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. Page: 478

478 WARREN V. WALLIS, LANDES & Co. [Term of
Opinion of the Court.
tachment of the 35th United States Infantry then at San Antonio,
and that Green, according to the recollection of the
witness, assumed the payment of a debt to Wallis, Landes &
Co. from Sullivan.
The apparent conflict in the testimony of the witnesses, if it
cannot be fully reconciled, admits of some explanation. Smith
had the charge of the business at Galveston, and Sullivan was
at San Antonio, and had control of the house at that place.
It was the duty of the branch establishments to report to the
house at Galveston. Sullivan made no report, and Smith
could know nothing of the condition of the business in his
charge. Smith must, therefore, have stated the account between
the parties, without reference to the business at San
Antonio. Be that as it may, the evidence of Sullivan that he
retained the debts due to the firm from the 35th Regiment,
and that Green assumed the payment of a debt due to
Wallis, Landes & Co. on settlement of the partnership account
of Sullivan and Green, is inconsistent with the theory
of appellant, that Sullivan was indebted to Green at the time
of their settlement or the levy of the attachment. The amount
of the debts due to the firm from the regiment is not shown.
The amount and value of the stock and assets on hand at the
time of the levy at San Antonio, Indianola, and Brenham, was
not inquired into, and no statement was made by the witnesses
in regard to the business at these branch establishments.
As the case is presented, we cannot say that the verdict of
the jury is without evidence to support it.
The statutory remedy for the trial of the right of property
is not adapted to the settlement of partnership accounts. The
claimant should have proceeded by petition and injunction,
calling for an account of the partnership business, in which he
should be required to aver in his petition, and prove on the
trial, that Sullivan was indebted to the firm in excess of his
capital and share in the profits, or that the goods were liable
to the claims of partnership creditors.
The claimant should have proceeded as in the cases of