
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1804.
    Cook v. Garrett, Administrator of Garrett.
    
      Assumpsit will not lie by one partner against the representative of his . deceased copartner, for his share of a sum of money belonging to the partnership, which had been applied by the deceased to the payment of his private debt, and which he had not charged himself with in the partnership accounts; nor will it make any difference that the partnership had- been dissolved, and all matters relating thereto settled, in the life time oí the deceased partner. One partner cannot maintain an action at law against his copartner, for any matter concerning their joint interest, or dealings; but his remedy, where he is intitle d to any, is in equity.
    Motion for a new trial, after verdict for the plaintiff in an action of assumpsit, tried before Trezbvant, J. in Edgefield district. The case was this : The plaintiff and the defendant’s intestate had been partners in trade ; and during the existence of the partnership, the intestate had paid, out of the partnership stock, his own private debt to one S., and had omitted to make the proper entry thereof tn the pari net-ship books. Afterwards the partnership was dissolved, and all matters relating thereto settled between the partners : but the omission had remained undiscovered until after such settlement, and after the intestate’s death, token this action was brought against his administrator for a moiety of the sum paid to S., as the money ot the plaintiff laid out and expended for the use of the defendant’s intestate.
    It was urged in argument for the defendant, in support of the motion, that the action was not main tamable, as the money claimed Was disbursed by the defendant’s intestate as a co-partner of the plaintiff, and was not distinguishable from any other of the part, net'ship transactions, so as to give to the plaintiff a remedy differ, ent from that to which he would be entitled, if he had sought relief from an error, «r fraud, in the settlement ot the partnership conCeras t, and one joint.tenant, or partner, cannot maintain an action in acouit of law agaiust his companion, for any matter concerning their joint interest, or dealings : and in this case there was no express promise, after the dissolution of the partnership, on the part of the deceased partuer, to pay the money demanded ; and • therefore, the plaintiff, if relievahle at all, can only be relieved in equity. Ot this opinion was the whole court, except Waties, Justice, and a new trial was ordered.
    Waties, J. contra,
    
    considered this as an insulated transaction, and not necessarily connected with the partnership concerns, which had been fully settled between the parties. This debt was riot taken notice of tn the settlement, it then stood on the tooting oí si joint noto or bond, which if one of the joint promissors or obligors pays, he will he entitled to an action against the other, for a moiety of the money paid, by way of contribution.
    Gantt, for the plaintiff. Goodwyn, for the defendant.
   Tkezrvant, J

delivered no opinion.

New trial granted.

Present, Gkikke, Waties, Johnson,' Tkezevant, and Bee-waKd, Justices ; uav, J. absent.

Note. See 2 Bos & Pul. 268. 3 Rep. 11. 2 T. R. 100. 1 East. 220, 3 Esp. Rep. 161. 8 T. R. 186. 2 H. Bl. 116.  