Duncan v. Tombeckbee Bank

4 Port. 181

Opinion

COLLIER, J.

— The defendants in error, issued a notice; under the seal of the corporation, directed to Stephen Chandler and Joseph B. Earle, John Duncan and Edward R. Byrd, “ lately merchants in company, under the firm and style of Edward R. Byrd & Co.,” informing them, that at the term of the Circuit Court of Washington, next thereafter to be hold-en, the Bank, hyits attorney, would move for judgment and award of execution, on their promissory note, payable to the defendants in error, &c. The notice was executed on Chandler and Duncan alone, and being continued until the spring term of eighteen hundred and thirty, Earle came in and made himself a party, and by consent of himself, -Chandler and Duncan, and the defendants in error, the cause was transferred to the Circuit Court of Mobile for trial,

After which, the defendants in error, filed a declara-^ tion, and an issue was made up, Chandler and Duncan alone pleading — a verdict was found against them, and judgment by ml elicit, was rendered against Byrd and Earle.

It is insisted, that the judgment is erroneous-^-

First — Because it does not legally appear, that the defendants in error were the proprietors of the note sued on.

Second — Because a judgment was rendered against Byrd, on whom process was never served, and who never made himself a party.

First — In Logwood, et al. vs The President, &c. of the Huntsville Bank

* — it was determined, that to sustain a judgment recovered by the Bank on motion, the record must show the certificate of the President, as required by the charter. The requisition of the charter of the Tombeckbee Bank, we find to be in all respects, similar to that of the Huntsville Bank, and the record furnishes no intimation that the certificate of the President of the Bank, shewing the defendants in error to have been the proprietors of the promissory notes, was produced in the Circuit Court. But to relieve the case from the influence of this objection, it is insisted that here the proceeding was not by motion only, that a declaration was filed and pleadings made up, as in ordinary cases. The case must have come into Court by motion, founded on the notice. The declaration must be considered an act of snpurerogation, and it was as regular to have pleaded to the notice as the declaration, the former subserving the purpose of the latter, and the writ also. — Lyon vs The Bank of Alabama*

Second — The second point brings up the question,whether the service of process on one partner in a late firm, is equivalent in law to service on all the members of the concern, The affirmative of this inquiry is attempted to be sustained, by reference to a statute of this State, which is in these words— “When a writ shall be issued against all the partners 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.” The language of this provision clearly confines it to continuing partnerships.— The words “partners” and “firm,” unless preceded or followed by some expression indicating a different meaning, ex vi termini, imply a present continuing connection, and do not relate to one, which is past and dissolved.

Such is the natural interpretation of the language of the statute, and though it be remedial in its character, yet, as in its consequences, it may often affect injuriously, those who are not served with process, it cannot be extended by construction, beyond the literal import of its terms.

So much of the opinion of this Court in the case of Click & Morgan vs Click* — as is opposed to this opinion, is overruled. The conclusion of the Court in that case, with all deference, we can not think, results from the reasoning employed.

The notice and declaration describe the connection between Duncan and Byrd, as one lately existing, which obviously implies that it was then at an end. Byrd, then, never having been served with process, or appeared, was not amenable to the judgment of the Circuit Court.

The judgment is, therefore, reversed, and the cause remanded.

HITCHCOCK, C. J. — Not sitting.

Aia.R,2&

442tewai:t

A,a-R*79