79 Vt. 1 | Vt. | 1906
This action is here on demurrer to the declaration.
The declaration shows that on or about the 15th day of November, 1902, the plaintiff brought its action in Rutland County Court against Protection Bodge, No. 215, Interna
Section 1099 Vermont Statutes, under the provisions of which Protection Lodge, No. 215, was thus sued in its associate name and service of process made upon its president, reads as follows: “A partnership, or an unincorporated association or joint stock company, consisting of five or more persons having a president, other principal officer, clerk or treasurer may sue and be sued in its firm, associate, or company name, and service of process against such partnership, association or company, made upon either of such officers shall have the same force and effect as regards the joint rights, property and effects of the partnership, association, or company as if served upon all the partners, associates, or shareholders.”
The present suit, which may be regarded as supplementary, is brought against alleged associates and members of Protec
At common law an unincorporated association, as regards its rights and liabilities, is fundamentally a large partnership. The relation of the members composing it is to each other and to the outside world, that of partners. Walker v. Wait and Others, 50 Vt. 668; Burnes v. Pennell, 2 H. L. Cas. 497. Partnership debts are the debts of each partner in solido,3 Kent’s Com. 32; Cutler v. Estate of Thomas, 25 Vt. 73, — . and at law both separate and joint creditors may attach either separate or joint property and sell it on execution in satisfaction of their judgments without regard to equities existing between their debtors. But in equity partnership effects must be applied in satisfaction of partnership- debts and liabilities in preference, to- debts due creditors of the individual partners; and to the extent that partnership, debts and liabilities are not fully paid by the joint property, they stand the same as other debts against each partner’s separate estate. Bardwell v. Perry, 19 Vt. 292; Washburn v. Bank of Bellows Falls, 19 Vt. 278; Barton National Bank v. Atkins, 72 Vt. 33, 47 Atl. 176.
It is also- a well established rule that a firm or unincorporated company must sue and be sued in the names of its
That section of the statute and the section upon which this action is brought, in their original form, were parts of the same Act, No. 71, Daws of 1882, and must be construed together.
Such partnerships, associations, and joint stock companies may be and often are not only composed of many different members, residents of different states and countries, but constantly changing by some dropping out and others coming in. Manifestly this statute was enacted for the practical convenience and benefit of the partnerships, associations, and companies to which it relates, as well as for the convenience and benefit of creditors, in bringing and prosecuting suits. In operation it inures also' to the more substantial benefit of the individual partners, associates, and shareholders. We do not consider whether or not the procedure therein provided is exclusive. But surely when the statute is invoked to enforce liabilities against partnerships, associations, or companies, the members have the benefit of equity principles in that the joint property must first be taken to satisfy judgments, an'd it is only for the amount unpaid when executions against such property are returned wholly or in part unsatisfied that suits can be brought against the individual members and their separate property taken. In the first instance the obligation of each
It is further contended that since in the original suit against the association no personal service of process was made upon the individual members, they cannot be bound by the judgment, and that to hold otherwise would be to- take their property without due process of law and in violation of the Fourteenth Amendment of the Constitution of the United States. At common law, in a partnership the members do not form a collective whole distinct from the individuals composing it. The rights and liabilities of a partnership are the rights and liabilities of the partners, and are enforceable by and against them individually. The association of which the defendants are alleged to have been members is composed of more than five members, has an associate name, a president, other principal officer, clerk or treasurer. The associate name is nothing more than the collective name for all the members. Toff Vale Railway Co. v. Amalgamated Society of Railway Servants, L. R. 1901, App. Cas. 426; Lewis & Co. v. Locke, 41 Vt. 11.
In providing that suits may be brought by or against such partnerships, associations, or companies in their firm, asso
One of the defendants moved to dismiss the'suit for that the alleged cause of action set forth in the declaration is not founded on contract, express or implied, hence it being brought by trustee process the court is without jurisdiction. We have already seen that the liability of the members under the statute upon which the action is based is contractual in nature. The action is therefore founded on an implied contract and properly brought by trustee process. Y. S. 1304.
The exception by the Delaware & Hudson Company to the overruling of the motion to quash the return of service upon it is not relied upon here.
. The pro forma judgment overruling the motion to dismiss, overruling the motion to quash, and overruling the demurrer and adjudging the declaration sufficient, is affirmed, and cause remanded.