Error from Bed Elver. This was an action by the defendant in error upon .an account for goods sold. The defendant pleaded in abatement the non-joinder of two others, alleged to have been partners of the plaintiff in a mercantile firm under the firm name of A. 31. Alexander, and as snob to have sold to the defendant the goods in question. There was also a general denial. The plaintiff replied, and', admitting that the persons named in the plea and not joined were partners, alleged as au excuse for not joining them that they were dormant partners. A jury was impaneled to try the issue, who found for the plaintiff that the persons not joined were, as alleged, dormant partners. There was a verdict aud judgment for the plaintiff on the merits. The defendant brought a writ of error, and relied for a reversal of the judgment ou the non-joinder of the partners named in the plea in abatement.

1. Should dormant partners be made parties plaintiff? The statute by which we are governed is art. C71, Hart. Dig., which requires “that the petition shall set forth clearly the names of the parties,” &e. This is a substantial re-enactment of the act of 1830. (Laws of Texas, vol. 1, p. 201, sec. S.) To apply the language of the chief justice in the case of Fowler v. Poor, Dallam, 402, to the casé at bar, it may be said that the statute which requires that the petition should set forth clearly the names of the parties “ must remain in full force until repealed iu express words by some subsequent statute, or the matter contained in some subsequent statute be so clearly repugnant thereto that it necessarily implies a negative.” It cannot, therefore, be contended that partners may sne in the partnership name where it does not contain a clear statement of the names of all the partners.

2. Por a description of dormant partners see Story on Partnership, see. 80. They “ partake of the profits and thereby become partners, either absolutely to all intenlsor purposes or at all events in respect to third persons.” The same, author, in his Equity Pleadings, says, “ all persons materially interested, either legally or beneficially, iu the subject-matter of a suit are to be made parties to it, either as plaintiff or defendant.” We admit that at common law, agreeabty to the authorities, there is some doubt on this subject. But we have ■not adopted the common-law practice.

3. The act for the regulation of limited partnerships (Hart. Dig., art, 2635) provides that partners who compty with tlie requirements of that act shall have certain privileges, and, among others, the privilege of suing and being sued in the name of the general partners, “ in tlie same manner as if there were no special partners.” This is obviously an exception to the general rule.

• The District Court act of 1S46 (Hart. Dig., art. 743) contemplates that all who “carry on business ” as partners should'be joined as plaintiffs.

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