In this case I concur in the result of a reversal of the judgment; but do not think that any consideration of the act of the legislature, respecting service of process on partners, is necessarily involved, and, therefore, I do not commit myself upon it.
There is nothing on the record, to show a legal service of the writ in this cause, upon either of the partners; or any thing equivalent to such service. — - There is an indorsement on the writ, purporting to be an acknowledgment of service by one of the partners, for himself and his co-partner; but no competent proof of its execution by the party signing it, which I think was indispensable to authorise the judgment, under any view of the statute.
SAFFQLD, J.Entertaining a different opinion *307from that of the majority of the Court, I will briefly state my contrary views.
The opinion of the Court admits, as it necessarily must, that the statute of one thousand eight hundred and eighteen, by its terms, embraces existing partnerships, and declares, that in suits against partners, “service of the writ on any one of them shall be deemed equivalent to service on all.” But, it is said, this provision does not apply after a dissolution of the firm ; and it is also intimated, that the act is unconstitutional — that it denies to the party on whom there has not been personal service, the right of trial ■by jury.
If there be any constitutional objection to the statute, I think it would more properly arise under the twenty-ninth section of our declaration of rights, which provides, that “no person shall be debarred from prosecuting or defending any civil cause, for or against him or ■ herself, before any tribunal in this .State, by him or herself, or counsel.”
Unless it be considered that one of the original defendants had no notice, and consequently no opportunity to defend the suit in any way, there can be no pretence for saying he was denied a trial by jury. The statute prescribes nothing, respecting the mode or manner of trial; but contemplates, as'in ■all other civil suits, that one or more of the partners, ns they may choose, will appear, cither in person or by their counsel, and urge any defence the case will ■ad mit of, in any legal and constitutional mode.
The rational and legal presumption is, that service of process on any one of the partners, will afford notice of the .suit to all, and is, therefore considered *308constructive service. The constitution contains no prohibition against constructive, more than personal service of process.
The policy or expediency of the regulation presents a question entirely different, and one which belongs exclusively to a different department of our government.
While I unhesitatingly admit the power and duty of the judiciary, to declare acts of the legisluture unconstitutional and void, which are found to be dear- ^ so’ (Marbury vs Madison,a) I do maintain, that it is equally necessary, to be cautious and circumspect, in such adjudications. It should seldom or never so decide, in a doubtful case. — Fletcher vs Peck.b
That lust of power which is but too common to each of the departments of the government, often prompts either, to encroachments on the rights of the ¡others.
On principle, it would appear that no objection can be maintained against the competency of the legislature to authorise notice of a suit, by service of process on a partner, for a partnership liability, which would not deny the right to perfect the service, by attaching a defendant’s property, or debts, in the hands of another, or by publication in his absence. This latter power is known to be in common use, not only in the States of Europe, but in most of the States of this Union, where constitutions exist, similar to our own.
If, when judgments have been obtained, it should happen, in a rare case, that a defendant has not, from this mode of service, or from the Us pendens, re-peived actual notice, especially if the failure has *309been a consequence of fraud practiced upon him, and injustice has been done, the Chancery is open for his redress, even in thin State. If suit he instituted on such judgment, in another State, against a citizen thereof, who has besa charged as a partner here, or otherwise, the Courts there are equally competent to afford him redress.
Should they deckle that ¿heir citizen, who had not actual notice of the process, is not affected by the judgment, because not amenable to, or within the jurisdiction of our Courts — that such judgment should be considered as only prima facie evidence of the debt, or even a nullity beyond the limits of this State — as Now York luis done in other cases, as well as in Wilson & Hallett vs Statton and Wendthrope, from this State — our deliberations should not be influenced by this consideration. This Court has, on various occasions, maintained a different principle from that which has generally prevailed in the Courts of New York, respecting the “ faith and credit,” and “ force and effect,” of judgments of sister States. - .
But if the decision in New York, in the case mentioned, was as suggested, and if its authority he admitted, it would by no means, follow, that a similar decision, against the validity of the statute, would he correct in this State, among the constituents of the same general assembly who passed it, and within the acknowledged jurisdiction of the Court.
On these grounds, and in the absence of any shewing, that both the original defendants had not actual notice of the process, or that injustice has been done, the judgment may he valid, requiring an affirmance *310in error; when, in a different State, or under a different aspect of the case, it ought to be set aside, by a resort to the proper means of redress.
It is also to be recollected, that this statute is understood to have been in force, at the time this liability was contracted: that its constitutionality had been sustained, by a judicial decision of our highest tribunal, in Click & Morgan vs. Click, and that it consequently formed a part of this contract. .
As to the effect of the dissolution of the firm, even if, in this case the fact sufficiently appear, (but on which I express no opinion,) it would be sufficient to refer to a principle believed to be universally established. In the language of Gow, (312,) it is that “ from the nature of the partnership, engagements may be contracted, which can not be fulfilled during its existence, exposed as it is, to sudden and arbitrary terminations; and the consequence thereof must be, that for the purpose of making good outstanding engage ments, the partnership must, in legal contemplation, have a continuance, although as between the parties themselves, it is actually dissolved
\n ¿he language of Kenta it is that “ Until the purpose of finishing the prior concerns be accomplished, the partnership, as we have already seen, may be said to continue, and if the .object be in danger of being defeated, by the unjustifiable acts or conduct of any one of the partners, a Court of Equity will interfere, and appoint a manager or receiver, to conduct and settle the business.”
From these principles, the rule results, that by a dissolution of a partnership, after it has been voluntarily entered into, “ for better and worse ;”b which *311may be caused by the sudden, arbitary, and often the fraudulent act of the partners, .neither rights nor re medies, previously existing, and which would otherwise continue, can be defeated, as was held by the previous decision of this Court, already referred to.
I can not admit the slightest analogy between the principle involved in this case, and that relative to the revival of a debt barred by the statute of limitations. The latter affects the right, not the remedy; it requires a new promise or undertaking, constituting a new contract, though on the original consideration, before it can bind; and this, according to the modern doctrine, one partner, .after a dissolution, can not make, so as to bind any but himself. To this principle I fully assent, because it affects the right in question, but deny its application to the case under consideration, where the remedy only is involved — a matter always within the control of the legislature, and which has been accordingly regulated, so as to make service of process on one partner, “equivalent to service on all”
My voice would be for an affirmance.
1 Cranch’ 137
6 ib. 128.
3Com. 137
3 ib. 34