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.

(Court of Appeals of New York, 1904. 178 N. Y. 9, 70 N. E. 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

partners were in all respects equal. On the 18th of February, 1896, a written agreement was made in the name of the firm with Kenneth M. Murchison, Jr., containing a promise "to pay him ten per cent. of the gross commissions for the work on the residence of William A. Clark," not yet completed. The rest of the complaint (Murchison not having been a party when it was drawn) is as follows: "That a disagreement has arisen between the plaintiffs and defendant as to the payments which have been and are still to be made to the said Kenneth M. Murchison, Jr., and as to the obligations of the copartnership to the said Murchison, Jr., under the contract entered into by said copartners and said Murchison, being the agreement of February 18, 1896 (Schedule B, hereto annexed), hereinbefore set forth; that the defendant has withdrawn from the funds of the copartnership and has appropriated to his own use the sum of $945, which was a sum largely in excess of any and all sums to which he was entitled at the time of such withdrawal, and threatens to withdraw from the funds. of the said copartnership from time to time hereafter such sum or sums as he may deem himself entitled to, irrespective of the rights of the plaintiffs; that the plaintiffs do not desire to dissolve the copartnership existing between them and the defendant, for the reason that the plaintiffs believe that the contracts entered into between such copartnership and William A. Clark, the owner of one of the works set forth in Schedule C, hereto annexed, and yet incomplete, require the exercise of the professional skill and ability of all the members of the said firm, which could not be secured upon a dissolution of the said copartnership, and that loss and damage would be sustained by the plaintiffs if such contracts were broken by the dissolution of said copartnership; that the plaintiffs are without an adequate remedy at law." There was no allegation that Hull was insolvent, or that there was any occasion for an accounting, except with reference to the Murchison contract. The relief demanded was an accounting as to all copartnership affairs to date, and an adjudication of the rights and obligations of the parties under their copartnership agreement and under the contract. with Murchison. There was also a prayer for general relief, but none for an injunction, either temporary or permanent. The defendant Hull alleged in his answer that the agreement with Murchison was made without authority, and was not binding on the firm; that the plaintiffs had unlawfully paid him thereon large sums of money out of the funds of the firm; and that they threaten to continue such payments. A few days before the action was tried, Murchison moved at Special Term, on notice to the parties, to be made a party defendant, with leave to serve an answer upon both the plaintiffs and the defendant. The motion, although opposed, was granted, and no one appealed from the order. The answer of Murchison, served on all the parties, after certain denials, set forth, "by way of an equitable counterclaim," the agreement between himself and the firm, and alleged that the firm owed him the sum of $2,100 and upwards thereon. He asked for an

accounting to ascertain the amount received by the firm as commissions from said Clark, and for judgment against the plaintiffs and the defendant Hull for the amount found due him, with other relief. The last set of copartnership articles provided "that upon completion of the works above mentioned a true and final accounting shall be made by the parties to this agreement each to the others, and all the property of the firm * * shall be equally divided between them." Upon the trial it appeared from the testimony of the plaintiffs that there was "nothing to have an accounting about, except Mr. Murchison's share of those commissions." The trial judge found the facts as alleged by the plaintiffs and the defendant Murchison, and the decree entered held the Murchison agreement valid and binding upon the firm, interpreted its meaning in accordance with their contention, and awarded judgment in favor of the plaintiffs and against the defendant Hull for $1,415.27, with costs, and in favor of the defendant Murchison against the plaintiffs and the defendant Hull for the sum of $3,000, besides costs. Upon appeal by Hull to the Appellate Division, the judgment was in all things affirmed-two of the justices dissenting-and he now comes to this court.

VANN, J. This action was brought by two copartners against the third for an accounting, without a dissolution, and it is not surprising that a challenge is interposed to the jurisdiction of the court. The contract of copartnership has existed as long as the common law, and a vast amount of business has been transacted by persons working together under this relation. The law upon the subject is founded on the custom of merchants, who have thus, in effect, made their own law, yet we find no well-considered case which approves of such an action as the one now before us. While the novelty of an action is by no means conclusive against it, still it is suggestive, when the history of the law relating to the subject shows many occasions and few efforts.

The general rule is that a court of equity, in a suit by one partner against another, will not interfere in matters of internal regulation, or except with a view to dissolve the partnership, and by a final decree to adjust all its affairs. Story on Partnership, § 229; Lindley, 567; Gow, 114; Parsons, § 206; Bates, § 910; Collier, § 236. It is not its office "to enter into a consideration of mere partnership squabbles" (Wray v. Hutchinson, 2 Mylne & Keen, 235, 238), or "on every occa-' sion to take the management of every playhouse and brewhouse" (Carlin v. Drury, Vesey & B. 153, 158). If the members of a firm cannot agree as to the method of conducting their business, the courts will not attempt to conduct it for them. Aside from the inconvenience of constant interference, as litigation is apt to breed hard feelings, easy appeals to the courts to settle the differences of a going concern would tend to do away with mutual forbearance, foment discord, and lead to dissolution. It is to the interest of the law of partnership that frequent resort to the courts by copartners should not be encouraged, and they should realize that, as a rule, they must settle their own differ