
    Thomas Scott & Co. v. Dunlop, Pollok & Co.
    Thursday, March 21st, 1811.
    i. Partnership — Suit against —Name of Partners Omitted in Writ — Judgment.—In a suit against a mercantile company. If the names of the partners he omitted In the writ and declaration,.and the writ he served on a person not named in either, a judgment against the company, for that person’s falling to appear, cannot he sustained,
    a. Same — Same—Same—Same.—QuEere. in such case, whether any judgment hy default could he sustained?
    This was ajn action of debt in the county court of Chesterfield, brought by Dunlop, Pollok & Co. against Thomas Scott & Co. uoon a penal bill, alleged in the declaration to have been sealed and delivered “by the said defendants;” without specifying their names.
    The writ was agáinst “Thomas Scott & Co. or either of the partners, if they be found,” &c. and was executed on Archibald M’Rae; the sheriff returning that Thomas Scott was not found. M’Rae gave bail for his appearance, but failing to appear, an office judgment was entered and confirmed, “against the said defendants,” for the debt in the declaration mentioned, this judgment was affirmed upon a writ of supersedeas awarded by the district court of Richmond; and thereupon the plaintiffs in error appealed to this court.
    Hay, for the appellants.
    1. The judgment is erroneous because it does not appear from the record that *Archibald M’Rae was a member of the concern of Scott & Co., or ever sealed and delivered the bond; or that there was any connexion between him and the defendants.
    It may be said that a judgment by default admits the facts; but a judgment by default can only be considered as an admission of that which is stated in the declaration. In this case, the declaration only charges that Thomas Scott & Co. signed and sealed the penal bill; but not that Archibald M’Rae signed it, or was a partner. Neither does a defendant admit, by default, every thing necessary to maintain the plaintiff’s action; the gist of the action must be set forth in the declaration. But, even if M’Rae was bound by his default, the other defendants, upon whom no process was served, were not.
    , 2. If M’Rae was a partner, and had been so averred in the declaration, he was not legally bound by this' bill penal, which has only one seal, and is signed “Thomas Scott & Co.”
    
    One partner cannot bind the company by a bond signed by himself only, unless it be done with the assent of the rest, and on their behalf,  If the declaration had said that M’Rae signed for himself and the other partners, the judgment could only have been against M’Rae.
    3.. .Service of the, writ upon a , partner might h,a.ve warranted.a judgment against that partner, but.not against the company,  , The.rule in England is that, where the process is against two, on .a joint cause of action, and one only appears, the other must be outlawed before there can be any further proceedings,  It is, indeed, preposterous that judgment should be rendered against *a man who had no opportunity to defend himself; such a position is contrary to the first principles of justice.
    4. A judgment on behalf of, or against, persons not named, is erroneous; except in the case of corporate bodies, who may sue and be sued by their corporate names; but individuals cannot,  Dunlop, Pollok & Co. the plaintiffs, should have shown who were the partners of their company; and, as to the defendants, judgment could only ¡be against such of them as were named; and after process served upon them.
    Call, contra.
    The cases of Stott & Donaldson v. Alexander & Co., 1 Wash. 331; Keel & Roberts v. Herbert’s Executors, ib. 138, and Taylor & Co. v. M’Clean, 3 Call, 557, are examples of suits brought for, or against, mercantile companies without naming the partners. The uniform custom ■of this country (and such custom is greatly regarded in this court)  sanctions the practice. It was introduced and warranted •by the situation of this country before the revolution, when business was generally -carried on by Scotch factors, representing great numbers of persons residing in Great Britain. In such a state of affairs, the names of the partners being often unknown, the safe and fair way was to sue the company, by the name of the firm. And in this there was no inconvenience; for the plaintiff was to take care that his execution was levied on the right property. ■The case of Murdock, &c. v. Herndon’s Executors, 4 H. & M. 200, shows that the death of a partner will not abate the suit, •unless it be suggested on the record.
    The British authorities quoted by Mr. Hay only show the practice in that country, but have no applications, if I am right about the practice here, as founded in necessity. Yet, even there, a foreign company, not acknowledged as corporate in England, has been permitted to sue by its corporate title,  So a scire facias upon a recognisance l»es against executors, without naming them by their ^proper names,  Another analogous case -is that of terretenants; against whom a scire facias may issue generally, and be served on whom you please.
    
      
       See monographic note on “Partnership” appended'to Scott v. Trent, 1 Wash. 77.
    
    
      
       Ball v. Dunsterville, 4 T. R. 313; Harrison v. Jackson, 7 T. R. 207; Shelton v. Pollock & Co., 1 H. & M. 423.
    
    
      
       Brown v. Belsches, 1 Wash. 9; Moss and others v. Moss's Administrator, 4 H. & M. 293.
    
    
      
       Edwards v. Carter and others, 1 Str. 473; Symonds v. Parmenter and Barrow, 1 Wils. 78; S. C. 1 W. Bl. Rep. 21; Sheppard v. Baillie, 6 T. R. 327; Saunderson v. Hudson, 3 East, 1^4.
    
    
      
       1 Bac. Abr. (Gwil. edit.) p. 50; tit. Action, letter (B.) 1 Chitt. on Plead. 29; Ib. 255; The King v. Harrison & Co., 8 T. R. 508.
    
    
      
       Rose v. Murchie, 2 Call, 109.
    
    
      
       Henriques v. The Dutch West-India Company, 2 M. Raym. 1532; S. C. more at large, 1 Str. 612.
    
    
      
       1 Com. Dig. 38.
    
   JUDGE DEEMING.

In a suit by executors, must not all the plaintiffs be named?

Call. Prec. in Ch. 131; 1 Ch. Cas. 204, and 11 Vin. 20, are cases showing that courts will entertain general suits, where, otherwise, difficulties would multiply, and abatements be frequent. This is often done in equity when parties would be excessively numerous.

If the suit was regularly brought, the service on M’Rae was sufficient. In a suit against two executors, service on one is enough. It has also been frequently decided, that one partner may appear for the whole; and, if he does, the whole will be concluded, Does not this prove that he represents the suit for all? Does his being an active or passive agent make any difference?

It has been settled in this court that, where several defendants are sued, and the writ is served on part, judgment may be ■entered against those on whom it is served. Judgment, then, might be entered in this case against M’Rae, if the court should be of opinion that it could not, with propriety, be against the other defendants. The defect in the declaration was on a ground of special demurrer, and could not be taken advantage of after judgment by default.

It may be said, that this is one of the inconveniences arising from partnerships; but, in fact, there is no inconvenience; for any person aggrieved may have nis remedy by audita querela, or writ of error coram vobis.

As to the obligatory effect of this bill penal; all the company, their heirs, &c. are bound, in which respect the case does not resemble that of Shelton v. Pollock & Co., 1 H. & M. 423, which makes against Mr. Hay. Walker in that case did not bind the company, but himself *only. The plain innuendo is, that he might have worded the bond so as to bind the company; but the point is not expressly decided. Apply, then, the principles which governed the case of Robertson v. Campbell & Wheeler, 2 Call, 421, to this case, and they appear conclusive. Shall a man who has sold a hundred hogsheads of tobacco to a company have no remedy but against their factor? Transactions in the usual course of business by individual partners are surely binding on the companies they represent; and I think it has so been decided in the federal circuit court of North Carolina.

Hay, in reply. Mr. Call’s broad and unqualified assertion that the uniform custom of the country supports the practice he contends for, is certainly incorrect. The reports of the cases cited as examples, do not state the manner in which the suits respectively were brought. The style of each mercantile company' is mentioned in the heading of each case; and that is all. Does Mr. Call himself ever bring a suit, in the name of a company, without specifying the partners? But if this were the practice of a few lawyers, it could not make the law of the land. So, in England, the practice of merchants, as to suits against endorsers of bills of exchange, did not fix the law. They wished to sue endorsers in the first place, but Eord Holt arrested all their judgments, and an act of parliament was at length passed at their instance.

None of the authorities adduced by Mr. Call justify the conclusions he attempts to draw from them. 4 H. & M. 200, proves the reverse of the proposition intended to be established by it. As, in that case, the suit would have abated by the death of William Cuninghame, (had it been suggested on the record,) it shows that the word Co. was not sufficient to keep it on the docket. According to Mr. Call’s argument that all parties are *properly before the court, though not named, a scire facias to revive (in case of the death of a party not named) would be unnecessary, though expressly required by the act of assembly, Yet he cannot deny that, in consequence of the death of only one named on the record, there must be a scire facias; from which it is evident this suit is improperly brought.

Henriques v. The Dutch West-India Company, 2 Ld. Raym. 1532, is a case of a corporation, and does not resemble this. If the doctrine laid down in 1 Com. Dig. 38, be law, it must be considered as an exception to the general rule; but the practice of the court of chancery, and of this court, is not to award process of revivor until the names of executors are furnished to the clerk. The passage quoted from 11 Viner, 20, may be law; on the ground, perhaps, that the plaintiff has no opportunity .of knowing who the terretenants are; but it is only another exception to the general rule. Hill et al. v. Ross, 3 Dall. 331, so far as it applies to the subject now in question, is pointedly in my favor; showing that “partners cannot compel each other to appear to suits, nor undertake to represent each other in courts of law.” But if the service of a writ upon one partner were service upon all, an appearance of one would be an appearance for all.

Mr. Call thought proper to take no notice of the authorities cited by me from Chitty and 8 T. R. To these I will add 1 Dall. 119, Gerard v. Basse et al., in which it was decided that the course of trade does not authorize one partner to execute a deed for another. 10 East, 419, and 3 Esp. Rep. 107, Abel v. Sutton, are to the same effect. He contends there is no inconvenience in the practice of suing persons without naming them. But is there no inconvenience in entering judgment against a man who has had no opportunity of defence?

The writ of audita querela is now obsolete; but it *lay only for matter of discharge arising after the judgment. The writ of error coram vobis could give no relief. If the defendant, on whose property execution was served, was a partner, he could not, by that writ, get relief on the ground that the debt had been paid before the suit was brought.

As to its being too late, after judgment by default, to take advantage of the defect in the declaration, the rule applies to persons only who have had it in their power to make defence, and failed to do so.

Monday, April 22d. The judges pronounced their opinions.

JUDGE BROOKE-

(After stating the case and the points made by counsel.) I shall not notice all these points in the opinion which I am to deliver; except to remark that I know of no practice in the courts of this country of sufficient authority to contravene the English decisions referred to and relied upon by the counsel for the appellants; nor have I been able to perceive any force in the objections of the counsel of the appellees to the application of them to cases here, either founded on the necessity of such a practice, or on reasonings drawn from the decisions of this court, to which he referred; none of which, in my opinion, contradict the English adjudications.

Upon the first point, I am very clear that no case has been produced to warrant a judgment against a person, not alleged to be a party in the declaration, nor named as a defendant in the writ; the reasoning from the supposed analogy between such a, case and the case of executors upon a scire facias to revive a judgment against them, or the case of terretenants after a judgment against the land, can have no force. In the first, (if, indeed, it be law, which I very much doubt,) there is less necessity *for naming the executors in the process, than in the one under consideration; their names are of record, and there is less difficulty in identifying them by tfie officer serving the process; and less injury would result from mistakes, since they are not held to bail by the writ. The same remarks apply to the case of suing out the scire facias against the tenants; though not named in the record, they must be found on the land against which the judgment has been rendered? names which are said by the counsel for the appellees to be the indicia of persons, are not necessarily so in these cases; but great inconvenience and often great injury would result from extending this doctrine to original process. Any person, however ignorant of the demand of the plaintiff, and though' totally unconnected with the concern against whom it might exist, would be liable to be arrested either by the mistake of the officer, or of the party pointing him out; he might not be able to-give bail, and the law will not subject an individual to injury on the ground that he may afterwards be relieved in an action against the party injuring him; nor am I of opinion that the defendant M’Rae is concluded, by the judgment rendered against him in this case, from objecting to the irregularity of the proceedings; he cannot be said to have admitted (by not defending himself! any thing not alleged in the writ or declaration; nor can his admission, as far as it goes, affect the other defendants. For this doctrine, see 1 Dali, p. 119, and 3 Dali. p. 331. I am therefore of opinion the judgment must be reversed.

JUDGE ROANE

was, also, for reversing the judgment, upon the ground that M’Rae was not alleged to be a partner. But he gave no opinion relative to the other points.

JUDGE FEEMING.

Without considering minutely the several points made in the cause, I am also of opinion sthat the judgment be reversed. Archibald M’Rae, the only person on whom the writ was executed, was not al-' leged to have been a partner of the firm, nor even named in either the writ or declaration.

Judgment unanimously reversed, and entered that the plaintiffs take nothing, &c. 
      
       Hill et al. v. Ross, 3 Dall. 331; Green and Mosher v. Beals, 2 N. Y. Term. Rep. 254.
     
      
      Rev. Code, v. 1, p. 110, s. 20.
     