| Vt. | Jan 6, 1855
The questions in this case arise on a motion to dismiss.
The auditors have reported a balance on book due the plaintiffs for the sum of $933.96, subject to the right to recover the same at law, upon the facts stated in their report. The plaintiff's account is for lumber which was sold by them to Thomas D. Chapman, acting professedly as the agent of the defendants in making that purchase. The defendants by articles of agreement are organized into a joint stock association or copartnership, under the name of the "Champlain Steamboat Company," for the purpose of constructing a steamboat for their use on Lake Champlain, and for which the lumber in question was purchased and used.
The fact is stated, that Mr. Green was a partner with Mr. Rob-erts in the sale of the lumber, and that each are equally interested in the avails arising from that sale. They necessarily, therefore, *239 have joined as plaintiffs in this suit; for where the legal interest in a contract is joint, the remedy must be jointly pursued. It also appears from the report, that Mr. Green is one of the original sub-scribers to the stock of this association; that he was beneficially interested, with the other defendants, in the purchase of the lumber, and is proportionably liable with them, for the payment of this account. In each of these relations, Mr. Green is interested in this contract of sale on the one part, and of purchase on the other.
This action is now brought to recover the value of the lumber, and Mr. Green is made one of the plaintiffs of record as well as one of the defendants. It is very obvious, that this suit cannot be sustained on common law principles. No suit at law can be sustained "for no one can be interested as a party on both sides of the record." This doctrine has been held in several cases in England and in this state. The proper remedy of the party is in chancery. Mainwaring v. Newman, 2 Bos. Pul. 120. Bosanquet v. Wray, 6 Taun. 597.
This case was, therefore, properly dismissed, unless by some statute different provisions have been made enabling suits of this character to be sustained at law. It is insisted that such provisions have been made by the acts of 1852. It is apparent, however, that the act of November 15, as well as that of November 18, was never intended to apply to actions of this character, or to alter that rule of common law. The act of November 15, p. 8, refers only to the common law action of account, and provides that that action may be sustained in cases, where otherwise, the remedy is only in chancery. Where the partnership consisted of only two persons, a remedy for the settlement of their partnership dealings was had at law in the action of account; but if the partnership consisted of a greater number of persons, the only remedy was in equity. Wis-well v. Wilkins,
In the next place the statute refers only to such cases as are brought to settle and adjust the copartnership accounts, and where *240 the copartners only are parties to the suit. It has no reference to actions brought by third persons, who are not members of the co-partnership. This suit is not brought to adjust those accounts, nor can they be adjusted in an action where Mr. Roberts is one of the plaintiffs of record, as he is not a member of the copartnership, and is in no way privy to their accounts or dealings. To bring a case within the provisions of this act, the action must be brought by partners against the copartners, declaring in the form of the common law action of account, and in which the final balance between the copartners can be settled. This action on book cannot be sustained for any such purpose, and is unaffected by that statute. The act of November 18, p. 9, providing that any items of account, properly belonging to the action of account, may be tried and adjusted in the action on book account, does not extend to cases, where the entire account is a partnership dealing.
Neither is this case affected by the act of 1851, which permits the plaintiff to take judgment against those defendants on whom a liability is proved, notwithstanding other defendants are joined, who are not jointly liable on the contract. That act extends to cases only, where no liability whatever, on the contract, exists on the part of some of the defendants. But in this case a liability does rest on Mr. Green to pay his proportion of this account. The difficulty in the case is, that his liability cannot be enforced at law. The proceedings should have been instituted in another tribunal, where the respective liabilities of all the parties can be enforced. For that reason, we think, the suit was properly dis-missed. This view of the case renders it unnecessary to pass upon other questions which were raised during the argument.
The judgment of the county court is affirmed. *450