
    Nathan Bond versus Judah Hays, Executor.
    
      Assumpsit lies for one against his copartner, for money paid him, on a dissolution and adjustment of the concerns of the copartnership, more than was actually due.
    Assumpsit for money had and received, money laid out and expended, &c.
    The cause was tried upon the general issue before the Chief Justice, at the last November term in this county, when the plaintiff proved that he, being a broker, and dealing in the exchange of bank notes and other mercantile paper, took from Henry Jackson, Esq., the defendant’s testator, ten thousand dollars to be used and employed in the aforesaid business by the plaintiff, on the joint account of himself and the said testator, and for their joint profit and advantage ; that for the capital thus advanced he gave two several promissory notes to the testator on interest; and it was agreed that he should settle his accounts, and pay over to the testator one half of the profits semiannually ; that, accordingly, the plantiff rendered his accounts for several years successively, and paid over the testator’s share of the profits, which were very large. This continued until the death of the said Jackson, when the connexion was * discontinued by his executor, who demanded of the plain- [ * 35 ] tiff the whole amount of the notes aforesaid, and interest from the last dividend. The plaintiff then stated to the executor, that he paid over the profits on the actual state of the accounts at the time of each dividend, without reference to any losses which might arise upon debts due to him on account of the concern, and offered to pay $8000, reserving the balance until an adjustment should take place, and the exact amount of loss be ascertained. This was refused by the defendant, who threatened him with a suit upon the notes ; to avoid which he paid the whole amount as above stated, and instituted this action to recover back the sum he had overpaid in the dividends, having regard to the debts supposed to be bad.
    At a former term, auditors were appointed by consent of the parties, who, having examined the books and accounts, reported the sum due to the plaintiff on account of bad debts and other losses ; and, their report having been read to the jury as evidence, and there being no evidence to impeach or contradict it, a verdict was returned for the sum so found to be due.
    The defendant’s counsel objected to the verdict ; — because, upon the evidence reported, the contract was usurious, and no action could be founded upon it; — also, because this action would not lie on account of the partnership subsisting between the plaintiff and the defendant’s testator.
    Thatcher, for the plaintiff.
    
      W. Sullivan, for the defendant.
   Per Curiam.

We cannot perceive any objection to the principles upon which this action is founded, or to the evidence which produced it.

As to the first objection made at the trial, but which has not been urged in the argument, that the contract, as proved, was usurious, because the defendant’s testator, who advanced the money, secured the principal and legal interest by promissory notes, besides holding the plaintiff to pay over one half the profits ;—it is a sufficient answer, that, this action being for money had and received, [ * 36 ] the plaintiff would * be entitled to recover a larger sum than the verdict gives him, for the excess beyond legal interest which he has paid over to the defendant’s testator. Possibly the ground of usury might have been a good defence against the notes of which the executor demanded payment, and which the plaintiff has honorably paid. He claims in this action nothing more than appears to be his due upon a fair statement of his accounts by auditors agreed upon by the parties.

As to the form of the action, we see no difficulty. 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 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 we do not consider the preexisting partnership as in any degree affecting this demand of the plaintiff, the partner being dead, and the account be tween them having been settled. In this case, too, it is observable, that the objection is merely formal; for, by the appointment of auditors under an agreement of. the parties, every advantage of the action of account has been enjoyed by the defendant, without the inconveniences to which that action is liable.

Judgment on the verdict. 
      
       9 Mass. Rep. 538.
     
      
       The Court,in giving judgment, assume what the report of the case does not warrant. The money was, as it should seem, paid by the plaintiff to the executor of his copartner on being threatened with a suit, while it remained doubtful whether it were due or not; and the action was brought before the copartnership accounts had been entirely adjusted. See note to Brigham vs. Eveleth, 9 Mass. Rep. 542, 3d ed. — Bovill vs. Hammond, 6 B. &. Cr. 151.— Holmes vs. Higgins, 1 B. Cr. 74. —Fromont vs. Coupland, 2 Bingh. 170. — Smith vs. Barrow, 2 D. & E. 476. —Harvey vs. Crickett, 2 M. & Selw. 340. — Foster vs. Alanson, 2 D. & E. 479. — Henley vs. Soper, 2 M. & R. 153. — 8 B. & Cr. 16. — Rackstraw vs. Imber, Holt, N. P. C. 368. — Robson vs. Curtis, 1 Stark N. P. C. 78. — Coffee vs Bryan, 3 Bingh. 54.
      
        [Fanning vs. Chadwick, 3 Pick. 420 —Collyer on Partnership, 152-4, and note — Williams & al. vs. Henshaw al., 11 Pick 79. — Ed.]
     