JAMES W. BREEDLOVE AND WILLIAM L. ROBESON, PLAINTIFFS IN ERROR
v.
THEODORE NICOLET AND J.J. SIGG.

*417 The case was argued by Mr Coxe, for the plaintiffs in error, and by Mr Livingston, in a printed argument, for the defendants.

*426 Mr Chief Justice MARSHALL delivered the opinion of the Court.

This suit was instituted in the court of the United States for the eastern district of Louisiana, by Theodore Nicolet and J.J. Sigg, subjects of the republic of Switzerland, merchants and partners, trading under the firm of Theodore Nicolet & Co., against James W. Breedlove and William L. Robeson, members of a commercial company consisting of J.R. Bedford, James W. Breedlove and William L. Robeson, merchants and partners, formerly doing business under the firm of Bedford, Breedlove and Robeson.

The petition, which in the courts of Louisiana supplies the place of a declaration at common law, is founded on a promissory note in the following words:

Sixty days after date we promise to pay to order of Messrs Theodore Nicolet & Co. twenty-nine hundred sixty-four and ten hundredths dollars, value received.

In June 1829, the defendants filed their plea and answer, setting forth that after the execution of the said note, their affairs having become embarrassed, they made out a full and complete schedule, exhibiting all their property and the debts due to and from them, which said property was duly accepted by the judge of the Parish court for the benefit of the creditors placed on the said schedule, among whom were the plaintiffs Theodore Nicolet & Co., who were then and at the time of the execution of the said note, residents of New Orleans. The answer then sets forth at large the proceedings after the acceptance of the property, and the final discharge of the defendants by the judgment of the Parish court, given in pursuance of the laws of the state, which judgment they plead in bar of the action.

Afterwards, in January 1830, the cause came on for trial, when the following entry was made. "This cause came on for hearing before the court, when, after hearing the arguments of counsel in part, it is ordered that this cause be set for trial on the jury docket on the plea filed this day." And afterwards, on the same day, "came the defendants by their counsel and filed the following plea."

This plea objects to the jurisdiction of the court, because the note in the petition mentioned was drawn by Bedford, Breedlove and Robeson, payable to the order of Theodore Nicolet & Co., which said firm of Theodore Nicolet & Co. is composed of other persons than the said Theodore Nicolet and the said J.J. Sigg: to wit, Germain Musson and others, all and each of whom are citizens of the United States and state of Louisiana.

The plea farther alleges, that Frederick Beckman, a remote indorser on the said note, had since the indorsement become a citizen. The plaintiffs objected to the reception of this plea to the jurisdiction, because it came too late.

Afterwards, in May 1830, the court, on a re-hearing, overruled *428 the plea to the jurisdiction which had been received at the January term. The defendants excepted to this decision.

The cause came on for trial before the court, a jury not having been required, when the following admissions were made.

"It is admitted that the persons composing the firm of T. Nicolet & Co. were residents of the state at the time of the execution of the note sued, and have continued so up to the present date; that they are, however, absent about six months in the year, but, when so absent, have their agents to attend to their business; and that their commercial house has existed in New Orleans ever since the execution of the said note. It is also admitted that, at the time of the execution of the said note, the defendants J.W. Breedlove and William L. Robeson were residents of the city of New Orleans, and citizens of the state of Louisiana."

These admissions are of no importance in the cause. The residence of aliens within the state constitutes no objection to the jurisdiction of the federal court.

The defendants offered in evidence the record of the bankrupt proceedings from the parish court. It was admitted that the meeting of the creditors was duly advertised in the public prints. The plaintiffs objected to the admission of this record, but the court determined that it should be read.

The defendants also gave in evidence the record of the proceedings of the court in a suit brought by the plaintiff, J.J. Sigg, on the same note, against Bedford, Breedlove and Robeson, to which the defendants, James W. Breedlove and William L. Robeson, appeared, and pleaded to the jurisdiction of the court, on which the suit was discontinued on motion of the plaintiffs' counsel.

In June 1830, the court rendered its judgment in favour of the plaintiffs for the amount of the note, with interest; which judgment is brought before this court by writ of error.

The plaintiffs assign the following errors in the proceedings of the district court.

1st. The action was irregularly instituted, no process having been sued out against Bedford, one of the partners, and the contract being joint as well as several.

*429 2d. Neither in the petition, writ, or in any part of the proceedings, is the Christian name of Sigg set forth.

3d. There is no evidence that the petitioners are aliens. They are shown to have been at the date of the note, and to the time of the trial, residents of New Orleans.

4th. If originally aliens, their residence in New Orleans renders them incapable of suing in the courts of the United States.

5th. There is no averment or proof that Bedford, one of the parties to the note, was subject to the jurisdiction of the court.

6th. The plea to the jurisdiction was properly filed, and ought not to have been taken from the files of the court.

7th. The plaintiffs being parties to the insolvent proceedings, were stopped from questioning the sufficiency of the discharge.

1. The first error assigned, that the suit is brought against two of three obligors, might be fatal at common law. But the courts of Louisiana do not proceed according to the rules of the common law. Their code is founded on the civil law, and our inquiries must be confined to its rules.

The note being a commercial partnership contract, is what the law of Louisiana denotes a contract in solido, by which each party is bound severally as well as jointly, and may be sued severally or jointly. The Civil Code of Louisiana, article 2080, directs, "that in every suit on a joint contract all the obligors must be made defendants; and the succeeding article directs that "judgment must be rendered against each defendant separately, for his proportion of the debt or damages."

Article 2086 says, "there is an obligation in solido on the part of the debtors, where they are all obliged to the same thing, so that each may be compelled for the whole." Article 2088 says, "an obligation in solido is not presumed; it must be expressly stipulated."

This rule ceases to prevail only in cases where an obligation in solido takes place of right by virtue of some provisions of the law." Pothier, from whom this article appears to be taken, part 2, ch. 3, art. 8, gives, in number 266, as one of the instances in which the law presumes it, "where partners in commerce contract some obligation in respect of their joint concern."

This then is a contract in solido, on which the parties may *430 be sued severally or jointly, and by which each is liable for the whole.

The Civil Code, so far as we are informed, does not affirm or deny that a suit may be sustained on such a contract against two of three obligors. The rules of practice in Louisiana, so far as we understand them, require that the petition should state the truth of the case, and should show a right in the petitioner to recover. It is not denied that this petition states the case truly, nor is it denied that the petitioner has a right to recover from the defendants the sum demanded. It is alleged that he has not a right to recover it in the form of action which he has adopted. He might have obtained a judgment against each for the whole sum, but not, it is said, against two of them, in one action. If this be the rule of the common law, it is a mere technical rule, not supported by reason or convenience. No reason other than what is merely technical can be assigned for requiring the additional labour and expense of two actions for the attainment of that which may be as well attained by one. We have no reason for supposing that this technical principle has been engrafted on the civil law. The contrary is to be inferred from the practice of that branch of it with which we are familiar. It is a rule in chancery that all those against whom a decree can be made, shall be brought before the court, if they are within its jurisdiction. A court of equity, proceeding on the principles of the civil law, would not tolerate separate actions in this case. That court, in a case of which it would take cognizance, might require that all those bound in the note should be brought before it in the same suit, not that separate actions should be brought against those who might be sued in one. On the principles of the civil law it would seem that the defendants may be required to account for not joining the third promissor in the suit, not for joining two of them. The record contains ample evidence to this point.

In the bankrupt proceedings given in evidence by the defendants in the district court, the petitioners state John R. Bedford to be a resident of the state of Alabama, and the schedule required by law also states him to be of Alabama.

In the record of the proceedings brought by J.J. Sigg on the same note, against Bedford, Breedlove and Robeson, the defendants *431 pled to the jurisdiction of the court, and alleged in their plea that John R. Bedford, one of the members of the firm of Bedford, Breedlove and Robeson, was not a citizen of the state of Louisiana, but is an inhabitant and citizen of the state of Alabama. The suit was discontinued on the motion of the plaintiffs' counsel.

It was then fully shown to the court that Bedford could not have been joined in the action; and it has been repeatedly decided that in chancery, if the court can make a decree according to justice and equity between the parties before them, that decree shall not be withheld because a party out of its jurisdiction is not made a defendant, although he must have been united in the suit had he been within reach of the process of the court. In this case the judgment conforms to right and justice, since the plaintiffs were entitled to claim the full sum from each of the defendants.

In a question of doubtful practice, it ought not to be entirely disregarded, that the defendants in the district court have not taken this objection, though they pled to the jurisdiction of the court. 2 Pothier, p. 2, ch. 3, art. 8, no. 270, 271, would seem to indicate that more than one, and less than all the obligors, when bound in solido, may be joined in the same suit.

We think there was no error in joining two of the defendants in the same action.

2. The plaintiff Sigg is denominated in the petition and writ J.J. Sigg. The omission of his christian name, at full length, is alleged to be error. He may have had no christian name. He may have assumed the letters "J.J." as distinguishing him from other persons of the surname of Sigg. Objections to the name of the plaintiff cannot be taken advantage of after judgment. If J.J. Sigg was not the person to whom the promise was made, was not the partner of Theodore Nicolet & Co., advantage should have been taken of it sooner. It is now too late.

3. The petition avers that they are aliens. This averment is not contradicted on the record, and the court cannot presume that they were citizens.

4. If originally aliens, they did not cease to be so, or lose their right to sue in the federal court, by a residence in Louisiana. Neither the constitution nor acts of congress require *432 that aliens should reside abroad to entitle them to sue in the courts of the United States.

5. The suit not having been brought against Bedford, it was not necessary to aver or prove that he was subject to the jurisdiction of the courts of the United States.

6. The sixth objection is, that the plea to the jurisdiction was lawfully filed, and ought not to have been taken from the files of the court.

This plea was, that the firm of Theodore Nicolet & Co. consisted of other persons in addition to those named in the writ and petition, and that those other persons were citizens of Louisiana.

It is admitted that a constitutional or legal disability in the court to exercise jurisdiction over the parties, may be taken advantage of by plea in abatement, but they must be parties. If they are not, the objection is of a different character. In the case at bar those persons who, if named as plaintiffs, might have ousted the jurisdiction of the court, were not plaintiffs. To make them so, was preliminary to any objection to them. The plea, therefore, was to be considered as objecting to the writ and petition, because all the members of the firm of Theodore Nicolet & Co. are not named. The incapacity of those members to sue, was to be considered after they became plaintiffs. If persons who ought to join in a suit do not join in it, the objection is not to the jurisdiction of the court on account of their invalidity to sue, but because the proper plaintiffs have not all united in the suit. The plea is to be considered as if the averment that Germain Musson and others were citizens of Louisiana, had not been contained in it.

This plea was offered after issue was joined on a plea in bar, and the argument of the cause had commenced. The court might admit it, and the court might also reject it. It was in the discretion of the court to allow or refuse this additional plea. As it did not go to the merits of the case, the court would undoubtedly have acted rightly in rejecting it. But it was received, and the question is, whether, after its reception, all power over it was terminated.

All the proceedings are supposed to be within the control of the court while they are in paper, and before a jury is sworn or *433 a judgment given. If so, the orders made may be revised, and such as in the judgment of the court may have been irregularly or improperly made, may be set aside. If such be the discretion of the court, this is not a case in which a supervising tribunal will control that discretion. The court very properly thought that after issue was joined and the argument commenced, an additional plea not going to the merits, but which might defeat the action, ought not to have been received. We are not prepared to say, they exceeded their power in correcting this order and setting it aside. If they did not exceed their power, they have committed no error in this exercise of it.

7. The seventh and last error assigned is, that the plaintiffs, being parties to the insolvent proceedings, were stopped from questioning the sufficiency of the discharge.

The act of Louisiana, passed on the 20th of February 1817, section 8, relative to the voluntary surrender of property, and to the mode of proceeding, &c. directs when the judge shall be satisfied that the debtor is entitled to the benefit of the act, "he shall order that the creditors of said debtor be called in the manner and within the time prescribed for respites by the Civil Code, art. 4, title 16, book 3; and he shall appoint a counsellor to represent the creditors absent or residing out of the state, if there be any mentioned in the schedule."

The provision referred to, is in title 18, articles 3052, 3053, 3054, in the volume in possession of the court.

The language of the code is, "the respite is either voluntary or forced. It is voluntary when all the creditors consent, &c."

"It is forced when a part of the creditors refuse to accept the debtor's proposal, and when the latter is obliged to compel them, by judicial authority, to consent to what the others have determined in the cases directed by law."

The forced respite takes place when the creditors do not all agree, for then the opinion of the three-fourths, in number and in amount, prevails over that of the creditors forming the other fourth, and the judge shall approve such opinion, and it shall be binding on the other creditors who did not agree to it.

But in order that a respite may produce that effect, it is necessary,

1. That the debtor should deposit, &c.

*434 2. That a meeting of the creditors of such debtor, domiciliated in the state, shall be called on a certain day at the office of a notary public by order of the judge, at which meeting the creditors shall be summoned to attend, by process issued from the court, if the creditors live within the parish where the meeting shall take place, or by letters addressed to them by the notary, if they are not residing in the parish.

It is further directed that the meeting, as well as its object, be advertised in English and in French.

It was admitted that this advertisement was made; but it is not admitted nor proved that the petitioners were summoned to attend by process from the court, or by letters addressed to them by the notary. Nor did they appear voluntarily.

Is the judgment binding on them?

It is unquestionable that summary proceedings of this description must be regular, and that their regularity must be shown by the party who relies on them. Notice to the creditors is material, and the law prescribes that notice and defines it. Advertisement in the papers is not sufficient. Personal notice must be given to a resident within the parish, by process; to a non-resident, by a letter from the notary. The law deems this notice indispensable, and the court cannot dispense with it. For want of it the judgment of discharge was no bar to this action.

There are other irregularities in the proceedings, but want of notice is fatal, and it is unnecessary to notice them.

Judgment affirmed, with costs and damages, at the rate of six per cent per annum.