Arizona weekly citizen., 1882-11-12
LEGAL LORE,
Opinions Rendered by Hon. W. ". Hoover Judge of the First Judicial District of Arixana

Williams.
 . As the demurrer in this case goes to ! the merits have carefully considered
 the question involved.
 In analysin4 the propositions ad- vanced by opposing counsel and to de
 termine lhe true rule to be applied, l have sought to first ascertain what the . assignment to plaintiff operated upon.
 Then the difference, if any, of the as. slgnee to defendant, by virtue of the nature of the assignment, and finally, the rights of the defendant. It Is conceded that a partner cannot be sued by ths firm of which he IS a member ln relation to transactions con- nected with the copartner rship. And after dissolution, before an action at law can be maintained the balance must be one which has been ascertaIned oy tle act Of both partIes: in other words, agreed to as constituting bal ance due. Ross vs. Cornell, 45 Cal. I36.
 mat such an accounting had been mad and balance ascertained does not aihrmatIvely appear from the complaint ln the action at bar. The only aver ment that squlnts that way Is that the defendant was indebted to the firm of Lord < Williams Co. in the sum of Sl,oo4.6O for the balance of an account. but the essential averment that this was stated account IS here lacking.
 Then at the date of the assignment to plaintiff the firm had no right of action at law against defendant.
 Ihis assignment IS a voluntary one executed by the firm and purporting to convey unto the pl ,intiff herein "all and singular their property net exempt from execution and all debts due said firm including the said indebtedness of defendant"
 It has appeared from the reasoning above that the defendant was not then. so far as can be ascertained, indebted to the firm in any sum whatsoeve and 1t follows that Lord & Williams Co. could not by their copartnership act of vestlng the title they then held in the plaintiff herein, by such transfer affect the rights of third persons; that is, cure defects III title to any of their | property or create title. If this were so 1t would be novel doctrine indeed. It might be suggested that as de- fendant as member of said firm was 1 party to thIs transfer. that this fact would create a changed relation. A l careful consideration of this point leads | only to the conclusion that as the transfer IS limited to existing indebted l ness due the firm including his own indebtedness thereto, that he could not l be held Co have Intended or contem- 1 plated that by these words he would | waive hls right to a. accounting, or in | other words, create demand at law l which did not then exist. nor has any rule f construction | been suggested by counsel Nor can l | find any which would justify such an 1n- depreciation; and as these actions are | brought to enforce rights vested m the | assigned, by and flowing from this as- slgnment, 10 this fountain only can We | look m determining them
 But 1t IS urged by counsel for plaintiff | that because the firm Is insolyent We must guage the effect of this transfer by the purpose for which 1t was effected | l apprehend that counsel here confused | the right of a creditor, which the plain tiff IS not to apply individual assets to a deficiency in firm indebtedness, after exhaustlng from property with the du- tles Of trustee charged with selling property placed in his possession by the dAN LII NA1C AuHbANtlAH. GIu tue CDllEtLl0l of eKlsting debts and the disbursing of the money so realized as directed by the assignment. His rights, at least are no greater as to the control of such proper ty and the maintenance of necessary &C., tions for the recovery of such indebted ness than those of his assigners. Nor can they be, for he but enforces their title by virtne of being their legal successor in interest.
 And in this case he does not stand m the shoes of a creditor, with the latter's right to sequester individual property, and apply It to any ascertained deficien- cy as above set forth.
 An analysis of the process and pur- pose of the accounting spoken of rem ders still plainer the correctness of the views 1 have suggested. 4 partnership accounting Is a proceeding in which an enumeration and consideration of the assets and liabilities of the firm and the amount contributed or drawn out by each partner will, if the firm be solvent, determine the prOportIOnate interest of each partner ID the net assets, and If the firm be insolvent will ID like manner de- termine the contribution due from one partner to another and its amount.
 But the object being the ascertain ment of the rights of partners IS be- tween themselves, the firm, as an enti y, IS not party nor can 1t be and the pur pose cannot be effectuated in the case of an insolvent firm, until the debts have been paid, and the proceeding would then in fact be maintained only on the motion of one who had endorsed more than the proportion for the recovery of such surplus. The resulting obligation IS personal liability, not to the firm, but {. the different members as indI- viduals.
 Under this view of the law and its ap. plicatIon to the facts set forth Tn the complaints am compelled to sustain the demurrer and order the dismissal of the proceedings Tn attachment and re- lease of property held hereunder, and it is SO ordered. WILSON W. HOOVER,
 Associate Justice.
 Dated Oct. I'd, 1882.