Roberts v. Ross , 2 Miss. Dec. 274 ( 1881 )

Opinion.

Per curiam:

Both the original and amended bill seek to enjoin an action at law, to which the complainant is not alleged to be a party, and, indeed, to which it affirmatively appears that he was not a party. Neither is it alleged that the defendant in the ejectment suit was the agent or tenant of the complainant, nor does it appear how the rights of the latter world be concluded or affected by a judg-( ment in the ejectment suit. Without some allegations on this subject, the bill cannot be maintained. It does not sufficiently appear that the parties plaintiff in the ejectment suit were parties to the compromise agreement set up in the amended bill as a bar to its prosecution. . It is intimated that they were or may have been parties to it. This is not sufficient. ' The compromise constitutes no bar unless entered into by them, or their duly authorized agent; and, if so entered into, it' would seem that it might be pleaded at law, if complainant had, or was entitled to have, a locus standi in that litigation. At all events, in order to set it up here, it must be unequivocally alleged that the defendants were directly or equitably parties to it and bound by it. The house and lot in controversy are not with sufficient distinctness charged to have been partnership property of the firm of Ross & Win-born. It is difficult to tell from the allegation whether the intent was to charge that it was partnership property or held by the parties as tenants in common. A distinct allegation on this subject is necessary.

The bill must be amended in the particulars indicated before it can be maintained. We express no opinion upon tbe merits of the controversy in advance of such amendments.

Decree reversed, demurrer sustained, with leave to complainant to amend within sixty days.