On Rehearing.
The opinion of the court was delivered by
Spencer, J.The facts of this ease are in the main fully stated in our former opinion and need not here be repeated.
One point urged by the defendant, however, did not receive any special mention therein. To wit: That in executing the writ of provisional seizure it is alleged that the sheriff did not simply seize the effects in the store belonging to defendants, but actually took possession of the leased building and its keys, and excluded the defendant from the premises. It is claimed that this was an act for which plaintiffs are responsible, and amounted to a dissolution of the lease. There can be no doubt that if such an act were done by the lessor that it would, at the option of lessee, dissolve the lease. But it is not pretended that the sheriff had any mission, either by law or in fact, from the plaintiffs to do this act. The sheriff’s return shows only a seizure of the effects in the house. One of the defendants’ clerks swears that the sheriff took possession of the house, keys, and every thing in the house.
There is no proof that plaintiffs even knew of this fact, if fact it be. They were not informed thereof by the sheriff’s return on the writ, or by any act or word on the part of defendants.
This silence on the part of defendant, especially when taken in connection with the formal notice of the fifteenth of December, of his intention to abandon the leased premises on the first of January, proximo, makes this objection come with very bad grace from him. The seizure was made on the twenty-sixth of December, only four days before the time he had fixed for his abandonment, and we regard him as estopped from setting up that the lease was dissolved by a pretended *55exclusion from a house which he had formally given notice he intended to quit.
The only serious question involved is that raised as to the sufficiency of the citation. It was addressed “to Weil & Bro.,” and served in person on Samuel Weil, against whom alone judgment was rendered. The question is, therefore, whether, after the dissolution of the firm in fact, but before any special notice thereof to plaintiffs who were entitled to such notice, a citation addressed to the firm, and served on a member in person, will have the effect of a legal citation to the member so served ?
The question is not free from difficulty. We have lately had occasion, in the case of Ranlett vs. Collier White Lead Company, to examine and review the authorities upon the subject of the proper mode and place of citing the members of a dissolved commercial partnership, in a suit for a debt of the partnership. We then held that each partner-must be separately served with citation, .and could not be cited to appear in such suit out of the place of his domicile.
But it is urged by plaintiffs that this rule does not apply until the creditor of the partnership has had legal notice of the dissolution, and that until such notice, the firm, quoad such creditor, continues to exist. The contrary was held by this Court in Brashear vs. Dwight, 2 An. 404, when it was said : “ It is satisfactorily proved that before the institution of this suit the partnership of Bemiss, Brashear & Co. had been dissolved, and the dissolution published in the newspaper of the village where it had been carried on. It is contended that the plaintiffs in the suit were in the habit of trading with the firm, and that notice of the dissolution should have been brought home to them otherwise than by publications in the newspapers.
The ground would be well taken if the object of the plaintiff had been to make the defendant liable in a direct action against him for dealings had with the firm after its alleged dissolution, but it does not affect the manner of bringing the partners of a dissolved partnership into Court.”
We think, therefore, that the question before us is not affected by the fact that the creditor has or has not had notice of the dissolution.; and eliminating this there remains the simple question, whether a citation addressed to the dissolved partnership, and served on one of the partners, is a good citation of that partner ?
It must be borne in mind that this was served on Samuel Weil in person, with the citation “to Weil & Bro.,” a certified copy of plaintiff’s petition, in which it was specifically alleged and set forth that the firm of Weil & Bro. was composed of Samuel Weil and M. Weil, and in which there was a prayer for judgment against the firm and against *56each member thereof in solido. The object and purpose of citation is notice. Under the facts of this case it is not possible that Samuel Weil could have been misled as to the identity of himself as a party defendant in such cause. The citation to Weil & Bro., accompanied by the copy of petition, and served on Samuel Weil personally, sufficiently designated him, and was a substantial compliance with art. 179 of the Code of Practice, which provides that the citation “ must mention the name of the defendant to whom it is addressed.”
We think this case comes within the purview of the doctrine held by the courts of France, under their code of procedure which is very similar to ours. The rule, is thus stated in Copier vs. Déspus, Cassation, twenty-third of November, 1836: “Les erreurs ou omission dans un exploit n’entrement pas nullitó toutes les fois que cet exploit, ou les pieces qui Faccompagnent, renferment des énonciations qui peuvent reparer ces erreurs ou omissions.”
On the other points involved in this cas.e we adhere to the views expressed in our former opinion, and see no reason to change the conclusions therein reached. We think this case differs from that of Avandano vs. Arthur, just decided, in this, that Arthur at all times refused to sign, while in this defendants at all times promised to sign the lease; over and over recognizing its existence. So the parties clearly did not contemplate the writing as the completion of their agreement, but only as its evidence.
It is, therefore, ordered that the decree heretofore rendered by this court remain undisturbed.