
    DAY & AL. vs. MORTE.
    Appeal from the court of the first district.
    The expences of a partner confied within the prison bounds under a process issued on a judgement obtained against the firm, are to be paid out of the partnership funds.
   Porter, J.

delivered the opinion of the court. This case presents but one question of any importance and that is whether the partnership funds are responsible for the board and lodging of one of the partners during the time he is confined within the prison bounds on an execution issued on a judgement obtained against the firm.

The general principle is that the partnership is responsible for all the accidents which may happen to any one of its members in transacting the common affairs, and all expences attendant on the business, for as they share in the gain, they ought to bear their part in the loss, ubi lucrum, ibi est pericubem esse detrel-Pothlrrtraite du contrat de societe, nos. 128 & 131, Domat, Liv 1, Tit 8, § 3, Art. 12, Par, 5, 10, 16.

It would be a correct application of this doctrine to say that in case one of the members travel on a matter relating to the affairs of the company, the expences of his board and lodging should be borne by the firm. There is more difficulty in applying it when the partner although engaged in the partnership affairs remain at his own domicil. The author of the curia phillipicu seems to carry the principle even to that extent, and make the company responsible for the necessary expences of sustenance for one of the partners, while occupied in their affairs, y sus alimentos estando occupado en ella; y no en sus negocios propios, Curia Phill. Companeros, no. 46.

East'n District.

Jan. 1824.

Without going the whole length, with this writer we think the case may be decided in favor of the plaintiff. If it is true; and there is no doubt of it, that the partner while travelling has a right to be paid his expences, and if confined during the voyage he would be supported by the partnership, we think he has the same right if confined at home. The injury inflicted on him in both instances is a consequence of the partnership affairs and in both, the partner is placed in a situation when he can give no attention to his private concerns. It is true he is not doing the business of the firm at the moment, but he is suffering for it, and that appears to us as strong a claim as can be presented.

Ripley for the plaintiff, fusion for the defendant.

There appears to have been a payment by the partner of $130, which the plaintiff credited on an account of $180, in which was included two items of 97 dolls. 50 cents, for which the partnership was responsible.-The parties differ how this payment should be imputed, we think that it must first be applied to the debt, which the party paying had the most interest to discharge, and the balance to be credited to the account of boarding and lodging. This will mate leave 47 dolls. and 50 cents over, to which the defendant is entitled as a credit, as also the sum of 30 dolls, paid on account. The balance will be 207 dolls, and 50 cents, for which the plaintiff must have judgement.

It is therefore ordered, adjudged, and decreed, that the judgement of the district court be be annulled, avoided, and reversed, and that the plaintiff do recover of the defendant the sum of two hundred and seven dollars, 50 cents, with costs in the court below, those in this to be borne by the appellee.  