Page:United States Reports, Volume 1.djvu/261

250 

1788.

fhould not be compelled to take a circuitous route to obtain it ; more particularly, when it muft affect the intereft of a third perfon.

But it was anfwered for, the Plaintiƒƒ, that an executor of one partner could, in this way, fettled the partnerfhip accounts. The law, which makes the furviving partner liable for the joint debts, by a neceffary confequence, gives him the exclufive controul over the partnerfhip effects, and every action, founded on a joint owners, is, that the intereft itfelf fhall furvive; but, in the cafe of partners in trade, it is only the right of action, and not the intereft, to which the furvivor is entitled. This right, however, is effential to juftice, and for the benefit of commerce ; for, the inconveniency would be inconceiveable, if, upon every fuggeftion of a balance due to a deceafed partner, it was incumbent on the furvivor to travel into all the circumftances of the company. In the action between M‘Cartey, furviving partner of Cummings, againft Nixon, it appeared partner, and retained the company effects for a feperate debt due to him from Cummings; but the Supreme Court determine that the adminiftrator, in that cafe, had no right to retain ; and that he muft refort to his action of account render againft M‘Cartey, in order to obtain fatisfaction from the joint ftock.

With refpect to the prefumed acquiefcene of Wallace, it was obferved that the evidence contradicted the prefumption ; and that, independent of every other confideration. Wallace's continuing to profecute the fuit, amounted to a prohibition. There is, therefore, no fact upon which the caufe could be fubmitted to a Jury ; whether the payment to the executor is good, or not, being a matter of law.

SHIPPEN, Preʃident.–It may probably be a hardfhip upon the Defendant, but he has certainly made himfelf liable to the Plaintiff's demand. A payment to an executor, or adminiftrator, can be no fatisfaction to a furviving partner, who has the fole right of fuing for, and of receiving the monies, due to the company. The point of law is, therefore, exceedingly clear. Nor can we in this manner attempt to inveftigate the parnterfhip accounts.

With refpect to the point of fact, it does not feem to be at all eftablifhed. If, indeed, the acquiefcence of the Plaintiff had been proved, we fhould have thought it a proper fubject for a Jury to determine. But, as the matter ftands, we muft leave the Defendant to this confolation, that, even if he has not already taken an indemnification, he may recover the money back from the executor, having paid it in his own wrong

The rule difcharged.

Lewis for the Plaintiff.–Wilʃon and Rawle, for the Defendant. SCHLOSSER