[Daniel v. Owens & Co.] & Co., which contained an express waiver of all exemptions; and the waiver was embodied in the judgment, and in the exe cution issued thereon. As to the levy of this execution, and the grounds on which equitable relief was sought against it, the bill contained the following allegations: "Said execution was placed in the hands. of John A. Folmar, the sheriff of said county, and was by him levied on one ton of guano and six hundred bushels of cottonseed, which was the joint property of complainant and said John A. Daniel, and had been advanced to them by said Henderson Brothers & Co., and was a part of the said lot above mentioned, for which said note and mortgage were given. The said guano and the said cotton-seed were advanced to complainant and said John A. Daniel, by said Henderson Brothers & Co., for the purpose of making a crop, and the same was held by them to be used and appropriated for that purpose; and by the sale thereof complainant would suffer irreparable injury and loss, as both are needed in the successful cultivation of said crops, and would seriously impair the ability of complainant and said John A. Daniel to pay the large liability incurred on their joint account to said Henderson Brothers & Co. It will require about the amount of the cotton-seed levied on for planting, and the balance thereof, with the guano, is needed for fertilizing, as the lands upon which said crops are to be grown are, to some extent, sterile; and complainant avers, that in the event said property is sold under said execution, or the interest of the said John A. Daniel therein, it will work a great hardship and oppression to this complainant, and will interfere very seriously with their farming operations the present year, unless more can be procured elsewhere, of which complainant is unapprised. Complainant further showeth, that the sheriff was proceeding to sell all of said cotton-seed, and all of said guano, so levied on, to satisfy said execution against said John A. Daniel, until he was prevented from so doing by a claim-bond and affidavit, interposed by said Henderson Brothers & Co., under the mistaken belief, as complainant is informed and believes, that they had the right to claim said property, because they had advanced the same to complainant and said John A. Daniel to enable them to make a crop; but no proceedings have been had for the trial of the right of property, other than the filing of the affidavit, as above stated, and the giving of a bond by said Henderson Brothers & Co. Complainant further showeth, that there is nothing belonging to said partnership, except such articles as have been advanced to them by said . Henderson Brothers & Co., all of which is unpaid for; and complainant and said John A. Daniel are depending altogether upon the crop to be made the ensuing year, for the means to [Daniel v. Owens & Co:] discharge their said joint liability, and for the profits which they hope to realize therefrom; that all the property owned by them is not sufficient to discharge their said joint liability to said Henderson Brothers & Co., and that said John A. Daniel is insolvent." The prayer of the bill was for an injunction, "perpetually restraining the said Owens & Co. from further attempts to sell said property so levied on under said execution, or to otherwise prosecute said claim-suit; or, if this is not the appropriate prayer, then he prays that they be enjoined from selling his interest therein; and if this honorable court should decide that the interest of said John A. Daniel in said property is liable on said execution, then he prays for a sale of all the partnership and joint property of complainant and said John A. Daniel, to pay first their joint liabilities, as before stated, and apply the residue only of the said John A. Daniel's interest therein to the payment of his said individual debt; or, if complainant has not asked the appropriate relief, then he prays for such other, further, and general relief, as, the premises considered, he may be entitled to." A demurrer to the bill was filed by Owens & Co., for want of equity, "because it fails to allege that the sheriff or Owens & Co. were about to take exclusive possession of the property levied on; and because it asks repugnant and inconsistent relief; and because the complainant has an adequate remedy at law." They also filed an answer, which it is unnecessary to notice. The cause being submitted on the demurrer, and at the same time on the pleadings and proof, the chancellor rendered a decree dismissing the bill, but without assigning any reasons for his decision; and his decree is now assigned as error. JOHN D. GARDNER, for the appellant, contended that the bill showed a case for equitable interposition to prevent irreparable injury; citing, to this point, Moore & Co. v. Sample, 3 Ala. 319. GRIFFIN & WOOD, contra, cited Winston v. Ewing, 1 Ala. 129; Andrews v. Keith, 34 Ala. 722; Wilson v. Strobach, 59 Ala. 483; Moody v. Payne, 2 John. Ch. 548; High on Injunetions, $ 814. STONE, J.-Certain principles affecting this case have been so often asserted, both in this and other States, that, in the absence of legislation, we do not feel at liberty to disturb them. Among the principles so settled are the following: First: That under a fieri facias against the goods of one [Daniel v. Owens & Co.] member of a partnership, his interest in the tangible effects may be levied on and sold, and only his interest. Second: The right acquired by such purchase, is the right of the partner whose interest was sold, and only his rights, subject to all the liens, incumbrances and disabilities, which rested upon it when owned by the execution debtor, as a member of the partnership. "It is not a separate and exclusive right to any part or portion of it; or any right of any kind to any one part, rather than to any other part; or any other right or interest than that which all the other partners have. It must be remembered, not only that the ownership of each partner is subject to the ownership of all the others, but that all the partners together hold the property subject to the right of the partnership as a body, per se, to apply all its funds to the payment of all its debts. The real ownership of all the chattels is vested in the firm; the interest of each partner is merely a right to share in the proceeds of those chattels, after all the partnership obligations have been satisfied. No one partner has a separate ownership of, or right to possess exclusively, any part or parcel of the partnership assets, and a successor to his interest by purchase at execution sale, can acquire no greater interest than he had."- Winston v. Ewing, 1 Ala. 129; Moore v. Sample, 3 Ala. 314; Andrews v. Keith, 34 Ala. 722; Warren v. Taylor, 60 Ala. 218; Atwood v. Meredith, 37 Miss. 635; Parsons on Partship, 350; Story on Part. § 261; Fox's Dig. Partnership, 122; Freeman on Executions, § 125; 1 Story Eq. Jur. § 677; Clagett v. Kilbourne, 1 Black, Ü. S. 346; Sutcliffe v. Dohrman, 18 Ohio, 181; Sitler v. Walker, Freem. Ch. 77; Clark v. Allee, 3 Harring. 80. Another principle has legitimately grown out of those stated above. The execution creditor having a right to levy on and sell the partner's individual interest, and the execution purchaser stepping only into the shoes of him whose right was sold, without changing or affecting the rights of the other partner or partners, if there was nothing more in the transaction, the latter would have no right in equity to arrest such levy and sale. Moody v. Payne, 2 Johns. Ch. 548; High on Injunctions, 814. In fact, we know not how to reconcile the two propositions, that an execution at law may be rightfully levied on the individual interest of a partner, and yet chancery will arrest the sale until the partnership account is first taken. We will not say cases may not arise, where the nature of the partnership transactions is such, that a levy, seizure and sale of the interest of one partner, will so disturb and embarrass the business of the firm, as to inflict on the other member or members irreparable injury, and thus clothe the Court of Chancery with jurisdiction to arrest such interference, until, by account, [Daniel v. Owens & Co.] the interest of such execution debtor can be ascertained, and brought to sale without detriment to the other partners. We merely raise this inquiry, for the purpose of saying it is not decided. If such jurisdiction exists, it can only be called into exercise by clear and strong averments, showing the injury that must result from a disturbance of the possession consequent upon the levy.-Story on Partnership, 7th ed., § 264, and notes; Moore v. Sample, supra. See, also, Gibson v. Stevens, 7 N. H. 352; Garvin v. Paul, 47 N. H. 158. The bill in the present case utterly fails to show any interference, actual or threatened, with the possession of the partnership, or any member thereof, under the levy sought to be enjoined. It therefore fails to show any special ground for equitable interposition-fails to show irreparable injury will follow from a sale-and the chancellor rightly dismissed it for want of equity. If the sheriff, under an execution against one member of a firm, should levy upon and sell the interest of the other member, this would be a conversion, for which the latter could maintain an action of trover.-Perminter v. Kelly, 18 Ala. 716; Walsh v. Adams, 3 Denio, 125; Freeman on Executions, $254. It may be such excessive levy would constitute the sheriff a trespasser ab initio, for which an action would lie in the name of the firm.-Sheppard v. Shelton, 34 Ala. 652. Another question may become very important in the after consequences of this decision. According to the averments of the bill, the sheriff levied the execution on only a part of the partnership effects, which consisted of a larger quantity. Was this permissible? Under the older rulings, which regarded the ownership of the several partners as partaking of the nature of cotenancies, such levy on a part of the partnership effects might be upheld. But the scope of partnership associations has become greatly enlarged in modern times, and their nature and principles have come to be better understood. Those principles are shown above, as extracted from the highest authorities, and they are very unlike those which obtain between tenants in common. Freeman, in his work on Executions, & 125, very justly says: "The precedents made at an early day, when the law of partnerships was imperfectly understood, are losing their force as authorities. Their place is being supplied by a line of decisions, destined to grow in favor and number, declaring that the creditor of an individual partner can not sell any specific article, but only the partner's interest in the whole of the partnership assets, and that the purchaser does not acquire the right to hold possession of the property purchased, as against the other members of the firm." These, we think, are words wisely and fitly spoken, and they have our approval and [Dowling v. Blackman.] indorsement, as the necessary result of the character of title owned by the several partners. They are supported by the following authorities: Sirrine v. Briggs, 31 Mich. 444; Whigham's Appeal, 63 Penn. St. 194; Vandike v. Rosskam, 67 Penn. St. 330; Deale v. Bogue, 20 Ib. 228; Reinheimer v. Hemingway. 35 Ib. 432; Thomas v. Lusk, 13 La. An. 277; Pittman v. Robicheau, 14 Ib. 108. See, also, Story's Eq. Jur. $678. The decree of the chancellor is affirmed. Dowling v. Blackman. Action on Promissory Note, by Payee against Maker. 1. Construction of conditional note; implied stipulations where contract is in writing.—As to the construction of the conditional note, on which this suit is founded, and which was given in consideration of the payee's interest in a contract with the United States for carrying the mail on a specified route, and made subject to two express conditions, the court adheres to the principles announced on the former appeal (63 Ala. 304-7), and holds that these express conditions can not be extended by implication. 2. Amendment of complaint.-Where the original complaint contains a single count, in the form prescribed for an action on a promissory note by payee against maker (Code, p. 701, Form No. 4), an amended complaint, setting out the instrument in full, in form a promissory note subject to express conditions, and averring that neither of the conditions has happened, is allowable under the statute (Code, § 3156), not being the substitution of an entirely new cause of action. 3. Same; statute of limitations.-The amendment in such case, when allowed, relates back to the day on which the original complaint was filed, and can not be defeated by a plea of the statute of limitations. 4. Presumption as to conclusiveness of accounting. When two persons account with each other, and one pays the balance found against him, the presumption is, that the settlement includes all items of debit and credit then existing between them and over-due; but there is no such presumption as to a contingent or conditional liability which had not then become absolute. 5. Conclusiveness of official acts of public officers, when collaterally assailed. The regularity of the official acts of the post-office department of the United States government, in reducing the compensation on a particular mail route and afterwards restoring it, can not be collaterally assailed for fraud, in an action between third persons; as, where the action is founded on a written promise to pay a specified sum of money in consideration of the payee's interest in the contract for carrying the mail on that route, subject to the express condition that the compensation is not reduced during the term of the contract. 6. Redundant evidence.-The erroneous admission of redundant or superfluous evidence, to establish a fact which is not disputed, is, at most, error without injury. |