44 W. Va. 197 | W. Va. | 1897
Appeal from the Circuit Court of Cabell County, taken by the Pomeroy National Bank, from a decree refusing- to dissolve a temporary injunction granted in the case of
The fund in controversy is, admittedly, social assets, which one partner is attempting wrongfully to divert to his own private use and benefit, to the injury and against the rights of the other partner and the social creditors. Social assets cannot be diverted from the payment of social debts to individual purposes without the consent of both partners, and then not in fraud of the social creditors. Baer v. Wilkinson, 35 W. Va., 422, (14 S. E. 1); Darby v. Gilligan, 33 W. Va., 246, (10 S. E. 400). The whole transaction appears to have been a Randolph Mason scheme, in
In drafting the decree complained of, a clerical error, having the effect of a judicial determination or enlargement of the injunction, to the injury of the appellant, was committed in the recital of the injunction awarded, in that the court did not limit the nonpayment of the certificate to the fund in controversy. The original injunction, as granted, prohibited the Huntington National Bank “from paying over the said fund,” while the decree recites it as having enjoined “the Huntington National Bank from paying to the said Pomeroy National Bank the certificate of deposit,” without adding thereto “out of the fund in controversy.” The Huntington National Bank has the right to pay this certificate, if it wishes so to do, out of any other funds than the social assets of the firm of Roup & Grobe; and the Pomeroy National Bank may be able to leg-ally compel it to do so, and should be left at perfect liberty to bring its suit for this purpose. To this extent the decree will be amended and affirmed, with costs to appellant.
Amended and Affirmed.