as attach directly to the note itself, and do not include collateral matters. This is very old doctrine, and is laid down without qualification.

It was not shown, and cannot be claimed on this record, that there was any unfairness or want of consideration, or payment, or any other matter bearing on the note in this case, when it was transferred, and in such case can make no difference when it was transferred. It continued to be a valid note, and capable of transfer by indorsement. That a partner himself may have a remedy of some kind, where the transaction is such as to be separated from the general partnership accounting, does not seem to be questioned. Mr. Collyer refers to several illustrations, in book 2, c. 3 (2d Ed.) Partn. Judge Story, in his work on Partnership, § 222 et seq., indicates very clearly the right of a partner to relief in the case of contracts as a creditor or otherwise with his firm; and the fact which is referred to in all the books, that an accounting can only be had at the close of the business, indicates as clearly as anything can that either a partner can make no separate contract with his firm at all, or else there must be some means of enforcing it. A contract which cannot be enforced is nugatory. Partnerships are often made for long terms of years. Members become managers on salaries which are payable at regular intervals, and they frequently furnish articles for which they are entitled to pay. No one doubts their rights to pay themselves out of moneys in their charge; but all do not have this opportunity, and to hold that a person must, if his copartners will not advance him what is due, wait the whole term of business for payment, is not reasonable or maintainable. A very thorough discussion of the various questions is found in the early case of Smith v. Lusher, 5 Cow. (N. Y.) 688, where the judges of the Supreme Court, and the chancellor and other members of the court for the correction of errors, dealt with the subject in a very exhaustive way, with entire unanimity. The cases of Nevins v. Townsend, 6 Conn. 5, and Gray v. Bank, 3 Mass. 364, 3 Am. Dec. 156, are also somewhat pertinent. I have found no authority which sanctions the doctrine that plaintiff was precluded by the fact that the note was past due from taking the title by indorsement, and none that allows a note to be affected by collateral equities. When this note was indorsed there could be no accounting, because the firm continued its ordinary business. The debt was for a loan, and not for investments in the capital. It was distinct from the mutual relations among the partners, and stood as a separate contract. I think there was nothing to bar recovery, and that the judgment to the contrary should be reversed.1

1 The dissenting opinion of Sherwood, C. J., is omitted.

CROSBY v. TIMOLAT et al.

(Supreme Court of Minnesota, 1892. 50 Minn. 171, 52 N. W. 526.) Action by George H. Crosby, as receiver of the partnership property of Miller & Timolat, against Harry W. Timolat and George W. Stevens, to recover for services rendered by Miller. From an order overruling defendant Stevens' demurrer to the complaint he appeals. DICKINSON, J. This is an appeal by the defendant Stevens alone. from an order overruling his demurrer to the complaint. It appears that Miller and Timolat were engaged as copartners in the business of buying and selling real estate. At the same time Stevens and the same Timolat were copartners in the enterprise of buying, holding, and selling certain specified tracts of land. That Miller and Timolat, as such copartners, and at the request of the defendants, Stevens and Timolat, as copartners, performed services in selling the land which was the subject of the partnership enterprise of the latter. After that, in an action prosecuted by Miller against Timolat, this plaintiff was appointed receiver of the partnership property of the firm of Miller & Timolat, with power to sue for and collect all debts due to that partnership. He prosecutes this action to recover the value of such services rendered for the defendants. The appellant relies upon the technical rules of the common law. It is true that an action at law for such a cause as that stated in the complaint could not have been maintained by a partnership against another partnership having a common member with the former firm. It was not permitted that one of the parties should thus appear both as a plaintiff and defendant, in effect prosecuting an action against himself, in which, if a recovery were to be allowed, it would be in his favor, and at the same time against himself. Nor, at law, would the contract or agreement between the two firms having a common member be recognized as creating a legal obligation or cause of action. The transaction would be treated as an attempt by a party to enter into a contract with himself. Bosanquet v. Wray, 6 Taunt. 597; De Tastet v. Shaw, 1 Barn. & Ald. 664, 669; Leake, Cont. 439, 440; McFadden v. Hunt, 5 Watts & S. (Pa.) 468; Price v. Spencer, 7 Phila. (Pa.) 179. The remedial system of the common law was too inflexible and restricted to enable it to adjust the complex rights and obligations of the parties under such circumstances. But in equity the agreements of the members of firms so related to each other were treated as obligatory, and the fact that one of the parties to the joint contract stood in the position of both an obligor and obligee did not stand in the way of affording such relief or remedy as might be found to be appropriate and necessary to the ends of justice. 1 Story, Eq. Jur. §§ 679, 680; Haven v. Wakefield, '39 Ill. 509; Chapman v. Evans, 44 Miss. 113; Calvit's Ex'rs v. Markham, 3 How. (Miss.) 343; Hayes v. Bement, 3 Sandf. (N. Y.) 394. With the statement of these propositions the

objections to the sufficiency of the complaint upon the grounds stated in the demurrer are overcome. There is a cause of action stated of an equitable nature, if not legal-and if it is either the demurrer cannot be sustained-and the plaintiff has legal capacity to sue. The very objections which the appellant urges to the sufficiency of the complaint as setting forth a legal cause of action go to show that relief should be afforded in equity at least. If the fact that Timolat is one of the obligors in the contract as well as an obligee renders necessary any apportionment of the amount to be recovered, or any equitable adjustment of the rights of the parties, the court is competent to do what is necessary. At present the question is not how the matter is to be adjusted, or what recovery shall be allowed, but only as to whether the action can be maintained at all. As bearing upon this question may be cited, in addition to the authorities above referred to Cole v. Reynolds, 18 N .Y. 74; Schnair v. Schmidt, 59 Hun, 625, 13 N. Y. Supp. 725; Lathrop v. Knapp, 37 Wis. 307; In re Buckhause (Ex parte Flynn) 2 Lowell (U. S.) 331, Fed. Cas. No. 2,086. It is unnecessary to consider whether this plaintiff, as the receiver of the creditor partnership, could maintain a merely legal action against the members of the other firm. Order affirmed.

SECTION 2.-REMEDIES IN EQUITY.

BRACKEN v. KENNEDY et al.

(Supreme Court of Illinois, 1842. 4 Ill. 558.)

CATON, J. This was a bill in chancery, filed in the La Salle circuit court by the complainant against the defendants, for an account among partners. The bill states that in July, 1837, the complainant and defendants entered into partnership as canal contractors, and as such partners contracted with a canal company in Virginia for the construction of section 120 of their canal, and that they completed said section 120 in August, 1838; that during the progress of the work the complainant and Brady had the principal management of its construction, while most of the time Kennedy was absent; that at the same time Kennedy had an individual contract for the construction of sections 118 and 119 of the same canal, and Kennedy employed the complainant to superintend the completion of these sections; that this individual contract of Kennedy was unprofitable, and in the course of its progress he became indebted to the copartnership section, 120, to about $8,000 for work and labor expended on sections 118 and 119; that the whole estimate for the company section, 120, was $32,320.90, including the work done on Kennedy's individual sections, and that

the costs of the same were $23,738.82, leaving a balance of profits to be divided among the partners of $8,437.08; that the complainant has accounted with and paid over to Brady his third of the said profits; and that there is now due from Kennedy to the complainant the sum of $3,959.03, arising from said partnership transactions; that Kennedy has drawn estimates on the works, and has drawn his last on his individual contracts; that no account has been taken or rendered between the said partners; and that Kennedy refuses to account. The bill prays that an account may be taken, etc.

To this bill a demurrer was filed, which was sustained, and the bill dismissed.

The first assignment of error is upon the decision of the court in sustaining the demurrer, and this is the principal question in the case.

In matters of controversy or difficulty between partners, it is now most usual, and by far the most convenient, to resort to a court of equity for their final adjudication and settlement. The practice of this court is much better adapted to unravel and definitely settle such complicated questions as frequently arise among partners than a court of law; and it is now one of the most usual proceedings to be met with in courts of equity. It is not unusual that almost the entire proof of the merits of a case between partners is locked up in the bosoms of the parties themselves, or is contained in books and papers in the possession of one or the other party, and this court can afford the only key to the disclosure of the one or the production of the other. Here either party may compel the other to purge his conscience on oath and declare the truth; and the court will compel the production of all such papers and books as may be necessary to elucidate the rights and liabilities of the parties. It is for this reason that courts of equity have frequently exercised a concurrent jurisdiction with courts of law in long and intricate accounts, running on both sides, between parties who are not partners and have no interests in common.

It is true that courts of law still pretend to afford a remedy, in case of difficulty between partners, by the action of account; but it is so incomplete and unsatisfactory that it is now nearly obsolete, and the complaining partner almost universally lays his complaint before a court of chancery, where he finds a prompt and efficient remedy, from the superior facilities which it possesses of doing complete justice between the parties.

In a bill of this character the existence of the partnership, the transaction of business by the firm, and no account among its members, are prominent features, and where they all appear I am not prepared to say that the bill ought not in all cases to be retained. In this case the bill shows that there was a special and limited partnership, the particular object of which is stated in it, as well as the nature and amount of the business transacted by the firm, and that no account has been had between the complainant and the defendant Kennedy, who refuses to account. Here, then, is such a case as requires the interposition of

a court of chancery to settle and adjust the rights and claims of the several partners. It is true that the bill states that the complainant and Brady have settled as between themselves, and that the complainant has succeeded to all of the rights and interests of Brady in the partnership business; but this does not make it the less necessary that an account should be had between the complainant and Kennedy, to settle their respective rights; and to accomplish this it was necessary to make Brady a party to the bill. The bill also states that the partnership advanced to Kennedy, one of its members, in work and labor, etc., to the amount of some $8,000, which is nearly the extent of the partnership profits, thus showing substantially that Kennedy had received nearly all of the profits of the work on section 120. In what way. could this be recovered back by the other members of the firm, or in what way could he be compelled to account for these advances, unless by the mode here adopted? One member of a partnership cannot sue the firm at law for advances made by him to the joint concern; nor can the firm sue an individual partner for anything that he may have drawn out of the joint stock or proceeds, no matter how much more than his share it might have been; and the reason is that one man cannot occupy the double position of plaintiff and defendant at the same time. 1 Story's Eq. 616. The aid of this court is just as necessary to settle the account of these advances as it is to settle the accounts arising out of the immediate transactions of the special business of the partnership.

The bill, then, being sufficient in substance, although not so particular as might be desirable, the demurrer should have been overruled. The decision of the court below is reversed, and the cause remanded, with directions that the complainant be permitted to amend his bill, if he thinks proper, and with leave for the defendant to answer. Decree reversed.

LORD et al. v. HULL.

(Court of Appeals of New York, 1904. 178 N. Y. 9, 70 N. EL 69, 102 Am. St. Rep. 484.)

Action by Austin W. Lord and others against Washington Hull and Kenneth M. Murchison, Jr. From a judgment of the Appellate Division (80 App. Div. 194, 80 N. Y. Supp. 321), affirming a judgment for plaintiffs and Murchison (37 Misc. Rep. 83, 74 N. Y. Supp. 711), defendant Hull appeals.

It is alleged in the complaint that in September, 1894, the plaintiffs and the defendant Hull formed a copartnership to carry on business as architects in the city of New York, at first for a definite period, but finally until certain work was finished, and that the time for the termination thereof was uncertain, owing to the large number of unfinished contracts on hand. The powers, rights, and obligations of the co