
    
      Shields v. Oney.
    Decided, April 3d, 1817.
    i. Partners — Assumpsit against — Writ Served on One Partner Only — EfSect.—If, by direction of the plaintiff, the Writ be served on one only of two partners in trade, when the declaration shews that the plaintiff knew the names of both; and he get a verdict upon the plea of non assumpsit, pleaded by the partner, on whom the Writ was served; Judgment ought to be arrested.
    An action of assumpsit was brought in the County Court of Montgomery, by the Appellant against Oney and Lyle as merchants and partners. By his direction, the Writ was served on Oney alone, and all the subsequent proceedings were against him, although the declaration filed in the cause was against Oney and Lyle. Issue being joined on the plea of non assumpsit, the plaintiff, at the trial, introduced a witness, who proved that, “between the 13th day of November, 1804, and the 9th day of December, in the same year, he acted as store-keeper for the, plaintiff; that the plaintiff had an account, which he had charged against Oney and Lyle as partners ; that, during that time, he, at the plaintiff’s request, demanded payment from Alexander S. Lyle, who, it was admitted, was then a partner with the defendant Oney in the mercantile business; that Lyle said the account was just; but how much it amounted to, the witness could not say ; whether one hundred or two hundred dollars; but thinks it was more than one hundred dollars ; that Lyle left a Bond, which the witness thinks amounted to two hundred and fifty dollars, (being something more than the account,) to be collected and placed to his credit, but afterwards took it away.” Another witness proved that the said Lyle, after the partnership between him and Oney had been dissolved, acknowledged an account against Oney and Lyle, dated in 1804, amounting to 351. Is. 3%d. ; said it was just, and that the goods had come to the partnership’s use.
    The plaintiff also introduced an Indenture, bearing date the 7th of June, 1805, between Joseph Oney and Alexander S. Lyle, by which Oney was empowered to settle the affairs of partnership of Oney and Lyle, and pay its debts, so far as the funds, which in pursuance of the said Deed might come into his possession, would enable him ; Lyle was to receive his share of any balance, that might remain in favour of the firm ; but, in case of a deficiency, he was “by no means exonerated, but, on the contrary, was to pay his full proportion of the debts remaining due.”
    *This being all the testimony on both sides, the defendant demurred to the evidence, and a conditional Verdict was found. Upon the demurrer, the County Court entered Judgment for the plaintiff. The defendant obtained a Writ of Supersedeas from the Superior Court of Law. which reversed the Judgment; as erroneous in this, that the acknowledgment of Lyle, that the plaintiff’s claim was good against the partnership, was made after the dissolution of that partnership, and was the only evidence in the cause to charge Oney, who could not legally be bound by it, as Lyle was no party to the action ; and that the first confession of Lyle, which was made during the continuance of the partnership, was not such, as could subject Oney to the demand.
    Erom which Judgment, Shields appealed to this Court.
    Wirt for the Appellant,
    cited Brown v. Belsches, 1 Wash. 9, to shew 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.
    The first confession of Lyle, mentioned in the Demurrer, was sufficient to bind the partnership, and authorize a Judgment for the plaintiff.
    
      
      See monographic note on “Partnership” appended toBcott v. Trent, 1 Wash. 77.
      The principal case is cited in Bush v. Campbell, 20 Graft. 422.
    
   April 3d, 1817,

JUDGE ROANE

pronounced the Court’s opinion.

The Court is of opinion, that, although in actions against copartners, the plaintiff is bound to sue them all, he will be excused for not doing so, until, by a plea of abatement, he shall have been informed, who the other partners are: that an omission of such plea on the part of the defendant is a waiver of the objection by him ; and that he shall not be admitted to give it in evidence on the trial, even although it should also appear, in evidence, that the plaintiff knew who the real partners were. This plea is not, however, necessary, nor shall such waiver result from its omission, in cases, in which it appears, in the declaration, that the plaintiff had already that knowledge, which it would be the object of the plea to afford. The Court is farther of opinion that a plaintiff is not more at liberty to omit proceeding- against some of the partners, in cases, in which it appears, from his declaration, that he knew originally who they *were, than he would be, to’do so, after he has obtained that knowledge from the plea aforesaid.

The case of Brown v. Belsches does not conflict with this idea ; as, in that case, the other partner was exempted from farther prosecution, by the act of law, abating the suit as to him, and not, as in the case before us, by the act of the plaintiff. It cannot be said in this case that the Appellee could not be injured by the separate judgment against him. Every partner is liable to pay the whole debt ; and it would be hard to subject one to the whole weight of the judgment in the first instance, and leave him to go for contribution against his partner. It might have been otherwise in this case, had it appeared to the Court that the Appellee’s partner was (quoad him) released from his liability to pay the debt. That, however, does not appear, but the contrary, as is shewn by the deed made part of the demurrer to evidence.

Upon the Demurrer to Evidence, this Court would probably concur with the County Court; and thinks the Superior Court erred in its decision thereupon : but the Court is of opinion that the said County Court erred in giving judgment for the Appellant upon the Demurrer to Evidence, instead of arresting the judgment for the reasons now assigned. Both Judgments are therefore reversed ; and, this Court proceeding, &c., it is farther considered, that the Appellant take nothing by his Bill, &c.  