Where one of the joint contractors dies, subsequently to the making of the contract, the survivor is alone responsible at law, the personal representatives of the deceased partners being discharged from liability (a). And, if the executor be sued, he may either plead the survivorship in bar, or give it in evidence under the general issue (b). In declaring against a surviving partner, it was in an old case (c) said by Lord Holt, that "if there be two partners in trade, and one of them buy goods for them both, and the other dieth, the survivor may be charged by indebitatus assumpsit generally, without taking notice of the partnership, or that the other is dead and he survived." In practice, however, this rule appears to have been subsequently departed from; for when one of several joint contractors dies, the party suing usually declares on a contract with the deceased and the survivors, and not with the survivors alone (d); and where a debt accrues from a defendant as surviving partner, it is more proper, as far as convenience is concerned, to declare against him in that character, because the forms of declaration ought, as near as can be, to be made subservient to the information of the party charged. But, although such is the practice, it is not essentially necessary to the maintenance of the action that the contract should, in the declaration, be stated to have been joint; for if all the partners had been alive, and one only had been sued, that circumstance could be taken advantage of by a plea in abatement alone, and would be no defence upon the general issue; but inasmuch as, where one is dead, there cannot be any plea in abatement, the rule of cessante ratione cessat ler applies. It has, therefore, been held that, under a declaration containing only one set of counts, charging the defendant in his own right, the plaintiff may (a) Godson v. Good, 2 Marsh. 302. S. C. 6 Taunt. 587. Bac. Abr. Tit. Obligations, D. 4. Vin. Abr. Tit. Obligation, P. 20. (b) Postan v. Stanway, 5 East, 261. (c) Hyat v. Hare, Comb. 383. (d) Spalding v. Mure, 6 T. R. 365. Per Le Blanc, J., Bovill v. Wood, 2 Mau. and Selw. 25. recover one demand due from the defendant individually, and another due from him as surviving partner (a). On the death of the last surviving partner, the right of action results against his representatives, and not against them jointly with those of the other deceased partners. Therefore, where A. the partner of B. signed an agreement on the behalf of the house of A. and B., and B. survived A. it was determined that an action on the agreement could be maintained against the executors of the survivor only (b). Similar in its consequences, in some respects, to an actual death, is the civil death of one of several joint contractors. A civil death is the legal effect of an outlawry; for an outlaw, being extra legem positus, is, in legal contemplation, dead as regards all civil purposes. Where, therefore, one of two partners is outlawed, the fact of the outlawry affords the plaintiff an excuse for a separate proceeding against the other. An original joint liability is, indeed, assumed, although, as one necessary result of the outlawry, it cannot be jointly enforced. The plaintiff, therefore, in declaring against one partner on a joint contract, must under such circumstances state the contract to have been joint, and allege the outlawry of the other as a reason why the proceeding is separate. In a declaration of this description, it has been held to be insufficient to aver, that the outlaw was in due manner outlawed, without adding that he was outlawed in that suit (c). And where, in a joint action against two, it appeared that one of the defendants had been outlawed upon different process from that by which the other was brought into court, and no connexion (a) Richards v. Heather, 1 B. and A. 29. Calder v. Rutherford, 7 B. Moore, 158. Jell v. Douglas, 4 B. and A. 374. Fitzgerald v. Boehm, B. Moore, 332. Tissard v. Warcup, 2 Mod. contra. A commission of bankruptcy against a person, as surviving partner of another, is a statute execution against joint and separate estate, and if the petitioner be a joint creditor he must claim against the joint estate. Ex parte Barned, 1 Glyn and James, 309. See the 6 Gco. 4. c. 16. s. 62. (b) Calder v. Rutherford, 3 Brod. and Bingh. 302. Hudson, 3 East, 144. But see Co. Litt. 128. b. 352 b. (c) Saunderson v. was shown between the several writs of capias against each, as referable to the same original; as where one was outlawed upon process by original, tested the 10th of April, returnable on the first return of Easter term, and continued regularly down to the time of the outlawry, and the other was arrested on a special testatum capias, issued on the 24th of April in Hilary vacation, to which bail was put in, and the plaintiff declared against him alone, alleging the outlawry of the other defendant in the same suit; the Court of King's Bench set aside the declaration for irregularity (a). But an allegation that a co-defendant was, by due course of law, outlawed at the suit of the plaintiff, in this plea and suit, is sufficient without a prout patet per recordum, because the very record before the court verifies that averment (b). To a declaration against one, upon joint promises by him and another, whom the plaintiff avers to be outlawed, the defendant may plead nul tiel record of outlawry; but such a plea must conclude in abatement, and not in bar (c). On the subject of the outlawry of one co-contractor, it may here be remarked, that it has not the effect of altering the nature of the contract in any other respect, than as it empowers the plaintiff to enforce it against the other contractor. The contract being still joint, if the latter die, the remedy survives against the outlaw, and cannot be enforced against the personal representative of the deceased. Thus, where the plaintiff brought an action against two defendants, and, having proceeded to outlawry against one, prosecuted the action against the other, who died after interlocutory and before final judgment, the Court of King's Bench held that he could not have a scire facias against his administrator; for, notwithstanding the outlawry, the action remained joint, and therefore survived against the other defendant (d). And it has been determined (a) Haigh v. Conway, 15 East, 1. (b) M'Michael v. Johnson, 7 East, 50. (d) Fort v. Oliver, 1 Mau. and Selw. that a judgment of outlawry, against two of three joint debtors, does not make the debt a separate one, so as to enable the creditor to prove it under a separate commission against the third debtor (a). In an action against three on a promissory note, two of whom are stated to be outlawed, the third may take advantage of the misnomer of his companions, upon the general issue, on the ground of a variance between the contract declared upon, and that proved (b). But, notwithstanding the death or outlawry of a joint contractor, where true in fact, is sufficient to enable the plaintiff to proceed separately, in the one case against the survivor, and in the other against the co-contractor, yet the bankruptcy of a partner has not the same effect, if the objection to his not being joined in the action be taken by a plea in abatement. This was decided by the Court of King's Bench in a late case (c), in which it was held, that as joint contractors must be all sued, it is no reason for not joining a person, with whom the contract was made, that he has become a bankrupt, and has obtained his certificate, because as the bankrupt, if joined, might renounce the protection which the certificate affords him, the plaintiff ought not to be at liberty, in the first instance, to anticipate what may ultimately perhaps prove to be a discharge. But if the bankrupt be joined, and plead his certificate, the plaintiff may enter a nolle prosequi as to him, and proceed against the others (d). And, subject only to a plea in abatement, it seems, that counts upon a promise by the defendant and another, since become a bankrupt and certificated, may, in an action against (a) Ex parte Dunlop, Buck. 253. (b) Gordon v. Austin, 4 T. R. 611. (c) Bovill v. Wood, 2 Mau. and Selw. 22. (d) Noke v. Ingham, 1 Wils. 89. If, to enable a joint creditor, who has proved under a separate commission, to recover from the solvent partners, it is necessary to join the bankrupt in the action, the creditor, where he refuses to enter a nolle prosequi, must indemnify the bankrupt against all the expenses of the action, and cannot take advantage of the judgment as against him. Ex parte Read, 1 Ves. and Bea. 346. S. C. 1 Rose, 460. See Emmett v. Butler, 7 Taunt. 599. S. C. 1 B. Moore, 332. the solvent partner alone, be joined with counts on promises made by the defendant solely, since the other became a bankrupt (a). Where one of the partners or joint contractors is a minor, it does not seem to be clearly established, whether, in an action against the partnership firm, it is necessary to join him. In one case (b), it was said that he must be joined; but, consistently with more modern determinations, that dictum seems to be questionable, if it be considered as applicable to all cases in which an infant is a joint contractor. Where the action is brought against the adult members of the firm solely, and they plead in abatement that there is another co-contractor not joined, the plaintiff, it appears, may reply, that the contractor mentioned in the plea is an infant, and the replication will be a good answer to the plea (c). Such a replication excludes the idea of a concurrent liability having ever existed, and, being a negation of the joint contract attempted to be raised, affirms the contract to be such as it is in legal effect. It would, indeed, be an intolerable hardship, and a palpable injustice, if a plaintiff, who sued the adult debtor, should, by plea in abatement, be compelled to proceed against the other, and having done so should be defeated (for that the infant can avoid the contract no doubt can be entertained) for want of substantiating that joint contract and joint responsibility which is requisite to maintain his declaration. So, a plaintiff who neglects to reply the infancy of the co-contractor, may show that, at the time of the contract being made, the alleged contractor was an infant, and that he has subsequently avoided the contract (d). But if, instead of replying infancy, the (a) Hawkins v. Ramsbottom, 6 Taunt. 179. Ves. 164. (b) Ex parte Henderson, 4 (c) Gibbs v. Merrill, 3 Taunt. 313. Burgess v. Merrill, 4 Taunt. 469. Anon. cor. Le Blanc, J., in Banc. at Lancaster, cited 2 Pothier on Oblig. (ed. Evans) 63. n. a. See also 2 Vin. Abr. p. 68. Tit. Actions, Joinder, (D. d.) pl. 8. (d) Gibbs v. Merrill, supra, S. C. cited 14 East, 214. See also Berridge v. Merrill, cited Ibid. |