
    
      MARTINEAU & AL. vs. CARR & AL.
    
    The answer of a partner to interrrogatories suffices, if not excepted to.
    Murray, for the plaintiffs. u 1
    This case is a simple 0 one and , requires but little argument on the part of the appellees, who were the plaintiffs below, From an examination of the record no error can be discovered and it is believed none exists. The seventh section of the 26th chap, of the acts of the Legislative Council is conclusive in this respect.
    Baldwin, for the defendants.
    The only question for decision in this case is, whether-the District Court did right in considering the separates answer of one of two partners as sufficient, to an interrogatory put to them both'.
    ' It must be decided by the construction put upon the expressions contained' in the act of the first session of the Legislative Council, chap. 26, § 7. It is there required that the defendant should distinctly answer be. It does not speak in the plural. How are partners then to be considered ¡u their partnership transactions, or whefi they appear in Court as plaintiffs or defendants ? Are they to be considered as one or several individuals ? ' Are they to appear in the name of the firm, or qÍCjr rcai names '? It is true that one partner can bind all the others by his contract, but in a partnership debt or contract all the partners must sue or be sued : otherwise the suit cannot be maintained. 1 Comyns on Cont. 326. A partnership differs in this respect, from a body corporate. The latter is composed of natural persons, but in their corporate capacity their individuality is lost. It appears in contracts and in Courts by its corporate name, and is recognized by its attorney and by its seal. The former has no such attributes ; the members retain their individual character and are known by their real names, they must all appear as plaintiffs or defendants in petitions and answers. Interrogatories put by them must be in the name of all and when referred to them must be answered by all. It may often happen that any question proposed to the members of a firm will be answered differently by the different persons, according to their knowledge of the facts. One may be acquainted with circumstances and disclose what was desired to be known, of which the others may be totally ignorant. A person sued b)r a firm lias a right to a full discovery of all the knowledge of all the members. Otherwise it would be in vain to interrogate, as the one would answer whose information upon the Was the most limited. As all the members then are obliged to answer to a petition filed against them all, a fortiori they are obliged to answer to a question put to them all.
    
      West. District.
    October 1814
    
      It is, however, said that the 10th section of the same act provides for the excepting to insufficient answers and that the answer of one partner is good unless excepted to. To this it may be replied, that it must be an answer within the spirit and meaning of the provision before an exception can be required. For example, the answer must be upon a oath, in due form, taken before some officer authorised to administer oaths or it is no answer ; it must be an answer to some fact or matter contained in the interrogatory, cr it is no answer ; audit must be the answer of him who is interrogated on it or is no answer, and consequently need not and indeed cannot be excepted to. It is impossible to except to an answer thitt does not exist. As all the partners therefore are bound to appear and answer, if but one alone appears he cannot be received and the party interrogating will not be driven to exceptions. His proper remedy is to take the facts for confessed and pray for judgment. Here is nothing, to except to, for there is no answer. It is not “insufficient,” for it does not exist. The questions were put to Martineáu and Landreau and they are answered by the former only. •
    
      TH i s part of the statute is deemed to apply 1 # t * 1 1 ^ only where the answer is made with the requisite solemnity by the person or persons interrogated and having some application to the questions pr0p0sec^ |3Ut ⅛ evasive or not distinct; and shewing, or giving reason to believe or exciting a suspicion that the whole truth i^ not disclosed.
    Whence it is contended that the District Court erred in receiving the answer of one of the parties, and this Court ought to remand the cause with instructions to reject the answer, to take the interrogatory for confessed and give judgment accordingly.
    But admitting that the answer is in the form required by the statute, yet it is only good as to the person whose answer it is. It cannot be good for another. It cannot protect Landreau. An attorney may appear for all the defendants named in the petition : though when interrogated they must answer in their proper persons. An attorney cannot swear for them, nor can they swear for each other. Each witness testifies according to his own knowledge, not from the knowledge of others. If two or more persons join in an obligation and are sued and interrogated, they must all answer and the answer of one will not avail the others. If there are several endorsers of a bill of exchange who are sued and interrogated ; the answer of one will not serve the others. If two or more sign a negotiable note and are sued and interrogated; the answer of one will not aid the others. In all these cases then as they are all required and bound to answer, those who do not are in default and the interrogatories will be taken for confessed and judgment entered against them who thus refuse. These cases are similar to the one before the Court. This is a mercantile transaction ; and so are those as far as they extend, and as judgment must and would be given in the, foregoing cases against those who neglected or refused to answer, so the Court here ought to have given judgment against Landreau and the j udgment ought to be reversed as to him.
    Murray, in reply.
    It is true that partners must set out their names in petitions, but it is not true that all their names are required in answering. It is the usual practice to give the title of the suit at the head of the answer, and nothing more is required. It is however contended that when au interrogatory is put to two or more partners they are all bound to answer and that the answer of one alone ought not tobe received. This is considered to be incorrect, one partner contracts for all the others in all transactions which concern the partnership and they are all bound. Each one is presumed to be acquainted with all the circumstances relating to. their joint concerns: and it is natural and reasonable to suppose that where an interrogatory is referred to them, the full and explicit answer of one contains the information 1 . of the whale, as it is presumable that one would answer who was best informed upon the subject. t . . . . 1 , J It is not important to enquire into the difference gei:ween a partnership and a body corporate as the cause does not turn, upon the distinction. It mitst be decided upon the construction given to the statute first cited. A construction is attempted to be given to the statute which cannot be admitted. An effort has been made to shew a difference between an insufficient answer and a case like the present, where but one partner answers, which it is urged is to be considered as no answer. But it certainly is an answer and is ,to be taken as such until the contrary is shewn. It purports to be one and prima facie is so, and if no objection is made to it, it must and will be received as such by the Court. There is a wide difference between this and no answer. In the latter case the Court would take notice of the want of one and would "take the fact as admitted, though here they will consider it good until the defect is shewn.
    How then must it be made to appear ? The law is explicit. It must be by an exception and as the party did not resort to this plain and easy mode, he has waved the benefit of it, if any benefit could have been attained.
    It is next endeavoured to be shewn that judgment ought to have been given against Landreau as he did not answer, and to support the argument recourse is had to the rules of evidence. But if the . • ' . answer is presumed to be sufficient until the con-trury is shewn, this attempt must fail, for the receiving of it does away the effect of that argument. It cannot be correct reasoning to sav, that which is prima facie good does not exist. The judgment is correctly entered by the Court below and ought to be affirmed.
   By the Court.

It appears from the documents transmitted that the appellees brought their action on anote regularly transferred to them as merchants trading under the firm of Martineau and Landreau, by J. J. Paillette, in whose favor it was made by the appellants. In an amended answer, Nan-carrow, one of them, filed the interrogatories, the admission of the answers to which as evidence is made the basis of the exception to the opinion of the District Court. These interrogatories are put to Martineau and Landreau, the appellation by which they are known, as a commercial firm or societyn Martineau, one of the partners, makes to them a full and complete answer expressing a perfect knowledge of the transaction. In suits where partners are concerned, the opposite party might perhaps require the separate answers of each individual composiog the societv-In such a case the answers of every member would be necessary ; but when a firm is interrogated, as in -the present case, we are inclined to think t^at oh explicit and categorical answer of one partner is sufficient. No exceptions were made to ^ie 'nsu®,eiency of the answers in writing as required by law, previous to the trial'of the, cause. It is- therefore, ordered, adjudged and decreed that the judgment of the District Court be affirmed with costs.

There was not any case determined during the month of November.  