9 Port. 452 | Ala. | 1839
The counsel for the defendants in error, has very properly conceded, that the plea of set-off, interposed as a defence to this action, must he sustained, if at all, by an equitable construction of the 8th section of the act of the thirteenth of February, eighteen hundred and eighteen, entitled “ an act for the better regulation of judicial proceedings.”
This section is in these words: “ 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; and when a writ shall be issued against all the parters of any firm, service of the same on any one of them, shall be deemed equivalent to a service on 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” — (Aik. Dig. 268.)
This enactment is supposed to make the liabilities of partners several, as well as joint, so far, at least, as to authorise a separate action against each partner, and the defendants assume, that the right to off-set a demand, must be co extensive with the right to sue. It must be admitted, this argument would be entitled to great weight, if the construction of this section of the statute was open to examination, but it is, in a great decree, foreclosed by a decision of this court. In the case of Marr’s ex’rs vs. Southwick et al. (2 Porter, 351,) which was a bill filed by the creditors of a firm, against the executrix of a deceased partner, to subject the assets of the estate in her hands, to.the payment of a partnership debt,
It cannot be supposed, that a right of off-set once perfect, can be defeated by the happening of any event whatever, and if we test this case by such a principle, the fault of the defendants’ position will be made apparent. We may reject the names of all the parties, except Wellman and Connally, from the consideration of this case, (as their introduction does not affect the principle which is decisive of it,) and suppose the action to be brought by the former, against the latter; in this aspect, the clause to make the set-off would be most imposing, but if we substitute, in the place of Wellman, his personal representative, and suppose the suit instituted after his death, the debt, at law, is entirely gone, and even in equity also, unless Dean, the surviving partner, should prove insolvent.- The debt, which is supposed capable of being successfully opposed to this suit, (because Wellman might
Since the decision of the case quoted, the Legislature has considered it proper to give a remedy against the personal representatives of deceased partners, in the same manner as if their obligations were several, as well as. joint — (acts of 1838) — but this legislation can have no effect on existing suits, which, of course, must be determined under the former rule.
The judgment of the Circuit court is reversed, and if desired, the case will be remanded to the Circuit court, in order that the proper judgment may be there rendered.