51 Ala. 186 | Ala. | 1874
The attachment was sued out by the plaintiffs in their firm name, neither the writ, bond, or affidavit disclosing the individual names of the several partners. In process and pleading, at common law, certainty with regard to the parties to the suit was indispensable. Therefore, a writ or declaration, by or against a partnership, must have mentioned the names of the partners. 1 Chitty’s Pl. 256; Reid & Co. v. McLeod, 20 Ala. 576; Sanford v. Patton, Donegan & Co. 44 Ala. 584. This common-law rule is unchanged, as to suits by a partnership. The first plea in abatement to the attachment was, therefore, properly sustained. But the second plea in abatement should not have been sustained. The statute (R. C. § 2588) authorizes a suit against partners by their common name, the judgment binding only the joint or partnership property.
Attachments are often issued by justices of the peace, and clerks of court, not versed in legal forms, or impressed with a sense of the necessity of observing them. Prior to the statute, they were often quashed for a mere want of form, and the inaccuracies of the officer issuing them. To remedy this, was the purpose of the statute; and it must be so construed as to effectuate that purpose. The amendment proposed in this case was the introduction of the names of the individual members of the several partnerships, plaintiff and defendant. The affidavit and attachment clearly indicated that the plaintiffs were suing, and the defendants were sued, as partners. The proposed amendment did not change the character o'f the suit, or of the cause of action, on which alone it can be prosecuted. The court erred in refusing to allow it. Farrow v. Bragg, 30 Ala. 261; Watts v. Womack, 44 Ala. 605.
The judgment is reversed, and the cause remanded.