Burnham v. Hopkinson

17 N.H. 259

• Court: Superior Court of New Hampshire
• Decided: July 15, 1845
• Status: Published

Opinion

Parker, C. J.

It is quite clear that this is not a case in which the liability of the trustee can be tried by a jury. According to the statement, it would involve the investigation of the whole of the partnership accounts and transactions, for the purpose of ascertaining the balance ; a matter which is never submitted to a jury.

And this shows, also, that this process cannot be maintained, against the partner summoned as trustee, for trial in any other shape. He cannot in this case undertake to settle the partnership accounts, which as yet remain unsettled. The remedy for the adjustment of the partnership accounts is in equity ; and if the plaintiff is entitled to have the accounts adjusted, in order that he may reach .the supposed interest of his debtor, his remedy is equitable and not legal. Chase v. Garvin, 19 Me. 211; Canfield v. Hard, 6 Con. 180; Estes v. Whipple, 12 Vt. 373; Carlton v. Newell, 13 Vt. 283; Hoyt v. Smith, do. 129; Burley & a. v. Harris, 8 N. H. Rep. 233; Morrison v. Blodgett, do. 238; Atkins v. Prescott, 10 N. H. Rep. 120; Harris v. Wilson, 6 Vt. 185.

Trustee discharged.