¶1The plaintiff, alleging that the succession, represented by him, is the joint owner, with defendant, of a steamboat, sues to have the right of the succession recognized, and for the net earnings-of the boat while in the possession of the defendant.
¶2The defendant excepted, that, if the plaintiff has any rights, which-is denied, the present suit is not the form in which they can be asserted; that he must sue ior a general settlement of the partnership. *489The exception was maintained, the suit was dismissed and the-plaintiffhas appealed.
¶3There is nothing in this record to show that any partnership ever existed between the deceased and the defendant. The mere fact of being joint owners of the steamboat did not constitute them partners.. The plaintiff alleges that the boat belonged to the deceased and the defendant, that the defendant unlawfully changed the name of the boat, and made other changes in her, and has used her for his own benefit, and that he refuses to account for said use of the boat. Plaintiff alleges that the boat has earned $250 net per month, and he prays for judgment accordingly He does not allege a partnership, nor does the defendant admit one. He certainly has a right to claim his right to the boat if he be an owner, and if he has asked for a share of the-earnings of the boat, instead of the price of the use of his property, it does not follow that he will get it, or that he is therefore a partner.. It is difficult to conceive what general settlement can be had (judging from the allegations of the petition) other than an account for the use of the property. We are of opinion that the exception should have been overruled.
¶4It is therefore ordered that the judgment appealed from be annulled, that the exception be overruled, and that the case be remanded to be proceeded with according to law. It is further ordered that appellee pay costs of appeal.