13 Conn. 461 | Conn. | 1840
The counsel for the defendants has endea-voured to raise the question of the sufficiency of the bill. But that enquiry is not now properly before us. The superior court have, on a demurrer, adjudged the bill to be sufficient. That judgment must stand, and be deemed conclusive, until reversed. It can be reversed regularly, only by a writ of error, brought to this court, as an appellate tribunal for the correction of errors in the judgments or decrees of the superior court. No such proceeding has been, or, indeed, can, before the final decree in this case, be instituted. We are sitting, in this case, not as an appellate court, to correct ei'rors, but merely as an advisory tribunal, to assist the superior court, at its request, by an opinion on the questions which it has presented to us for that purpose ; which opinion, when given, is not obligatory on that court, although it would be according to its uniform course to conform to it. The only question, on which our advice is now sought, relates to the decree or order, which, on the facts reported by the committee, ought to be made in this case. To consider any other, and especially that now attempted to be raised, would be, gratuitously to settle questions, which are not presented to us, on which our opinion would have no binding force,
The questions which have been argued in this case, and which we are called on to decide in the report of the committee, are, whether by the provisions of our statutes in regard to the levying of executions, the interest of one partner in the partnership property, can be reached and appropriated, on an execution against such partner, for his individual debt; and if so, in what mode ; or whether, in such a case, the remedy is in chancery, and what that remedy should be. These are questions of unusual importance ; they are attended with great difficulty ; have been the source of much perplexity and confusion ; and are not settled in the books, with such clearness as to furnish a safe practical guide. And, indeed, it is by no means certain, that the interests of community do not require some plain and compi'ehensive legislative provisions on the subject, in order to avoid the doubt and litigation to which it is constantly giving rise.
We are satisfied, that if it be necessary, in such a case as the present, to resort to a court of chancery, (on which question, or the others connnected with it, we intend to express no opinion,) the facts are too loosely and imperfectly found, in the report of the committee, in this case, to warrant an interference in behalf of the plaintiffs. 1. It is not found, by the committee, expressly, nor does it appear from their report, by necessary inference, that the property attached belonged to the co-partnership of George Jones C'o., and
2. The interest of Jones, in the partnership property of G. Jones <J- Co., is not ascertained, with such certainty and precision, as to form the basis of any decree. It is, indeed, found, in the former part of the report, that, at the time of the attachment against him, he had not withdrawn the whole of his stock, or his share of the profits ; that the effects of said partnership were more than sufficient to pay its debts ; and that his interest in the assets of the partnership, after paying its debts, was worth thirty-three dollars ; but, in a subsequent part of the report, and in connexion with such finding, it is stated, that within a very short time after the service of the attachment, the partnership was dissolved, when Jones sold all his interest to his co-partners, the plaintiffs in this case, who assumed the payment of all the partnership debts, purchased additional property, mingled it with the property of George Jones <J- Co. on hand at the time of the attachment, and manufactured, and finally disposed of the whole ; no inventory having been made, or separate accounts kept, of the sales of the property of G. Jones Co., on hand at the time of such attachment; and that, in ascertaining the amount of such property then on hand, it was necessary to make allowances for such addition to it, expenditures for labour, and other purposes of said business, and an allowance for the personal services of the plaintiffs. “ The enquiry, therefore,” the committee say, “ was one of extreme difficulty, to say nothing of the uncertainty which must finally rest upon the correctness of the results to which they have arrivedand they conclude, with expressing an opinion, that the interest of Jones would not “ materially vary from the amount before given, based upon estimates and valuations, viz. thirty-three dollars.”
An answer to a bill in chancery, which should state facts thus vaguely and indefinitely, would clearly be insufficient; and we think that it would be unsafe to pronounce on the rights of parties upon a' report so uncertain and imperfect on its face. It appears, moreover, that the committee were prevented from being more certain and precise, in this respect, by the misconduct or negligence of the plaintiffs them
We would, therefore, advise the superior court, that the report of the committee be not accepted.
In this opinion the other Judges concurred.
Report not accepted.