Click v. Click , 1 Minor 79 ( 1822 )

Judge Saffold

delivered the opinion of the Court.

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 and Co.: that it is to be inferred that the acknowledgment was made after the co-partnership 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,” (Laws Alaba-, 450) 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 to all intents and purposes as valid as if the writ had 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 and Co., who, with Samuel Smith deceased, were co-partners, trading under the firm of John Click and Co. The most rational inference from the description which John Click gives of himself 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 shews that he was of the firm of Morgan and Smith, and the declaration claims a debt contracted by Click, Morgan and 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 appeal.

It does not appear that at the time of declaring the partnership had been dissolved. Smith had died, and the other two were sued as the surviving, partners. But if it did 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, cannot affect the rights of creditors ; and that the plaintiffs cannot, by dissolving, defeat the remedy provided by the Statute.

Let the judgment be affirmed.