Other disabilities will also suggest themselves, as, for example, that the members of the creditor firm might not compete with the general creditors of the debtor firm in securing payment out of the assets of that firm,22 as suggested in the second section, preceding.

11 Oreg. 443, 5 Pac. 273. Contra, where the assignee stands merely in the position of the assignor: Aylett v. Walker, supra.

22 See Bonwit v. Heyman, supra.

§ 197. Of actions between partners in general.-The question of the remedies which partners may have between themselves involves several considerations of interest and importance. Certain of the rules applicable result from the peculiar relations between the parties, and others from the peculiar nature of the interests involved. As has been already seen, while the law for some purposes regards the firm as a distinct entity, for most purposes the partners must be regarded as individuals. This is usually the rule as respects actions at law. If, therefore, one partner would maintain an action against the partnership, he must sue himself as a partner with the others. If he should recover judgment against the firm, he might be called upon as a member of the firm to pay or satisfy his own judgment. If he bases an action upon his interest in the partnership, it will usually require an accounting and settlement to determine what his interest is. The same difficulties would usually exist if the firm were to sue one partner. These, and other like considerations, have led to the establishment of certain rules respecting the remedies of partners as between themselves which require examination.

'I. ACTIONS AT LAW.

§ 198. In what cases the question arises.-The question of the right to maintain an action at law respecting partnership transactions may arise in four classes of cases: 1. Where the claim is by one partner against the partnership; 2. Where the claim is by the partnership against a partner; 3. Where the. claim is by one partner against one or more of his fellow-part

ners; and 4. Where the claim is between firms which have one or more partners in common.

1. Partner Against Firm.

§ 199. One partner cannot sue the firm at law.-1. One partner cannot maintain an action at law against the partnership of which he is a member to recover upon any claim which he may have against the partnership as such. The objections are of two sorts, First, there is the difficulty as to parties. The claimant is himself a member of the partnership against which he makes the claim, and if he should sue the partnership he must sue himself as one member of it. To be thus both plaintiff and defendant involves an inconsistency which the common law procedure does not permit. Secondly, there is the difficulty as to the nature of the claim. The claimant contends that the firm owes him. It is, however, ordinarily impossible for him to show, without a final settlement of its accounts, whether the firm really owes him or not. There may be counterclaims of such extent that a final balance would prove him to be the debtor; and to reach this final balance the remedies of the common law are usually not adequate.

He may not sue his partners only (not joining himself as a defendant), for they alone do not owe the debt to him. He may not sue them only, for a pro rata part, for that would involve an accounting of that transaction alone, without reference to other transactions which might affect the result.

One partner, therefore, may not sue his partnership at law to recover for his services where there is an agreement to pay; or to recover for advances or loans which he has made to the firm, or for money which he has paid out on its account, or for goods which he has sold to the firm, or for the rent of premises which he has leased to the firm.1

1 See King v. Moore (1904), 72 Ark. 469, 82 S. W. 494; Newby v. Harrell (1888), 99 N. C. 149, 6 Am. St. R. 503, 5 S. E. 284; Duff v. Maguire (1868), 99 Mass. 300;

In all these and like cases,

O'Brien v. Smith (1889), 42 Kan. 49, 21 Pac. 784; Remington v. Allen (1871), 109 Mass. 47; Mickle v. Peet (1875), 43 Conn. 65; Pico v. Cuyas (1873), 47 Cal. 174.

the remedy of the partner, as will be seen, is to go into a court of equity, praying for an accounting and, usually, for a dis

solution. §200. Of the two difficulties which thus lie in the way of the action at law the first, that is, the difficulty as to parties, is a constant one as long as the partner himself is the plaintiff. The second difficulty, i. e., the difficulty as to the nature of the claim, however, is not a constant one. It may be that in a particular case, the claim is a single and simple one which could be easily proved without involving a partnership accounting, or it may be that the firm has so far segregated this claim from the other partnership affairs that it could be shown without reference to the state of the final accounting. This latter fact, however, would not save the case, so long as the objection as to parties remains.

The objection as to parties only might often be avoided by assigning the claim to a non-partner who might then sue all of the partners. Whether, however, the assignment would avoid the second difficulty as to the nature of the claim, would depend upon the circumstances. If the claim were either of the single and simple or of the segregated sort so that no investigation of a complicated partnership account would be necessary, and the jurisdiction were one permitting an assignee to sue in his own name, the assignee of the partner might usually sue at law. If, on the other hand, these latter things were not so,

2 See Frank v. Anderson (1884), 81 Tenn. 695. Where a partner loans money to the firm and takes the firm's note, the note is valid, though the partner himself cannot sue upon it, and if he indorses to a holder for value, the latter may recover of the firm (Carpenter v. Greenop (1889), 74 Mich. 664, 42 N. W. 276, 16 Am. St. R. 666, 4 L. R. A. 241, Mechem's Cas. 296, Gilm. Cas. 467; Walker v. Wait (1878), 50 Vt. 668; Jennings v. Pratt (1899), 19 Utah 129, 56 Pac. 951;

Knaus v. Givens (1892), 110 Mo. 58, 19 S. W. 535; Buchanan v. Mechanics Inst. (1896), 84 Md. 430, 35 Atl. 1099); though this would not be the result if the transfer were merely colorable to enable the transferee to sue (Wintermute v. Tarrant (1890), 83 Mich. 555, 47 N. W. 358; Cutting v. Daigneau (1890), 151 Mass. 297, 23 N. E. 839); or if the note were so transferred that the action must be brought in the name of the assignor. Davis v. Merrill (1883), 51 Mich. 480, 16 N. W. 864.