
    Kennedy vs. M‘Fadon & Caton.
    Appeal from, Baltimore County Court. This was an action of assumpsit for money had and received; For money laid out and expended; For money lent and advanced; for work and labour as an agent, &c. and a quantum meruit for work and labour, &c. brought by the plaintiff, (now appellant,) against the defendants, as surviving, partners of William IWFadan, & Co. The general issue was plead» ed; and at the trial the plaintiff offered in evidence, that the defendants, and a certain William AFFiulm, now deceased, and a certain Richard Lawson, also deceased, together with the plaintiff and Henry Child, Howell Price and Richard Price, were the joint owners and proprietors of the brig called The Betsy, and ber cargo, in the following proportions, to wit: Richard Calón one-fourth part; John M'Fadon and Richard Lawson, now deceased, as copartners in trade under the firm of John MlFadon, & Co. one-fourth part; William ilfPadon, now deceased, Richard Lawson, also deceased, and the aforesaid John PJFudon, as copartners in trade under the firm of William M'Fudon, & Co. one other fourth part; Henry Child, Howell Price and Richard Price, as copartners jn trade under the firm of Child, Price, & Co. one-eighth part; and the plaintiff the remaining eighth part, The plaintiff also offered evidence, that the said brig Betsy, and her cargo, owned as aforesaid, sailed from the port off RaltF more on a voyage to the Island of St, Domingo, where the plaintiff then resided, and to whom the said vessel and cargo were consigned for sale and disposal on their arrival; that in the prosecution of the above mentioned voyage, the vessel and cargo were captured and seized as prize, by á privateer commissioned and authorised to cruise by the French government; that .they remained in the possession of the captors for a few days, until they were recaptured by an English ship of war, and afterwards carried into Kingston, in the Island of Jamaica; that immediately thereafter proceedings were instituted in the vice-admiralty court established in that island, and ymre continued, until by a final decree of the said court, the said vessel and cargo were restored to the above named proprietors thereof, free from and exonerated of the claim of salvage made by the recaptors; that the recaptors interposed an appeal from the sentence of the vice-admiralty court, and prayed that the same might be brought before the lords commissioners of appeals in prize causes in Great-Britain, and the appeal was accordingly allowed, and the property so liberated ordered to be restored to the. proprietors, or* their agents claiming on their behalf, on giving security to abide the final decree of the lords commissioners of appeals. The plaintiff also offered in evidence, that John Campbell and Francis Whittle, of the Island of Jamaica, at the instance and request of the above mentioned owners, became the security in the stipulation so as aforesaid awarded to be given by the said owners on the restoration of the Betsy and her cargo. That the vessel and cargo were afterwards sent to the port of Baltimore, and came to the hands and possession of Richard Catón, and the said John MWadon and Richard Lawson, now deceased, who disposed of the same. That the sentence and proceedings of the vice admiralty court in Jamaica were afterwards reversed by the lords commissioners of appeals, and a decree was by them made that salvage should be paid to the recaptors, out of the brig and cargo, to the amout of §15, 000. That Campbell and Whittle were compelled to pay to the recaptors, in consequence of their having become security in manner above mentioned, the said sum of money, being the amount awarded as salvage. That Campbell and Whittle, after having paid the last mentioned sum of money, remitted an account thereof to the above named owners, requesting the reimbursement of the sum they had'thus been compelled to pay in consequence of their having become security; that not being able to obtain the payment of the said sum of money, they instituted a suit in the circuit court of the United Stales for the Maryland district, against the above named owners, and obtained a judgment thereon; that in the interval between the payment of the moneys by Campbell and Whittle, for the decree of salvage before recited, and the institution of the suit by Campbell and Whittle, for the recovery of the said sum of money, the defendants, Richard Catón and John M'Fadon, became bankrupts, within the view and meaning of the law of the United Stales, then existing on that subject, and obtained a regular certificate of discharge of all debts due by them antecedent to the act of bankruptcy on which the commissions issued, by which they were respectively declared bankrupts; that the plaintiff, in pursuance of the said judgment, being the only solvent person o.fthe owners above named, paid and satisfied the whole amount of the said judgment; and that the present suit is brought for the recovery of the proportion of the said money which the defendants ought in justice and equity to contribute. Me further offered in evidence to the jury, that there was nothing due from him to the defendants on account of their joiut adventure in the- said brig and cargo. The defendr ants then offered in evidence, that at the time of the sailing and capture of the brig Betsy, they, with the plaintiff, and the other owners above mentioned, were engaged as copartners in the above mentioned proportions, in many oilier mercantile adventures and speculations, which continued for several years; that on the whole of these speculations and adventures, the defendants’have always claimed, and still do claim, a considerable balance to be due to them from the plaintiff, and that no liquidation or settlement between the said joint owners, or any of them, hath yet taken place of the said speculations, adventures and claim, or of the business of the brig Betsy, her cargo, capture or salvage aforesaid.- The defendants then, by their counsel, prayed the opinion of the court, and their direction to the jury, that if they believe all the matters so offered in evidence by the plaintiff and defendants, the plaintiff is not entitled in law to recover in this action. Of which opinion was the court, [Nicholson, Ch. J. and Hollingsworth, A. J.] and so directed the jury. The plaintiff excepted; ami the verdict and judgment being against him, he appealed to this court.
    
      A ami B, with other person» i since deceased, had been engaged* as copartners* in certain proportions, in many mercantile adventures and speculations, whseh continued for several year** of which no liquidation or settlement between them had taken place; and among which they were joint owners, in the said pro- • portions, of a brig and cargo, which were captured, and by decree of the Vice-Adinirfflty court® were restored free from salvage! but an appeal being* interposed by the captors, it was necessary, m order to retain the property tor the owners, to give security to abide the final decree on the appeal® andO and P became sureties for them. The vessel and cargo returned, and came to the possession <íf B, and the other partners, who disposed of the same. After which the sentence of the Vice-Admiralty court was reversed and it was decreed that salvage should he paid, and it was paid by O and P* who brough t suit against A and B, and the oilier partners, and obtained judgment, which wm paid, by A,-he being tjic only solvent partner, the others having been declared bankrupts A brought an action of assumpsit against B, who had^ survived the other partners, to recover of him theptoportion -which he ought injustice and equity to contribute,* — Held, that A was not entitled to recover ist such action.
    
      The cause was argued before Chase, Ch. J. and Bochathan, Gantt, and Earle, J.
    
      Martin, for the Appellant.
    „ Harper and Winder, for the Appellees.
    They argued that the plaintiff and defendants were partners, and that one partner could not sue another in a court of common law, where there was no liquidated balance ascertained to be due.
   The Court

concurred with the County Court in the opinion in the bill of exceptions,

Gantt, J. dissented.

JUDGMENT ATFIRMED.  