Freeman v. Finnall

1 S. & M. 623

• Court: Mississippi Chancery Courts
• Decided: June 15, 1842
• Status: Published

Opinion

Chancellor.

The complainant, in this case, entered into partnership with Finnall, one of the defendants, in the trade of buying and selling negroes, for the space of three years. He charges in his bill, that the defendant became indebted to him, for money paid on account of their partnership liabilities, and for money advanced by him to the defendant, for his individual use ; the indebtedness on both accounts, amounting to about eleven thousand dollars. He states further, that Finnall had recovered a judgment for about ten thousand dollars, against the other defendants, Murchison and Doyle, and he prays an injunction to prevent the collection of that debt by Finnall, and that it may be applied to bis own claim against Finnall. Independent of the denials of the answer of Finnall, I think it would be difficult to sustain the injunction of the complainant, regarding this bill, as true in all its statements. It is not pretended in the bill, that the judgment against Murchison and Doyle, is partnership property or effects. If it were so, it is difficult to perceive how the complainant could have overlooked a fact so important to the support of his bill.

A not less palpable defect in the bill is the joinder of private and partnership liabilities. If the complainant has advanced more than his portion in payment of the partnership liabilities, this would constitute him to that extent a creditor of the firm, to which he must look in the first instance for reimbursement, and, lastly, to the individual effects of his partner, and there is no allegation that the partnership effects are not adequate to his indemnity. The advancement of money by the complainant on account of the individual indebtedness of the defendant, would create nothing more than the ordinary relation of debtor and creditor ; to thé adjustment of which a court of law would be amply adequate. There is no instance of allowing a creditor at large to come into this Court upon a purely legal claim, and enjoin his debtor from selling, receiving, or disposing of his effects. This can only be done after the creditor has reduced his claim to the shape of a judgment.

But apart from this view of the case, the answer of Finnall contains, I think, a full denial of the most important charges in the bill. The complainant asks for a continuance of the motion, to enable him to procure testimony to sustain his bill. The bill was filed about twelve months before the meeting of this Court, and the answer four months prior thereto. Under our statutes upon that subject, the complainant can proceed to take testimony at any time after the expiration of thirty days from filing his bill. I do not think, therefore, that the complainant is entitled to the indulgence he asks.

The injunction must be dissolved.