Feb. Term, 1828.

HANNAH ROGERS ET AL. EXECUTORS OF FITCH ROGERS DECEASED, Rogers et al.

versus

NEHEMIAH ROGERS.

A court of law cannot take jurisdiction of accounts between partners. To an action upon a promissory note, the detendant pleaded that the note was given as the consideration of a release of a certain lot of land held by himself and his co-partner jointly, upon the supposition that the balance of the partnership accounts was in favour of such co-partner; whereas in point of fact, the balance was in his own favour, and so, that the consideration had failed. The plaintiffs replied that the balance of said accounts was not in favour of the defendant, and and that the said lot of land was held by the said co-partners not jointly, but as tenants in common. Upon demurrer to this replication it was held that the plea was no bar to the action, as it sought to cause an investigation of accounts between partners, before a court of law. The plaintiffs therefore, had judgment on the demurrer.

The declaration in this case contained two courts. The first was upon a promissory note for $1457. 74., bearing date the first day of May 1827., made by the firm of N. Rogers and Son, in favour of the defendant, payable twelve months after date at the Bank of New-York, and endorsed by the defendant to the testator of the plaintiffs. The declaration alleged a regular demand at the Bank of New-York, when the note became payable, and a refusal of payment on the part of the makers with notice to the defendant.

The second count, was for money lent and advanced, money paid, money had and received and upon account an stated.

The defendant pleaded first, non-assumpsit, and secondly in bar of the action, that the consideration of the notes specified in the declaration and the bill of particulars of the plaintiffs, "was the re"lease by said testator of his supposed right and interest in cer"tain real estate situate in Pearl-street, (No. 232.) in the city of "New-York, wherein the defendant and the said testator were " jointly and exclusively interested as co-partners under the firm " of Rogers & Lambert, and said makers of said notes above de"clared on and mentioned in said bill of particulars, had not any "interest therein; and under an impression that said co-part"nership in form, (but the defendant in fact,) was indebted to said

v.

Rogers.

Feb. Term, 1829.

Rogers et al.

v.

Rogers.

" testator on co-partnership account; a release of his said supposed "interestin said real estate was executed and said notes were given "therefor, whereas in fact and truth, since the giving of said "notes, viz: within a short time before the institution of this suit, "it was discovered that the balance of account between the de" fendant and said testator, in said partnership account is against " said testator in a large amount, and was in fact, against said "testator at the time of the giving of said note:" and the defendant averred, "that said testator had not any right or interest in " said real estate to release," &c.

To this plea the plaintiffs replied by protesting, that the balance of account between the defendant and said testator in their copartnership accounts was not against the said testator at the time of the giving of said note, and by alleging "that said testator and " the said defendant were not jointly interested in the said real " estate as co-partners under the firm of Rogers & Lambert, as in " the said plea is alleged, but as tenants in common, and that the "said testator had a right or interest in said real estate as such " tenant in common to release," and of this he put himself on the country.

To this replication, the defendant demurred specially; first, because the plaintiffs, by their replication, admit that the balance of account mentioned or referred to, was against the said testator, and yet deny that said real estate was co-partnership property. Secondly, because the replication is double. Thirdly, because the balance of account being against the said testator, the real estate was thereby co-partnership property. Fourthly, because the plaintiffs have not set out with sufficient certainty the title and interest which they aver their testator had and released; whereas they ought to have averred that their testator was seized in fee, (and undivided with said Nehemiah) of a certain specific portion of said real estate, and being so seized thereof, released the same to the makers or endorsers of said notes, as the case might be. In support of the cause, last assigned,

Mr. G. Sullivan, for the defendant, cited [Coles v. Coles, 15 J. R. 159. 1 Marsh. R. 258. Maberley v. Robins, 5 Taunt. 625. Johnson v. Johnson. 3d Bos. and Pul. 162. Sugden on Vend. 226.] He also insisted, that the causes of demurrer were well taken, Feb. Term,

and that the plea was not answered.

Mr. Sedgwick, for the plaintiffs, contra, contended, that the plea was bad:

I. Because it assumes to answer the whole declaration, whereas it answers only the count on the note. [1 Chit. P. 509. 18 J. R. 28.]

II. The bill of particulars makes no part of the record, and the court cannot know on demurrer what it comprises.

III. The plea is founded on partnership accounts and other matters, of which a Court of Equity alone has cognizance.

IV. The plea is argumentative.

Mr. Sedgwick insisted principally upon his third point, and that matters of partnership between the parties could not be investigated in a trial at law.

The court decided the demurrer in favour of the plaintiff on the argument, upon the ground that the matters set up in the plea, if they could furnish any defence, were not available as a bar to the action in a court of law.

Per Curiam. If the defendant relies upon partnership transactions as a defence to an action at law, his course obviously is to go into a Court of Equity, which alone has the power to investigate accounts between partners, and to do justice between them. This suit might be restrained by an injunction out of Chancery upon a bill which the defendant has the power of filing. If he wishes to have an investigation of the accounts between himself and his deceased partner, he has merely to apply to the tribunal which has jurisdiction over the subject matter to be examined. But how can this court ascertain in an action at law, upon which side liesthe balance of the accounts? Are they to be investigated by a jury at the trial, and can they examine the transactions of

1829.

Rogers et al.

v.

Rogers.

Rogers et al.

v.

Rogers.

Feb. Term, years perhaps, and measure out justice in an intelligent and im1829. partial manner, upon matters which may require an appeal to the consciences of the parties, as well as to the ordinary proofs furnished in a trial at law? It is obvious that the defendant has mistaken the proper mode of defending himself and has sought to Investigate matters before a tribunal which cannot take proper cognizance of them. His plea, therefore, cannot be sustained, and as the first fault inpleading is his, the plaintiffs must have judgment upon the de-murrer.

Judgment for the plaintiffs on the demurrer.

[D. D. Field, Att'y for the plffs. A. G. Rogers, Att'y for the deft.

HANNAH ROGERS AND OTHERS, EXECUTORS OF FITCH ROGERS

DECEASED,

versus

NEHEMIAH ROGERS AND SAMUEL ROGERS.

A Court of Equity has exclusive jurisdiction of accounts between partners, and a plea in bar of an action upon a promissory note, which sought to open partnership accounts for the purpose of showing, that there was a mistake in the note and that its consideration had failed, was adjudged to be bad upon de

murrer.

The declaration in this case, contained two counts. The first count was upon a promissory note for $8,000, made by the defendants in favour of Fitch Rogers deceased, of whose last will and testament the plaintiffs were executors. The note was dated on the 31st of December, 1814, and was payable two years after its date with interest.

The second count was for money lent, money had and received, money paid and upon an account stated.

The defendants separately appeared by the same attorney and Feb. Term,

1829.

v.

separately pleaded the same pleas in bar of the action. These pleas, (especially the second) were long and special in their Rogers et al. statements alleging all the matters therein contained in a very circumstantial and particular manner.

The first plea set forth in substance, "that before the making of the note in the plaintifi's declaration mentioned and the bill of particulars above set forth and stated," the said Nehemiah and the said testator became co-partners with one David Rogers Lambert, under the firm of Rogers and Lambert, to wit in the year 1795. That the books of the firm were kept by Lambert who was to be rewarded by a part of the profits of the business, while all the capital should remain the property of the testator and Nehemiah Rogers.

That in the year 1811, Lambert being debtor to the firm in the sum of £4768,7,4: New-York currency, in stating his account with the firm debited to them the sum of £3,500. as profits and admitted a balance of £1,268. to be due from himself to the firm : which sums he afterwards entered in the partnership books whereby he stood discharged of said last mentioned sum and the said testator had credit for $1,610,45. This last entry was made as if Lambert had actually paid the money to the firm, whereas in point of fact no part of it was ever paid into the partnership funds: nevertheless the said testator had credit for it and interest thereon in account current between himself and others with the defendant, (N. R.) who were successively partners with the defendant, until the 31st day of December, 1814.

The plea then stated all the particulars of the partnerships, and who the successive partners were, and how the various firms were composed, and averred that the said sum of $1,610,45, was continued upon the books of the various firms to the credit of said testator until December, 1814, when an account was stated between the testator and the defendant, N. R. in fact but under the name of N. Rogers & Son, wherein credit was given to the testator for the aforesaid sum of $1,610 45-100, together with interest thereon, making altogether the sum of

Rogers.