
    
      A. Simonds vs. W. G. Speed. W. Carrington vs. same.
    
    In an action upon a partnership debt, where one or more of the partners are out of the State, the declaration, under the Act of 1792, must he framed as if all the partners were before the Court; except that it must state which of the partners have not been served.
    The effect of a judgment for plaintiff in such a case is, to render the partnership property, and the separate property of the partner served, liable to satisfy the debt: semble.
    
    writ against two persons as partners, and declaration against one on a partnership debt, stating that the other was out of tho State and had not been served: — General domurrer overruled — as the writ was against both and the declaration may be amended by the writ, the objection goes to the form and not the substance.
    
      Before Withers, J, at Anderson, Spring Term, 1853.
    These were actions of assumpsit — the first upon a promissory note, and the second upon an open account.
    The writ in each case was against the defendant and one Wm. R. Sanders, describing them as partners trading under the firm of Wm. R. Sanders & Company.
    
      In Simonds’s case the declaration was as follows:
    
      “ William G. Speed, the defendant, late partner in trade, and doing business under the name and style of W. R. Sanders <fc Co., with one William R. Sanders, who, at the commencement of this suit, was, and is now, living without the limits of this State, and was not served with process, was attached to answer to Andrew Simonds, the plaintiff, of a plea of trespass on the case, &c. And thereupon the said plaintiff, by Martin & Parker, his attorneys, complains, for that whereas the said defendant, with the said William R. Sanders, under the partnership name and style of W. R. Sanders <fc Co., heretofore, to wit, on the first day of March, in the year of our Lord one thousand eight hundred and fifty-one, in the city of Charleston, and State aforesaid, to wit, at Anderson Court House, in the District and State aforesaid, made their certain promissory note in writing, the date whereof is the day and year aforesaid, and thereby then and there promised, one day after the date of said promissory note, to pay to the order of the plaintiff, by the name of A. Simonds, three hundred and seven 47-100 dollars value received; and then and there delivered the said promissory note to the said plaintiff. By means whereof, and by force of the statute in such case made and provided, the said defendant became liable to pay to the said plaintiff the said sum of money in the said promissory note specified, according to the tenor and effect of the said promissory note ; and being so liable, he, the said defendant, in consideration thereof, afterwards, to wit, on the day and year aforesaid, at Anderson Court House aforesaid, in the District and State aforesaid, undertook and faithfully promised the said plaintiff to pay him the said sum of money in the said promissory note specified according to the tenor aud effect' thereof. Yet the said defendant, not regarding his said several promises and assumptions, but contriving and intending craftily and subtilly to deceive and defraud the said plaintiff in this behalf, hath not as yet paid the said plaintiff the said sum of money in the said promissory note specified, or any part thereof, but to pay him the same hath refused,” &c.
    
      In Carrington’s case the declaration, also, was upon a partnership debt, and, after stating that Sanders was out of the State and had not been served, proceeded against the defendant as upon a several liability.
    In each case the defendant demurred. In Simonds’s case cause was assigned, to wit, that “ the plaintiff sued out his writ in his action against the defendant and one William R. Sanders, alleging them to be partners in trade trading as William R. Sanders & Co., and in his said declaration declares against this defendant alone. And that the declaration is, in other respects, bad, informal,” &c. In Carrington’s case the demurrer was general, without any cause assigned ; and, in both cases, plaintiffs joined in demurrer.
    His Honor, the presiding Judge, overruled the demurrers. The defendant appealed on the ground :
    Because, where, as in these cases, two persons are partners in trade, and execute a note in the partnership name, and one of them leaves the State, an action on the note should be against both partners under the Act of 1792, by services of process on the resident partner; and a declaration against one of them, that is, the resident partner, is defective in substance, and a general demurrer will be fatal to it.
    Vandiver, for appellant.
    Noble, contra.
   The opinion of the Court was delivered by

Frost, J.

In each of these cases, the declaration was framed on the A. A. 1792, 7 Stat. 281. This Act recites, “ to the end that plain and adequate remedy may be furnished, at law, upon co-partnership debts, where one or more of the co-partners is or are out of the State, or where there are dormant co-partners,” and then enacts, “ that in all such cases, it shall be sufficient to serve process on such of the co-partners as may reside or be found in the State, or upon such of the firm or co-partnerships as are known; and suits, so commenced against co-partnerships, are hereby declared to be legal and valid.”

It is to be noticed, that for the recovery of partnership debts, the Act makes legal and valid suits commenced against partnerships, by service of process on the partner resident in the State, when the other partner is abroad. Before the Act, suits could not be commenced against a partnership without serving all the partners with process. The remedy provided is, that service on oue, the resident partner, shall be sufficient to maintain an action against the co-partnership — that is, against all the partners. The Act does not provide, that if one of the partners is out of the State, a partnership debt may be recovered by a suit against the resident partner alone ; nor that a judgment against the resident partner shall make liable the partnership effects to an execution on such judgment. Yet it is in conformity with this latter view or construction of the Act, that the declaration is framed. The directions of the Act were pursued when the writ was sued out against both partners. But the plaintiff has charged in the declaration, only Speed. The verdict and judgment must conform to the declaration ; and then the suit is not against the co-partnership, and cannot be maintained under the Act. The Act was drawn so as not to violate the forms of pleading. If a suit is brought to recover a co-partnership debt, a co-partnership liability must be declared on. It is inconsistent with the forms of pleading to set out a partnership debt and charge that thereby one partner became liable to pay, and being so liable, promised to pay: and to assign, as a breach of the contract, his refusal to pay. In these particulars the declaration is informal and defective.

This conclusion is not weakened by reference to the Act of 1823, which provides a remedy on joint contracts where one of the contracting parties is out of the State, by enabling the plaintiff to sue on the joint contract, by service of process on the resident joint contractor. I apprehend, in that case, the contract and liability must be declared on as joint. This is to be inferred from the proviso of the Act, which requires the plaintiff to state in his declaration that the other contracting party was without the limits of the State ; and by the further proviso, that the judgment should not bind him. These would he needless precautions, if the absent contractor was not declared against. But it is not necessary to affirm anjrthing on this point. It is sufficient to obviate any relevancy, of the Act of 1823, to the question made in this case, to remark, that though a partnership contract is a joint contract, a joint contract is not a partnership contract.

The conclusion is aided by analogy to the legislative provision of New-York on the same subject. By the revised statutes it is provided that, in cases of joint contracts, when one of the parties cannot be served, process shall issue against them in the manner now in use,” and the plaintiff shall have judgment against the party brought into Court, and against the other joint debtors, in the same manner as if they had been brought into Court by virtue of such process ; but execution shall not issue against the body or lands of the party not brought into Court. Under this Act, the declaration and proceedings and judgment are the same as if all the parties had been arrested; — only it must be stated in the declaration which of the defendants was not brought into Court. 2 Johns. R. 87, Dando vs. Doll; 2 Johns. Cases, 339, Hildreth vs. Becker. In Pennsylvania, there being no process of outlawry in civil actions, the return of non est inventus, for all purposes of pleading, has the same effect; and the plaintiff having done all that he can to bring all the defendants into Court, it is held, that he may proceed against the one who has been arrested, stating in his declaration the writ and return. But in such cases, the course is, to lay the promises to have been made by both. But if the defendant who has been arrested will not take advantage of the omission so to lay the promise, by demurrer, but pleads non-assumpsit and goes to trial, and verdict passes against him, judgment will not, for that cause, be arrested. 5 Serg. and R. 36, Dillman vs. Schultze. In Whelpdale’s case, 5 Co. 119, cited in 1 Chitt. Pl. 423, if two defendants are jointly sued, one appears and the other makes default and is outlawed, he who appears shall be charged with the whole.

From these references to authority, no opinion of the Court is to be drawn, respecting the effect of the judgment in a suit to recover a partnership debt, under the Act of 1792 — beyond this, that by such a judgment, the partnership property and that of the partner brought into Court, are made liable to satisfy the plaintiff’s debt. No more is decided, than that in a suit under the Act, the declaration must be the same as if all the partners were brought into Court, except that it must be stated in the declaration which of the partners have not been served with process.

It is a general rule that a judgment on demurrer, for matter of substance, is final; and no amendment thereafter is allowed. But it is not always clear whether the cause of demurrer is matter of substance or of form. If the writ had not been sued out against both partners, judgment on demurrer, in Simonds’s and Carrington’s cases, must have ended those suits. But the plaintiff may amend his declaration by his writ. The declaration sets out a co-partnership note, but in framing it so as to charge the partnership under the Act, only the defendant who was served is charged with liability on the note. This is a mistake in the form of declaring.

In the case of A. Simonds, which is a special demurrer, the motion is granted, and leave given to the plaintiff to amend on payment of the costs of the demurrer. In the case of William Carrington, which is a general demurrer, the motion is dismissed, with leave to amend.

O’Neall and Glover, JJ., concurred.

Wardlaw, J.

I concur. The decision goes only to the form of the declaration: but to obviate objections, I state my opinion, that the judgment andjft./a. would be against “William R. Sanders & Company, partners, of whom William G. Speed only has been served with process:” and the plea would be by William G. Speed, that William R. Sanders & Company did not promise, &c.”

Withers, J.

The question is, whether the liability to pay shall be alleged against both co-partners, or against the resident co-partner. I deem the latter the true course — so that verdict, judgment and execution may go against the resident co-partner, as such. That would subject the co-partnership effects to the fi. fa., and that is all which a plaintiff deserves, or is entitled to, where he can serve process only on a resident partner. Such a judgment and fi. fa. may bind the private estate of that partner. But if the notion of the defendant’s counsel prevails, the declaration would, charge both partners, as if both were served, the judgment and execution would follow accordingly, for they must conform — and we should heave in the hands of the sheriff a fi. fa. to bind both partners equally, and in the same manner, and how could he know anything of the record in the Clerk’s office?

How would the plea of the general issue go in these cases? Not, I apprehend, in the name of both, when one only is sued. Could a ca. sa. go against the absent partner ?

The partner served cannot confess judgment for the firm. Can it be rendered against them by service upon one ?

It is one thing to lay the promises by both, and another to lay the liability to verdict and judgment against both, when one only is served.  