
    *Samuel Brealsford, Robert William Powel and John Hopton against George Meade garnishee of Thomas Woolridge and Abraham Lott surviving partners of William Kelly.
    A plea in abatement by garnishees, on a scire facias on a foreign attachment, that one of the parties was not named, is not good.
    Answers of the defendant to interrogatories filed against garnishee, cannot be received in the argument of a demurrer.
    This was a scire facias on a foreign attachment against the garnishee. The original attachment was issued in the Court of Common Pleas of Philadelphia county, returnable to December term 1783. The scire facias was returnable in the same court to September term 1790, and removed into this court by a certiorari in March term 1791.
    To this scire facias issued in the common form, the following plea in abatement was put in, on the 5th September 1791.
    And the said George Meade by Edward Tilghman, his attorney, cometh and prayeth judgment of the writ of scire facias aforesaid, and of the several proceedings therein mentioned; because he saith, that he the said G. M. on the 21st October 1783, and a long time before as well as since, was a co-partner in trade with a certain Thomas Fitzsimmons, using and exercising commerce and trade by the name and firm of G. M. and company, and that the said G. M. and T. E. on the same 21st October, in the year aforesaid, were indebted to Woolridge, Kelly and company, and to the survivors or survivor of them, (but whether the said company consisted of Thomas Woolridge, Abraham Rott and William Kelly then, or at any time, the said G. M. knoweth not, though he hath understood and believes that the said W. K. and A. E. were of the said company,) in the sum of 819I. 17s. 2d. sterling money of Great Britain. And the said G. further saith, that he the said G. was not at the time of service of the said writ of attachment on him the said G., and the summoning him as garnishee, or at any time afterwards, separately and distinctly from the said partnership of G. M. and company indebted to the said W. K. and company, or any of them, in any sum or sums of money whatever, nor had he the said G. M. separately and distinctly from the said partnership of G. M. and company at the time of the service of the said writ of attachment on him the said G. M., and the summoning him as garnishee, or any time afterwards, any goods, chattels, or effects whatever of the said W. K. and company, or the survivors or survivor of them, in the hands of him the said G. M., and this he is prepared to verify. Wherefore, because the said writ of attachment was served 011 him the said G. M., *4891 an<^ the said G. M. was there*upon summoned as a J garnishee separately and distinctly, and not as one of the partners of G. M. and company, and the said G. M. only, and not G. M. and T. F., is named in the said writ of scire facias, he prays judgment of the said scire facias, and the several proceedings therein mentioned, and that the same so far as they respect him the said G. M. be quashed, &c.
    Edw. Tilghman.
    And the said S. B., R. W. P. and J. H. by John E. Mifflin their attorney say, that for the reason above alleged their said writ of scire facias ought not to be quashed. Because they say, that long before the service of the said writ of attachment, to wit, on the 1st March 1782, the partnership of G. M. and T. E. under the name of G. M. and compatiy expired, and that on the 18th day of the same month, by a certain instrument of writing, sealed and executed by the said G. M. and T. F. it was agreed between them, that all the debts due to the said co-partnership of G. M. and company, by bill of exchange, note, bond, book debt, or upon policies of insurance should be received by the said G. M. only, who was authorized to give and take sufficient discharges, and that whenever any vessel in which the said co-partnership of G. M, and company were concerned should arrive, that so much only of the proceeds of the cargo as should be sufficient to reload and pay the outfit of the said vessel should be retained/and that the remainder of the proceeds of the cargo should be paid to the said G. M. until the debts of the said co-partnership were fully paid and satisfied.
    And the said S. B., R. W. P. and J. H. further say in 'fact, that the said G. M. before the service of the said writ of attachment, did take possession of the property of the said co-partnership of G. M. and company, and did receive the debts due to the said co-partnership, and the remainder of the proceeds of the cargoes of all such vessels as the said co-partnership were concerned in, (after so mnch of the proceeds of the said cargoes as were sufficient to reload and pay the outfit of such vessels were retained,) agreeably to the tenor and effect of the said instrument of writing or agreement, all of which said debts and the remainder of the cargoes aforesaid, were so received by the said G. M. for the express purpose of paying off the debts due by the said co-partnership of G. M. and company.
    And the said S. B., R. W. P. and J. H. further say, that long before the service of the said writ of attachment, to wit, on the 19th March 1782, the said G. M. did give public notice, by an advertisement in one of the public news-papers of the city of Philadelphia, of the expiration of the said co-partnership of G. *M. and company, and by the said ad ver- r^qn tisement did request' that all those who had any de- L mands against the said co-partnership, should call on him the said G. M. for payment.
    And the said S. B., R. W. P. and J. H. further say, that long before the service of the said writ of attachment, to wit, on the 1st March 1782, the said co-partnership of G. M. and T. F. under the name and firm of G. M. and company, expired, and that since the expiration of the said co-partnership the said G. M. has not been a co-partner in trade with the said T. F. using and exercising commerce and trade by the name and firm óf G. M. and company, or any other name or firm whatsoever.
    And the said S. B., R. W. P. and J. H. further say, that at the time of the service of the said writ of attachment, the goods and chattels, monies effects and credits of the said T. W. and A. R. surviving partners of the said W. K. were in the hands and separate possession, duration and management of the said G. M. only, and that the said goods and chattels, monies, effects and credits were' not at the time of the service of the said writ of attachment, or at any time since, in the hands or possession of the said G. M. and T. F. jointly, or in the hands or separate possession of the said T. F. and this they are ready to verify.
    Wherefore for that the said G. M. doth not deny that the said co-partnership of G. M. and company were long before and at the time of the service of the said writ of attachment indebted to the aforesaid co-partnership of W. K. and company, which said co-partnership of W. K. and company consisted of the aforesaid W. K.' T. W. and A. K. whereof the aforesaid A. K. and T. W. have survived the said W. K. and as the survivors of the said W. K. are made the defendants in the aforesaid writ of attachment; and because it appears, that the said G. M. at the time of the service of the said writ of attachment, to wit, on the 21st October 1783, and long before, had received and taken possession of the property of the co-partnership of G. M. and company, for the express purpose of paying off and satisfying the debts due by the said co-partnership; and because the said G. M. did give public notice by a public advertisement in one of the newspapers of the city of Philadelphia on the 19th March 1782, (which was long before the service of the said writ of attachment) and by that advertisement did request, that all those who had any demands against the said co-partnership of G. M. and company should call on him the said G. M. for payment; and because the goods, chattels, monies, effects and credits of the said T. W. and A. K. surviving partners of the said W. K. were at the time of the service of the said writ of attachment in the hands and separate possession of the said G. M.; therefore the *4911 S. B. R. W. P. and J. H. pray that execution J for their damages of the goods and chattels, rights and credits of the aforesaid T. W. and A. E.‘ who survived W. K. in the hands of him the said G. M., be adjudged to them, &c.
    Wm. Kewis.
    The defendant demurs generally to the replication.
    The plaintiffs join in demurrer.
    Pending this demurrer, Thomas Woolridge died, and Abraham Eott the surviving defendant, died after the continuance in September term last, which was verified by the defendant’s affidavit. Both their deaths were suggested on the record, and a rule entered in Januarj' term last, to shew cause why the proceedings against the garnishee should not be staid, and why George Davis administrator of Abraham Eott who survived Thomas Woolridge, should not appear to and defend the original suit against Woolridge and Eott, who survived Kelly.
    The demurrer was now argued by Messrs. Ingersoll and Tilghman for the defendant, and by Messrs. Eewis and Mif-flin for the plaintiffs.
    Eor the plaintiffs it was urged, that the defendant by his advertisement had made himself liable in his separate capacity to pay the company’s debts.
    If one assumes to A to pay to C money on a good consideration, C may have an action for the money. 1 Ed. Raym. 368, 369. So if the promise be to deliver goods to C. Hardr. 321. If A bails money to B to be delivered to C on demand, C may bring debt against B, because by the receipt thereof he made himself debtor to B for the money. Gilb. Cas. in Law and Equ. 362. And cites Brownl. 82. Yelv. 23. Moor. 667. Ow. 127. Cro. El. 729. Debt lies on a deed in these words: “It is agreed, that C shall pay unto P 700I. for I S’s “house and the lands in B.” 1 Sid. 423. A son, on good consideration, promises to his father to pay 1000I. to his sister; she may bring suit on the promise made to her father. 2 Lev. 211.
    They further insisted, that under the attachment law of 4 Ann. (1 St. Laws, 44.) Attachments shall be served on the goods and chattels of the debtor, in whose hands or • possession, the same may be found. There is no distinction between attaching identical articles, and mere debts or choses in action. — If a bale of goods had been levied on under this attachment, there could be no doubt of the regularity of the proceedings.
    *The case of plaintiffs in a foreign attachment dif- p^oo fers greatly from those whose process originates by L capias or summons. I11 the former, they are mere strangers to garnishees, or their connections in trade; but in the latter they always are, or ought to be, conusant of the adverse parties. No contract is alleged in the scire facias against the garnishee, and therefore the allegata et probata cannot possibly differ. If an advantage in common cases is attempted to be tab en of a secret partner not being named in the writ, the true partnership must be shewn in-pleading; and the plaintiff may then proceed against the true company by a new writ. But a scire facias against the garnishee must pursue the original attachment as levied, and no different scire facias can be sued out. Hence under the defendant’s construction of the law, a plain mischief would be produced, and the want of service of an attachment on a person really unknown, must necessarily defeat the whole proceedings. If one of the partners of a house, who were garnishees of a foreigner, lived beyond sea, and could not be served, it might thus be pretended that the process was irregular. Whereas if one partner is arrested in a common cause, judgment and execution may go against him. This would put plaintiffs under foreign attachments in a much worse situation, than in the usual mode of proceeding. If one consigns goods to A and B to be sold, he must bring his writ against both; but a creditor of tlie shipper may attach the goods in the possession of either of the consignees.
    If Fitzsimons was insolvent, Meade would be answerable for the whole of the company’s debts. Every partner is liable to pay the whole. Their contracts are joint and several. 5 Burr. 2613. There is no inconvenience in bringing a suit against one partner. An execution may be taken out against one, where the action is brought against all. In both cases, the other partner may be compelled to a contribution. 2 Black. Rep. 696, 697.
    
      If a defendant should die before the execution of a writ of inquiry on an attachment, it would certainly abate the suit, and this point has been so determined by Mr. President Ship-pen in the Common Pleas of Philadelphia county; but it would be otherwise after the final judgment. The judgment in this case was obtained before the late law reviving suits.
    A court of justice may impose terms on executors or administrators applying to open common judgments, by directing them to remain as a security. It would be difficult to say what terms could be made in foreign attachments where no special bail is given.
    The case before the court is not altogether new. In Van-*4931 uxem *v• Eockwood, garnishee of Means, in the Com- -* mon Pleas of Philadelphia county, it was resolved by Mr. President Biddle, that a plea in abatement, alleging that one of the partners was not named, would not hold against the scire facias grounded on a foreign attachment.
    It is moreover worthy of much consideration, that the last fact stated in the replication, is “that the goods and credits “ of Woolridge and Eott, surviving partners, were at the time “of the service of the attachment, in the hands and separate “possession of Mr. Meade only, and not in the hands and “possession of Meade and Eitzsimons jointly, or of the latter “separately.” This is an independent ánd separate allegation, and the fact stated is admitted by the demurrer. This exclusive possession of the defendant of the credits in question, may have happened through the permission of Mr. Eitzsimons, or the consent of the creditors. And in this light, the notable defects suggested, of Eitzsimons not being served with the attachment, or summoned as a garnishee, are wholly without foundation.
    The defendant’s counsel, in their argument, offered to read the answers of the defendant to the interrogatories filed in the cause, and said that they formed part of the record. This was objected to.
   per curiam.

And The interrogatories and answers are mere matters of evidence to a jury, but can have no weight in the argument of a demurrer, and cannot now be received.

They then said the object of their special plea was to effect a fair distribution of the property of Woolridge and company among all their creditors, as it might possibly be objected on the general plea of nulla bona, that the partnership of Meade and Eitzsimons could not be given in evidence.

The only doubt on the plea filed, arises from the dissolution of the partnership, and the advertisement of Mr. Meade previous to the attachment levied. But the evident intention of that agreement, and the publication, was merely that Meade should be the agent of their joint concerns. It never was in their contemplation that former rights should be destroyed, nor could any thing they did have such possible operation. If Meade had become bankrupt, the creditors of the late company could not have obtained a dividend of bis private estate, equally with his other creditors. The clause relied on, in the attachment law, is referable to one in possession of goods, but cannot relate to a company owing debts to a foreign house. All the company effects, on Meade’s death, would be vested in Fitzsimons to pay the partnership debts; and in case of Meade’s bankruptcy, Fitzsimons, the solvent partner, would have a right to take the * partnership effects into his own hands, to enable him to pay the debts. L Meade and Fitzsimons could not by their mere acts prevent their creditors from bringing suits against them both. The concurrence of their creditors would be necessary to effect this. Woolridge and company, the most nearly concerned in interest, have not consented, and without their concurrence the plaintiffs in the attachment could not change the settled law. Where one does nothing of trouble to himself, or benefit to the defendant, but is a mere stranger to the consideration, he shall not recover, i Vent. 6, 7. The object of an attachment is to bring the defendant into court. If the defendants had entered special bail, they might plead in abatement, that Fitzsimons, the other partner, was not named. If Fitz-simons had died, Meade could have been proceeded against only as the surviving partner. And if Woolridge and company had brought suit for their debt, it must have been against both partners.

It is admitted that some inconveniences may arise to plaintiffs in foreign attachments; yet it is submitted, whether these should weigh against settled rules.

The plaintiffs in the present suit, have been guilty of great delay. Though they obtained their judgment in the Common Pleas in September term 1784, their scire facias was not returnable until six years afterwards, in September term 1790. There was ample time for them to have proceeded in, before the deaths of Woolridge and Eott. The real defendants are all now dead. Bail cannot now be put in, and therefore it is impracticable to contest the debt. But if the opinion of the court should be against us, some mode must be devised to give a hearing to the administrator of the surviving partner. Manifest injustice must otherwise be the necessary consequence.

By the court. The law assists the vigilant and careful suitor, and postpones the negligent. The plaintiffs are of the former class, and are entitled to any advantages that may be derived from their provident care. We do not conceive that they were under any legal obligation to know that Mr. Fitzsimons was the partner of Mr. Meade. The debt due from them to Woolridge, Eott and Kelly was, as to the plaintiffs, res inter alias acta.

In common suits between creditors and debtors, the latter may put in a plea of abatement, that a partner was not named in the writ, because otherwise the defendants might be charged both, in their private and company character. But there are no such precedents in foreign attachment, where the creditor of a creditor proceeds in rem, and calls on the debtor of the latter, between whom there is no privity whatever. Neither will the court *make one in so unfavourable a case. The reason of the plea, in common cases, does not apply to foreign attachments with full force.

The argument ab inconvenienti operates forcibly for the plaintiffs. If judgment should be rendered against them for this supposed irregularity, they must lose their demand, the original defendants being all removed by death. But if the court should award that the defendant should answer over, he can eventually be obliged to pay no more than his house owed to the defendants in the attachment, and he could compel Mr. Fitzsimons to contribute his proportion were it necessary. At the same time it is obvious to us, on the pleadings, that the demurrer admits the defendant’s having all the partnership effects and property in his separate possession, and is responsible for the debts; and therefore it is impossible that any difficulty or damage can ensue to him from our determination.

We are inclined to think that a scire facias ad disprobandum debitum, grounded on the custom - of Eondon, may issue; Dali. 378; and the administrator of the surviving partner can put the plaintiffs on the legal proof of their demand and make his full defence.

Judgment that the defendant answer over.  