Alexander against M'Ginn, 3 Watts 220

The opinion of the Court was delivered by Rogers, J. A plea in abatement that there is a dormant partner,, not joined in the suit, who is concerned in interest, will not in all cases be available, because, generally speaking, the light of the creditor to proceed against such partner is elective and not compulsory; he being under no obligation to consider the dormant as his debtor. Gow on Partnership 194; 8 Serg. & Rawle 55. But. this principle does not extend to known ostensible partnership.

There he not only may, but he is bound to bring his suit against each member of the partnership, and this, whether the fact of partnership was known to him or not at the time the contract was made. The true criterion is not, as is supposed by the court, whether the plaintiff had knowledge of the partnership at the time he made his contract, but whether the contract was with the partnership, i. e. whether the partner making it intended it a partnership transaction, and it came within the scope of his authority as partner.

If, however, both parties make the contract as individuals, then, as the partnership could not be charged, neither shall the plaintiff be defeated in his action by plea in abatement. Clark v. Holmes, 3 Johns. Rep. 146. Murray v. Somerville, 2 Campbell 99, was the case of an individual contract. The action was for money had and received. Plea in abatement that the promise was made jointly with one Stuart and one Montgomery, who are both alive.

Defendant proved he had two partners of those names in America, but several letters from him to the plaintiff were given in evidence, which were signed in his own name, and in which he promised to pay the money in question. Lord Ellenborough held the letters conclusive evidence that the debt was due from the defendant individually, and not from the partnership. It is not put upon the ground of knowledge of the plaintiff, but upon the nature of the particular transaction, which showed that it was intended as an individual contract. If on the trial the jury should be satisfied that the

article was purchased on account of the partnership, the plea is sustained, whether the plaintiff knew it was intended for the partnership or not. The reason given for the rule that defendant must plead in abatement, is grounded on the fact that plaintiff may not know all the members of the firm, even at the time of the commencement of the suit. For this reason the defendant must plead the non joinder in abatement, in which plea he is bound to give the plaintiff a better writ. Judgment reversed, and a venire de novo awarded.