By Mr. Justice Hitchcock :
N. Rogers & Sons issued their writ in the Circuit Court of Tuskaloosa county, on the 11th November, 1823, commanding the sheriff to take “ the bodies of William Smiley and Ira Griffin, merchants, heretofore trading under the firm of Smiley & Griffin, if to be found, &c. The defendants were sued in assump-[256]*256sit, for money paid by the plaintiffs as accommodation acceptors of sundry bills of exchange, drawn by the defendants on them, and which amounted to five thousand one hundred and twenty three dollars and seventy five cents ; and the endorsement on the writ sets out a list of the bills, and an acknowledgment, ■signed by Grifan &l Smiley, that they were to provide for their payment, by shipments of cotton to N. Rogers & Sous, in season. The sheriff returned the writ, executed, but was permitted afterwards, in 1834, to amend his return ; which, as amended, is as follows : “Came to-.baud and executed, same day issued on Ira Griffin — Smiley not found.”
At the March term, 1824, the plaintiffs filed their declaration, consisting of nine counts, setting out their claim in various ways. The commencement of the first count is as follows, to wit: “ Nehemiah Rogers, el al. merchants, trading under the firm and style of N. Rogers & Sons, complain of Ira Griffin and William Smiley, merchants and copartners, heretofore trading under the firm and style of Smiley & Griffin, the said Griffin being in the custody of the sheriff, &c., and the said Smiley is declared against, owing to the writ’s having been executed oil his said co-partner, Griffin, according to the statute in such cases made and provided, of a plea of trespass on the case,” &c.
At the March term, 1824, the defendant, Griffin, appeared by his attorneys, craved oyer of the writ, and endorsement, and thereupon filed his separate demurrer to the endorsement and the declaration, setting out nine separate and special causes of demurrer, which allege sundry variations between the endorsement and the declaration, and also specifying sundry defects in the declaration.
A † this stage, the- case- appears to have been continued [257]*257until March term 1827, when the plaintiffs asked for and obtained leave to amend their declaration, and the cause was again continued. At the October term following, it appearing to the Court that the further prosecution of the suit had been perpetually enjoined, it was, by the judgment of the Court, ordered to . be dismissed, at the costs of the plaintiffs. To this judgment of dismissal, the plaintiffs took a writ of error to this Court, returnable to July term 18S0. This judgment was, at the January term, 1882, of this Court, reversed,, and the cause remanded : and at the April term, 1832, the cause was reinstated and placed upon the docket; at which term the plaintiffs filed three additional counts to their declaration, .under the authority given at March term, 1S27, to amend the declaration. The cause was again continued to October term, 1832, when tiro certificate of the clerk of the Supreme Court was filed, certifying that the injunction which had been allowed, prohibiting the farther prosecution of the suit, had been dissolved, and the bill dismissed. Whereupon, the defendant Griffin, filed a separate plea of non-assumpsit, which was, on motion of the plaintiffs’ attorney, ordered to be stricken out, and leave was given the defendant to plead mstanter ; upon which, the defendant filed two pleas. 1st. A separate plea of non-assumpsit, similar to the one just stricken out. And 2d. A plea in the following words : “ And for further plea in this behalf, the said Ira Griffin, defendant, saith actio non, &c. because he saith that at the time of the commencement of this suit, and since that time, William Smiley, with whom this defendant hath been implead-ed, was beyond the jurisdiction of this Court, ,apd ever since hath been, and yetis; and that before that time, if any co-partnership ever did exist, between the said William and this defendant, the same was [258]*258determined and at an end before the commencement of llxis suit, and that process never was served upon the said William ; and thereupon, the said Ira Griffin for himself separately, saith, that he the said Ira did not undertake, assume, nor promise, jointly with the said William, in manner and form, as the said plaintiffs in their said declaration have complained— and of this he puts himself upon the country.”
To the first of these pleas, the plaintiffs joined issue, and to the second they demurred. The causé was continued from term to term, in this state, until March term, 1834, when judgment by default was talien against Smiley; and at that term, the Court decided, that the plaintiffs’ demurrer to the defendant’s second plea, reached back to the plaintiffs’ declaration, ■which was decided to be insufficient in law, to maintain the action, upon which, judgment final was ren-dorod for the defendant.
There was a bill of exceptions taken to the opinion of the Court, upon sundry questions raised at this term, but as none of them are material to the case, as viewed by the Court, they will not he noticed.
Two questions present themselves for the consideration of the Court, upon this case. The first is, whether, under the circumstances here disclosed, the demurrer does reach back so as to authorise an en-quiry into the sufficiency of the declaration; and,
2d. If it does, whether the declaration is sufficient.
The first of these questions involves an enquiry as to die character of the second plea, ahd the circumstances under which it was filed.
The jilea sets out with stating matter of inducement, which if good at all, is properly matter in abate-1 meat. It alleges, that “ before, and at the time of] the- commencement of this suit, the defendant, Smi[259]*259ley, was, and ever hath been since, beyond the jurisdiction of the Court, and that if ever any partnership existed, it was determined before the commencement of this suit, and that process was never served on Smiley.” So far, the plea does not deny that there had been a co-partnership, as charged in tho writ and declaration, and it does not assign any reason for its dissolution, except that inference is to bo drawn from the alleged absence of Smiley. It does not aver any dissolution, in fact, but leaves the matter to inference entirely. So far, it is matter, as was observed before, which could only ho urged in avoidance of this writ, on the ground of miw-joinder of 'parties, or defective service of tbe writ. The balance of the plea is, however, of an entirely diíí'ereuü character: it is properly matter in bar of the action; and if any thing, amounts to the general issue. After slating the inducement as aforesaid, it concludes — '‘and therefore, the said Ira Griffin for himself separately,, saith, that he the said Ira, did not undertake, assume,, nor promise jointly with the said William, in manner and form as' the said plaintiffs in their said declaration have complained — and of this he puts himself upon the country.”
This plea must ho taken entire — it cannot be divided. If we look at the inducement, it is in abatement, and should have prayed that the writ abate. If we take the latter part, it is in bar, and is a repetition of the first plea, which immediately preceded it.
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By Mr. Justice Hitchcock :
N. Rogers & Sons issued their writ in the Circuit Court of Tuskaloosa county, on the 11th November, 1823, commanding the sheriff to take “ the bodies of William Smiley and Ira Griffin, merchants, heretofore trading under the firm of Smiley & Griffin, if to be found, &c. The defendants were sued in assump-[256]*256sit, for money paid by the plaintiffs as accommodation acceptors of sundry bills of exchange, drawn by the defendants on them, and which amounted to five thousand one hundred and twenty three dollars and seventy five cents ; and the endorsement on the writ sets out a list of the bills, and an acknowledgment, ■signed by Grifan &l Smiley, that they were to provide for their payment, by shipments of cotton to N. Rogers & Sous, in season. The sheriff returned the writ, executed, but was permitted afterwards, in 1834, to amend his return ; which, as amended, is as follows : “Came to-.baud and executed, same day issued on Ira Griffin — Smiley not found.”
At the March term, 1824, the plaintiffs filed their declaration, consisting of nine counts, setting out their claim in various ways. The commencement of the first count is as follows, to wit: “ Nehemiah Rogers, el al. merchants, trading under the firm and style of N. Rogers & Sons, complain of Ira Griffin and William Smiley, merchants and copartners, heretofore trading under the firm and style of Smiley & Griffin, the said Griffin being in the custody of the sheriff, &c., and the said Smiley is declared against, owing to the writ’s having been executed oil his said co-partner, Griffin, according to the statute in such cases made and provided, of a plea of trespass on the case,” &c.
At the March term, 1824, the defendant, Griffin, appeared by his attorneys, craved oyer of the writ, and endorsement, and thereupon filed his separate demurrer to the endorsement and the declaration, setting out nine separate and special causes of demurrer, which allege sundry variations between the endorsement and the declaration, and also specifying sundry defects in the declaration.
A † this stage, the- case- appears to have been continued [257]*257until March term 1827, when the plaintiffs asked for and obtained leave to amend their declaration, and the cause was again continued. At the October term following, it appearing to the Court that the further prosecution of the suit had been perpetually enjoined, it was, by the judgment of the Court, ordered to . be dismissed, at the costs of the plaintiffs. To this judgment of dismissal, the plaintiffs took a writ of error to this Court, returnable to July term 18S0. This judgment was, at the January term, 1882, of this Court, reversed,, and the cause remanded : and at the April term, 1832, the cause was reinstated and placed upon the docket; at which term the plaintiffs filed three additional counts to their declaration, .under the authority given at March term, 1S27, to amend the declaration. The cause was again continued to October term, 1832, when tiro certificate of the clerk of the Supreme Court was filed, certifying that the injunction which had been allowed, prohibiting the farther prosecution of the suit, had been dissolved, and the bill dismissed. Whereupon, the defendant Griffin, filed a separate plea of non-assumpsit, which was, on motion of the plaintiffs’ attorney, ordered to be stricken out, and leave was given the defendant to plead mstanter ; upon which, the defendant filed two pleas. 1st. A separate plea of non-assumpsit, similar to the one just stricken out. And 2d. A plea in the following words : “ And for further plea in this behalf, the said Ira Griffin, defendant, saith actio non, &c. because he saith that at the time of the commencement of this suit, and since that time, William Smiley, with whom this defendant hath been implead-ed, was beyond the jurisdiction of this Court, ,apd ever since hath been, and yetis; and that before that time, if any co-partnership ever did exist, between the said William and this defendant, the same was [258]*258determined and at an end before the commencement of llxis suit, and that process never was served upon the said William ; and thereupon, the said Ira Griffin for himself separately, saith, that he the said Ira did not undertake, assume, nor promise, jointly with the said William, in manner and form, as the said plaintiffs in their said declaration have complained— and of this he puts himself upon the country.”
To the first of these pleas, the plaintiffs joined issue, and to the second they demurred. The causé was continued from term to term, in this state, until March term, 1834, when judgment by default was talien against Smiley; and at that term, the Court decided, that the plaintiffs’ demurrer to the defendant’s second plea, reached back to the plaintiffs’ declaration, ■which was decided to be insufficient in law, to maintain the action, upon which, judgment final was ren-dorod for the defendant.
There was a bill of exceptions taken to the opinion of the Court, upon sundry questions raised at this term, but as none of them are material to the case, as viewed by the Court, they will not he noticed.
Two questions present themselves for the consideration of the Court, upon this case. The first is, whether, under the circumstances here disclosed, the demurrer does reach back so as to authorise an en-quiry into the sufficiency of the declaration; and,
2d. If it does, whether the declaration is sufficient.
The first of these questions involves an enquiry as to die character of the second plea, ahd the circumstances under which it was filed.
The jilea sets out with stating matter of inducement, which if good at all, is properly matter in abate-1 meat. It alleges, that “ before, and at the time of] the- commencement of this suit, the defendant, Smi[259]*259ley, was, and ever hath been since, beyond the jurisdiction of the Court, and that if ever any partnership existed, it was determined before the commencement of this suit, and that process was never served on Smiley.” So far, the plea does not deny that there had been a co-partnership, as charged in tho writ and declaration, and it does not assign any reason for its dissolution, except that inference is to bo drawn from the alleged absence of Smiley. It does not aver any dissolution, in fact, but leaves the matter to inference entirely. So far, it is matter, as was observed before, which could only ho urged in avoidance of this writ, on the ground of miw-joinder of 'parties, or defective service of tbe writ. The balance of the plea is, however, of an entirely diíí'ereuü character: it is properly matter in bar of the action; and if any thing, amounts to the general issue. After slating the inducement as aforesaid, it concludes — '‘and therefore, the said Ira Griffin for himself separately,, saith, that he the said Ira, did not undertake, assume,, nor promise jointly with the said William, in manner and form as' the said plaintiffs in their said declaration have complained — and of this he puts himself upon the country.”
This plea must ho taken entire — it cannot be divided. If we look at the inducement, it is in abatement, and should have prayed that the writ abate. If we take the latter part, it is in bar, and is a repetition of the first plea, which immediately preceded it. “If matter of mere abatement is pleaded in bar, or if matter which goes only in bar, is pleaded in abatement, the plea in either case is ill,”' for in either case all distinction between these different classes of pleas would he confounded, arid in the former case udgment in chief must be given for the plaintiffs.— Gould's Pl. 292. If this pica is tried by this rule, it [260]*260appears xo me, it must be found defective. It may be true that Smiiey was out of the country, and that the partnership was dissolved when the writ was issued, and yet It may bo true that the defendant, Griffin did assume and promise, as stated'in the declaration. One part of the plea is not necessary to the other; and the whole taken together does not make out a defence to the plaintiffs’ right of action.
Bat, it is contended, that admitting the plea to be bad, the demurrer opens the whole case, and requires the Court to seise upon the first error, and that when thus examined, it will be found that the writ must abate, on the ground that the partnership is not properly charged, either in the writ or declaration, and that service being perfected only upon. Griffin, he is not bound to answer in this form.
To this it is answered, and we think properly, that : the plea, if filed for the purpose of avoiding this writ, is to be hold as a plea in abatement, and if so, could not have been received, under the rules of Court, at this stage of the suit; and a party may in such a case, ^ either move to strike out the plea or demur to it; and he shall have the same benefit in either form. Here, the defendant had, at a former term, demurred to the , declaration, .and at the time this plea was filed, had ‘ pleaded the general issue. It is admitted,.that -as a. general rule, a demurrer opens the whole case to the consideration of the Court. But. this is always upon the supposition, that the pleadings were all properly filed, in due time, and in proper order. To receive a pleaiix abatement, after a demurrer and a plea of the! general issue, would be reversing the order, of plead- fl ing. Besides this, a demurrer is not good in matter fl of abatement; and if in this case, a demurrer by the de-fl fondant, could not have been filed to the writ, this,® can only extend back to matter of substance in thefl [261]*261declaration. This has been once before decided upon, by the former demurrer of the defendant to the plaintiffs’ endorsement and declaration, and can not reach beyond the decision then made, and which has been cured by the leave given to amend, and the amendment made thereon. I am, therefore, of the opinion, that under the circumstances of this case, the demurrer does not reach beyond the plea.
But, admitting that it does, the Court, on examining the point contended for by the defendant, are satisfied that the writ and declaration are good, and that the defendant can properly be held to answer.
The writ described the defendants “ as merchants heretofore trading under the firm of Smiley & Griffin,” and the declaration charges them as being “ merchants and co-partners heretofore, trading under the firnj. and style of Smiley & Griffin,” Here, in both cases, a partnership is charged to be in existence at the date of the writ, and the word “ heretofore” has reference to the act of trading. They are not charged as late partners, thereby admitting a dissolution. Now, a partnership is a contract by which two or more persons engage to trade together for their mutual benefit, and the act of trading is the result of that contract; and unless it can be shewn that persons cease to be partners the moment they close their sales, it would be difficult to shew, in this case, that the present defendants are not charged as partners. This writ, then, charging the defendants-as partners, a service upon one, is service upon both, by virtue of .our statute, which declares, that “ when any writ .shall be issued against all the partners of a firm, service of the same on any one shall be equivalent to service upon all.’’
But, even if there were any doubt on this point, the Court .is not prepared to say, that in this case, [262]*262Griffin, upon whom service was perfected, could take advantage of the error. He, at least, is present in Court, and can make' his defence, and if any one can come into this Court to complain, it must be Smiley, who being absent, and having had no notice of the suit, may be injured. Griffin has no cause for complaint, and if he had denied the existence of the partnerskip> the plaintiffs, under the provisions of our act,a could have dismissed the suit as to Smiley, and have proceeded against him, alone. But on these last points no opinion is given, as none is required.
The cause must be reversed, and remanded.
Aik. Dig.268.