Beach v. Hayward ( 1841 )

Lane, C. J.

It has been held that in the case of dormant partners, not privy to the contract, the other members of the firm may omit their names in an action. 1 Chitty’s Pl. 13. But this is an exception to the general rule requiring the suit to be brought in the name of the firm, or, in case of death, by the survivors. The application of the general rule, in cases like this, can work no injustice to the defendant. It is of no moment to him who sues, as his right of set-off is preserved. The suit is well brought.^†

Remanded for trial.

No arguments came to the hands of the reporter.

† In an action by a firm, the name of a dormant partner need not and ought not to be used. 4 Wend. 628; 3 Cowen, 84.

In an action by ostensible and dormant partners, the defendant may set off a debt due from the ostensible partner only. 7 Term, 357; Montg. 182.