1806.

V.

illegal, subsequent surveys were made under the direction of McKee, and returned, and accepted in the land office; and the FAULKNER deputy surveyor having improperly and by mistake returned the surveys as having been made in May 1794, that mistake Lessee was corrected in the land office, and the returns made to correspond with the surveys in March 1795.

The plaintiff below, having given in evidence the articles of agreement between M'Kee, and Wells and Morris for the purchase of the lands, proved by the oath of the said McKee, that the cabin and claim of a certain John Wolf were excluded by the survey which is mentioned in the said articles viz. the survey made before the warrants were issued. And the defendant then offered to read in evidence to the jury, a deed from the said Wolf to John B. C. Lucas Esquire, dated 23d June 1796, conveying the said cabin and claim of Wolf to the said J. B. C. Lucas. The court overruled the evidence because no proof had been given of any legal settlement made by the said Wolf prior to the survey of Wells and Morris in March

1795.

On this bill of exceptions, the counsel for the plaintiff in error have raised three points.

First, That the alterations of the name of the applicant, and of the name of the owner of the adjoining tract, which is referred to by way of description and boundary, is contrary to the act of 22d April 1794.

Secondly, That the deed from Wolf to Lucas ought to have been received as evidence.

Thirdly, That no parol evidence ought to have been received of the surveys made in 1795, inasmuch as the first returns stated the surveys to have been made in May 1794.

As to the first exception, I am of opinion that the alteration made in the application was not contrary to the act of 22d April 1794.* The intent of this act was to prevent the grant of any

* The first section of this law, enacts, "That from and after the passing "of this act, no applications shall be received in the land office for any "unimproved land within that part of this Commonwealth, commonly called "the New purchase, and the Triangular tract upon Lake Erie.” The second section enacts, that no warrant shall issue for the above land, except in favour of persons claiming by settlement and improvement; and that all applications remaining on the files of the land office after the 15th June 1794, on which the purchase money shall not have been paid, shall be void; with a provision in favour of certain persons. 3 St. Laws 581.

of

EDDY.

1806.

FAULKNER

v.

more lands, except in certain specified cases; it being supposed that the vacant lands in the state would not be sufficient to satisfy more than the amount for which the state had already Lessee engaged to make titles. The alteration in question did not increase that quantity; it evidently was for the very same land, that was described in the applications entered by M Kee. Therefore it does not violate the spirit of the law.

of EDDY.

In arguing the second point, the counsel for the plaintiff in error has not contended for the broad principle laid down in M'Dill's lessee v. M'Dill, (a) that any deed may be read in evidence, whether pertinent or not to the matter in issue. In this he was certainly right. It has been generally conceived that in that case the law was carried too far. But he relied on an agreement between M'Kee and Wolf, that the cabin of Wolf should not be taken from him. The record states not one word of any such agreement; and the case stands nakedly as of one who, having no kind of title, makes a deed conveying his right to another. It has been the practice at Nisi Prius to reject the deed in such cases; and I see no reason why it should be altered. It makes no difference to the party offering the deed, whether it is rejected at once, or whether the court suffer him to read it, and then tell the jury that it passes nothing. But it expedites the trial of causes to reject the deed in the first instance.

As to the third point, it appears to me extremely plain that it was proper to receive evidence to explain the whole transaction. The return of an officer is prima facie evidence, but not conclusive, of the truth of the matter returned. It would be a reflection on courts of justice, if in a case like the present, where the party had in truth procured a legal survey to be made, he should be cstopped from shewing it, merely because there had formerly been an illegal survey, and the officer had made a mistake in his return. And this too, when the Commonwealth, the party most interested, had by its officers permitted the truth to be explained.

Upon the whole I am of opinion that the judgment of the Circuit Court be affirmed.

BRACKENRIDGE J. concurred in the opinion of the Chief

(a) 1 Dall. 64. 1 Dall. 69. S. P.

Justice with one remark, that if there had been any proof of a 1806. scintilla of title in Wolf, however small, he should have been of FAULKNER opinion that the deed ought to have been received as evidence.

V.

December 10th.

tain assump

for the pro

have settled

their ac

THIS HIS was an action for money had and received, tried be- One partner fore the Chief Justice, at Nisi Prius in June 1806. The facts cannot mainin evidence were, that the plaintiff and Foulke had been con- sit against cerned in several adventures to New-Orleans, upon the accounts the other, of which, different sums appeared to be due to the plaintiff from ceeds of a Foulke, who had received the proceeds; and for the recovery of partnership adventure, these sums with interest the action was brought. One of the wit- unless they nesses swore that two or three years before Foulke's death, the plaintiff demanded a settlement of his accounts, which Foulke counts and promised to make in a short time; but no account stated and struck a settled by the parties was produced upon the trial, nor was there any evidence that such a settlement had ever taken place. 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 Ex parte Nokes, referred to in Wats. on 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 creditor for a commission against his partner; and this must proceed upon the ground of there being an ascertained debt due to him. Still further, where an account has been a long time in the

balance.

1806.

υ.

hands of the debtor without objection, this is as conclusive against him as a stated account; Tickel v. Short; (a) and it will be presumed, to support the action, that the balance was estaJOHNSON. blished 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 delavs. 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, festons v. Brooke; (b) and has been allowed to perform that office in the state of Pennsylvania. D'Utricht v. Melchor. (c) The legislature of this state have moreover protected us by directing that no suit shall be set aside for an informality of this kind. 7 St. Laws 563. Act of March 21st 1806.

Hopkinson for the defendant. This is a case of special partnership, in which no account was 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, which 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 Buller in Smith v. Barrow (d) that "onc "partner cannot recover a sum of money received by the other, "unless, on a balance struck, the sum be found due to him "alone:" and it does not seem clear that even an express promise to pay the balance is not essential. Moravia v. Levy (e), Casey v. Brush (f), La Malairev. Caze, Ct. Ct. U. S. April 1806. ̧

TILGHMAN C. J. delivered the opinion of the court.

This is an action on the case in which the plaintiff declared for money had and received to his use by Adam Foulke deceased.

(a) 2 Vez. 239.
(b) Cowp. 795.

(c) 1 Dall. 428.

(d) 2 D. & E. 478.
(e) 2 D. & E 483. Note.
(f) 2 Caines, 296.

1806.

OZEAS

V.

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 dol- JOHNSON. lars 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.