
    Ozeas against Johnson administrator of Foulke.
    Wednesday, December 10th.
    One partner cannot maintain assumpsit against the other, for the proceeds of a partnership adventure, unless they have settled their accounts and struck a balance.
    THIS was an action for money had and received, tried before the Chief Justice, at NisiPriu$ in 7une 1806. The facts in evidence were, that the plaintiff and Eoulkc had been concerned in several adventures to jVew-Orleans, upon the accounts of which, different sums appeared to be due to theplaintiff from Foulke, who had received the proceeds; and for the recovery of these sums with interest the action was brought. One of the witnesses swore that two or three years before Foulke's death, the plaintiff demanded a settlement of his accounts, which Foulke promised to make in a short time; but no account stated and settled by the parties was produced upon the trial, nor was there any evidence that such a settlement had ever taken placeS Upon these facts, Hopkinson for the defendant requested the court to reserve the point, whether the plaintiff, being a partner of Foulke and equally concerned in the adventures, could recover in the present form of action. The point was accordingly reserved, and the jury found for the plaintiff.
    S. Levy for the plaintiff.
    The objection to the form of action, being designed to turn the plaintiff round to a very tedious suit, is entitled to no favour. That a settlement and the striking of a balance are essential to support this action, seems far from being the case, according to the decision ExparteHokes, referred to in W~tts,1on Part. 221. where it was held that if a partnership has been determined, and the solvent partner has paid the debts, he may be, without any settlement, the petitioning credi.~ tor for a commission against his partner; and this must proceed upon the ground of there being an ascertained debt clue to him. Still further. where an account has been a long time in the hands of the debtor without objection, this is as conclusive ’ against him as a stated account; Tickel v. Short; 
      
       and it will be presumed, to support the action, that the balance was established before the jury by some evidence of this kind. But what action is to be adopted? Account render is almost obsolete, 1 Bac. Abr. 31.36.37.; and is attended with vexatious delays. We have no courts of equity, and therefore cannot resort to a bill. The action for money had and received is therefore the best form of action, because it is the most like a bill in equity, Jestons v. Brooke; 
       and has been allowed to perform that office in the state of Pennsylvania. D'Utricht v. Melchor, 
       The legislature of this state have moreover protected us by directing that no suit shall be set aside for an informality of this kind. y St. Laws 563. Act of March 21st 1806.
    
      Hopkinson for the defendant.
    This is a case of special partnership, in tvhich no account Avas settled; and nothing is clearer than that in such a case money had and received does not lie. It is not an objection to form, but to substance. One partner has nothing but a moiety of what remains after the debts of the concern are paid, and the accounts are settled. If this action lies, under the circumstances in evidence, it must either be made to effect this settlement in the course of the proceeding, Avhich is impossible, or it will work injustice. But it does not rest upon principle; it has been repeatedly decided that unless there is a settlement and a balance struck between the parties, assumpsit does not lie. Wats, on Part. 221. 226. It is laid down in terms by Judge Butter in Smith v. Barrow 
      
       that “ one partner cannot recover a sum of money received by the other, u unless, on a balance struck, the sum be found due to him a alone:” and it does trot seem clear that even an express promise to pay the balance is not essential. Moravia v. Levy 
      , Casey v. Brush
      
      , La Malaire v. Caze, Ct. Ct. U. S. April 1806.
    
      
       2 Vez. 239.
    
    
      
      
        Cowp. 793.
      
    
    
      
       1 Dall. 458.
      
    
    
      
       2 D. & E. 478.
    
    
      
       2 D. & E. 483. Note.
      
    
    
      
      
         5 Gaines, 296.
      
    
   Txxghman C. J.

delivered the opinion of the court.

This is an action on the case in which the plaintiff declax-ed for money had and l-eceived to his use by Adam Foulke deceased. it was proved on the trial, that the plaintiff and Adam Foulke were engaged as joint partners in an adventure to New-Orleans. The jury were of opinion, that on striking the balance of the partnership accounts, the sum of three hundred and twenty dollars was due to the plaintiff, and found a verdict accordingly. There was no proof that the partners had ever settled their' accounts; and at the request of the defendant’s counsel, the point was reserved for the consideration of this court, whether under these circumstances the plaintiff could support this action.

It was my wish to support the action if possible, because the jury have decided on the-merits of the case. But upon considering the nature of the. action, and the authorities which have been cited on both sides, I am of opinion that the plaintiff cannot recover. The money received by one partner during the partnership, is not received for the use of either of the partners, but of both of them. All that either partner is entitled to, is a moiety of what remains after all the partnership debts are paid.-.

The proper remedy for one partner against the other, is by an action of account render. No case has been cited by the plaintiff’s counsel to shew that an action like the present can be maintained, unless the partners have settled their account, and struck the balance. It is of importance that the forms of action should not be confounded. They are founded in good sense, and convenience. The defendant has an interest in insisting that the proper form of action should be preserved, of which this court has no right to deprive him. It is most convenient that the partnership accounts should be settled before auditors. It would be extremely difficult, and in many cases almost impossible to settle them by a jury. I am therefore of opinion that the plaintiff cannot maintain his action.  