Page:Harvard Law Review Volume 2.djvu/282

 264 ^^^ VARD LA W RE VIE W.

hence that he had not, in the words of the statute, received more than came to his just share or proportion.^

If one of two co-owners of property authorize the other to sell his share and receive the proceeds of the sale, and the latter do so, of course he will be accountable to the former for the share sold ; and the case will not be altered if the one who receives the authority sells the entire interest in the property, /. ^., his own share as well as the other's share ; for he will then make the sale in two capacities, i, ^., he will sell his own share as owner and the other's share as the other's agent. It is on this principle that, when a merchant in one country consigns goods to a merchant in another country to be sold on the joint account of the consignor and the consignee, the latter is accountable to the former for the former's share of the goods. Such a transaction is commonly known as a joint adventure. The consignee acts for himself as to his own share of the goods, and as the other's factor as to the other's share.^

If one of two co-owners of property sell the property without any authority from the other, the sale will be effective as to his own share only (and hence the other co-owner will not be affected by the sale),^ unless the property be of a kind which passes by delivery, and as to which possession proves ownership, e, g.y money or negotiable securities. If the property be of this latter kind,

^Eason v. Henderson, 12 Q. B. 986, 17 Q. B. 701; M'Mahon v. Burcbell, 2 Ph. 127.

^ Hackwell v. Eastman, Cro. Jac. 410, 1 Rol. Rep. 421; I Vin. Abr., Account (E), pi. 2, note. In such cases the consignor often incurs, in the first instance, the entire ex- pense of the consignment, purchasing the goods with his own money or on his own credit, or furnishing them out of his own stock, and debiting the consignee with one half of the cost in the one case, and of the value in the other, as well as with one half of the inci- dental expenses of the consignment incurred by the consignor. Under such circum- stances, therefore, the consignee incurs a double liability to the consignor, i, e„ he becomes indebted \o him for his own half of the goods, and accountable to him for the consignor's half. Such were the circumstances in Baxter v, Hozier, 5 Bing. N. C. 288; and all the difficulties in that case arose from not attending to the distinction just stated. In fact, the consignors misconceived their remedy. Instead of bringing an action for an account of their own share of the goods (as to which there was no controversy), they should have brought an action of debt or of indebitatus assumpsii to recover payment for the consignees' share, the latter claiming that the goods were consigned to them, not on the joint account of the consignors and themselves, but solely as the factors of the consignors.

ley or the like, the one shall not have account against his fellow for the disposal of this." Michael Dent's Case, Clayton, 50, August, 13 Car. I, coram Berkeley, J. But see the observations of Willes, C. J., in Wheeler r. Home, WiUes, 208, 209.
 * " It was holden cleiir upon the evidence that if two men buy com jointly, as bar-