exist. It is obvious, from what has been already stated, how utterly inadequate the means of a Court of Law are to take such an account. And indeed under a levy of this sort it is not easy to perceive what authority a Court of Law has to interfere at all to take an account of the partnership transactions, or by what process it can enforce it.2 (a) In such a case therefore the proper remedy for the other partners, if nothing is due to the judgment debtor out of the partnership funds, is to file a bill in equity against the vendee of the sheriff to have the proper accounts taken.3 678. In cases of the seizure of the joint property for the separate debt of one of the partners a question has arisen how far a Court of Equity would interfere upon a bill for an account of the partnership to restrain the sheriff from a sale, or the vendee of the sheriff from an alienation of the property seized, until the account was taken and the share of the partner ascertained. Mr. Chancellor Kent has decided that an injunction for such a purpose ought not to issue to restrain a sale by the sheriff upon the 1 Gow on Partn. ch. 4, § 1, pp. 249 to 254; In re Smith, 16 John. R. 106; Nicoll v. Mumford, 4 John. Ch. R. 522, 525; s. c. 20 John. R. 611; Shaver v. White, 6 Munf. R. 110; Murray v. Murray, 5 John. Ch. R. 70; Marquand v. New York Manuf. Company, 17 John. R. 525. 2 See Chapman v. Koops, 3 Bos. & Pull. 389; Eddie v. Davidson, 2 Doug. R. 650; Waters v. Taylor, 2 Ves. & B. 300, 301; Dutton v. Morrison, 17 Ves. 205, 206; In re Wait, 1 Jac. & Walk. 585. The remarks of Lord Eldon on this point, in Waters v. Taylor (2 Ves. & B. 301), are very striking and important. If the Courts of Law,' said he, have followed Courts of Equity in giving execution against partnership effects, I desire to have it understood that they do not appear to me to adhere to the principle when they suppose that the interest can be sold before it has been ascertained what is the subject of sale and purchase. According to the old law, I mean before Lord Mansfield's time, the sheriff under an execution against partnership effects took the undivided share of the debtor without reference to the partnership account. But a Court of Equity would have set that right by taking the account and ascertaining what the sheriff ought to have sold. The Courts of Law however have now repeatedly laid down that they will sell the actual interest of the partner, professing to execute the equities between the parties, but forgetting that a Court of Equity ascertained previously what was to be sold. How could a Court of Law ascertain what was the interest to be sold and what the equities depending upon an account of all the concerns of the partners for years?' Chapman v. Koops, 3 Bos. & Pull. 290; Waters v. Taylor, 2 Ves. & B. 300, 301; Taylor v. Fields, 4 Ves. 396; Dutton v. Morrison, 17 Ves. 205, 206, 207; In re Wait, 1 Jac. & Walk. 588, 589; Gow on Partn. ch. 4, § 1, pp. 253, 254. (a) Habershon v. Blurton, 1 DeG. & S. 121. ground that no harm is done to the other partners; and the sacrifice, if any, is the loss of the judgment debtor only.1 (a) But that does not seem a sufficient ground upon which such an injunction is to be denied. If the debtor partner has or will have upon a final adjustment of the accounts no interest in the partnership funds, and if the other partners have a lien upon the funds not only for the debts of the partnership but for the balance ultimately due to them, it may most materially affect their rights whether a sale takes place or not. For it may be extremely difficult to follow the property into the hands of the various vendees; and their lien may perhaps be displaced, or other equities arise by intermediate bona fide sales of the property by the vendees to other purchasers without notice, and the partners may have to sustain all the chances of any supervening insolvencies of the immediate vendees.2 To prevent multiplicity of suits and irreparable mischiefs, and to insure an unquestionable lien, it would seem perfectly proper in cases of this sort to restrain any sale by the sheriff. And besides it is also doing some injustice to the judgment debtor by compelling a sale of his interest under circumstances in which there must generally from its uncertainty and litigious character be a very great sacrifice to his injury. If he has no right in such a case to maintain a bill to save his own interest, it furnishes no ground why the court should not interfere in his favor through the equities of the other partners. This seems (notwithstanding the doubts suggested by Mr. Chancellor Kent) to be the true result of the English decisions on this subject, which do not distinguish between the case of an assignee of a partner and that of an executor or administrator of a partner, or of the sheriff, or of an assignee in bankruptcy.3 1 Moody v. Payne, 2 John. Ch. R. 548, 549. 2 See Skip v. Harwood, 2 Swanst. R. 586, 587. See Taylor v. Field, 4 Ves. 396, 397, 398; s. c. 15 Ves. 559, note; Barker v. Goodair, 11 Ves. 85, 86, 87; Skip v. Harwood, 2 Swanst. R. 586, 587; Franklyn v. Thomas, 3 Meriv. 234; Hawkshaw . Parkins, 2 Swanst. 548, 549; Parker v. Pistor, 3 Bos. & Pull. 288, 289; Eden on Injunct. 31; Collyer on Partn. B. 3, ch. 6, § 10, pp. 474 to 478; 1 Madd. Ch. Pr. 112. See (a) See Hardy v. Donellan, 33 Ind. 501; Jarvis v. Brooks, 23 N. H. 136. But see Miner v. Pierce, 38 Vt. 610; VOL. I. -44 Backus v. Murphy, 39 Penn. St. 397; Hubbard v. Curtis, 8 Iowa, 1; Thompson v. Frist, 15 Md. 24. 679. Another illustration of the beneficial result of equity jurisdiction in cases of partnership may be found in the not uncommon case of two firms dealing with each other where some or all of the partners in one firm are partners with other persons in the other firm. Upon the technical principles of the common law in such cases no suit can be maintained at law in regard to any transactions or debts between the two firms; for in such suit all the partners must join and be joined, and no person can maintain a suit against himself or against himself and others. The objection is at law a complete bar to the action. Nay, even after the death of the partner or partners belonging to both firms no action upon any contract or mutual dealing ex contractu is maintainable by the survivors of one firm against those of the other firm; for in a legal view there never was any subsisting contract between the firms, as a partner cannot contract with himself.2 680. But there is no difficulty in proceeding in Courts of Equity to a final adjustment of all the concerns of both firms in regard to each other; for in equity it is sufficient that all parties in interest are before the court as plaintiffs or as defendants, and they need not, as at law, in such a case be on the opposite sides of the record. In equity all contracts and dealings between such firms of a moral and legal nature are deemed obligatory, though void at law. Courts of Equity in all such cases look behind the form of the transactions to their substance, and treat the different firms for the purposes of substantial justice exactly as if they were composed of strangers, or were in fact corporate companies. (a) 681. Upon similar grounds one partner cannot at law maintain a suit against his copartners to recover the amount of money which he has paid for the partnership, since he cannot sue them without suing himself also as one of the partnership. And if one partner in fraud of the partnership rights or credits should release an action, that release would at law be obligatory upon all the also Brewster v. Hammet, 4 Connect. R. 540. See also In re Smith, 16 John. R. 106, and the Reporter's learned note; Gow on Partn. ch. 4, § 1, p. 252. 1 Bosanquet v. Wray, 6 Taunt. 597; s. c. 2 Marsh. 319; Mainwaring v. Newman, 2 Bos. & Pull. 120. 2 Ibid. (a) See Haven v. Wakefield, 39 Ill. 509; Printup v. Fort, 40 Ga. 276; 3 Ibid. Chapman v. Evans, 44 Miss. 113; partners. But a Court of Equity would not under such circumstances hesitate to relieve the partnership.1 (a) 682. Courts of Equity in this respect act upon principles familiarly recognized in the civil law and in the jurisprudence of those nations which derive their law from that most extensive source. This will abundantly appear by reference to the known jurisprudence of Scotland and that of the continental nations of Europe. Indeed it would be a matter not merely of curiosity, but of solid instruction (if this were the proper place for such an examination), to trace out the strong lines of analogy between the law of partnership as understood in England, and especially as administered in equity, and that of the Roman Jurisprudence. Unexpected coincidences are everywhere to be found, while the differences are comparatively few; and for the most part these arise rather from the different processes and forms of administering justice in different countries than from any general diversity of principles. Among other illustrations we may cite the general doctrine that the partnership property is first liable to the partnership debts; that the right of any one partner is only to his share of the surplus; that joint creditors have a priority or privilege of payment before separate creditors; and that the estates of deceased partners are liable to contribute towards the payment of the joint debts.5 683. This review of some of the more important cases in which Courts of Equity interfere in regard to partnerships does (unless my judgment greatly misleads me) establish in the most conclusive manner the utter inadequacy of Courts of Law to administer 1 Ante, § 504, note; Jones v. Yates, 9 B. & Cressw. 532, 538, 539, 540. 2 See 2 Bell, Comm. B. 7, ch. 2, § 2, art. 1214. To establish this statement the learned reader may be referred to the Digest, Lib. 17, tit. 2, Pro Socio; and Voet, Comm. ad id.; Vinnius, Comm. Inst. Lib. 3, tit. 26; 1 Domat, Civil Law, tit. Partnership, B. 1, tit. 8, per tot.; 2 Bell, Comm. B. 4, ch. 2, art. 1250 to 1263; Code Civil of France, art. 1832 to 1873; Pothier, Traité de Société, per tot. 41 Domat, B. 1, tit. 8, § 3, art. 10. 5 1 Domat, B. 1, tit. 8, § 6, art. 1, 2; Pothier, de Société, n. 96, 136, 161, 162. (a) See Craig v. Hulschizer, 34 N. J. 363; Piercy v. Fynney, L. R. 12 Eq. 69. But if one partner make advances to his associate, and an agreement is made to repay that par ticular sum, an action at law can be 447; Hale v. Wilson, 112 justice in most cases growing out of partnerships, and the indispensable necessity of resorting to Courts of Equity for plain, complete, and adequate redress. Where a discovery, an account, a contribution, an injunction, or a dissolution (a) is sought in cases of partnership, or even where a due enforcement of partnership rights and duties and credits is required, it is impossible not to perceive that generally a resort to Courts at Law would be little more than a solemn mockery of justice. Hence it can excite no surprise that Courts of Equity now exercise a full concurrent jurisdiction with Courts of Law in all matters of partnership; and indeed it may be said that practically speaking they exercise an exclusive jurisdiction over the subject in all cases of any complexity or difficulty. (a) Or where the partnership transactions have taken place abroad. See Hendrick v. Wood, 9 Jur. N. s. 117; Cookney v. Anderson, 8 Jur. N. s. 1220; s. c. 31 Beav. 452; 9 Jur. N. s. 736; 1 DeG. J. & S. 365; Maunder v. Lloyd, 2 Johns. & H. 718; Steele v. Stuart, 12 Week. R. 247; Norris v. Chambers, 29 Beav. 246; Harvey v. Varney, 104 Mass. 436 (that a receiver will not be appointed of partnership assets out of the jurisdiction); Desper v. Continental Co., 137 Mass. 252. |