#### Alexander Conley, Appellant, v. Ezekiel Good, Appellee.

APPEAL FROM MADISON.

Any defence of a dilatory character must be taken advantage of on the trial before the justice of the peace. (1)

If one of several partners promise individually to pay a debt, he will not be allowed to show that it was due jointly from himself and his co-partner. (2)

An appeal is assimilated to a suit in equity, and in equity, partners are jointly and severally liable, and therefore, proof that another person was the partner of the defendant, if offered by the defendant, is inadmissible in such case.

(1)

This proposition is universally sustained by the authorities. Greer v. Wheeler, 1 Scam., 554. Bines et al. v. Proctor et al., 4 Scam., 177. Duncan et al. v. Charles, id., 569. Ross v. Nesbit, 2 Gilm., 253. Adams v. Miller, 12 Ill., 27. Wilson v. Nettleton, id., 61. Moss v. Flint, 13 Ill., 570. Adams v. Miller, 14 Ill., 71. Walker et al. v. Welch et al., id., 277. Holloway v. Freeman, 22 Ill., 197.

(2)

The principle of this decision—that a dormant partner need not be joined, is unquestionable. Page et al. v. Brant, 18 Ill., 37. Collyer on Partnerships, 662. But as to the doubt expressed by the court, that objections which do not go to the merits of the case can not be made in proceedings before a justice of the peace, we can not think there is any question. It is true that the objection, that some of the partners are not sued, can be taken advantage of only by plea in abatement. Shufeldt v. Seymour et al., 21 Ill., 524. Puschel v. Hoover et al., 16 Ill., 340. Collyer on partnerships, 658. In equity, also, partners are held both jointly and severally liable on their contracts. Collyer on partnerships, p. 554. 1 Story’s Eq. Jur., Sec. 676. 3 Kent’s Comm., 63-4. It is not so, however, at law. But it does not follow, that if the fact were known at the time of making the contract that there were other partners who are not joined as defendants, because the suit is brought before a justice of the peace instead of the circuit court, that the defendant can not avail himself of this objection. It is true that the legislature have intended to do away with many technicalities in proceedings before justices of the peace, and wisely; for if they were expected to conform to all the niceties required in liigher courts, few, especially in a new country, would be found qualified to hold the office; and the benefits expected to be derived from this species of courts, would be lost. They have dispensed with mitten pleadings. Crews v. Bleakley, 16 Ill., 21. They have provided in certain cases that parties maybe made witnesses, without the expense and delay of a bill of discovery. Webb v. Lasater, 4 Scam., 543. Purple’s Statutes, 667, Sec. 39. Scates’ Comp., 699. But they have nowhere provided that objections which do not go to the merits, if made at the proper time, shall not avail the defendant. The decisions have been otherwise. Orr v. Thompson, 4 Gilm., 451. Adams v. Miller, 12 Ill., 27. Same case, 14 Ill., 71. Robertson et al. v. County Commissioners, 5 Gilm., 559. And the reasons for this are manifest. That slight and trivial objections ought not to be allowed in proceedings before justices of the peace is reasonable; but many objections, though not strictly of substance, are yet so nearly allied to it as to demand that they shall be allowed to a defendant, no matter in what court he is sued. If a defendant is sued on a joint contract, he has a right that his co-contractor shall be joined with him, in order that each may bear his proportion of the joint liability. If the doctrine I am endeavoring to combat is true, it follows that it depends entirely in what court a defendant is sued as to what are his rights. If sued in the circuit court, he may show that others ought to have been joined with him—that ho is sued by the wrong name—and many other kindred defenses. If sued before a justice of the peace on the same demand, (and in many cases circuit courts and *136justices of the peace have concurrent jurisdiction,) he is denied any such right. Can it be that justice depends merely on the tribunal in which it is sought 1 Except in cases of partnership, a joint liability, even in equity, is never treated as joint and several; and so far is it carried, that if a joint obligor who is only security, dies, his estate can not, in any manner, be made liable. Powell et al. v. Kettelle, 1 Gilm., 491. How then, because the legislature has sought to remove technical objections, can proceedings be sustained before inferior tribunals, which a court of equity could not 1 The statement of the proposition, to my mind, shows its fallacy.

Opinion of the. Court by

Justice Lockwood.*

This is an appeal from the Madison circuit court, and brought into that *136court by appeal from the decision of a justice of the peace. The action was brought to recover the value of a quantity of wool delivered to Good to be carded, and which had not, on demand, been returned to Conley. On the trial of the appeal in the circuit court, after Conley’s witnesses had been examined and cross-examined by Good, Good introduced his brother as a witness to prove that he, the witness, was a partner in the carding machine. It was conceded on the trial of the appeal, that no such defense was made before the justice of the peace, and that the wool was delivered to Good, the defendant, who promised to card it. It was also proved on the trial, that the partnership was not known by the neighbors and persons frequenting the carding machine.

The circuit court, however, decided that the partnership thus proved, was a bar to the action, and gave judgment for the appellee. One of the questions presented in this case is, whether, in proceedings before justices of the peace, a p’arty is bound to avail himself of the first opportunity to take advantage of a defense which is of a dilatory character. The defense relied on in the circuit court, could have no other effect than to abate the suit; it had nothing to do with the merits of the case. The general rule in case of dilatory pleas is*that if the party does not avail himself of it the first opportunity, he waives the objection. It is, however, contended, that this rule can not be applied to proceedings before a justice of the peace. The court can not accede to this proposition. The object of the legislature in organizing justices courts, would be entirely defeated, if parties were permitted to conceal mere technical objections, and then, after the trial has began, raise them. The justices’ law requires the justice to decide the case according to law and equity, and dispenses with written pleadings. The object of the legislature in establishing these courts was, to dispense with technical forms and pleadings, and requires causes to be disposed of with as little delay and expense as possible. The court thinks it doubtful whether the legislature intended that objections which do not go to the merits of the case, could be made to "proceedings before a justice of the peace. With*137out intending definitely to settle this question, they are of opinion that such objections must be made in the order of pleadings.

McRoberts, for appellant.

Cowles, for appellee.

In this case, Good never made the objection till Conley had adduced his proof in the circuit court, and Good had cross-examined his witnesses. To suffer a party, at such a stage of the proceedings, to raise objections in the nature of a plea in abatement, would not only be a palpable departure from every legal principle, but be at war with the statute regulating trials of appeals, which directs that the circuit courts shall “ hear and determine the same, in a summary' way, without pleadings in writing, according to the justice of the case,” and that the court shall “ admit any amendment of the papers or proceedings, that may be necessary to a fair trial of the cause upon its own intrinsic merits.”

Here has not been a trial on the intrinsic merits of the cause, and a decision according to the justice of the case. In equity, partners are both jointly and severally liable for their contracts.

The court below, therefore, in receiving the testimony of a partnership, erred, and if one of several partners promise individually to pay a debt, he will not be allowed to show that it was due jointly from himself and his co-partners. Murray v. Sommerville. Sittings after Hilary term—by Lord Ellen-borough.

The judgment must be reversed. The court did not think it necessary to decide the question, whether a suit ought to abate, when a dormant partner is not sued. They are, however, inclined to think, that a plea in abatement in such a case would not lie. In the case of Clark v. Holmes, 3 Johns. Rep., 148, it was decided, that when one partner makes a warranty on the sale of goods, an action may be maintained on the warranty against that partner, without joining the other.

The judgment reversed and proceedings remanded. (a)

Judgment reversed.

*

Justice Smith having been counsel in the cause, gave no opinion.

(a)

That other persons jointly indebted, or jointly responsible, have not been made defendants, must be pleaded in abatement,.and can not be taken advantage of on the trial. Ziele v. Exrs. of Campbell, 2 Johns. Cas. 382.