of the whole estate, the Court directed, that Blackacre should be divided into three parts, and one part should be conveyed to A. and B. and D. respectively; and that Whiteacre should be divided into three parts, and one part should be conveyed to A. and B. and E. respectively. In this In this way, consistently with the rights of A. and B. the interests of D. and E. were, as in Equity they ought to be, fully protected and secured.1

§ 657. In Equity, too, (and it would seem, that the same rule prevails at law, though this has sometimes been doubted,)2 where there are divers parcels of lands, messuages, and houses, partition need not be made of each estate separately; so as to give to each party his moiety or other portion in every estate. But the whole of one estate may be allotted to one, and the whole of another estate to the other, provided that his equal share is allotted to each.3 But it is obvious, that at law such a partition can rarely be conveniently made ; because the Court cannot decree compensation, so as to make up for any inequality, which must ordinarily occur in the allotment of different estates to each party. In Equity it is in the ordinary course.*

§ 658. It is upon some or all of these grounds, the necessity of discovery of titles, the inadequacy of the remedy at law, the difficulty of making the appropriate and indispensable compensatory adjustments, (611) the peculiar remedial processes of Courts of Equity and their ability to clear away all intermediate obstructions against complete justice, that these Courts have assumed a general concurrent jurisdiction with Courts of Law in all cases of partition. So that it is not now deemed necessary to state in the bill any peculiar ground of equitable interference. And, unless I am greatly misled in my judgment, this review of the

1 Story v. Johnson, I Younge & Coll. 538; S. C. 2 Younge & Coll. 586.

2 See Arguendo in Earl of Clarendon . Hornby, 1 P. Will. 446, 447; Story r. Johnson, 1 Younge & Coll. 538; S. C. 2 Younge & Coll. 586.

3 Earl of Clarendon v. Hornby, 1 P. Will. 446, 447.

4 Ibid. Ante § 654.

5 Mitford, Plead. Eq. by Jeremy, 120; Jeremy on Eq. Jurisd. B. 3, ch. 1, § 2, p. 304, 305; 1 Fonbl. Eq. B. 1, ch. 1, § 3, note (ƒ), p. 10, 21.

true sources and objects of this concurrent jurisdiction demonstrates in the most satisfactory manner, how ill founded the animadversions of Mr. Hargrave (already cited) are upon the exercise of this jurisdiction.' But the most conclusive proof in its favour is, that, wherever it exists, it has almost entirely superseded any resort to Courts of Law to obtain a partition. In making partition, however, Courts of Equity generally follow the analogies of the law; and will decree it in such cases as the Courts of Law recognise as fit for their interference.2 But Courts of Equity are not, therefore, to be understood as limiting their jurisdiction in partition to cases cognizable or relievable at law; for there is no doubt, that they may interfere in cases where a writ of partition would not lie at law ;3 as, for instance, in the case, where an equitable title is set up.1

CHAPTER XV.

PARTNERSHIP.

§659. ANOTHER head of concurrent jurisdiction, arising from similar causes, is in relation to PARTNERSHIP.5 In cases of this nature, where a remedy at law actually exists, it is often found to be very imperfect, inconvenient, and circuitous. But in a very great variety of cases, there is in fact no remedy at all at law to meet the exigency of the case. We shall, in the first instance, take notice of such

1 Ante § 646.

2 Ibid.; Wills v. Slade, 6 Ves. 498; Baring c. Nash, 1 Ves. & B. 555.

3 Swan v. Swan, 8 Price, R. 519; Woodworth v. Campbell, 5 Paige, 518.

4 Cartwright v. Pultney, 2 Atk. 380; Coxe r. Smith, 4 John. Ch. R. 276. See Miller v. Warmington, 1 Jac. & Walk 473; Com. Dig. Chancery, 4, E. Partition; Ante § 653.

5 See Com. Dig. Chancery, 3 V. 6.

remedies as exist at law, and then proceed to the consideration of others which are peculiar to Courts of Equity.

§ 660. And here it may be proper to begin by a reference to that which is, in its own nature, preliminary to all other inquiries, to wit, the actual existence of the partnership itself. Although in many cases, written articles or instruments of partnership exist, as the foundation of the joint concerns, yet in many other cases, the partnership itself exists merely in parol. And even in cases of written articles, there are many defects and omissions, which the parties have left unprovided for. Now, a controversy may arise in regard to the existence of the partnership between the partners themselves, or between them and third persons. In each case its existence may mainly depend upon the discovery to be obtained through the instrumentality of a Court of Equity. If written articles exist, they may be suppressed or concealed; if none exist, it may be impracticable to obtain due knowledge of the partnership by any competent witnesses in the ordinary course of law. But in by far the most numerous and important class of cases, that of secret and dormant partners, there may not be, and indeed ordinarily will not be any adequate means at law, to get at the names or numbers of the partners. In all such cases, the powers of a Court of Equity will be found most effective by means of a bill of discovery to bring out all the facts, as well in controversies between the partners themselves, as between them and third persons.

§ 661. But admitting a partnership to exist, let us now proceed to consider what are the remedies at law which exist between the partners themselves. These, of course, are dependent upon the nature of the partnership, and the grievance for which a remedy is sought. If the articles of partnership are under seal, and any violation of any of the stipulations therein contained exists, it may be, and is properly remediable by an action of covenant. If there are written articles not under seal, or the partnership is by a parol agreement, the proper remedy for any breach of the

stipulations is by an action of assumpsit. But, as we shall presently see, both these remedies are utterly inadequate to provide for many exigencies and injuries which may arise out of the violation of partnership rights and duties.

§ 662. The most extensive, and generally the most operative remedy at law between partners is an action of account. This is the appropriate, and, except under very peculiar circumstances, is the only remedy at the Common Law for the final adjustment and settlement of partnership transactions. It is a very ancient remedy between partners, in which one, naming himself a merchant, may sue his partner for a reasonable account, naming him a merchant, and charging him as the receiver of the moneys of himself, arising from whatever cause or contract, for the common profit of both according to the law merchant.1

§ 663. But it is wholly unnecessary to dwell upon the inadequacy of this remedy in cases of partnership, as all the remarks already made in respect to the dilatory, cumbrous, and inconvenient proceedings in actions of account,2 apply with augmented force to cases of partnership, where it is absolutely impossible, in many cases, to settle the concerns. of the partnership without the production of the books, vouchers, and other documents belonging to the partnership, and the personal examination of the partners themselves. So intimate is the confidence, and so universal the community of interest and operations between partners, that no proceedings, not including a thorough and minute discovery, can enable any Court to arrive at the means of doing even reasonable justice between them. And, in addition to the common difficulties in ordinary cases, the death of either partner put an end at the common law to any means of enforcing this remedy by account; for it being founded in privity between the parties, no suit lay by or against the personal representative of the deceased partner to compel an account.3

1 Co. Litt. 172 a; Fitz. N. B. 117 D.

2 Ante § 442 to § 449.

3 Ante § 446.

664. In a few cases, indeed, where there has been a covenant or promise to account, Courts of Law have attempted to approximate towards an effectual remedy in the shape of damages for a breach of the obligation. But it is manifest, that even in these cases, the damages must be wholly uncertain, unless an account can be fully and fairly taken between the parties, for otherwise there will be no rule by which to ascertain the damages. There has, too, been a struggle in cases where one partner has been compelled to advance or pay money on the partnership account out of his own private funds, to give him a remedy at law for a contribution from the other partners. But it is difficult to perceive how, except under very peculiar circumstances, such a remedy will lie.1 For it is impossible, during the continuance of the partnership, without taking a general account, to say that any one partner so called upon to advance or pay money, is on the whole a creditor of the firm to such an amount. And if he is, how, in point of technical

1 It is no part of the object of these Commentaries to show in minute detail the nature and exent of the legal remedies in cases of this sort. Where the partnership has been dissolved, and upon such a dissolution all the accounts of the partnership have been adjusted, as between the partners; or where one partner has purchased the property, and agreed to pay all the debts; there, if the other partner is called upon to pay a partnership debt, he may be entitled at law to contribution. So, where upon a dissolution of a partnership all the accounts have been adjusted, and a balance struck, an action at law will lie for such balance. So, where a sum of money has been received for one partner's separate account by the other partners, he may recover the same in an action of Assumpsit, as money had and received for his use. But all these, and other cases of the like nature, stand upon their own special circumstances; and steer wide of the general doctrine. There is no case in the English Courts, (although there may be cases in some of the American Courts,) where any action at law, except an account, has been held to lie generally to settle partnership accounts; or for a contribution by one partner against the others, for money paid by him for the use of the partnership. The learned reader will find many of the cases collected and commented on in Mr. Collyer's valuable work on Partnership, B. 2, ch. 3, § 1, 2, 4, and in the notes of the able American Editor, Mr. Phillips, in his edition of that work. Mr. Gow, in his work on the same subject, (ch. 2, § 3,) has discussed the same subject at large; and in his last, (the third) edition, he has corrected some of the inadvertences into which he had fallen on this subject, by relying too much upon some loose dicta in some of the authorities. See also, Holmes v. Higgins, 1 B. & Cresw. 74; Harvey v. Crockett, 5 M. & Selw. 336; Berill v. Hammond, 6 B. & Cresw. 149.