Territory of Florida ex rel. Smith v. Redding , 1 Fla. 242 ( 1847 )

BaIiTzel, Justice:

It is an established rule of pleading that “if the plaintiff by his replication show that he has no cause of action, there shall be judgment, though the bar be defective, for the Court will form their judg-ment from the whole record.” Arch. PI. & Ev. 240.

The replication of plaintiff to a plea by defendant of non damni-ficatus to debt on bond of Sheriff, sued as administrator by virtue of his office, assigns for breach, that while the said Redding was Sheriff and administrator ex officio of James K. Holloman deceased, he the said Redding received as such administrator as aforesaid, divers large sums of money and divers large quantities of goods and merchandize which he should have paid over and delivered to said Wilkins C. Smith as surviving partner of said Holloman.”

To this there was a demurrer, and we are of opinion it was rightfully sustained by the Court below. The design of the replication, as we conceive, is to show that as administrator of the deceased partner, the Sheriff had received this money and these goods and ■chattels. If so, the replication shows no cause of action in plaintiff.

On the death of a partner, the money, goods, and merchandize of the firm belong to the surviving partner, who is sole owner, and alone at law entitled to sue and be sued for them. Gow on Part. 143. The Sheriff as administrator obviously could not release or discharge an account against the partnership, nor had he the right to interfere with the affairs of the firm in any way, except to obtain the intestate’s share of the partnership property from the surviving partner after the settlement of the debts. He had no better right to meddle with these assets or effects than other property of the plaintiff; and plaintiff has no better right to sue him on his official bond than if the administrator had disturbed him in the possession of any property of his own. But there is another view of this subject entirely conclusive, without resting on this point.

Admitting that the Sheriff as administrator, was liable for this money and these assets, his securities on the administration bond are only liable after judgment of a court fixing the liability against him as administrator. 9 Mass. 114. 3 John. 437. 1 Wash. Rep. 31. 4 McCord 113.

For these reasons the judgment is affirmed with costs.