authorities do not specifically say who may prefer a bill for an account. The plaintiffs, in the reported cases, have generally been the solvent partners. But that any of the parties in interest, entitled to a share in the partnership effects, may prefer such a bill, can hardly be doubted.

In order to take an account, the partnership effects must be converted into a "dry mass of property," since on the ascertained value of those effects, the actual interests of the different parties depend. They can be so converted only by collecting the debts and selling the partnership property. Such collection and sale can be enforced only by an order of court, executed by a receiver, appointed for that purpose. The master, on receiving the report of the receiver, will be able to take the account, and report to the court, where a final adjustment of all the interests can then be made.

If there be just grounds to apprehend that, meanwhile, the partnership effects will be improperly disposed of, or injured, an injunction may be obtained; otherwise the very object of preferring a bill for an account may be defeated.

Whether the proceedings at law of the partner's creditor, under his execution can be restrained by injunction, is a different question. All the sheriff can do by virtue of this execution is, according to the modern doctrine, to seize and sell the partner's interest. There seems, therefore, to be no reason why an injunction should be granted against him, except in favor of the debtor, or of other creditors of his levying subsequently, whose interests may be sacrificed by a sale, while their value remains undetermined. In Moody v. Payne, 2 Johns. Ch. R. 548, this question arose. The chancellor, in delivering his opinion, remarked as follows:

"It is true, the execution at law only takes the interest of the partner who is sued, subject to the partnership debts;

count was ordered and a receiver appointed. See also Chapman v. Koops, 3 Bos. and Pull. 289; Wilson & Gibbs v. Conine, 2 Johns. Rep. 280.

and there are difficulties in selling such an uncertain interest, before it is ascertained by taking and stating the accounts in this court, what is the interest to be sold. Lord Eldon, in Waters v. Taylor, 2 Vesey and Beame, 301, felt the weight of that difficulty, but still he seemed to admit, that a court of law might in the mean time go on and sell, and that this was the constant practice. I do not know that this court has ever undertaken to stop an execution at law, in such a case, until the partnership accounts have been taken, and it would be too much for me to assume it without precedent. The principle would go to stay executions at law, in every case, against the partnership property of one partner, who owed separate debts, until the disclosure and liquidation of the concerns of the copartnership. This would produce inconceivable delay and embarrassment, in respect to the separate creditors. If those creditors can sell only subject to the joint creditors, there is no harm in suffering them to go on at law; and if any sacrifice of the interest of the separate partner is made by reason of the uncertainty, it affects only that partner, who does not here raise the objection. The late exchequer case of the King v. Sanderson, 1 Wightwick, Ex. Rep. 50, admitted, that upon an extent against one partner, the crown, like a separate private creditor, took the separate interest of the partner subject to the partnership debts; and that it was the practice for subjects to issue executions against the interest of one partner, and that the sheriff sold only the interest of such partner, and not the effects themselves. The cases referred to by Mr. Maddock' do not warrant his conclusion that chancery stops such executions by injunction. It is evident that the courts of law are in the constant practice

'Maddock's Ch. R. 112; Taylor v. Fields, 4 Ves. 396; Barker v. Goodair, 11 Ves. 85; Dutton v. Morrison, 17 Ves. 209, are the cases to which Mr. Maddock refers.

of awarding execution in such cases; and that this courtdoes not ordinarily, and upon such general grounds, enjoin the sale at law."

But suppose the debtor partner "does raise the objection" to the sale of his interest, while its value remains undetermined; will chancery, in that case, interfere by injunction? The chancellor, in the opinion just cited, seems to intimate that there would be ground for such interference. Certainly, the rigid operation of the rules of law exposes this partner to a hardship, from which he can obtain no relief but in equity. In equity, his interest can be protected, and justice be done to all parties. Indeed, it is not incompatible with the rights of the creditor that his execution at law should be staid, until the value of the interest seized can be ascertained, but subservient rather to his more complete enjoyment of those rights. While that interest remains uncertain, the creditor will hardly be able to obtain its actual value, to be applied in satisfaction of his debt; but once determined, he will have the whole, or such part as is sufficient, and the debtor, the overplus. This is just, both as it respects the creditor and the debtor; this is what equity requires. The debtor suffers no loss, and the creditor obtains the full value of all that was his. One of the greatest difficulties, in the way of the creditor's rendering his debtor's interest in the partnership available to his purpose, consists in this very thing, that when that interest is seized it cannot be sold, (except at the greatest hazard to all concerned therein,) on account of its uncertain value; a difficulty to be obviated only by the creditor's purchasing the interest himself, or by his procuring some one to act as purchaser, in his place, and for his benefit. And even then, perhaps, resort must be had to a court of equity, and the whole matter be finally adjusted there.

Upon principle, therefore, it would seem that the sale at law should be staid, on application being made to a court

of equity, in behalf of the debtor or of other attaching credi

tors.

Thus, by means of injunction and account, equity preserves the interest seized from being sacrificed, ascertains what it is, and finally disposes of it as well as of the whole partnership property, according to its just destination.

We have thus exhibited the ancient and modern doctrines of the courts of law, their practical difference in certain essential respects, the mode of executing the writ, the parties in interest after the seizure, their mutual relations, the hardships resulting from the legal rules, and the relief which equity has power to afford; without, however, pretending to solve all practical difficulties, but rather with a view of developing the principle to be adopted as a guide in attempting their solution.

These difficulties, it will have been observed, flow, chiefly, from the introduction of the equitable doctrine into the courts of law. Transplanted here, it seems an exotic in an uncongenial clime. The old rule of the moieties, though it wrought injustice, was yet intelligible in itself, easily reduced to practice, and perfectly consistent with other legal rules. And when you came into equity, and found there the doctrine of the interest, that too as a principle of equity, was plain, practicable, and in perfect harmony with all parts of the system to which it belonged. The two departments were kept distinct. Law maintained her rigor, while equity, with more pliant hand, dispensed to all, without injury to any, their respective rights.

But, as the law, beginning to feel the impulses which the advancing commerce of the English nation was fitted to inspire, adopted the more commercial principle of the equity courts, it seemed not to foresee all the legal consequences that would thence result, nor to perceive its own. inability to give it entire effect.

By contemplating the difficulties of the subject in their

origin, we may come to apprehend their true nature, and, as varying exigencies arise, so temper law with equity, as to produce, from their blended operation, a result as nearly just as possible.

F. F.

Hartford, Conn.

ART. IV.-ON THE DIVISION OF ESTATES, AND THE INFLUENCE WHICH IT EXERCISES ON THE DISTRIBUTION OF PROPERTY.

[Translated from an article by Mr. Hippolite Passy, in the Revue de Législation et de Jurisprudence, for April and May, 1841.]

THE effect produced by the laws of succession, which prevail in France, is a question frequently controverted. In the opinion of some persons, these laws tend to favor, in too great a degree, an equal distribution of property. To all who stand in the same degree of relationship, they give rise to equal rights. Every estate is divisible into as many lots as the deceased proprietor leaves children or collaterals; and, as a new dismemberment of patrimonies takes place with each new generation, a gradual diminution of individual fortunes must necessarily keep pace with this progressive parcelling out of properties. Are these assertions well founded? Is it true, that the divisions of estates among heirs tend to bring down all to a common level? What have been their results thus far? These questions, which are important in more than one point of view, deserve an attentive examination.

And, in the outset, it is worthy of remark, that, notwithstanding the diversity of legislative systems which have been applied to hereditary transmissions, there is no country in which property is not very unequally diffused. Among