them all, provided it be duly served upon each individual defendant, (a) and they do not appear in pursuance of its mandate. But, where some of the defendants are resident abroad, and therefore being without the jurisdiction of the court, are not capable of the effectual service of its process, a difficulty arises in enforcing their appearance. If the partner who is served and appears, chooses to enter an appearance for his co-partners, he may do it, *and [*178 ]'his act will be binding upon them ;(6)[1] but he cannot be compelled to do so. However, in the

(a) Pr. Reg. 301.

(b) Harrison v. Jackson, 7 T. R. 207, dict. Dampier, arg.

[1] In South Carolina, it has been expressly decided, that one partner cannot authorise an appearance for all the others. Haslet et al. v. Street et al. 2 M'Cord's Rep. 310. Judge IREDELL, in Hill v. Ross, 3 Dall. 331, during the argument, expressed a doubt as to the power of one partner to authorise an appearance for the whole company, and Judge CHASE said, that partners could not compel each other to appear to suits, nor undertake to represent each other in Courts of Law; but the Court decided that the appearance of a proctor employed by one of the partners, who had signed the rejoinder as "proctor for the defendants," was a sufficient legal appearance of all the defendants. And it is well settled, with the exception of the case of Haslet et al. v. Street et al. that an appearance without authority, by an attorney, for a defendant against whom a writ has been issued, but not served, is good. Denton v. Noyes, 6 Johns. Rep. 296. McCullough v. Guetner, 1 Binn. 214. Scott et al. v. Israel, 2 Binn. 145. Coit et al. v. Sheldon, 1 Tyl. Rep. 300. The Supreme Court of Pennsylvania in a very late case decided, that an appearance by one partner for himself and all his co-defendants was a good appearance, it being an act consistent with the gene

event of his refusal to enter a joint appearance, the plaintiff is not destitute of compulsory means to enforce obedience to his writ. He may either proceed to outlaw those who do not appear, or he may distrain(a) the joint effects in this country, and thereby endeavour to compel an appearance. If joint property can be found, the latter is the more speedy process, and courts are more disposed to favour it than the remedy by outlawry. In one case,(b) where an appearance was attempted to be enforced by distress, the Court of Common Pleas decided, that if three partners (two of whom reside abroad and one in England) be sued for a partnership debt, and the partner resident in England appear to the action, but refuse to appear for his partners who are abroad, the sheriff, under a distringas against the two partners, may take partnership effects, though paid for solely by the partner in this country, to whom the partnership was largely indebted. But if no joint effects are to be found, the only mode of proceeding for this purpose is by outlawing the defendant who is abroad, since the partner here is not bound to appear for him, nor can the separate property of the one be attached

(a) Where a defendant is abroad, a plaintiff may, notwithstanding the stat. 51 Geo. 3. c. 124, issue a distringas for the purpose of compelling his appearance thereby. Nicholson v. Bowmass, 3 Price, 263. S. P. Dwerryhouse v. Graham, Id. 266. n.

(b) Morley v. Strombom, 3 Bos. & Pul. 254.

ral authority of a partner; and that one partner possessed the power fairly to refer to arbitration, by writing not under seal, any partnership matter, and to bind the whole firm by an award made by virtue of such a submission. Taylor et al. v. Coryell et al. 12 Serg. & Rawle, 243.

under a writ of distringas issued with the view of enforcing the appearance of the other partner. (a) We have already observed, that before a plaintiff can proceed solely against the defendant who may have appeared, he must carry the action on through the whole line of process to an outlawry against those upon whom, either in consequence

of their absconding, or their residence abroad, [*179] the writ cannot be executed.(b)[1] And courts of law have shown an inclination to assist a

(a) Goldsmith v. Levy, 4 Taunt. 299.

(b) See Tidd's Pract. (7th. ed.) 148. and the cases there cited. Darwent v. Walton, 2 Atk. 510.

[1] In Pennsylvania there is no process of outlawry in civil actions, the return of non est inventus for all purposes of pleading has the same effect-the plaintiff has done all he can to bring into Court all the defendants, and he may therefore proceed against the one who has been arrested, stating, in his declaration, the writ and return. Dilman et al. v Shultz, 5 Serg. & Rawle, 35. See also Purviance v. Dryden, 3 Serg. & Rawle, 402. Sims v. Willings et al. 8 Serg. & Rawle, 103. In New York the difficulty and delay attending the necessity of outlawing such of the defendants as cannot be served with process, has been obviated by statute, which declares, that "in case of any such joint debtors be taken and brought into Court, he or they so taken and brought into Court, shall answer to the plaintiff, and in case judgment shall pass for the plaintiff, he shall have his judgment and execution against such of them as were brought into Court, and against the other joint debtors named in the process, in the same manner as if they had all been taken and brought into Court by virtue of such process; but it shall not be lawful to issue or execute any such execution against the body, or against the sole property of any person, not brought into Court." Bank of Columbia v. Newcomb, 6 Johns. Rep. 98. Robertson v. Smith

plaintiff who is reduced to the necessity of proceeding to such an extremity against one or more of his joint debtors.

et al. 18 Johns. Rep. 480. In South Carolina, the act of 1792, (2 Brev. 170. 1 Faust, 213) provides, that in all actions for partnership debts, where one or more of the co-partners are out of the State, or are dormant, it shall be sufficient to serve such as may reside or be found in the State, or upon such of the firm as are known. See also 2 M'Cord's Rep. 312. It has also been decided in that State, that where one partner appears, and the other makes default, the regular mode of proceeding is for the plaintiff to go on and get judgment against the one appearing for the whole debt, and to execute his writ of inquiry against the one making default, for the whole also. Simpson et al. v. Geddes, 2 Bay's Rep. 533. In Virginia, where two or more are jointly sued, the statute provides that as to any defendant who is not served with process, but as to whom there is a return that he is "no inhabitant," the suit shall be dismissed. 1 Rev. Code (1819) 504. Brown v. Belches, 1 Wash. Rep. 8. So also in Kentucky, Sneed v. Wiester et al. 2 Marsh. Rep. 282. In Massachusetts it has been decided that where some of the partners in a mercantile house reside in that State, and others of them in another of the United States, a service on those residing in Massachusetts will be sufficient to hold funds in the hands of the company belonging to an absconding debtor. Parker et al. v. Danforth et al. 16 Mass. Rep. 299. The Court also said, "that where one or more joint debtors are here, and others of them beyond the reach of process, the suit may be maintained, if the facts appear upon the return of the writ." Ibid. 302. It has been decided in Connecticut, that where A. brought an action against B. an inhabitant of the State, and C. an inhabitant of another State, co-partners, on a promissory note, executed by them in the partnership name, and process was served on B. only, and A. then took judgment by default, at the first term, that such judgment was not erroneous; the service on B. alone being sufficient within the

Therefore, where, on a writ against three, one was arrested and lay in gaol, and the other two absconded, the Court of King's Bench refused to discharge the prisoner, notwithstanding, according to the parties of the court, the time for declaring against him had expired; observing, that he must appear for all, or lie in gaol until the other two were outlawed. (a) In such a case, however, the plaintiff must move the court, or apply to a Judge, for time to declare against the prisoner, until the outlawry or appearance of the other defendants; (b) and must show that he is using all due diligence in proceeding against ⚫ them. (c)

(a) Per Cur. E. 12 Geo. 3. K. B. 2 Cromp. 9. Barnes, 396, 401. 2 Blacks. Rep. 759.

(b) Id. Ibid. Sykes v. Bauwens, 2 New Rep. 404.

(c) Tidd's Pract. (7th ed.) 428.

Stat. tit. 6. c. 1. s. 4, to maintain the suit. Southmayd et al. v. Backus, 3 Conn. Rep. 475. But where an action is brought on a joint contract against two, and one has suffered a default, and the other obtains a verdict, judgment must be entered up for both defendants. Champlin v. Tilley, 3 Day's Rep. 307. In Alabama, it is provided by the act of 7th Feb. 1818, sect. 8, that whenever any cause of action may exist against two or more partners trading in co-partnership, or against partners of any denomination whatever, it shall be lawful to prosecute an action against any one or more of them: and when a writ shall be issued against all the partners of any firm, service of the same on any one of them shall be deemed equivalent to a service in all and the plaintiff may file his declaration, and proceed to judgment as if the said writ had been served on each defendant; and the judgment shall be equally valid and effectual against all the defendants. Toulmin's Dig. 449.