deceased partner;(y) and upon the death of one of two joint principals, the remedy belongs to the survivor alone.(z) + An agent when called upon to account cannot dispute the title of his principal. (▲) Thus an insurance [*54] broker who had effected a policy on a *ship in the name of a partnership, and upon a loss happening had received the money in his character of broker, was held accountable for that money to the surviving partner, although the partnership had no legal title to the vessel, and although the broker himself was, as mortgagee, the sole registered owner.(4)+

(y) Eq. Ca. Ab. 5; Ch. Ca. 127; Ch. Rep. 129. There may be cases in which it would be necessary to make the representatives of the deceased partner, parties to the bill. Scholefield v. Heafield, 7 Sim. 667. Story on Partn. § 346, n. 1.||

(z) Martin v. Crump, 1 Lord Raymond, 340; 1 East, 366; 1 Ves. 242. At law, where one of two joint obligees, covenantees, or partners dies, the action on the contract must be brought in the name of the survivor, and the executor or administrator of the deceased cannot be joined, nor can he sue separately. And although the right of a dead partner devolves on his executor, yet the remedy survives to his companion, who alone must enforce the right by action, subject to account to the representatives of the deceased. And it follows, that where the contract is made jointly with several persons, and they all die, the executor or administrator of the survivor alone can sue, and the personal representatives of those who died before him cannot be joined. 2 Stephens' N. P. 1895, and cases there cited. And in equity, the survivor and the representatives of the deceased cannot join as plaintiffs; upon the principle, that parties cannot be co-plaintiffs who have, or may have, hostile interests. Cholmondeley v. Clinton, Turn. & Russ. 116. Grant v. Van Schoonhoven, 9 Paige, 255.||

(A)|| Ante, p. 10, n. k. post, 81, n. 6.||

(4) + Dixon v. Hamond, 2 B. & A. 310. And see Roberts v. Ogilby, 9 Price, 269, for another illustration of the same principle. ||In this case, letters between the parties showed that an insurance broker, had considered himself, as dealing with one of the owners of a ship only, and as having insured for him alone; they were held to be conclusive against the broker, as fixing him with an agency for his correspondent solely.

An agent cannot plead the statute of limitations to a bill filed by his principal for an account. Kent, Ch. says: "This was a plain case of trust. The parties stood not in the relation of debtor and creditor, or of joint partners in trade, but in the relation of agent or factor, and principal, and the statute of limitations does not apply to the case." Coster v. Murray, 5

CHAPTER I.-PART II.

HAVING in the preceding part of this chapter treated of the obligations of agents towards their employers, I shall next inquire into the means of enforcing these obligations, or of obtaining redress for the neglect of them. These

are

First, Against agents personally to compel an account, or the payment of a balance, or to obtain satisfaction.

Secondly, To regain property withheld, or the produce, if improperly disposed of.

Thirdly, Against representatives in case of insolvency or death.

SECTION 1.

1. Where the transactions between the employer and agent involve mutual accounts, which must be examined before the certainty of the demand can be known, the action of account was formerly the usual remedy.(a) And it may be found laid down in many cases, that an action of debt or indebitatus assumpsit cannot [*56] properly be maintained under these circumstan

Johns. Ch. Rep. 522, 532. Murray v. Coster, in error, 20 Johus. Rep. 576. But see 2 Rev. Stat. (2d ed.) p. 224, § 23, p. 229, § 52, which may seem to establish a different rule in the state of New York. And see Bertine v. Varian, 1 Edw. Ch. Rep. 345.||

(a) Eq. Ca. Ab. 5. For the proceedings in account against a factor, and the law thereon, see Godfrey v. Saunders, 3 Wils. 106.

ces.(1) A case is reported in which it was ruled at Nisi Prius, that an indebitatus assumpsit lies not against a

(1) [In the case of Scott v. M'Intosh, 2 Campb. 238, an opinion was intimated by Lord Ellenborough, that the action of account was the proper mode of investigating a running account between a merchant and a broker, and that [indebitatus] assumpsit would not lie. This question, however, was afterwards brought under the consideration of the Court of Common Pleas, in the case of Tomkins v. Wiltshire, 1 Marsh. 115; 5 Taunt. 431, S. C. And it was there decided, that if, upon dissecting an account, there appear money due upon certain items, assumpsit will lie, notwithstanding the items on each side may be numerous. And in that case Gibbs, C. J. observed, that "the foundation of an action of account is, that the party wants an account, and is not able to prove his items without it." See also the case of Arnold v. Webb, 5 Taunt. 432, note.]

It will be seen on reference to the report of Scott v. M'Intosh, that it was a case which could not be conveniently tried by a jury, and the dictum of Lord Ellenborough was probably the result of irritation at the refusal of the parties to refer. It was the same inconvenience which gave rise to the question in the two other cases, for it could never for the last hundred years have been seriously maintained that indebitatus assumpsit would not lie where there were items in the account capable of being established by proof. But the difficulty of trying complicated questions of account at Nisi Prius has been long seriously felt and acknowledged; and during the last session, Lord Tenterden iutroduced a bill into Parliament for enabling the judge at Nisi Prius compulsory to direct a reference in such cases, which, though for the present deferred, will no doubt ultimately be carried into a law. Mr. Justice Story, 1 Eq. Jurisp. § 442, n. (1) says; "The parliamentary commissioners, in their second report on the Common Law, (8 March, 1830, p. 26,) proposed to invest the courts of common law with power to refer such accounts to auditors in such cases; a suggestion which has since been adopted; as indeed it had been adopted before in some of the American States. See Duncan v. Lyon, 3 Johns. Ch. Rep. 361. Act of Massachusetts, 20th Feb. 1818, ch. 142." As to the law of Pennsylvania; see Bac. Abr. (ed. by Bouvier,) vol. 1, p. 43. By the Rev. Stat. of New York, vol. 2, (2d ed.) p. 305, § 40: "Whenever a cause shall be at issue in any court of record, and it shall appear that the trial of the same will require the examination of a long account, on either side, such court may, on the application of either party, or without such application, order such cause to be referred to three impartial and competent persons." § 41. "If the parties agree on three persons as referees, such persons shall be appointed by the court; if they disagree, each party shall be entitled to name one, and the court shall appoint the persons so nominated, if they are free from all exceptions, and such other person as the court shall designate." These two sections are merely a repetition of provisions which had long before ex

man where he has received money of the plaintiff to lay out to a particular use, and he has laid out part thereof accordingly; for then, it was *said, he ought to be call- [*57] ed to account for the same by action of account; but if none were laid out, there an indebitatus assumpsit lies, to recover back the money again. So if it were expended to another purpose, for there the sum is certain and may be demanded as a debt.(b) In another case, the rule laid down by the court is, "there the action of account is necessary, when the first receipt was directed to a merchandizing, which makes uncertainty of the neat remain, till account finished."(c) And a distinction is also met with between a delivery of money, &c., upon an express promise to account, and a delivery generally in the former of which it is said assumpsit lies, but in the latter account only.(d) But on misapplication of money received for a particular service,(e) or on refusal to account, the debt is absolute, and debt or indebitatus assumpsit lies, and after verdict, these facts will be presumed.(ƒ) And in all cases of money received for the principal, by an agent who has no way of discharging himself but by paying it over, debt or indebitatus *assumpsit lies, or account, at the elec- [*58] tion of the principal.(g)

isted in our statute book; 1 Rev. Laws of 1813, p. 90; but the next section introduces a new provision and meets the difficulty above referred to by Mr. Lloyd, § 42: "When a cause shall be noticed for trial at any Circuit Court, and it shall appear that the trial of the same will require the examination of a long account on either side, the judge holding such court may, by rule, order such cause to be referred, with the like effect as if made by the Supreme Court."||

(b) Hartup v. Wardlow, 2 Sh. 301. And see Poulter v. Cornwall, 1 Salk. 9; Owen, 86.

(c) Sparke v. Richards, Hob. 206; Anon. 11 Mod. 92, per Holt, C. J. (d) Spurraway v. Rogers, 12 Mod. 517, per Holt, C. J. And see Wil

kin v Wilkin, 1 Salk. 9.

(e) Per Powel, J. Anon. 11 Mod. 92; 12 Mod. 521.

(ƒ) Id. ibid.

(g) Kea v. Gordon, 12 Mod. 521; Hammond v. Ward, Sty. 287.

And the same remedy is available against a sub-agent: for although not responsible to the party really entitled as principal until he has had notice of the right, and has been required to account accordingly, yet if after such notice and requisition he pay over to his own immediate principal money which has come into his hands belonging to the party who has given the notice, he will be liable to pay it over again. (2)+

2. However, special actions of assumpsit as for a breach of contract in not accounting upon the undertaking expressed(h) or implied in the contract, are sometimes brought. And this is a convenient remedy, if the matter be capable of determination without entering into the detail of mutual accounts at Nisi Prius.(i) Though there be [are] authorities which deny that such an action lies without an express promise ;(i) and even then, in one case, Lord C. J. Holt declared he would not let the plaintiff give all the account in evidence, or enter into the particulars thereof, but [*59] that he should direct his proof only as to the *damages he had sustained by not accounting according to the promise, for he would not travel into an account in such actions.(k)(3)

The action cannot properly be brought in this form, for money delivered for a special purpose, until there has been a failure in applying it; for if the purpose be countermanded before the money is applied, the remedy is by action for money had and received.(7) And conversely the action for money had and received will not lie so long as the trust

(2) + Mann v. Forrester, 4 Campb. 50.4

(h) Wilkins v. Wilkins, Carth. 89; 1 Salk. 9, S. C.

(i) 12 Mod. 517; Wilkins v. Wilkins, Carth. 89; Comb. 149, S. C.; 1 Salk. 9, S. C. (But see Topham v. Braddick, 1 Taunt. 572.) + There can be little doubt that the law will in all such cases infer a promise to account. So held by Parker, C. J. in Clark v. Moody, 17 Mass. Rep. 145 ; post, 104, n. (2.`||