32 Miss. 241 | Miss. | 1856
delivered the opinion of the court.
This was an action in the Circuit Court of Lowndes county, founded upon a promissory note made by the defendant, payable to the plaintiff for the benefit of the plaintiff and defendant. The suit was at first brought for the use of the plaintiff and defendant, but the court, upon motion, permitted a new complaint to be filed, by which it appeared that the suit was prosecuted alone for the benefit of the plaintiff.
It is in the first place argued, that the court erred in permitting this amendment to be made. It has been repeatedly decided that under the Pleading Act of 1850, the court .could permit such an amendment to be made. The amendment was of course an abandonment of the original complaint, and, as a consequence, an abandonment of the pleas of the defendant thereto.
"VYe must, therefore, confine our examination .entirely to the amended complaint and to the pleadings of the defendant thereto. The pleas, in substance, show that the plaintiff-and defendant were co-partners at the time the note sued on was given, and that the debts of the concern had been paid before the commencement
The court below sustained a demurrer to both pleas ; and the defendant failing to plead further, a judgment final was rendered for the plaintiff.
The first plea was clearly defective in not showing that the debts were paid by the assets of the firm, if such a defence would even then have been good.
The second plea omitted to, state that the plaintiff was indebted to the firm upon an account stated, or upon an acknowledgment binding the plaintiff. It may be inferred that it was merely a general indebtedness, growing out of the co-partnership transactions, asserted by the defendant but not admitted by the plaintiff. The plea, in short, sought to litigate matters of account belonging to the co-partnership — which could not be done in a court of law. The note was a legal obligation, and, as an incident, the plaintiff was entitled to his legal remedy to enforce it. Nothing short of a legal defence could be interposed to defeat a recovery. The de-fence set up could only be made in a court of equity, where the matters of account connected with the co-partnership could be investigated. If there should exist no occasion for the plaintiff to apply the money to the purposes of the co-partnership, a court of equity will of course grant an injunction, at least to the amount of one-half, or the amount of the defendant’s interest.
Judgment affirmed.
