
    * Stephen Brigham versus John Eveleth.
    A, and other creditors of B, an insolvent debtor, executes a letter of license to B, covenanting not to sue him within two years; and on the same day, B conveyed to A the moiety of a machine, the profits of which were to be distributed among B’s creditors pro ratá, B continuing in the use of the machine: before the expiration of the two years, A brought an action of assumpsit against B for the moiety of the profits received by him; and it was holden that the action lay.
    The declaration, which was in case, contained two counts. The first was indebitatus assumpsit for money had and received by the defendant to the use of the plaintiff. The second was upon a promise to render a reasonable account of the earnings of a machine for raising mud, owned in equal moieties by the plaintiff and defendant, and to pay over one half of the net balance to the plaintiff on demand, with averments of earnings made and received by the defendant.
    At the trial of the action, which was had on the general issue, before Sewall, J., at the last November term in this county, the plaintiff proved his ownership of one equal moiety of the machine, under a bill of sale executed by the defendant. The bill of sale contained a proviso to this effect,—that if, in two years from the date, the plaintiff should receive the sum of 6720 dollars, mentioned as the amount of the defendant’s debts, for the payment of which the moiety of the machine had been assigned, then the bill of sale to be void ; but if that sum should not be paid from the earnings, then the balance remaining due at the expiration of two years was to be raised by the sale of the moiety of the machine. And the plaintiff proceeded to give some evidence of the employment of the machine, and of earnings received by the defendant, after the assignment, and before the action brought.
    Against the plaintiff’s recovering a moiety of these, in this action, the defendant objected, and offered in evidence a covenant under seal, executed by the plaintiff and others, the defendant’s creditors, in which they severally stipulate, in consideration of tie said assignment for the security of their debts, that they will not sue the defendant for the same during the two years from the date allowed by the other instrument.
    This evidence was rejected by the judge ; and the parties agreeing to refer the action for an assessment of damages, * a verdict was taken for the plaintiff for the sum of 2000 dollars, subject to the opinion of the Court upon the construction to be given to the contract of the parties, respect ing the defendant’s debts ; and also subject to the report of damages to be assessed, if any are recoverable in this action, the verdict to be amended accordingly ; or to be set aside, and the plaintiff to become nonsuit, as the opinion of the Court should be.
    
      Otis and Fairbanks for the defendant.
    The defendant was not bound to account for the earnings of the machine, until the expiration of the two years. If it be not so, then he was liable to be sued every day during the two years.
    The defendant, if chargeable at all, is chargeable only in an action of covenant, or in account as tenant in common with the plaintiff, and not in assumpsit.
    
    Whatever may be the construction of the grant, if taken by itself, yet the letter of license, which, being of the same date and between the same parties, is to be taken together with the grant as one instrument, suspends all rights of action in the plaintiff against the defendant for two years. 
    
    
      Aylwin for the plaintiff.
    The form of action is right, and the first count will support the verdict. Before the stat. of 4 and 5 Anne, c. 16, § 27, giving .remedies by action of account to tenants in common and joint-tenants against their companions, it was held that wherever account would lie, indebitatus assumpsit would lie also ;  and there is no reason why the same principle shou d not apply, now that the remedy by action of account is extended.*
    But if an implied assumpsit will not lie between joint-tenants from their relation, yet, when one has actually acquired in money more than his proportion, the surplus is money received for the use of his companion, which, in equity and good conscience, he is not entitled
    
      to retain, and an action for money had and received may be well supported. This position is supported by a decision of this Court in * the case of Jones & Al. vs. Harraden, 
       and is consonant to the ancient practice in this commonwealth.
    
      The objection, that the action does not lie until after two years from the date of the grant, is not supported by a just construction of the contract. The letter of license extended no farther than to restrain creditors from suing for debts antecedently contracted and due. The profits of the machine were subsequent, and were to be received by the plaintiff for distribution among the defendant's creditors.
    
      
      
        Bac. Abr. Pleas, &c. G. 3.—3 Esp. Rep. 234.
    
    
      
      
         1 Leon 219. — Moore, 458. — 12 Mod. 517.
    
    
      
       The following is a minute of the case referred to in the text, as it was read by Aylwin, and which Parsons, C. J., said that he remembered, and that it was correctly stated : —
      S. J. COURT — FEBRUARY TERM, 1784 — IN SUFFOLK.
      John C. Jones and Others versus Nathaniel Harraden.
      This action was indebitatus assumpsit for money had and received, and was tried on the general issue, before Cushing, C. J., Sargent, Sewall, and Sumner, Justices.
      It appeared in evidence that the plaintiffs were owners of the ship Ulysses and cargo, which had been captured by the British on a voyage to. the West Indies, and, after being in the enemies’ possession nine or ten days, were recaptured by the defendant, who commanded the American priveteer Pickering, and carried into Martinico. There, on his libel in the Admiralty, he obtained leave to sell the vessel, on account of the risk in a voyage home, and the cargo because it was perishable. The defendant purchased the vessel in at auction, laded her with merchandise procured from the proceeds of the sale of the cargo, and sent her to St. Eustatio, where she was taken at the surrender of that island to Admiral Rodney.
      
      By the prize laws of the United States, recaptures made after ninety-six hours’ possession by the enemy entitled the recaptors to one half the property as salvage, the residue to the original owner. And this action was brought to recover the amount of the moiety of the proceeds of the sales of the vessel and cargo after their recapture.
      
        Sullivan and King, for the defendant, rested their defence principally upon two grounds : 1. That, by the recapture, the defendant being .entitled to a moiety of the vessel and cargo, he became a tenant in common with the plaintiffs, and so this action of assumpsit would not lie.— 1 Lev. 29, Graves vs. Sawyer. — Co. Lit. 172. — 2. That in a time of. open war, the officer making the recapture abroad, has a right to exercise his discretion in the mode of sending the property home; and if a loss accrues when acting bond fide, he is not liable.
      
        Lowell and Gore, for the plaintiffs, contended that this action well lay, although the plaintiffs and defendant were tenants in common; for, previous to the slat, of 4 and 5 Anne, it had been adjudged that indebitatus assumpsit might be brought where account lay. And although that statute authorized a joint-tenant to sue his companion in ace count only, there could be no question that this action was maintainable. They further argued that the plaintiffs and defendant were not tenants in common. And as to the last point relied.on by the defendant, they said that, allowing him the full use of his discretion in sending home property recaptured, it could not authorize him, after the sale under the direction of the Admiralty, to take more than a moiety of the proceeds, much less to invest the plaintiffs’ part in merchandise, and proceed to traffic with it at different islands. The loss, which happened in consequence, ought to be the defendant’s.
      Cushing, C. J. The first point in the defence in this case relates to the form of the action; and unless that be right, there is an end to further inquiry.
      The vessel and cargo were originally the plaintiffs’, and, on capture by the enemy, became their property. When recaptured by the defendant, it would have vested instantly in him by the common law, had not our act relating to prizes provided that one moiety should belong to the former owners, and the other to the recaptors.
      The facts of capture, recapture, and sale, are not denied; but the operation of the recapture is disputed. The defendant contends that he became tenant in common in consequence of the recapture, which the plaintiffs deny. This point the jury will well consider. If they were not tenants in common, that ground will fail the defendant. If they were, I am still inclined to the opinion that this action is rightly brought.
      Previous to 1he statute of Anne, which has been adopted here as law, no action lay by a tenant in common against his companion for the profits of the property owned in common. A remedy was given in that act by an action of account. By the authorities cited, it appears to have been the opinion of Lord Holt, that whenever account could be maintained, indebitatus assumpsit might be also; and as the statute is a remedial one, it ought to receive a liberal construction. It was enacted to provide a relief which could not be had at common law; and the mode pointed out by action of account ought to be considered as put by way of example, not of limitation. This equitable construction appears to be countenanced by long practice. The action of account, from its prolixity, had given place to an action on the case in the nature of account, or for money had and received, as its substitutes.
      The jury will consider whether the defendant is not liable in any event, as he has money of the plaintiff’s. After the property was sold, the taking of the plaintiff's moiety out of the Admiralty cannot be justified. It might have been otherwise, if an ac cident had happened in coming directly home with it. If the defendant is to be allowed to invest it in merchandise, and go to St. Eustatia to trade with it, he might carry it all over the world for the same purpose. No principle can support the defendant in put ting unnecessarily at hazard that share of the vessel and cargo which belonged td the plaintiffs.
      
        Verdict for the plaintiffs.
      
    
   By the Court.

It has been objected to the plaintiff’s right to recover in this action, that he was not entitled to receive any portion of the earnings or profits of the * machine, until the expiration of two years from the date of the bill of sale : and the letter of li-ense, executed by the plaintiff, with other creditors of the defendant, was urged in support of the objection. But that instrument was not intended to apply to these earnings, which were a new cause of action, not within the covenants in the letter of license. We think, therefore, that the plaintiff is entitled to his action, notwithstanding this objection.

Another objection has claimed more of our consideration, viz., that the parties were tenants in common of the machine, and no remedy lay for tenants in common*against each other. But the statute of 4 and 5 Anne gave them an action of account. To avoid the tedious proceedings in the action of account, the action of the case upon a promise to account was substituted ; and here it has been frequently holden that indebitatus assumpsit well lies where one has received all the profits, or more than his share of purparty. The case of Jones & Al. vs. Harraden is in point, and goes farther than is necessary to support the action before us. On this authority the verdict is to be supported, and, the plaintiff may enter it on his first count; after which, assessors will be appointed to liquidate the damages, 
      
      
         [By the common law, one partner or tenant in common cannot maintain assumpsit against his copartner or cotenant for a share of the profits until a final balance has been ascertained, (Gow. 2 ed. p. 88;) and according to the better opinion, an express promise has been made to pay it.— Gow. ubi sup. Carey, 62.— Chitty, Con. 199. — 1 Chitty's Pl. 4 ed. 28.— Fromont vs. Coupland, 2 Bing. 170. — The case of Jones vs. Harraden, cited in the note, may well be reconciled with the above general rule. — In Wilby vs. Phinney, Admr., (15 Mass. Rep. 121,) the Court state the law to be clearly in this commonwealth, that an action of assumpsit will lie after the dissolution of a copartnership to recover a final balance, due from one partner to another on the ground of an implied promise. In the same case, it is said that “ generally, where an action of account lies, an action of assumpsit on a promise to account may be maintained.” And Brigham vs. Eveleth, and Bond vs. Hays, Exr., (12 Mass. Rep. 34,) are cited as maintaining this position. But it is submitted that to maintain assumpsit against a partner or tenant in common, in such case at common law there must be an express promise to account, and that even then the plaintiff cannot go into particulars of the account, but must confine himself merely to the damage he has sustained from not accounting according to promise. — Buller, N. B. 148. — 1 Salk. 9. — Carey on Part. 62. — Fromont vs. Coupland, ubi sup. — In Bond vs. Hays, Exr, (12 Mass. Rep. 36,) the Court say, “ If the common law principle should prevail, that one partner can maintain no action but account against his copartner, still it would not follow, that after the copartnership accounts are closed, an action of assumpsit will not lie for one who has paid over by mistake more than his partner was actually entitled to receive; and that is the ground of the present action. The case of Brigham vs. Eveleth is a sufficient authority for this purpose, if authority be wanting.” But Brigham vs. Eveleth seems to have gone on other grounds. — See Bovil vs. Hammond, 6 Barn. & Cress. 151 — Ed.]
     