16 Ala. 448 | Ala. | 1849
The counsel for the plaintiffs in error, in their argument, present three questions: 1st — that one partner has no right, after the dissolution of the firm, to transfer its effects or ehoses in action so as to bind the firm; 2d — that the admissions made by Estill after the firm was dissolved, in reference to the transfer made by him, were illegal proof; 3d— that Dixon was interested in the event of the suit, and therefore incompetent to testify.
By joining in the suit the partner who has done the wrongful act, they rely on his right to recover, and must abide by all his acts; and if any one of them would bar the right of one partner, this is sufficient to bar the action. In the case of Jones v. Sikes, 9 B. & C. 532, it was said by Lord Tender-den, that he was aware of no case in which one has been alj^ lowed in a court of law'to rescind his own act on the ground that it was a fraud on the rights of another, whether the party seeking to do this sues in his own name or jointly with the person injured by his act. The principle that all the partners must be entitled to recover, or the action cannot be maintained, is fully recognised in Ihe American courts, and indeed, so far as I have observed, has never been denied where 1he common law of England prevails. Story on Partn. ch. 12, p. 360 to 365; 2 Gallison, 130; 16 Johns. 438. As it is the established rule that all the partners must be entitled to recover, in order to maintain the suit, any act of one partner, whether done be
For this error, the judgment must be reversed and the cause remanded.