
    John Yancey vs. Marriott, Frisby & Co.
    Action. Jurisdiction. Counterpart of Writ. In a joint action, against several defendants, where they reside in different counties, the court takes jurisdiction for the issuance of counterparts of the writ, by the institution of the suit in the county where one of the real defendants resides. It is this fact which confers the jurisdiction by virtue of the act of 1820, ch. 25. That act being designed to promote the convenience of the parties by bringing them all under the same jurisdiction, admits of no evasion of its spirit and intent, by substituting a merely nominal instead of a real defendant in the original Writ. It it imperative in its terms, and only authorizes the issuance of counterparts, when suit has been instituted against one of the real defendants, in the county of his residence.
    Pleading. Abatement. After plea in bar. ' When an action is instituted in a county where one of several defendants resides, and counterparts issued to other counties and served upon other defendants resident therein, and before trial a nolle prosequi is entered as to the original defendant, it is matter in abatement, and may be taken advantage of after a plea in bar, by plea in abatement, but not by motion to dismiss.
    Same. Same. After a plea in bar the defendant cannot in general plead in abatement, but it is otherwise when the matter in abatement arises after the plea in bar.
    Partnership. Evidence. Interest. Although a partner in an action against the firm may be examined to prove the justice of a debt, after the partnership is proved aliunde, yet he cannot be heard on a question of the existence of the partnership, for by establishing the partnership in favor of the plaintiff, he onerai.es his copartner with the-flebt, and exonerates himself to that extent, as he would be only liable over to his copartner as between themselves for one half. Vansandt vs. Kay, et al, 2 Hump., 112.
    FROM GREENE.
    This was an action of debt brought by Marriott, Erisby & Oo., against ¥m. G. Stuart & Oo., in the circuit court of Greene county. Stuart was resident in the county of Greene, and John Yancey the other member of the firm, was resident in the county of "Washington. A -counterpart of the writ was issued to Washington, and served upon defendant Yancey, who appeared and defended. Judgment by default was taken against defendant Stuart, and afterward on motion of plaintiff’s counsel set aside, and a nolle proseqwi entered as to him. Two days after the nolle proseqwi was entered as to Stuart, the defendant Yancey having plead in bar to the action, moved to dismiss the suit on the ground that he had been served with process in Washington, the county of his residence, and the suit was pending in Greene with no co-defendant of record, served with process in said county, which motion was overruled. On the trial the declarations of Stuart were permitted to be proven as to the existence of the partnership, to which the defendant objected. There was verdict and judgment for the plaintiffs, and a motion for a new trial overruled; Lucky, Judge, presiding. Yancey appealed in error to this court.
    T. D. Aenold, for plaintiff in error.
    This is an action of debt commenced by the plaintiffs in the circuit court of Greene county — William G. Stuart resided in, Greene county — John Yancey resided in Washington- county. The original summons issued in Greene county where the suit was brought, and was executed upon Stuart, the defendant, who resided in Greene county — a counterpart issued to Washington county where Yancey resided, and was executed upon him in that county. See Kecord, p. 1 and 2.
    After the jury was empannelled in the case, the plaintiffs entered a nolle prosequA as to William G. Stuart, the party, and the only party, who resided in the county where the suit was brought. See Kecord, p. 10. Previous to this time, to-wit: at June term, 1852, on Tuesday, the 15th day of that term, a judgment by default had been taken and entered on record against the said William G. Stuart, he having failed to make any de-fence. See Kecord, p. 8.
    Judgment by default in debt is final; could that judgment at a subsequent term be set aside for any purpose? It is believed it cannot be. Put it was set aside by the court, and a nolle prosequi entered. See p. 10, as above referred to.
    Can a nolle prosequi be entered upon the original summons, as to the only party who resides in the county where the suit is pending. In other words, can the counterpart stand without the original summons ? When the original summons has been dismissed, can you retain the counterpart? After Stuart and the original summons is gone have you any jurisdiction of Yancey, who resides in Washington county, and the counterpart of the original summons which is expressly considered a part of the original summons. See Act of 1820, chap. 25. 0. and Nicholson, p. 416.
    
      The original writ or summons in this case is the leading process. Can yon dismiss the leadwig process in any case without dismissing the suit? It is believed it cannot be done.
    By the Act of 1820, above referred to, and sec. 3d, it is enacted; “ In all cases where a suit shall or may be required to be brought against two or more defendants in any one of the courts of this State, who reside in different counties, it shall be la/wful for the clerk of such court, and he is hereby required, when he issues a writ (summons now) directed to the sheriff of his county in which one of said defendants may reside, on application to issue a counterpart or counterparts of such writs to the sheriff of such counties where the other defendants may reside, which, when executed and returned, shall constiMte a pa/rt of the original writ, or leaching process of such suit in the cou/rt to which the same may lye reformable; Provided, Nothing in this section contained, shall be so construed as to authorize suits to be brought in a county, where neither of said defendants do in fact reside.” Stuart is no longer a party to this suit. It stands as though he never had been made a party. Then do neither of the parties, (there is but one,) reside in Greene county, and from the time a nolle proseguí was entered there was no cause in court, and every subsequent act was void.
    The original and leading process is the foundation upon which .the whole case stands. That dismissed, the whole suit is gone. Every step you take after that, is directly in the face of the law. You have no party in the county where suit is pending, who has been served with process, and the case of Rich and others, in error vs. 
      Raye, in 2 Hump., 404, help the ease out. Nor does the case of Vcmzcmdt vs. Kay, amd others, authorize a nolle proseqwi in such a case as this. See 2 Hump., 106.
    Did the legislature mean by the Act of 1820, sec. 3d, to allow a party to compel Ms adversary to travel from Johnson to Shelby, by issuing the leading process in Shelby against his most important witness who might happen to reside there, or who was accidentally caught in the county of Shelby? The cause stands upon the docket, and is litigated for ten years, as is sometimes the case in our courts. The party travels from Johnson to Shelby, 2400 miles every year, in ten years he would travel (24,000) twenty-four thousand miles, at an expense of $100 every trip, which would be just $1,000, independent of time in traveling 400 miles out, and 400 miles in. At the end of ten years, the plaintiff comes into court and acknowledges he has no cause of action against the person sued in Shelby, but says he is my main witness, and I now enter a nolle proseqm against him. I have cheated the law. I have used the party in Shelby as a stool-pigeon to bring you here, and having brought you here, I acknowledge upon the record I had no cause of action against my witness, but will litigate the case with you here, now I have got you here, and that too where you are an entire stranger, and I am at home in the midst of numerous friends, and large and powerful family connections.
    Did the legislature ever mean, when they gave the counterpart of the writ, to put it in the power of one man to harrass and oppress another to this extent? I think not. I think it is not the law. The case of Rich, et ad, vs. Raye, 2 Hump., 404, which was relied upon by bis honor the circuit judge, as settling the law of this case, it is confidently believed does not touch it. In that case there was a plea in abatement. The court held the plea bad in substance and in form. The plea impeached the motives of the plaintiffs, alledging that the parties in Jefferson had been summoned, out of fraud, and guilefully to cheat the circuit court of Grainger out of the juris" diction. There was no nolle prosequi in that case, but a verdict as to all the parties, some guilty, some not guilty.
    Here is a nolle prosequi as to the only party that gave the court jurisdiction of the cause. The jurisdiction of the whole case is gone, it is most confidently believed. You cannot destroy the substance and retain the shadow.
    
    Our acts of assembly authorizing counterparts, is an innovation upon the common law proceeding, and must be construed strictly. The act of 1820, § 3d, says, “provided nothing in this section contained, shall be so construed as to authorize suits to be brought in a county where neither of said defendants do in fact reside, &c.” The moment a nolle prosequi is entered against William G. Stuart, he stands as though he never had been sued in the case. There being no other party in the county, no counterpart could issue, or if issued, could not be retained. . The right of being sued at home, is a very-important right, that a man should not be cheated out of. There are important advantages attached to it. This we all know. This the legislature manifestly thought. They positively assert that you shall not issue a counterpart, unless one of the parties reside in the county whore the suit is brought. You cannot sue the maker or drawer of a promissory note, bill of exchange, or other negotiable instrument, by serving a counterpart of the summons upon him. The original writ must be served on some one of them, or they .are not bound to answer. This shows the legislature felt the difficulty and danger 'of counterparts of writs, and that there was a material difference between the leading process and the counterpart. This same distinction is made in the act of 1820, See. C. and N., 416, 417.
    Nor does the act of 1835, chap. 87, authorizing a nolle prosequi to be entered in all suits, &c., help them, out of this difficulty. For it is supposed, that it will ¡not be contended that this law repeals or modifies the law of 1820, which prohibits a counterpart, where some one of the parties do not. reside in the county where the suit is brought.
    But it may be said, we ought to have plead* in abatement. This we could not do at the time the nolle prose-qui was entered. All was right up to that time, prima faeice. The return term had long since elapsed. Issue was taken upon the plea of Nil debet — and a plea in abatement could not have been pleaded at that stage of the cause. A motion to dismiss or strike the cause from the docket, was the proper motion.
    The merits of the case are altogether with the defendant. The weight of proof is overwhelming, that there was no partnership, and that Vancey was only a friend and guarantor, and in that respect felt interested in the success of the. concern, and wished to see that his liabilities as guarantor were liquidated.
    His honor, the judge, on this point, allowed the declarations of Stuart to be given against Yancey, to prove that Tancey was a partner. This was error. See 3 Starkie, part iv., p. 1070, 1, 2, and 3.
    Although the declarations of each individual member or admissions of a firm, that he is a partner, is evidence to charge himself, it is no evidence of the fact against any other party. See 2 Greenl., part iv, § 483, 484, beginning at figure 5 in section 484, p. 308. 2 Hump., 106, Vanzcmdt vs. Kay, Thomas da Co. Also, 10 Hump., 483, MoKemvy vs. Patterson & Crosvenor.
    
    D. T. PatteksoN, for defendants in error.
    This is an action of debt brought by Marriott, Erisby & Co., merchants of the city of Baltimore, against William G. Stuart and John Yancey, copartners, trading under the firm and style of W. G. Stuart & Co.; before the trial a nolle jprosegwi was entered against William G. Stuart, and the suit prosecuted to judgment against John Tancey alone.
    The proof in the record is conclusive, that Tancey was the partner of Stuart, and a member of the firm of William G. Stuart & Co., and there can be no sort of question raised as to the insufficiency of the proof, or that the verdict of the jury is not fully sustained by the testimony.
    But it is urged that the court below, erred.
    1. In refusing to dismiss the suit of the plaintiffs on the motion of the defendant in the court below, on the ground that the circuit court of Greene county, had no jurisdiction of the cause.
    The third section of the act of 1820, N. & C., p. 416, authorizes the clerks of the circuit courts of this State, where a joint suit is brought, and the defendants live in different counties, to issue counterparts of the summons to the Sheriff of the county, where the defendant or defendants may live. Under this act, a suit cannot be brought in a county where neither of the defendants in fact live, or a suit, local in its character, in a county other than that which is now required by law. This is an action of debt, not local, but transitory in its nature. Nor is it pretended that Stuart, at the date of the original summons, was not a resident of the county of Greene, where this suit was brought. See act of 1820, N. and C., p. 416.
    But suppose for the sake of the argument, that the circuit court of Greene county had no jurisdiction of this cause, after a nolle prosequi was entered against Stuart, then the plaintiff in error could not avail himself of this want of jurisdiction by mere motion, but must plead in abatement. Act of 1820, p. 416. Rich et als. vs. Rojyle, 2 Hump. R., p. 404. Gould on Pleading, chap. 5, § 13-30, p. 231, 234. Chitty’s Pleading, p. 475, 476, 477, 478, and 479.
    The plaintiff has the right in all cases, to enter a nolle proseqm against a defendant or defendants, and proceed against the remaining defendant or defendants, as though the suit had been originally instituted against him or them alone. See act of 1835, N. & O., p. 542.
    2. It is insisted that the court erred, in allowing the plaintiffs below to introduce William G. Stuart, as a witness to prove the justice of the demand, sued on in this suit. The circuit court had the clear and undoubted right to permit Stuart to be examined as a witness, to prove the account sued on, but to prove no other facts in the cause. t
    
    The partnership, between Yancey and Stuart was fully and satisfactorily made out by the testimony of David Brown, before Stuart .was offered as a witness. (See Brown’s testimony, p. 20, 21, and 22, of the Eecord.) The plaintiffs .below offered to prove no other fact, and indeed proved none other by Stuart, than that the account sued on was a just one. (See p. 28 of Eecord.) As to Stuart’s competency to prove the fact, he was introduced to establish — see Vanzcmclt vs. Kcuy, Thomas & Oo., 2 Hump., 106.
    3. It is insisted, by the plaintiff in error, that the coui’t below erred in permitting the declarations of Stuart as to Yancey being a partner of the firm of "W". G. Stuart & Co., to go to the jury.
    The plaintiff below did not offer to prove the declarations of Stuart, until after the partnership had been fully proved by the admissions of the plaintiff in error himself. See Brown’s testimony, p. 20 of Eecord. And certainly there can be no objection to proving by the declarations of Stuart, a fact that the plaintiff in error himself had admitted to be true. But if there was any thing in this objection, the plaintiff in error is not in a position to avail himself of it. By the cross examination of Stuart, as to matters not ashed about in chief, he- made him his own witness, and by him the plaintiff in error makes out fully the fact, that he was a member of the firm of W. G. Stuart & Co. 1 Greenl., sec. 445. 14 Peter’s Beports, 448, 461. Eoscoe’s Crjm. Evi., 84, 85, 86. 1 Greenl., § 177.
    But suppose there was error in permitting declarations of Stuart to go to tbe jury iu tbe first place. These declarations were in substance and effect taken from tbe jury by tbe court. "When Stuart was offered as a witness, tbe court beld that he was competent to prove tbe justice of tbe account sued on in this case, but not to prove any other fact — or that Tancey was a member of tbe firm of W. G. Stuart & Oo. See p. 27 and 37 of the Record.
    A new trial will not be granted, where tbe court can see that tbe jury have not been misled, and substantial justice has been done by tbe verdict between tbe parties. Gregory vs. Allen, M. and Yerger, 77. Da/vid vs. Bell mid wife, Peck’s R., 135-6. Kelton vs. Blevm, 1 Cooke, 102. Graham on New Trials.
    T. A. R. NelsoN, for defendant in error,
    1. There was no error in allowing William G. Stuart, one of tbe partners, to prove tbe justness of plaintiff’s account, as bis examination in chief was restricted to that; and all other facts proved by him were brought out on cross examination. See Record p. 26, 36. Vmi-zandtrs. Kay, 2 Hump., 110 and 112, (cited in 2 Meigs’ Dig., 1053, No. 20.)
    In England and New York, it is beld that a partner, who is not a party to tbe record, may be examined as a witness to prove tbe partnership. See Collyer on Part., § 787. And, in a late case it has been beld, in England, that a partner who is a party to tbe record, may be examined. Ibid. § 792.
    All tbe cases, however, agree that if tbe partnership is established aMwide, one of tbe partners may be examined to prove other facts in the cause. Collyer, § 788, § 789, § 790.
    2. There was no error in allowing David Brown to prove Stuart’s acknowledgments of the existence of the partnership, as the evidence was not objected to. See p. 47, and it was brought out on cross examination, p. 20. And especially as the existence of the partnership was previously proved by Brown. See Record, p. 20, 37. Collyer, § 779, § 688. 1 G-reenl. Evi., § 177, p. 233, § 527 a.
   Caeuthees, J.,

delivered the opinion of the court.

After judgment, final by default against Stuart, and at the next term of the court, upon motion, the same was set aside and a nolle prosequi entered as to him. Two days after this proceeding, the cause came on to be tried, against John Tancey, the other defendant charged as a partner. After the-jury was empannelled, the defendant Yancey moved to dismiss the suit upon the ground, that it was brought in Greene county, and the original writ served there upon Stuart, who was a resident of that county, and a counterpart served upon him in Washington county, where he resided. He insists that the court had no jurisdiction of the case after it was dismissed as to Stuart.

In transitory actions, it is the service of the writ or summons „in the county where the suit is instituted, which gives the court jurisdiction of the person. It often happened that persons jointly liable, lived in different counties, and consequently they could only be m'ade responsible, by distinct and several suits in their respective counties. To remedy this inconvenience, the act of 1820, ch. 25, was passed, by which counterparts of the original process could be issued, so as to bring all that were jointly liable to one jurisdiction. But the proviso restrains the Act to cases where the suit is brought in a county, where one of the defendants “ does in fact reside.” Car. & Nich., 416, § 3. It will not do to hold that under this Act, the mere fact that the original summons is served upon some resident of the county, where the suit is brought, who is made defendant and discharged before the trial, will give jurisdiction to the court, against a resident of another county, who is brought in by a counterpart. If this were so, there would be no difficulty in any case in drawing a man out of the jurisdiction, where he has a right to be tried, no matter to what inconvenience and hardship it might subject him and his witnesses. It was the intention of the legislature to save the expense and trouble of a multiplicity of suits on the same cause of action, by bringing all the parties into the county, where one of the matérial defendants might reside.

But this is matter in abatement, and cannot be taken advantage of by motion to dismiss, as was done in this case. The same statute prescribes the mode of defence to a suit improperly brought in this respect, thus, “but the same may be abated upon the plea of the defendant.” There is perhaps no other mode by which the objection can be made available. It is true that in general after a plea i/n ba/r to the action, the defendant cannot plead in abatement/ but it is otherwise when the matter in abatement arises after the plea in bar. 1 Chitty on Pl., 441. In this case the. suit was against Stuart & Yancey as partners, and there was no ground of objection until the nolle prosequi as to Stuart, only two days before the trial. It was not until that was done, that a ground for abating the suit existed, and be would then have been entitled to the benefit of it by plea, but not by motion.

Secondly. The defendant insists that be is entitled to a new trial for errors in the admission of evidence. The defence of Yancey was placed mainly upon the ground that he was not a partner of Stuart, to whom the goods were sold, under the name and style of ¥m. Gr. Stuart & Co. David Brown was introduced by the plaintiffs as a witness to prove that Yancey was a member of the firm. After stating the acknowledgments of Yancey that he and Stuart were the owners of the store, he was asked to state what he may have heard Stuart say on the same subject; to which objection was made and overruled, and the witness permitted to prove the declarations of Stuart as to Yancey’s being his partner in business.” This was erroneous. He was not a competent witness for that purpose. Vanzandt vs. Kay, et als., 2 Hump., 112. Much less would his declarations, not on oath, be evidence. 1 Greenl. Evi., 229. He is directly interested in the question. By establishing the partnership in favor of the plaintiffs, he onerates the defendant with the debt, and exonerates himself, to that extent, as he would be only liable over to the defendant, as between themselves for one half. It is true, a partner may be examined to prove the justice of the debt, if the partnership be admitted or established by other evidence, but he cannot be heard on a question of the existence of a partnership.

Upon tbis ground tbe judgment is reversed and a new trial granted.  