Towle v. Pierce

53 Mass. 329

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1847
• Status: Published

Opinion

Wilde, J.

The principal cause of demurrer to the bill is, that all the persons interested in the subject matter of the suit are not made parties, so that it would be perfectly safe for the defendant to obey the decree prayed for. To this the answer is, that the other persons named in the bill, who were partners with the plaintiff and the defendant, are not within the jurisdiction of the court. And this we consider a sufficient answer. “ The general rule is, that to a bill against a partnership, all the partners must be made parties ; but if one of the partners be resident in a foreign country, so that he cannot be brought before the court, and the fact is so charged in the bill, the court will ordinarily proceed to make a decree against the partners who are within the jurisdiction ; with this qualification, however, that it can be done without manifest injustice to the absent partner.” Story Eq. PL § 78. The bill avers that all the absent partners have received their full share of the partnership effects; and if so, they cannot be prejudiced by any decree which may be obtained in the present case.

The other objection to the bill is, that it does not set forth, with sufficient certainty and particularity, the facts and circumstances of the case. But we think a more particular statement of the case is not required; it being averred, that all the books and papers, necessary to a final settlement of the affairs of the partnership, are in the hands and possession of the defendant, or that they are under his control, and that, although the plaintiff has requested permission to examine them, he has not had permission so to do. See Mitf. Pl. (3d ed.) 33, 34.

Demurrer overruled.