Daniel v. Townsend, Arnold & Co. , 21 Ga. 155 ( 1857 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] The bill charges that Townsend & Co. sued Eason Smith, the surviving partner of Smith & Daniel to insolvency, and seeks to make the complainant’s debt out of the estate oí' James H. Daniel, the deceased partner. The bill was,demurred to for waut of equity. That is, that the allegation that the surviving partner was sued to insolvency, does not amount to an averment that the partnership was insolvent, so as to entitle the creditor to go over upon the individual estate of Daniel.

The Court overruled the demurrer, deciding that there was equity in the bill.

Subsequently a ,plea was put in to the effect, that there were assets belonging,to the firm of Sihitli & Daniel, of the value of one thousand •’dollars; hut the plea was neither signed nor sworn to. Thp Court rejected the plea on this account and for the further reason, that the matter contained in the plea was covered by the judgment upon demurrer.

[2.] While wo arc compelled to affirm the judgment of the Court, on account of the informality of the plea, we dissent from the conclusion that the matter contained in the plea was concluded by the judgment upon the demurrer.

Admitting the allegation in the hill, that Smith, the surviving partner of Smith & Daniel, was sued to insolvency, was tantamount to an averment that the fa'm of Smith & Daniel was insolvent, (and we arc inclined to think that it was,) still the matter contained in the plea is altogether new. And had the plea been in proper form, and had it shown affirmatively that the assets referred to were sufficient to cover the complainant’s demand, it should have been reversed. As the case now stands, no injury can result to the defendant as the same matter contained in the plea may be put in the answer; so that at the hearing and upon the proofs, all the equity of the parties can be properly adjusted

Judgment affirmed.