
    Garner, Boyles and Baker against James and Wm. Simpson.
    
      June, 1822.
    
    In action vs. three as partners, the of nraTest factum by two is sufficiently verified by affidavit of one.
    THE Writ was executed on Baker only. The declaration was against all three, charging them as partners on their writing obligatory sealed with their seals. Garner and Boyles plead “ that they ought not, nor ought either of “ them, to be charged with the debt, &c. — because they “ say and each of them says said writing is not his deed, “ and of this they and each of them put themselves upon “ the country.” To this was annexed the affidavit of Garner, that the facts, stated in the plea “ as to himself are true and as respects 'C. Boyles he believes to be true.”
    On motion of -the plaintiff this plea, was ordered to be ■stricken out. 'Garner and Boyles offering no other plea, and Baker having failed to plead, the Circuit Court rendered judgment against the three defendants for the debt, &c. They sued out a writ of Error to this Court, and assigned as Error the foregoing-order, &c. of the Circuit Court.
   Judge Sajfold

delivered the opinion of the Court.

By the Statute, no plea of non est factum shall be admitted, but when accompanied with an affidavit of its truth. It is contended that each defendant re3ying on that plea, must make affidavit of the truth thereof; that the oath of one defendant is not admissible as to the plea of another; that a joint plea, if not good for all, is good for neither, and ought to be stricken out

By the Act of 1818 (Laws Alaba. 449) when a writ shall be issued against all the partners of any .firm, service of the same or any one of them, shall be equivalent .to service on ail, and the plaintiff may file his declaration and proceed to judgment as if the said Writ had been served •on each defendant.

Kelly and Hutchisson, for plaintiffs.

Henderson and MClivry, for defendants in Error.

It is to be presumed that the Legislature proceeded on the supposition that each partner was conversant with the transactions of the firm, and competent to make such de-fence as the merits of any controversy might require. The Writ may he often served on some of the partners here when others of the firm reside in Mew-Yorlc, Mew Orleans, ■or even in Europe. If under such circumstances the resident partner cannot make full and complete defence to all suits .so instituted, the consequences might be extremely inconvenient and unjust. In joint. actions against joint obligors and promissors, judgment cannot be rendered against any one until he has been served with process, and each would have an opportunity of pleading for himself. The same hardship and injustice would therefore not result, from requiring such a plea to be verified by the oath of each defendant pleading it. The Court is of opinion that ,the Circuit Court erred in striking out the plea, and that the judgment must be reversed, and the cause remanded,

Judges Clay and Ellis not sitting.  