
    Lyons and Gilmore v. Jackson.
    By the act of the legislature of 1836, the contracts of partners are declared joint and several.
    In a suit against partners, the plaintiff may discontinue as to the partners upon whom there is* no service or return of writ, and have his judgment against the others.
    The court refused to reverse a judgment where a statute had been passed since its rendition, which would obviate the error upon a new trial.
    THIS was a suit by Lyons and Gilmore against Hamilton and one Williams as partners; process was issued to Madison county for Williams, which was not returned; but the writ was duly executed upon Hamilton, who appeared and pleaded to the action.
    The plaintiff below entered a discontinuance as to Williams. Hamilton, on the trial, requested the court to charge the jury, that they could not find against him, in the absence of the writ against Williams, and without a return thereon; which instruction was refused, and a bill of exceptions tendered to the opinion of the court by counsel for Hamilton.
    Hutchinson for plaintiff in error.
    At common law it was necessary to sue all the persons liable, on a joint contract. 1 Chit. PL 28-9; Robertson v. Smith, 18 Johns. Rep.-459. If the contract were joint and several, the plaintiff might sue all together in one action, or each separately. In either case —indeed in every action ex contractu, if a plaintiff sued a plurality of defendants, and the leading process was not served on any one, he could not proceed to judgment, until after process of outlawry as to him not summoned or arrested. 1 Chit. PI. 30; Shaw v. Colfax, 3 Caines’s Rep. 98; Roosevelt v. Soulden, 16 Johns. Rep. 44.
    The principles of the common law in some particulars. By the 24th section of the superior court law,, (see Revised Code, 108,) the plaintiff, on a joint liability of several defendants, residing in different comities, was allowed to have counterpart writs to the different comities; and by subsequent legislation, the benefit of that section is extended to all causes of action against a plurality of defendants so circumstanced. By the, 26th section of the first named statutes, Revised Code, 108, 109, joint bonds, &c. were ■rendered as if joint and several, and it is permitted to sue out process, and proceed to judgment against any one of the obligors, &c., us if the same were joint and several.
    When a plaintiff makes his election to sue one, two, or all liable to him, he can find nothing in the statutory provisions mentioned, allowing him to drop either defendant at his own discretion. The 40th section of the act mentioned declares that, on a return non est inventus, the plaintiff may have an alias pluries, testatum capias, or attachment; and if goods be attached, it shall be equivalent to personal service. Revised Code, 113. So by section 42, if the writ be executed, and not returned, and a second writ issued, the sheriff shall not serve the last, but return the first, ■or if he cannot return the first, then he shall certify the service of the first upon the last, and return it. 'Revised Code, 114. If then, there be no service or equivalent, and the plaintiff have sued out an alias, pluries, and attachment in vain, what is he to do? The •common law process of outlawry as a preliminary step in a civil prosecution, is not abrogated, and there is nothing in it, either unjust, or oppressive, or incompatible with our municipal system of civil polity. It is as much a rule of the jurisprudence by which we are governed as the doctrines of the common law, prescribing the form of actions, the modes and degrees of evidence, and a thousand particulars pertaining to the-course of a suit.
    Is it with the judiciary to dispense with a rule of such origin •and continuance? The legislatures of some of the states have ■enacted that, on a return of non est inventus, as to one of several defendants, the plaintiff may discontinue as to him not served, and take judgment against him dr them arrested. So it was in Pennsylvania and in Alabama. But in Barton v. Pellet et al. 7 Cranch, 194, it was held, that a plaintiff cannot proceed against one defendant in a joint action, unless he has proceeded against the others, as far as the law will authorise; unless the law dispense with the necessity of proceeding against the other defendant beyond a certain point to force an appearance.
    The plaintiffs below did not take even an alias cc/n'as,didnotpro-cure a return on the counterpart writ of non est inventus, but contenting themselves with a service on Hamilton discontinued as to Williams, and thus in consequence discontinued the whole action.
    J. 0. Harrison, for defendant in error,
    contended, that the court below did not err in refusing to give the instruction asked by the counsel of Hamilton, because the jury had nothing to do with the service, or return of the process; it being a matter not within the issue which they were sworn to try. Upon the issue of non as-sumpsit, proof that the writ had not been served on Williams should have been excluded; because such proof conduced neither to establish nor disprove the assumpsit of Hamilton.
    The proof in a cause must be relevant to the issue; and the instruction given must be predicated upon the proof.
    The note sued on was a joint and several. The statute so declares every promissory note to be. Revised Code, 108, sec. 26. There was, therefore, not only a joint, but a several liability to. pay the same. There was, of course, a right of action against the two jointty, or against such separately. For rights of action always follow legal liability. 1 Chitty, 48.
    It does not appear from the record, that Hamilton objected to the trial, because of the discontinuance as to Williams. He asserted that the cause should proceed, notwithstanding the discontinuance, because he filed his plea, and submitted the whole cause to the jury. Is not the objection waived, and does it not now come too late, even if it had been sufficient, if taken at an earlier stage in the cause? See Revised Code, 124, sec. 91, which declares that no judgment after the verdict of twelve men, &c., shall be reversed for any defect in the writ, &c., for any misplead-ing, discontinuance, &c.
   Mr. Chief Justice Shakicey

delivered the opinion of the court.

This action was brought by Lyons and Gilmore, against Williams & Hamilton, as partners, and process was issued to Madison county against Williams, which was nót returned, but process was duly served on Hamilton, in Hinds county, and he appeared and pleaded to the action. A discontinuance was entered as to Williams, and on the trial, Hamilton requested the court to charge the jury, that they could not find against' him alone in the absence of the writ against Williams, and without a return thereon; which instruction the court refused to give, and a verdict was rendered for the plaintiffs. This is the ground on which the case is brought to this court. ■

This proceeding was in conformity to the practice as it has prevailed in this state; and I Avas inclined to think that it was authorised by some statutory provisions; but I have not been able to find any that existed prior to the last session of the legislature. As a practice deriving its force from the common law, it Avould rest upon questionable grounds..

In joint contracts, a plaintiff could not proceed against one until the appearance of the other; but in process, not bailable where the cause of action was joint and several, the whole of the parties might be included in the process, and the plaintiff might declare against them separately. 1 Sellon’s Practice, 236.

This rule would furnish an analogy in support of the present case. The process was not bailable, being in reality nothing more than a summons, and by our practice, the declaration is filed when the writ issues, so that a plaintiff might lose the privilege of proceeding against such as were served Avith the process, if he could not discontinue as to the others.

The contracts of partners, so far as their liability is concerned, are joint and several, each partner being liable for the Avhole amount, and no injury can therefore result from permitting a discontinuance as to one, Avhen it does not change the liability of the other. Whatever the rule may have been, however, it must now be considered as fixed by the operation of the act of 1836. See laAVS of 1836, p. 62. By this act the contracts of partners are declared to be joint and several, and a plaintiff may sue any member of a firm, either severally, or as co-partners. It is presumable that the English rule only existed because of the joint cause of action, a party not being at liberty to shoiv by the record that the contract was joint, and to proceed against one alone. If the joint interest did not appear on the record, it was pleadable in abatement, and whenever it appeared to the court, the party was not allowed to progress against part of the joint contractors, but was compelled to begin de novo against all that were liable.

If this was the reason, as I take it to have been, it is wholly destroyed by the statute above mentioned, since it is quite as reasonable that a discontinuance may be entered as to one partner, as that he may be left out entirely at the discretion of the plaintiff.

After the discontinuance, it becomes but a suit against the party retained as defendant, and as he could not object if it had been against him alone, it seems unreasonable that he should be allowed to object to a discontinuance as to his co-partner, and that he alone is prosecuted. The statute was evidently designed to facilitate collections from partners by removing what were considered technical objections, and it is but just that it should be so construed, as to effect the object desired.

As this suit was tried before the passage of the act, there may be some doubt whether it'ought to operate on the case before us; but if the judgment were to be reversed, and the cause remanded, at the next trial it would be subject to the operation of the statute, and the plaintiff could then do what he ■ has already done, discontinue as to Williams, and it must; therefore, be useless to remand a cause, where the court would be authorised to proceed precisely in the same way that it has already done. Independent of this consideration, however, I am not satisfied that it was error by the common law to discontinue as to Williams. If the contract had been purely joint, I should have entertained no doubt, but being joint and several, it is by no means clear to my mind, that it was error.

Judgment affirmed.  