11 La. 577 | La. | 1838
delivered the opinion of the court.
The petitioner, who resides in. New-Orleans, sues as widow in community with her late husband Levy S. Levy,, and as tutrix of their minor child; and avers, that her husband and Moses A. Levy were partners in trade and commerce, at Vicksburg in Mississippi, where their mercantile operations were carried on under the name arid sole management' of said Moses, from the year 1830, until August, 1834, when their partnership was dissolved; that they were prosperous in business, and that she is entitled to fifteen thousand dollars, being one-half of the profits accruing therefrom; that said Moses executed at New-Orleans, on 13th February, 1834, a simulated act of donation of fourteen slaves to his mother, Eliza Levy, one of the
In her affidavit annexed to the petition, she declares, among other things, “that Moses A. Levy of Vicksburg, in the state of Mississippi, is justly and truly indebted to her, in the aforesaid capacity, in the full sum of eight thousand dollars,” &c.
Process of attachment accordingly issued, and the sheriff seized and' took into his possession the slaves mentioned in the petition.
The defendant, through his counsel, appointed by the court to represent him, éxcepted to plaintiff’s right to bring her action in form of attachment; denies that the donation was fraudulent, or that he has any property within the jurisdiction of the court, and avers his ability to pay all his debts..
Eliza Levy, the donee, who is also made a party defendant in the cause, denied generally the matters charged in plaintiffs petition.
The court rendered a decree, setting aside the donation; liquidating and settling the partnership profits at twenty thousand dollars, the half of which, ten thousand dollars, was adjudged to the plaintiff as her share, to be satisfied by the sale of the slaves attached. The defendant appealed.
The exception taken by the attorney appointed to represent M. A. Levy, is in the following'words: “ Moses A. Levy, one of the defendants, for further answer to the petition of the plaintiff in the above suit, prays leave to except to the same, and alleges, that this action cannot be sustained, even if a partnership be shown to have existed, which, however, is not admitted, but expressly denied; because, as is alleged in plaintiff’s petition, no liquidation or settlement of the affairs of the firm has ever taken place; and because the plaintiff does not seek a general and final settlement of the debts, active and passive, of the partnership, up" to the time of its
This exception, we think, is well taken. When partners, or either of them, reside in a distant country, it would be, to say the least, a great hardship, to compel one of them, by suit in Louisiana, to transfer his books, titles, papers and testimony hither, to explain and adjust complicated partnership transactions, which would seem of right to appertain to the forum of his own domicil.
But without determining whether a partner could be called to account under such circumstances, we are clearly of opinion, that the law does not afford a remedy by attach-r 7 V. i ment, in the case now under consideration. Before that process can be obtained, the creditor is required to state “expressly and positively the amount he claims,” and to declare under oath, the amount of the sum due to him. Code of Practice, article 242-3. This, it is clear, the plaintiff could not have done; and any sum she might fix upon, would be 7 J ° 1 . merely conjectural, and ought riot to serve as the basis of a . . , positive oath. -
The object sought by an action of one partner against' another, is to ascertain the amount of profits, if any, that fall to the share of each, by a previous and necessary liquidation of their partnership affairs. Their outstanding debts and credits must -be first examined and classified ; the goods and property in possession inventoried, and their value fixed, in order to be divided in kind, or converted into money. The . . , , . , partners must account for the sums they have respectively abstracted from the common stock; their partnership debts first paid, and the balance struck, on a final and full settlement of all their concerns, before either of them could possibly know, or undertake to specify, under oath, the sum to which he was entitled.
In ordinary attachments, when the creditor has a knowledge of the debt, or the evidences of it are in his power, he
An oath taken under such circumstances, we are of opinion, is^not such as a sound interpretation of the law requires, and that process of attachment ought not, therefore, to have issued.
Several other points were raised in the cause, upon which we express no opinion, as the view we have here taken of the subject renders it unnecessary.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed, the attachment dissolved, and the petition dismissed, the plaintiff and appellee paying costs in both courts.
