Page:Harvard Law Review Volume 2.djvu/283

 EQUITY yURTSDICTION. 265

and hence the title of the other co-owner is divested by the sale, he will be entitled to the same share of the proceeds of the sale that he had in the property before the sale ; and, therefore, he can maintain a bill for a division of such proceeds ; but he cannot, even in that case, maintain a bill for an account for want of privity, the statute of 4 Anne, c. 16, s. 27, being, it seems, not applicable to such a case.^

Copartners differ from co-owners in this respect, among others, that, while one of two co-owners is sometimes accountable to the other, one of two copartners never is. The reader may be sur- prised at this statement, but it is believed to be strictly true.* There are insuperable objections to a bill for an account by one of two copartners against the other. First, the property of which an account is sought is as much in the possession of the plaintiff as of the defendant. Secondly, the plaintiff is neither the sole owner of the partnership property, nor the owner of any fixed share of it. What, then, shall he have an account of } Thirdly, if one of two copartners is accountable to the other, the other, pari ratione^ is accountable to him ; and hence we have two per- sons accountable to each other for the same thing and at the same time. Fourthly, an account by one of two copartners with the other will establish nothing, nor produce any result, unless the other also account with him. The truth is, the ordinary bill by one or more partners against the other or others is not a bill for an account, but a bill for the partition or division of the part- nership assets among the partners ; and this explains the fact that such a bill cannot be maintained without a dissolution of the partnership.^ In order to ascertain how the assets shall be divided, there must, indeed, be an accounting (so called) ; but it is an accounting between each partner, on the one hand, and the firm, considered as a distinct person, on the other hand; and the relation between the several partners and the firm is that of debtor and creditor, and is not a relation created by an obligation to account.

The relation between a commercial traveller and his employer is merely that of debtor and creditor, even though the former be

1 See Lindley, Partn. (4th ed.), p. 64.

s ** No insUnce of an action of account brought by one partner against another is known to the writer." Lindley/ Partn. (4th ed,), p. 1022, n. k. s Roberts v, Eberhardt, Kay, 148, 157-8.