JAMES verʃus BROWNE.
T
HIS was an action of Account render, brough by one Partner againft another, and feveral iffues were joined on the pleas, 1ft of Ne unques Receiver, and 2d Fully accounted. In the declaration the Plaintiff and Defendant were named Merchants, and the Defendant was charged as a Receiver of monies to the joint benefit of the company from three perfons, and the proof was of a receipt from one of them.For the Deƒendant, it was contended, that as he had not been charged as Britiʃh, in order to make him accountable as Receiver, it was incumbent upon the Plaintiff to ftate in his declaration, by whofe hands the monies were received, and to prove, accordingly, a receipt, by the hands of fuch perfon, or perfons, Bull L.N.P. 121. That unlefs the proof went to all the perfons ftated in the declaration, he failed in his action ; or, at leaft, that the verdict muft be conformable to the evidence, which was only of a receipt by the hands of one, fo that the judgment quod compulet, purfuing the verdict, muft be reftricted to that receipt alone.
But it was anfwered, and fo ruled by the court in their charge to the Jury, that, however the law ftood in the cafe a Common Receiver, yet, as between Co-partners, the action of Account render (illegible text) be nugatory, it the fame doctrine prevailed. That in Pennʃylvania particularly, where there is no Court of Chancery to compel a difclofure of the numerous and extenfive tranfactions, which one partner might manage for the joint benefit of the company, there would be no remedy, unlefs this action were liberally extended. That between partners, therefore, it is fufficient for the Plaintiff to charge the Defendant, generally, with the receipt by the hands of any one of the perfons mentioned in the declaration, he is entitled to general verdict upon the firʃt iffue. Then, on the judgment quod compulet, all the accounts between the parties will come before the auditors, without particular refpect to the receipts proved upon the trial.
No evidence being offered by the Defendant, in fupport of the ʃecond plea, the Jury gave general verdicts for the Plaintiff upon both iffues: and thereupon judgment quod compulet was entered.
Afterwards, when the Court were about to appoint Auditors in this caufe, the chief justice made the following obfervations:
M‘KEAN, Chieƒ Juʃtice. The neceffity of a liberal extenfion of the action of Account render between joint partners, is apparent, not only from the nature of the cafe, but from this circumftance alfo, that the parties would otherwife be deftitute of any means to arrive at juftice: For the action on the cafe, though beneficially conftrued in modern practice, would certainly be inadequate; and we have no Court of Chancery to interpofe an equitable jurifdiction. The action of account has, we know, been almoft difufed in England for a century
1788.
paft; but this owing to the greater facility of obtaining fettlements in the Court of Chancery, by a reference to the mafters; and there are many cafes in the books which point out the expediency and propriety of the interference of that Court. If, indeed, it had not affumed a competent jurifdiction in this refpect, I am perfuaded, that, in order to accomplifh juftice, the Court of King's Bench would have done what we are now obliged to do. For, it is the duty of Judges to fee the laws faithfully adminiftered, and to promote the proper means for obtaining that end.
Hence it is, that here in an action of Account render between partners, if thefe facts are proved– that a partnerfhip exifted– that the Defendant was the acting partner– and that the received any part of the fum, from any of the perfons mentioned in the declaration–we fhall uniformly oblige him to render an account of his tranfaction. It would be hard, indeed, if, while the books and documents remain in the hands of the Defendant, the Plaintiff were bound to ftate in his declaration every receipt in which he was interefted, and to be condemned to lofe, under fuch circumftances, his portion of every credit he omitted to infert, in the courfe of a mercantile tranfaction, confifting, perhaps, of ten thoufand items.
It fhould be obferved, likewife, that there is a diftinction in the general law as to Bailiffs and Receivers ; the former being entitled to reafonable expences, which the latter cannot receiver. This diftinction, however, does not apply to the cafe of partners in trade ; for, one partner, though charged as a receiver, is entitled to every juft allowance againft the other.
Nor does the verdict of the Jury affect the principles of the fettlement ; for, fuppofe I engage in trade with another an, and pay into his hands a Ł1000, as my fhare of the ftock ; if, afterwards, I bring an action of Account render againft him, and the Jury find the receipt of this money;−fuch finding does not furely fix the fum for which he fhall be refponfible to me, but the auditors will, neverthelefs, on the one hand, allow me a proportion of any profits which have been accumulated ; or, on the one hand, charge me with a proportion of any loffes or expences that may have happened in our joint negotiations. Co. Lit. 172. a.− ʃec. 259.