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Genealogical Gleanings From
Reports of Cases Determined in the
Supreme Court of Alabama, 1820-1826
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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