
    * Andrew Peters, Administrator, versus Amasa Davis.
    A demand of copartners in trade belongs to the survivor to collect, notwithstanding an adjustment of all the concerns of the copartnership between him and the administrator of the deceased copartner, in which it was agreed that the proceeds of such demand should be equally divided between them.
    Case for money had and received by the defendant, for the use of the plaintiff, in his capacity of administrator of-Davenport.
    
    A trial was had upon the general issue, before Parker, J., at the last November term in this county, and a verdict taken for the plaintiff, subject to the opinion of the Court upon the following facts, reported by the judge who sat in the trial.
    In 1798, a voyage was undertaken by the defendant and the house of Rawson &f Davenport. The vessel, and one half of the cargo, belonged to the defendant, and the other half of the cargo belonged to Rawson Davenport. The cargo was taken by the French, and converted to the public use; and the defendant, as agent for the whole concern, endeavored to obtain compensation from the French government. In February, 1802, Davenport died, and the plaintiff was duly appointed his administrator. In two or three years after Davenport's death, the plaintiff and Rawson ad justed all the concerns of the copartnership, except a demand against the British government, and the demand against the French govern ment, for the proceeds of the cargo above mentioned ; and it was agreed between them, that whatever should be recovered on account of these claims, should be equally divided between the plaintiff and Rawson. The company of Rawson &f Davenport was solvent until the death of Davenport, and Rawson continued solvent until August, 1805, when he absconded, being indebted to Davis more than the amount of the proceeds of half of the cargo as finally recovered. In 1806, under the Louisiana treaty, Davis received from the United States, on account and for the proceeds of the cargo taken by the French, as before mentioned, 3095 dollars 93 cents, the bills therefor being in the name of Davis and Rawson.
    
    * The verdict was taken for one fourth part of that [ * 258 J sum, being one half of the proceeds of the part of the cargo belonging to Rawson &/■ Davenport; the action being brought upon the ground, that, by the death of Davenport, and other circumstances in the case, there was such a severance of the property as entitléd the plaintiff to recover Davenport’s due proportion. There was no evidence of an assent on the part of the defendant to this severance, nor was there any formal notice of it to him, although it appeared, that about the time of the commencement of this suit, or since, he had been informed of the adjustment, which had taken place between the administrator and Rawson.
    
    If, upon these facts, the Court should be of opinion that this action could be maintained, it was agreed that judgment be rendered on the verdict; otherwise the plaintiff to become nonsuit.
    
      Parker, for the plaintiff,
    argued that he was entitled to his action, on the ground that this money had come to the defendant’s hands long after the dissolution of the copartnership by the death of Davenport, and after the final adjustment of all the partnership accounts, while the parties were solvent. A surviving partner, bjthe law merchant, has no interest in the debts due to the copartnership, but to collect and pay them over as due. But this debt was never in fact due to the copartnership. The action is brought on the promise of the defendant, which the law implies, from his receipt of money belonging in good conscience to the plaintiff, The circumstance of the bills being drawn in favor of Davis and Rawson, makes no difference in the case, nor is it easy to discern why they were so drawn. 
    
    
      Jackson, for the defendant,
    insisted that no person but Rawson, could legally demand this money of the defendant. Its having been received after the dissolution of the copartnership, and the adjustment of their accounts, makes no difference in the rights or duties of the parties. The claim was always in Rawson [ * 259 J after Davenport’s death, and * the remedy in every case of a joint debt survives. The case cannot be distinguished from that of a bond due at the dissolution of the copartnership, and an agreement that when the money should be received, it should be divided between the partners. In that case, if one of the partners died, it would hardly be suggested that an action would tie for his administrator to recover a moiety of the sum due.
    This principle was recognized by the Court in the case of Austin vs. Walsh; 
       although the defendant there, having agreed to a severance of the interest of the joint creditors, was held responsible to one of them separately.
    
      
      
        Com. Dig. title Merchant, D. — 2 Burr. 1197, Enys vs. Donithorne—1 Esp. Dig. 117, Garret vs. Taylor.—2 Vern. 293. — 1 Salk. 392, Heydon vs. Heydon.— Doug. 650, Eddie vs. Davidson.— Watson's L. of Partnership, 124, 128, 136, 146, 233. 300.
    
    
      
       2 Mass. Rep. 405.
    
   By the Court,

(ahsente Parsons, C. J.) We are all of opinion that the plaintiff cannot maintain this action. Here was no such severance of the joint demand of Rawson &f Davenport, as subjects the defendant to two actions for one cause. The whole adjustment of the affairs of the copartnership was between the plaintiff and Rawson: the defendant knew nothing of it, and if he had known it, he was not bound by it. The verdict must be set aside, and the plaintiff must be called.

Plaintiff nonsuit.  