
    
      ALLEN vs. BROWN & AL.
    
    Altho’ there are but two members of a firm, it does not follow that their interest is equal.
    Appeal from the court of the first district.
   Mathews, J.

delivered the opinion of the court. In this case the plaintiff claims in his own individual and separate right, the proceeds of a certain quantity of tobacco, which he alleges to have come into the hands of the defendants, as being the property of Allen & Gatewood—the district court was of opinion that the evidence adduced in the case did not support the allegations of the petition, and ordered the suit to be dismissed, and from this judgment of dismissal, the plaintiff appealed.

The testimony as it appears on the record, shews clearly that the tobacco, which forms the subject of the present contest, was shipped to New Orleans, and passed into the possession of the defendants, as belonging to the firm of Allen & Gatewood There is no proof that the appellant has any right, or title to it, except the joint interest which he may hold as a partner of the said firm. It is therefore clear that the evidence does not correspond with the allegations of the petition; and consequently does not support the plaintiff’s claim to the whole amount of property for the recovery of which the present action is instituted. But his counsel insists that he may recover one half as being a joint proprietor with Gatewood, although not claimed in that capacity; and in support of this doctrine, he relies on the case of Canfield, vs. M'Laughlin—Bryan & wife, vs. Moore, heirs, &c. which were decided according to the principles established in the 10th law of the 17th tit. and 4th book of Novis. Recop.

East’n District.

June, 1823.

In these cases it is true, that full effect was given to the provisions of the law therein cited; which are extremely liberal in regard to pleading. In the present case the evidence does not cure the imperfection of the plaintiff’s allegations; for it does not show the amount of interest which he has in the partnership property. Because the partners are only two, it does not follow as a necessary inference, that their interests are equal. We are of opinion that the plaintiff’s rights are not ascertained even by the testimony of the cause. It is therefore ordered, adjudged, and decreed that the judgment of the district court be affirmed with costs.

Pierce for the plaintff; Morse for the defendants.  