Supreme Court of United States.
*435 Hopkinson, for the defendant.
TILGHMAN, C.J.
It was my wish to support the action, if possible; because the jury have decided on the merits of the cause. But, upon a deliberate consideration of the nature of the action, and the authorities which have been cited, I am convinced that the plaintiff cannot recover. Money received by one partner, during the partnership, is not received for the use of either, but for the use of both, the partners. All that either partner is entitled to, is a moiety of what remains, after all the partnership debts are paid; and the proper remedy for one partner against the other, to obtain a settlement and payment, is an action of account render. In short, no case has been cited by the plaintiff's counsel, to show that an action, like the present, can be maintained, unless the partners have settled their account, and struck the balance.
It is, then, of importance to the administration of justice, that the forms of action, which originate in good sense, and public convenience, should not be confounded. The defendant has a right and an interest, to insist upon the preservation of the proper form of action, to enforce his partnership contract against him, of which this Court possesses no power to deprive him. It is, indeed, most convenient, that partnership accounts should be settled before auditors. It would often be extremely difficult, sometimes it would be impracticable, to settle them by a jury.
For these reasons, we think, that plaintiff cannot maintain the present action.
