38 MCCARTY v. WOOD. [Tyler Term,
attempted to prove the existence of any debt against the
partnership. IHe made no claim and offered no evidence
to show any interest in the half owned by Fox. He claimed
for himself one-half of the goods, and nothing more.
In the case of Warren v. 'Wallis, Landes & Co., 38 Tex.,
228, the court said: "It is a principle of law well settled
that an individual partner has no separate or exclusive
right to any part or portion of the partnership assets rather
than to any other part or portion. The partners have a
common interest in all the assets. No one partner being
allowed to claini a separate interest, it follows that his
creditor cannot execute and sell a separate interest whilst
the undivided interest may be reached in equity." The
first portion of this extract is not questioned; the latter
portion we dissent from. Mr. Story, in his treatise on Partnership,
3d ed., p. 404, declares that the separate interest of
a partner may be taken and sold under execution by the
sheriff subject to the rights of other parties, but the creditor
is not bound to audit until those rights are ascertained, but
may require the sheriff to proceed and sell. The like principle
is declared in 3 Kent's Corn., 77, 78, and such has been
held by this court in Rogers v. Nichols, 20 Tex., 725, and
Thompson v. Tinnin, 25 Tex. Supp., 56.
For the error in the charge, and refusal to grant a new
trial, the judgment is reversed and the cause remanded.
REVERSED AND REMANDED.
[Associate Justices MOORE and REEVES did not sit in this
THOMPSON MCCARTY V. LOUISA WOOD, EXECUTRIX.
1. NEW TRIAL, WHEN DEFECTIVE PLEADING WILL NOT AUTHORIZE.
-The petition in a suit on account contained no itemized statement
of the account, but no exception was taken for that cause: Held, that
Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42.. St. Louis, Mo.. The Portal to Texas History. http://texashistory.unt.edu/ark:/67531/metapth28531/. Accessed July 29, 2014.