Bartlett v. Lang, 2 Ala. 401

Bartlett v. Lang

2 Ala. 401 | Ala. | 1841

COLLIER, C. J.

— The demurrer of the defendants was superseded by the pleas, on which issues were tried by the jury; so that the inquiry in the Court below was not, whether the declaration disclosed a good cause of action, but did the proof offered by the plaintiffs, tend to sustain its allegations. The defendant’s pleas impliedly admitted that the declaration set forth in a legal manner, a state of facts, which, if true, entitled the plaintiffs to recover; but denied their truth and called for the proof. If the declaration was so palpably defective, as not to sustain a recovery, the defendant might ha ve availed herself of the defects, on a motion in arrest of judgment, or on error; but it was not competent for the Court to exclude from the jury evidence (otherwise unexceptionable,) which went to prove or disprove the respective averments of the parties.

Now the several matters which the plaintiffs proposed to prove to the jury, viz : the note described in the first and second counts of the declaration; the protest thereof; and due notice of protest to each of the partners of the firm of McRae and Lang — that McRae & Lang were partners, and that the .endoTS'ément of the note was made by the former, in the pre-seiie^of,and with the assent of the latter, &c. — were clearly within'thf terms of the issues. And even if the action was not mainffuAa'jble, as that question was not raised, the evidence should no? have been rejected.

■ Bdt%jfhout pretending to inquire whether any, or which of ttje-ccmlnts of the declaration are defective; we are satisfied it was competent for the plaintiffs, by following the directions of the act referred to, by the Judge of the Circuit Court, in his charge to the jury, to maintain an action against the representatives of a deceased partner, upon an endorsement made by partners previous to its passage. That statute enacts, “ that where any person or persons shall have a cause of action against any copartnership, any members of which may have died, such person or persons shall be permitted to sue and recover of the representatives of the deceased partner, or partners, without first having prosecuted the surviving partners to insolvency, any law, usage, or custom to the contrary notwithstanding : Provided, the plaintiff shall, before instituting such suit, make affidavit in writing before the clerk of the proper *405Court, or Court itself, to be filed with the papers, that the survivor is insolvent or unable to pay the amount of the debt, .or is beyond the jurisdiction of the Court: Provided, however, that when any such representative is sued separately, which may be done without such affidavit, no execution shall issue against such representative, until an execution is bona fide, run and returned nulla bona, as to the survivors.” , [Pamphlet Acts of 1838-9.]

That this statute is not well expressed, no one can deny; yet we apprehend, it sufficiently indicates the purpose intended to be effected by it. In Marrs. Ex’rx. v. Southwick, Cannon & Warren, 2 Porter, 370, (a case determined in June, 1835,) it was decided, that, “ the act of our Legislature, which enacts that, whenever any cause of action may exist against two or more partners of any denomination whatever, it shall be lawful to prosecute an action against any one or more of them,” [Aik. Dig. 268,] did not place partners, and their executors and administrators upon the footing of joint and several obli-gors or promissors. To give that statute such a construction, the Court say, “ would have the effect of subjecting the assats of deceased partners, to the payment of the partners while the surviving partner would have the exetf of all the partnership funds, out of which the partn? ought in justice' to be paid.” The Court concluc the common law, the debts of partners are joint;! death of one, they become extinguished as to his’ intestate, and can only b'e revived in equity. To decision in the case cited, so far as it held the remedy at'law extinguished, as against the representatives of a deceased partner, the act of February, 1839, was enacted. Without attempting an exposition of this act, further than the case before us requires, we are prepared to say, that we can discover nothing. in its terms, which indicates the intention of the legislature, that its operation should be merely prospective. The literal import of the language employed, extends to all causes of action “ against any copartnership,” &c. without reference to the time when it occured.

The statute, we have seen, is remedial; it gives to the creditor a remedy at law, in a case in which it was previously ne*406cessary for him to resort to equity. It being a mere transfer of a remedy from equity to a court of law, m order to enforce a pre-existent right, according to a cardinal rule of construction, the statute must be liberally expounded 5 and must consequently embrace causes of action, existing previous to its enactment. A statute which merely changes the remedy, it has been often holden, both in this Court and others, may, where such seems to have been the intention of the legislature, operate retrospectively. The death of Willis Lang, and the grant of administration to the defendant, previous to the passage of the act, it seems to us, can have no influence upon its operation.

It will follow-, from what we have said, that the Judge of the Circuit Court erred in his views of the law, as stated in the bill of exceptions.

The judgment is consequently reversed, and the cause remanded.