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Reports of Cases Determined in the

Supreme Court of Alabama, 1820-1826



CLICK and MORGAN vs. CLICK
December, 1822
John Click, Sr., sued out a write of capias to the Circuit Court of Tuskaloosa county [sic], in debt against John Click, Jr., and Luther Morgan, “surviving partners of the late firm of John Click & Co.” Service of the writ was acknowledged as follows: I acknowledge the service of this writ this 1st March, 1822. John Click of the firm of John Click & Co., who with one Samuel Smith, deceased, were merchants and copartners, trading under the firm and style of John Click & Co.,” on a promissory note of John Click & Co. for $181, payable to James Click and by him assigned to plaintiff. At March term, 1822, the Circuit Court rendered judgment by default for the amount of the note and interest against John Click, Jr. and Morgan. They sued out a write of error, and here assigned as errors: That the writ does not appear, and to have even in the possession of an officer whose duty it was to execute it; not dies it appear that plaintiffs in error were partners when John Click, Jr., acknowledged service of the writ, or that he was ever a partner; the acknowledgement by him being as of the firm of Morgan & Smith, and the note declared on being the note of John Click & Co. That the writ does not charge plaintiffs in error as partners when it was issued, and that the judgment against them is by default, when they were not in court.

H. G. Perry, for plaintiffs; Owen, for defendant in error.

SAFFOLD, J.—It is contended by the counsel for the plaintiffs in error that the service of the writ is insufficient; that Click, who acknowledged the service, does not appear to be the same who was of the firm of John Click & Co.; that is to be interred that the acknowledgment was made after the copartnership was dissolved, when he could not (even if he could during the partnership) bind the other partners by it.

The Act of February, 1818, “for the better regulation of judicial proceedings,” noticed in the argument, provides that “when a writ shall be issued against all the partners of any firm, service of the same, or any one of them, shall be deemed equivalent to a service on all.” The statute does not prescribe the manner of service, whether by the sheriff or by other legal means. It is sufficient if legal service be perfected on any one of the firm; and it is believed never to have been questioned, but that an acknowledgment of the service is too all intents and purposes as valid as if the write has been executed by the sheriff. The plaintiffs in error were declared against as John Click, Jr., and Luther Morgan, surviving partners of the late firm of John Click & Co., who, with Samuel Smith, deceased, were copartners, trading under the firm of John Click & Co. The most rational inference in his acknowledgment, is that he was one of this firm, and that his object was to give the names of all who had composed it. He shows that he was of the firm of Morgan & Smith, and the declaration claims a debt contracted by Click, Morgan & Smith. But we conceive that this description may be treated as surplusage, and that in all cases when legal service is made on one bearing the name of the defendant, the presumption is that he is the same until the contrary shall appear.

It does not appear that at the time of declaring the partnership had been dissolved. Smith had died, and the toher two were sued as the surviving partners. But if it do so appear, we are of opinion that it would not alter the case. We hold that for all debts contracted by a firm trading in partnership, actions may be instituted by service of process on any one who was a partner at the time of contracting; that a dissolution of the partnership, a matter at all times within the control of those composing it, can not affect the rights of creditors; and that the plaintiffs cannot, by dissolving, defeat the remedy provided by statute.

Let the judgment be affirmed.

Source: Henry Minor, Reporter, Reports of Cases Determined in the Supreme Court of Alabama From May, 1820, to July, 1826 (Atlanta: 1891), pp. 79-81.

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