Beard v. Call

Martin J. The defendant seeks the reversal of the judgment appealed from, on the ground that the Judge refused to dismiss the suit on the finding of the jury that there was a partnership between the parties, and ordered an account to be taken, in which, items were improperly allowed, notwithstanding his objections. The petitioners claim the balance of an account for disbursements made and commissions due them as agents of the defendant, and [467] consignees of his steam-boat, the New Castle. The answer after pleading the general issue, avers that the plaintiffs having purchased the steam-boat New Castle, the defendant became interested therein for two-thirds, and that it was agreed that she should be navigated for the benefit of both parties, and that if the plaintiffs have really made the disbursements, and earned the commissions charged in their account, which is denied, they have no claim on him, except for the balance of a general account of the affairs of the partnership. In a supplemental answer, the defendant stated himself to be the owner of a bill of exchange, accepted by the plaintiffs, and protested for non-payment, and pleaded its amount in reconvention and in compensation. The case was submitted to a jury, who found that there existed a partnership in the boat between the parties. The plaintiffs then filed a supplemental petition, asking that the prayer of the original petition might be changed into one for an account and settlement of all the affairs relating to the boat; and that a proper balance being determined in their favor, they may have judgment therefor. The defendant excepted to this petition. The exception was over-ruled ; the court proceeded to try the case ; and judgment was finally gi ven against the defendant. It appears to us that the First Judge erred. He informs us that “ it is common in chancery, for a suit brought with one intent, to be changed into a suit for another purpose, after evidence given. If, after evidence, it should appear the suit ought to be brought at law, the bill would of course be dismissed ; but if it should appear that chancery was the proper court, although the claim is of a different nature, the court would allow a supplemental petition to be filed to meet the case.” Our courts do not proceed according to the chancery practice, especially when it is opposed to the textual provisions of our statute, which forbid a plaintiff, when he has brought a suit with one intent, to change it into one for another purpose, after oi before evidence given. Our Code of Practice, art. 419, provides that, “ after issue joined the plaintiff may, with the leave of the court, amend his original petition, provided the amendment does not alter the substance of his demand, by making it different from the one originally brought;" 4 Mart. N. S. 137; 10 La. 424. Objections were made [468] to the change of the action, on the ground that the defendant was entitled to a judgment which would enable him to recover damages from the plaintiffs, and iheir sureties, on the attachment bond for the wrongful seizure of his property, and to protect the sureties he had given for its release. The objections appear to us too serious to have been disposed of on the ground, that they could be examined in suits on the bond. L. C. Duncan, for the plaintiffs. P. Anderson, for the appellant. It is therefore, ordered that the judgment be annulled, and reversed, and that there be judgment for the defendant as in case of nonsuit; the plaintiffs and appellees to pay the costs in both courts.