Opinion
December Term, 1824.
IN EQUITY
When, on a bill filed to settle partnership accounts, the matters in dispute were referred to arbitrators, who made a report that defendant was in debt to complainants, provided defendant was not liable to pay the amount claimed in an attachment against him for a debt due from the firm, and the court, on complainant's motion, decreed in the alternative, pursuing the language of the report of the referees; it was held that the decree was as final as the court intended to make it, the parties being referred to the decision of another court for its final consummation, and that a bill of review would lie to reverse the decree.
THE bill, which was filed in April, 1820, set forth that McGowan and Owen Collins, copartners, entered into partnership with John Collins of Halifax, the defendant, in 1818, under the firm name of John Collins Co.; that it carried on a profitable business for two years, and that during the copartnership complainants furnished goods to a large amount; that the affairs of the firm became deranged by reason of debts against it to a large amount, and in order to make a just surrender of all the effects the company assigned to Timothy Ryan, Patrick Durkin, and George Irvine, in trust for the benefit of its creditors; that Ryan, Durkin, and Irvine pray to be made parties to this bill; that a dissolution of the firm of John Collins Co. took place, and that John Collins fraudulently carried off bonds, accounts, etc., of the partnership effects, and refused to account with the assignees, and prayed an account and decree for the sum due.
The Attorney-General, Seawell and Ruffin for complainants.
Gaston and Hogg for defendant.
At October Term, 1821, the cause was referred to Andrew Joyner and Shirley Tisdale; and at April Term, 1822, the referees reported that the defendant had in his hands $1,293.03 due complainants, "provided John Collins is not liable under an attachment issued at the instance of Michael Sweetman against him, for payment of an action in (421) favor of the said Sweetman against McGowan Collins for the sum of _____________."
On 27 April, 1822, upon motion made to the court below by the complainant's solicitor, and upon producing the report of the referees, it was "Ordered that the report be confirmed, and that John Collins pay to the complainants the sum of $1,293.03, provided that John Collins is not liable under an attachment issued at the instance of Michael Sweetman against him, as mentioned in the aforesaid report; and if he, being liable, should pay to Sweetman the amount of the attachment, then he was to be discharged from the payment of $1,293.03 to complainants if Sweetman's attachment amounted to that sum; and if it did not, then that John Collins should pay to the complainants the sum required to make up the $1,293.03," and the clerk was ordered to tax complainant's costs against John Collins.
At October Term, 1822, the cause was continued, and at April Term, 1823, the complainants filed a petition for a rehearing, which, at October Term, 1824, was refused, and the petition was dismissed; whereupon complainants appealed to this Court.
The reference was of all matters in controversy between McGowan Collins and John Collins.
The attachment of Sweetman was sued out in May Term, 1822.
(422) I think the decree in this case is as final as the court intended to make it. The parties are referred to the decision of another court for its final consummation; and whether execution should issue for one sum or another was made to depend upon that decision; and when the record from the court where the attachment (423) was depending (under which John Collins had been summoned as garnishee) should be produced, it would make no alternation in the decree, but merely enable the court to direct for what sum execution should issue. I, therefore, think a bill of review will lie to reverse the decree, and that the decree ought to be reversed and a decree entered for the complainants.
TAYLOR, C. J., and HENDERSON, J., concurred.
PER CURIAM. Reversed.