
    *Brown v. Belches.
    April Term, 1791.
    Pleading and Practice — Partnerships—Failure to Serve Process on One Member — Abatement. — Action against, two partners to recover a partnership debt. The writ was executed on one only, and as to the other, he was returned “no inhabitant of the city,” and the suit was entered, abated as to him. One partner may be sued alone for a partnership debt, and he can help himself only by a. plea in abatement. Though the declaration state a joint contract, this does not vary the rule. The suit was properly abated, as to the partner not served with the process, under the act of assembly.
    This was an action on the case, upon an insimul compulasset, instituted in the Borough court of Williamsburg' by Belches against Brown the appellant, and William Eaton. The declaration is against both, but an abatement of the suit was entered as to Eaton, upon the return of the writ, that he was no inhabitant of the city. —Plea, non assumpsit. — By consent of parties the cause was referred to arbitrators, whose award, it was agreed, should be the judgment of the court. This order was not discharged, but at a subsequent term a jury was impanelled, who found for the plaintiff. — A new trial being granted, a second verdict was found in favour of the plaintiff, and j udgment being accordingly entered up In his favour, the defendant appealed to the District Court of Williamsburg where the judgment being affirmed, an appeal was taken to this court.
    
      
      PIeading — Partnership—Failure to Serve Process on One Member of Firm — Abatement.—All contracts with partners are joint and several, and every partner is liable to pay the whole, and in what propprtioñ the others are contributors is a matter merely among themselves. The plaintiff may, however, brings his action against one, but he may compel, by a plea in abatement, the plaintiff to join them; but if one partner is out of the kingdom, and not amenable to the process of the court, then the plaintiff may proceed singly against the other. Courson v. Parker, 39 W. Va. 521, 20 S. E. Rep. 581, citing Brown v. Belches, 1 Wash. (Va.) 9. See, citing the principal case for the above. Shields v. Oney, 5 Munf. 552; Early v. Clarkson, 7 Leigh 90; McVeigh v. Bank,'26 Gratt. 825; .foot-note to McCall v. Turner, 1 Call 133; Swin-dell v. Harper, 51 W. Va. 381, 41 S. E. Rep. 117. See also, monographic noteon “Abatement, Pleasin’’ appended to warren v. Saunders, 27 Gratt. 259.
    
   The PRESIDENT.

— The objection made to the judgment, is that it could not be entered against one partner only, upon a partnership transaction.

The case of Rice v. Shute, — 5 Burr. 2611 shews, that one partner may be sued alone, and that the plaintiff shall not be nonsuited at the trial upon proof that there are other partners. If the defendant would take advantage of that circumstance, he must plead in abatement, and point out the other partners.

The distinction between torts and contracts is over-ruled, and the principle seems to be established that the party contracted with may be sued alone.

In this case the plaintiff took out his writ against both ; one could not be found, and, according to the act of assembly, the suit abated as to him.

The defendant, who was arrested, pleads that he did not assume — The jury have found that he did — The defendant, without assigning errors or taking any exceptions, appeals from a general verdict.

Though the declaration charges, that the defendant with another assumed, a fact which as to that other is not tried, yet, this does'*,not vitiate the defendant’s assumpsit, which is found against him.

Judgment affirmed.  