Bartlett v. Parks , 55 Mass. 82 ( 1848 )

Wilde, J.

The defendants demur to the bill on two grounds: 1st, because the court has no jurisdiction, the remedy of the plaintiff being adequate at law; and, 2d, because John Townsend and John Ballinger, Jr., ought not to have been joined as party defendants.

As to the first ground of demurrer, we have no doubt that the court has jurisdiction.

By the Rev. Sts. c. 118, § 43, the action of account is abolished ; and it is further provided, “ that when the nature of an account is such that it cannot be conveniently and properly adjusted and settled in an action of assumpsit, it may be done upon a bill in equity.”

The language of the statute is comprehensive, and in terms gives this court jurisdiction in equity in all cases where an account is to be settled, which cannot be conveniently settled in an action of assumpsit, whether in such cases an action of account would lie before the statute or not. And this construction of the statute would not give to the court a more ample jurisdiction than courts of equity have in England, where a bill for an account is sustained in many cases in which an action of account would not lie. In this case, however, an action of account, if not abolished, would lie. That action lies against a bailiff or receiver. Bac.,Abr. Account, A.; Jacob’s L. D. Account, 24; Co. Lit. 171.

The bill alleges, that the plaintiff’s partner consigned to the defendants, Parks, Baldwin and Parks, partnership property for sale, the proceeds to be applied to the payment of a partnership debt. In such a case, an action of account would unquestionably lie; and it is unquestionable, also, that the account, sought to be settled in the present case, cannot be conveniently settled in an action of assumpsit. A jury is an unsuitable tribunal for adjusting matters of account; and although the law authorizing a reference to an auditor, and making his report prima facie evidence, in such cases, has removed some difficulties, still, accounts generally cannot be conveniently thus settled.. The plaintiff, in the present case, is entitled to a discovery, and to the production of the defendants’ books, and it would be inconvenient and unreasonable that he should be compelled to resort to a court of equity for a discovery, and to a court of law for relief, when the whole case might be settled and decided most beneficially for both parties by a court of equity.

As to the other ground of demurrer, the court are of opinion, that Townsend and Dallinger are properly joined as defendants. Their interest is opposed to that of the plaintiff. But if it were otherwise, they could not be compelled to join with the plaintiff, and might be made defendants, according to a well known rule of equity; and Townsend, if not interested, may well be made a party for the purpose of discovery, as to all acts done by him before his insolvency, and the assignment of his property.

Demurrer overruled.