yet in no case can it be presumed that such other person has sealed the bond. An express averment must be made of that fact, on one side or the other (6).

The non-joinder of a dormant partner as co-defendant cannot even be pleaded in abatement, where the plaintiff has no means of knowing of the partnership: for, if I deal with A., he cannot, in reference to that transaction, say there is a contract between him and B., of whom I know nothing, thus compelling me to be a joint creditor of those two, whose joint property may be scarcely anything, and not the sole creditor of the only man I knew (c).

If the creditor at the time of the contract was ignorant that his debtor had a dormant partner, he may at his option sue the debtor separately or jointly with the dormant partner(d). But if he was not ignorant of that fact, he ought regularly to make the dormant partner a co-defendant with the ostensible partner. If he does not, and the non-joinder is objected to, it will be left to the jury to say with what parties the contract was intended

(a) 6 T. R. 769. In 2 Anstr. 448, it is said to have been a scire facias on a recognizance, not on a bond. See 1 Wms. Saund. 291, and note (c).

(6) Cabell v. Vaughan, 1 Saund. 291, note (t). But proof of a party's signature is presumptive evidence of his having sealed. Grellier v. Neale, 1 Peake, 145; Fasset

v. Brown, Id. 23.

(c) Ex parte Norfolk, 19 Ves. 455; Baldney v. Ritchie, 1 Stark. 338; Doo v. Chippenden, Abbott, Shipping, 76; Grellier v. Neale, 1 Peake, 146; Ex parte Hamper, 17 Ves. 412; Robinson v. Wilkinson, 3 Price, 538.

(d) Ex parte Layton, 6 Ves. 438.

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