Page:United States Reports, Volume 1.djvu/350

1788.
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James versus Browne.

THIS was an action of Account render, brough by one Partner against another, and several issues were joined on the pleas, 1st 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 persons, and the proof was of a receipt from one of them.

For the Defendant, it was contended, that as he had not been charged as British, in order to make him accountable as Receiver, it was incumbent upon the Plaintiff to state in his declaration, by whose hands the monies were received, and to prove, accordingly, a receipt, by the hands of such person, or persons, Bull L. N. P. 121. That unless the proof went to all the persons stated in the declaration, he failed in his action; or, at least, that the verdict must be conformable to the evidence, which was only of a receipt by the hands of one, so that the judgment quod computet, pursuing the verdict, must be restricted to that receipt alone.

But it was answered, and so ruled by the Court in their charge to the Jury, that, however the law stood in the case a Common Receiver, yet, as between Co-partners, the action of Account render would be nugatory, if the same doctrine prevailed. That in Pennsylvania particularly, where there is no Court of Chancery to compel a disclosure of the numerous and extensive transactions, which one partner might manage for the joint benefit of the company, there would be no remedy, unless this action were liberally extended. That between partners, therefore, it is sufficient for the Plaintiff to charge the Defendant, generally, with the receipt by the hands of any one of the persons mentioned in the declaration, he is entitled to general verdict upon the first issue. Then, on the judgment quod computet, all the accounts between the parties will come before the auditors, without particular respect to the receipts proved upon the trial.

No evidence being offered by the Defendant, in support of the second plea, the Jury gave general verdicts for the Plaintiff upon both issues: and thereupon judgment quod computet was entered.

Afterwards, when the Court were about to appoint Auditors in this cause, the Chief Justice made the following observations:

M'Kean, Chief Justice. The necessity of a liberal extension of the action of Account render between joint partners, is apparent, not only from the nature of the case, but from this circumstance also, that the parties would otherwise be destitute of any means to arrive at justice: For the action on the case, though beneficially construed in modern practice, would certainly be inadequate; and we have no Court of Chancery to interpose an equitable jurisdiction. The action of account has, we know, been almost disused in England for a century