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to be made (a). In De Mautort v. Saunders (6), an action was brought on a bill of exchange, drawn upon two persons in London, by the name of Saunders, Brothers, & Co. It was pleaded in abatement, that the promises were made by two other persons named in the plea, jointly with the defendants; and the defendants proved that the two other persons named in the plea were partners with them, and resided at the Mauri. tius, where the bill was drawn, and where the plaintiff also resided. Lord Tenterden told the jury, that it was clearly established in proof that all the four persons were in partnership together, though it did not appear that the fact of such partnership was known to any person at the Mauritius ; that it was a question for them, upon the evidence, whether the holder of the bill might reasonably have considered that the defendants alone constituted the house of Saunders, Brothers, & Co.: if he had reasonable ground so to think, then he must be taken to have contracted with them alone, and in that case the verdict ought to be for the plaintiff; but if they thought that any circumstance, such as the addition of the words 'and Co.,' ought to have induced him to think that there were other partners, then the verdict should be for the defendants. The jury found for the plaintiff; and, upon a motion for a new trial, the Court of King's Bench refused the rule, and held the direction to the jury to be right.
A dormant partner may be sued alone, unless he plead the partnership in abatement (c).
It is to be borne in mind, that the rules just stated as to dormant partners apply only to cases of implied contract, such as a partnership contract usually is. Where a contract in writing is entered into by the ostensible partners of a firm only, without the dormant partner, the party contracted with cannot sue the dormant partner on this contract (d).
If one partner was an infant at the time of the contract, and has not, since the attainment of his majority and before the
(a) Mullett v. Hook, 1 Mood. & Malk. 88; Stansfield v. Levy, 3 Stark, 8.
(6) 1 Barn. & Ad. 396, overruling Dubois v. Ludert, 1 Marsh. 248.
(c) Per Lord Kenyon, Saville v. Robinson, 4 T. R. 720.
(d) Beckham v. Knight, 4 Bing. N. C. 243.
commencement of the action (a), ratified the contract by some writing with his signature affixed (6), he ought not to be made a co-defendant. For if he be joined in the action, and plead his infancy, the plaintiff cannot enter a nolle prosequi as to him, and proceed against the other, as is allowed by the statute in cases of bankruptcy; but he must discontinue the action, and commence a new action against the adult defendant, he being the sole contracting party, according to the legal effect of such a contract (c).
On the other hand, if the plaintiff omit to sue the infant partner, then, although the defendant may plead the nonjoinder of his copartner in abatement, such plea will not prevail, if the plaintiff reply that the defendant omitted is an infant (d). Therefore it has been held, that if one of two partners is an infant, the holder of a bill accepted by both partners may declare on it as accepted by the adult only in the name of both; and if the defendant pleads in abatement that the other partner ought to be sued, the plaintiff may reply his infancy, which is no departure, and the action may proceed (e). In these cases it is to be observed, that infancy is the proper reply, and that the plaintiff cannot reply that the promise was made by the adult defendant solely, and not by him and the infant jointly ($).
If an infant partner be made a co-defendant in an action of assumpsit or debt, and intend to resist the action on the ground of infancy, he must plead his infancy specially (g).
Where one partner has become bankrupt, and obtained his certificate, it is not necessary to make him a co-defendant; for if the non-joinder of him as defendant be pleaded in abatement, the plaintiff may reply that he has been discharged by bankruptcy and certificate (h): and the same sort of replication will be admissible if the party omitted has been discharged
(a) Thornton v. Illingworth, 2 Barn. & Cres. 824; 4 Dowl. & Ryl. 545. But see Ex parte Henderson, 4 Ves. 164.
(6) 9 Geo. 4, c. 14, s. 5.
(c) Chandler v. Parkes, 3 Esp. 76; Jaffray v. Frebain, 5 Esp. 47.
(a) Gibbs v. Merrill, 3 Taunt.
307 ; Chandler v. Parkes, supra.
(e) Burgess v. Merrill, 4 Taunt. 468.
(f) Chandler v. Parkes, supra.
(9) Reg. Gen. H. T. 1834; Assumpsit, 3; Debt, 3.
(h) Stat. 3 & 4 Will. 4, c. 42, under the Insolvent Act (a). But if the bankrupt have not obtained his certificate, he should be joined as a co-defendant (6).
If one of several partners die, the action must be brought against the survivors (c). And if the executor of the deceased partner be sued, he must plead the survivorship in bar (d). Upon the death of the last surviving partner, an action on the partnership account must be brought against his executors only, without joining the executors of the other partners (e). If a partner defendant die pending the action, the writ or action shall not be thereby abated, but such death being suggested on the record, the action shall proceed against the surviving defendant or defendants (f).
On the outlawry of one of several partners, the action must be proceeded in against that defendant only who appears (9). But the outlawry does not alter the right as it originally stood. Therefore, where the plaintiff brought an action against two defendants, and proceeded to outlawry against one, and went on with the action against the other, who died after interlocutory and before final judgment, it was held that he could not have a scire facias against the administrator of the deceased partner; for, notwithstanding the outlawry, the action remained joint, and therefore survived against the other defendant (h).
If too many persons be made defendants, and the objection appear on the pleadings, either of the defendants may demur, move in arrest of judgment, or support a writ of error; and, if the objection do not appear upon the pleadings, the plaintiff may be nonsuited upon the trial, if he fail in proving a joint contract either in law (ë) or in fact (k); for, though in actions for torts one defendant may be found guilty and the other acquitted, yet in joint actions for the breach of contracts,
(a) Stat. 3 & 4 Will. 4, c. 42, s. 9. (6) 1 Chit. Pl. 44.
(c) Richards v. Heather, 1 Barn. & Ald. 29.
(d) Postan v. Stanway, 5 East, 261; Godson v. Good, 6 Taunt. 587; Reg. Gen. H. T. 1834, Assumpsit 3.
(c) Calder v. Rutherford, 1 Brod, & Bing. 302; 7 Moore, 158.
() 8 & 9 Will. 3, c. 11, s. 7.
(9) Guy v. Goddard, 1 Keb. 642; 1 Sid. 173.
(h) Fort v. Oliver, 1 Mau. & Sel. 242.
(i) Noke v. Ingham, 1 Wils. 89; Eliot v. Morgan, 7 C. & P. 334,
(k) Shirref v. Wilks, 1 East, 48.
whether they be framed in assumpsit, covenant, debt, or case, a verdict or judgment cannot in general be given against one defendant without the other (a); and where there are several defendants, the nonsuit of the plaintiff is for the benefit of all (6).
It is, however, enacted by the 10th section of the stat. 3 & 4 Will. 4, c. 42, that in all cases in which, after a plea in abatement, the plaintiff shall, without having proceeded to trial upon an issue thereon, commence another action against the defendant or defendants in the action in which such plea in abatement shall have been pleaded, and the person or per
sons named in such plea in abatement as joint contractors; if . it shall appear by the pleadings in such subsequent action, or
on the evidence at the trial thereof, that all the original defendants are liable, but that one or more of the persons named in such plea in abatement, or any subsequent plea in abatement, are not liable as a contracting party or parties, the plaintiff shall nevertheless be entitled to judgment, or to a verdict and judgment, as the case may be, against the other defendant or defendants who shall appear to be liable; and every defendant who is not so liable shall have judgment, and shall be entitled to his costs as against the plaintiffs, who shall be allowed the same as costs in the cause against the defendant or defendants who shall have so pleaded in abatement the nonjoinder of such person; provided that any such defendant, who shall have so pleaded in abatement, shall be at liberty on the trial to adduce evidence of the liability of the defendants named by him in such plea in abatement.
It may also be remarked, that if several persons are sued as partners, who are not all partners, and they pay money into Court in respect of the contract on which they are sued, they are estopped by such payment from taking any objection for misjoinder at the trial (c).
(a) i Chit. Pl. 36; Cooper v. Whitehouse, 6 Car. & P. 595.
(6) Blake's case, 1 Sid. 378.
(c) Ravenscroft v. Wise, 1 C., M., & R. 203. But see ante, p. 472.
Of the Parties to Actions ex delicto.
If several partners jointly commit a tort, the plaintiff has his election to sue all or any of the parties; because a tort is in its nature the separate act of each individual; therefore, in actions ex delicto, such as trespass, trover, case for malfeazance, and the like, against one only, for a tort committed by several, he cannot plead it either in abatement or in bar, or give it in evidence on the general issue. A plea in abatement can only be where regularly all the parties ought to be joined, and not where the plaintiff may join them all or not at his election (a). Therefore, to an action on the case against several part-owners of a ship, for the negligence of their servant in running down a ship of the plaintiff's laden with sugar, whereby the sugar was lost, it was held clearly, that the defendants could not plead in abatement that there were other part-owners not joined in the suit (6).
It has been said, that if the plaintiff himself shews in his declaration, or other pleading, that the tort was jointly done by the defendant and A. B., the action shall abate (c); but Mr. Serjeant Williams observes, that there is no good ground for this distinction (d).
Actions against common carriers, for a breach of duty in their capacity of carriers, may be either laid in case, charging them with a breach of duty imposed by the custom of the realm, the breach being in such case considered as a tort, or they may be laid in assumpsit, the breach being then considered as a breach of contract. Both of these modes of declaring have been established by precedent, but as all actions of this nature
(a) 1 Wms. Saund. 291 e; Wats. Part. 424; Rich v. Pilkington, Carth. 171; Child v. Sand, Id. 294, 1 Salk. 32; Sutton v. Clarke, 6 Taunt. 29; Nicoll v. Glennie, 1 Mau. & Sel. 588; Morrow v. Belcher, 4 Barn. & Cres. 704. But see Wallis v. Savil,
(6) Mitchell v. Tarbut, 5 T. R. 649.
(c) Brickhead v. Archbishop of York, Hob. 199.
(d) 1 Wms. Saund. 291 f.