Alexander v. M'Ginn
Supreme Court of Pennsylvania
ERROR to the common pleas of Mleghany county. M’Ginn, the defendant in error, was the plaintiff below, .and brought this suit before an alderman (o recover the price of a wheel furnished by him to Alexander. The suit was taken, by appeal from the .judgment of the alderman, to the common pleas, where the plaintiff filed a declaration in assumpsit.
Read the full summary
ERROR to the common pleas of Mleghany county. M’Ginn, the defendant in error, was the plaintiff below, .and brought this suit before an alderman (o recover the price of a wheel furnished by him to Alexander. The suit was taken, by appeal from the .judgment of the alderman, to the common pleas, where the plaintiff filed a declaration in assumpsit. The defendant pleaded non assumpsit, payment and set off, with leave to give the special matters in evidence; which plea was, subsequently, on motion, withdrawn, and a plea in abatement filed, that the promises and undertakings alleged in the…
1Opinion of the Court
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…
2Cases cited1 opinion
- Wilson v. WallaceSupreme Court of Pennsylvania · 1822
3Cited by4 opinions
- Carey v. BrightSupreme Court of Pennsylvania · 1868
- Livingston v. CoxSupreme Court of Pennsylvania · 1847
- Converse v. SymmesMassachusetts Supreme Judicial Court · 1813
- Purdy v. PowersSupreme Court of Pennsylvania · 1847