[Present, Chancellors Rutiedge, James and Thomesoxj.]

#### The Executors of Thomas and Barnard Richardson, *vs.*Violetta Wyatt, Executrix of John Wyatt, deceased.

It is not a correct principle, that one partner shall be chargeable with all the earnings of the concern, without evidence that he had received them; whilst he is expedited only with such sums as he pi'oves he has paid away; especially where the other copai'tners had equal access to the books and equal management of the affairs. The partners are chargeable only with what they have respectively received.

The bad debts must be borne equally by the whole concern during the lives of the pai'tners; and the executors of a deceased partner forbidding payments to the executor of the last sui-viving partnei1, the bad debts shall fall on the concern.

The partner who kept and supported the house allowed board out of the copartnership funds for the journeymen and apprentices, as reported by the master.

Parol evidence ofthe sum brought into the copartnership funds by one of the partners, not allowed, after a g-reat lapse of time (24 years) to prevail against the enti-y in the books ofa much smaller sum credited him on that account.

The widow of one of the deceased copartners is not entitled to dower in the lands and houses purchased with the copartnership funds, andheld in thenames of all the copartners, or on their behalf.

*472MAY, 1807.

THIS was, a bill iu~d *uy*ttie complainants to obtains settlement of accounts, and of the concerns and transactions Wo c0Palincrships between the late Thomas' and Bar* nard Richardson, and the late John Wyatt, who had car* tied 033 business togothi *t*for many .years, as carpenters. The case was referred to the master; to examine and re* port upon the accounts ; and after a long and laborious ex* amina tion, he made a report as follows :

It having been referred to me by an interlocutory order of the h >norabie court, to investigate the merits of the bill and answer in the above suit, and to report on the same; *I*accordingly fieport that I have attentively examined into the several matters thereby referred *;*that many witnesses have been exairiihed on botli sides, and voluminous doi cuments and accounts exhibited ih evidence,' both by complainants and defendants : that the accounts relate principally to two concerns, that of Richardson,Wyatt and Richardson, which existed from the 30tli June,- 1781, to 14th August, 1791, when Thomas Richardson departed this life *;*and that of Wyatt & Richardson^ which existed from the last mentioned period, until 7tli January, 1797; when Barnard Richardson died, That' I have over ruled and rejected many claims and items in the accounts of both complainants and defendants, and finally, according fo the Several principles and directions which I have from time to time determined and made in the suit, after hearing' counsel on‘both sides, it appears to me that the estate of the said John Wyatt should be made chargeable for all the .earnings of the copartnership as far as they can be ascertained, in as much as he appears to have had the principal controol over the copartnership funds, and was considered the head of the concern, and had more immediately the direction and superintendance of the books and clerks who kept them, (except for a period of about ■ 16 months; from the evacuation of the town, to April, 1784, during which period he resided at St. Augustine, and for that .".pace of tiro- T have charged such .earnings to Barnard Richardson,) and. credited them respectively in. *473like manner, for au m-mi-3 laid out lor mi.trials, and o-iherwise for expc nditures, on account, of such earnings.— On the other hand, I have made a liberal allowance to Mr. John Wyatt’s estate for the board of a number of journeymen and apprentices who resided In his family and were well treated ; and also for the board of the said Thomas and Barnard Richardson; and a further allowance for journeymen’s wages, which mu'st be presumed to have been paid out of the earnings ; to which i nave also directed to be added or credited to him, and the copartnership charged with the rent of a building, being the private property *oí*the said John Wyatt, and which was used for a workshop, and a part of it for a counting house. I have also charged the said John Wyatt’s estate with all the debts of the concern which appear to have been good subsequent to the death of the said Barnard, many of which there is reason to believe were collected by Mr. Wyatt.; and for the remainder, legal measures should have been taken by him as surviving copartner to have gotten in; oí secured them. I further report that front the best view which I have been able to take of the business of the concern, the result is, that there appears to be a balance due from the estate of the said John Wyatt to the representatives of Thomas Richardson, of 1713/. 14s. *id. ',*and also a balance due by said estate to the representatives of Barnard Richardson of 979/. 10s. *Sd.*as stated in the accounts accompanying this report, subject however to be diminished by the charge made on account of the said Wyatt for the feeding of two horses for many years, and the use of a cart for the benefit of the said concern, which I have allowed on furthér consideration since the said balance was made up in the following proportions ; the sum of 367/. to be debited to the said Thomas Richardson to the 14th of August, 1791, when he died; and 147/. 6s. *2d.*to the said Barnard, to the 7th January, 1797, being his reasonable proportion for the feeding of the said two horses *;*the other, having in myjudgment, belonged to the said Barnard, X further report that the said Thomas and Barnard *474appear entitled to one third part each of certain bonds taken at the sale of part of the real estate of the said conment‘on'^ in the pleadings, to the amount of 1023/* 6s. *8d.*which were placed in the hands of Messrs. Desaus-sure and Ford for recovery, by consent of parties, or to so 1Tmcfo thereof as has been so recovered. The said'Thomas and Barriard Richardson also appeared entitled to a like proportion of 803/. 10s. *9d.*being so muah paid out of the partnership funds to John Champneys, a creditor of the concern, more than was due to him, and for which he is therefore indebted to them : besides also, two glebe lots of land, valued at 148/. which were sold for arrears of ground rent, and purchased in by Alexander Shirras, one of the attornies on the part of the complainants, for 76/* 18s. *4d.*including charges, but which he was to return to said concern on repayment of that sum) *;*besides three brick tenements, and the land whereon they stand, in Cbampney’s street, with back buildings for kitchens, purchased at the general sales of the said concerns by Thomas Hunter, deceased, but no titles given, as he never complied with the terms of sale. These tenements have been for many years wholly unproductive, having been occupied by persons who have paid no *rent;*to which tenements and lands, the assignees of Hunter, who was declared a bankrupt before his death, pretend a claim, but on which I deem it improper to give an opinion, and submit it to the court. Also, a claim of *2571. 2s. 8d.*and interest, which complainants make on defendant for loss sustained on two brick stores and lots whereon they stand in. Champneys street, bought by Thomas Hunter for 610/. but which he contended were purchased by him as agent, as well of the complainants as defendant, and which- were afterwards sold under execution by the sheriff of Charleston district for 352/. *17s. Aid.*whereby the aforesaid loss resulted, on which I have given no opinion, but submit it to the court. I likewise submit whether any, and what compensation should be allowed by the concern to Mr. Wyatt fora house in Charleston, which appears to have been -built by the *475said John Wyatt for his wife, and -was sold by the sheriff under execution, chiefly to pay debts due by the *concern;*all which I submit, &c.

To this report exceptions were filed by the complainants and defendants. ’

Exceptions on the part of the complainants to the Master’s Report.

1st, That the master has credited the estate of John Wyatt with all' sums paid on account of materials for the concern, and for all sums paid to journeymen, whether apparent in the books or not, without any evidence that the same were paid by Wyatt or his executor, unless it appeared that the same were actually paid by the Richards sons out of their private funds.

2d. That the master allowed *35l.*per annum for the boarding of journeymen, which was the highest general price allowed in cases of single boarders, whereas in this case, where Wyatt boarded the Richardsons, ail their journeymen and all their apprentices, it was unreasonable to allow the highest price,

' Sd. That the enormous sum of 35/. was also flowed by the master for the boarding of apprentices, whereas the sum of 20/. appeared to be more usual according to tbe evidence, and would have been a full allowance.

4th. That the master permitted the defendant to go in-; to conjectural verbal evidence of journeymen and apprentices, having worked and boarded with Wyatt, in order charge the concern ; when it appeared clearly in evidence, that there was a “ Time Book,” which was left at the death of Barnard Richardson in the possession of Wyatt, and of the loss of which no evidence was given or suggested.

5th. That the sum of 80/. per annum is an extravagant charge for a small shed which was used as a counting house and work shop, and a piece of marsh land which would have been otherwise unoccupied and unproductive, and for which the concern could not afford to give so *476high a price, and which therefore ought not to have been allowed by the master.

6t^° Not insisít d upon.

7th. That for the apprentice fees to amount of 135/. and upwards, credit has not been given for one cent, although whole was probably and the greater part certainly received.

8th. That the master ought to have allowed interest on the respective balances due to the representatives of Thomas and Barnard Richardson, from the times at which they r---suited as due to them.

9th. Not insisted on,

10th. Becau'se the master.rejected the charge of 246/. 4s» *Id.*apparent in a book of Barnard Richardson, for monies advanced by him at a particular period, on the ground that bis book was not legal evidence, though much of the testimony on which the defendants claims were allowed, was not legally admissible testimony.

11th. That tho’ the strongest testimony was given, that the Richardsons were men of property when they entered into copartnership with Wyatt, and though an express ack-nowledgement of Wyatt, that they had put into the concern, the sum of 1400/. was proved, the master did not allow any thing, or a very inconsiderable sum on this account, although not a vestige of their original private estate remained at their death.

12th. That the report is generally injurious to the. claims and interests of the complainants, because among many-other things, there are allowed therein charges by John Wyatt, against the concern to a large amount, of which there is no evidence in the books, though too, these books were kept by or under the direction of Wyatt; because it appears from the will of Barnard Richardson, .made when on his death bed, at a time when there is usually no dissembling, that he had many claims of which no evidence can be discovered, the said Barnard Richardson having died in the house of Wyatt, and no papers, not even a memorandum, book belonging to him haying been *477found, from which to gain any information relative to his estate; because several important boohs of the concern, which were proved to have existed, are not produced, and . , . thmgh no evidence of their loss is Riven, yet inferior testimony has bee n received; because the .Richardsons and Wyatc carried on a successful and extensive business during sixteen years, and though they possessed a good estate when they began, the result of this suit is all that their representatives will be able to discover. And that according to the master’s report, will not much exceed the ordinary gains of journey men for the same period. And if their original property be included, will not nearly equal them.

13th. Not urged.

14th. That the allowance for feeding of two horses, and the use of a cart mentioned in the report, is in amount exorbitant, and that no part thereof is warranted by the evidence in the case.

Exceptions on the part of the defendant.

1st. General, and not insisted on.

2d. That the said report states a balance against the defendant, which was not obtained by evidence, but by the assumption of certain principles which are not correct generally, and for the adoption of which there does not exist sufficient proofs or reasons in this particular case, to wit: is assumed that John Wyatt, one of the copartners in the concern of Wyatt & Richardson, is chargeable, and he has been actually charged in the accounts, with all the earnings which appeared on the books of the concern- to have been made by the company on two alleged grounds. 1st» That he, John Wyatt, was the book keeper and cashier of the copartnership; 2d. That he actually received the money charged in the books of the concern.

The assumption and application of these principles is excepted to *;*because it is not warranted by- the general mode of doing business among partners, nor is it warranted by any rule of law or justice, that one partner should be made chargeable with all the earnings of the concern, *478generally *•,*and there is no proof of any circumstances existing in this case to justify it. This amounts to making °ne COpartner the guarantee of the debts due to the concern, so thac it might happen that the partner so charged, ultimately be a loser, even in the case of a success-fu]i copartnership. As a general principle therefore, this ground is not tenable, nor did the evidence support the allegation, that John Wyatt was the sole book keeper and cash receiver. It appeared in testimony that clerks were generally employed by the concern, who were tinder the direction of all the partners, who do not appear by any evidence to have surrendered their power and rights.

The clerks and the other partners actually received mo* nies due to the concern at ■ sundry times, and there is reason to believe that one of the Richardson’s . most generally received the rents due : and there is no evidence that the monies sp received were paid over to John Wyatt. Besides, it was the practice of the concern to settle debts due to them by discounting debts due by the concern : and this was done sometimes by one partner and sometimes by another. Many cases doubtless occurred not known to Mr. Wyatt.

And if it had been proved that Mr. John Wyatt had been the exclusive book-keeper and cash receiver of the concern, it does not follow that he is chargeable in mass with all the debts due to the concern. He ought not to be made responsible for more than he has received, and what he has received is a matter for proof, to be made out by proof from the books themselves, or from other sources: yet he has been charged with all the debts due to the concern, and made liable for the debts of every debtor to the copartnership, where his representatives could not prove that he had not received the money, or could not prove the debtor insolvent. The debts so charged to John Wyatt, on presumption, without proof, are enormous ; and if they were struck out, and he made liable for no more than was proved he had received, it would totally change the face pi the accounts, and destroy the balance in question. The *479master therefore did wrong to adopt and apply the princi-pies in question, because the accountants who did so were in error, and the present accountant doubts the correctness of this mode of charging one partner — more especially as the books themselves shew that many accounts stand open against many of the debtors of the concern, and if these have been paid, there is no evidence to whom paid.

Sd. That the master has also debited Mr. John Wyatt in account for the earnings of the concern, in cases where the books do not shew any earnings. But he is charged on some proofs of work done by the concern for sundry persons, and some loose estimates of the value of such work, without proof that he received the money, or that it was ever paid at all; or how much was really due;

4th. That this principle of the responsibility of one part-» ner to the others, is carried to an extreme in another particular, to wit, that even in cases where he has not received the monies charged in the books as due to the concern, it is pretended that he is liable as surviving copartner to the concern, on the presumption that the money was not recovered by his neglect, without any proofs as to the particular debts.

5th. That part of the masters report is also excepted to, in which he cuts off a large part of the charge for the horses owned by Mr. Wyatt and employed in the service of the company, and for feeding the horses employed in the service of the company.

6th. That the master allowed too small a sum for the salary, boarding, lodging and washing, of clerks employed in the service of the concern. The charge made was one hundred and four pounds, seven shillings and six pence per annum. But the master allowed only *7Sl,*per annum, which is too small an allowance for the salary, boarding, lodging and washing, of the most ordinary clerks.

7th. That if the masters report should be established wherein he puts to the debit of John Wyatt, all the earning of the copartnership, his report in another respect is exceptionable. For he reports that Barnard and Thomas *480Richardson are entitled to two third parts of the money and bonds arising from the sales of part bf the real éstate. held by the concern, and also for two third parts of the. real estate still held.

This is excepted to, because it is clear that property purchased and paid for by the. copartnership, must have been paid for out of the earnings of the concern. It is not pretended, or proved that it was paid for in any other way, and if all the earnings of the concerns are put to the debit of J ohn Wyatt, (without proof of his having received them) it is obvious that the Richardsons ought not to have any share in the property purchased and paid for "out of these earnings. It would be giving them double compensation.

3th. The master’s report is defective* in not allowing *&*credit for the value of the dower of Mrs. Wyatt in the real estate of the concern (so far as relates to her husband’s proportion) as she renounced her dower therein to the manifest behefit of the concern, and she never has been compelí-sated. . This exception will become unnecessary if the ex-.eeption immediately preceding should be sustained.

9th. That John Wyatt’s representatives ought to be allowed a reasonable compensation for his services, as' he was the principal acting copartner, in managing the aifairs bf the concern ; especially as it is attempted to malee him and them liable for the debts of the-concern which have not been collected.

The master overruled the exceptions on both sides, and adhered to and confirmed his report.

On the coming on of the report and exceptions, a few oí the exceptions were given up on both sides ; the remainder of them were argued very fully by Mr. Cheves and Mr. PRingle,for the complainants, and by Mr. Bailey tad Messrs. Desaussure and Ford, for.the defendant.

Chancellor Rutledge

afterwards delivered the decree of the court, on the principal points made by the report and exceptions»

*481From the very great difficulty which the master has encountered in the investigation of the accounts, of sixteen years copartnership, occasioned by the confused manner of keeping the books now existing, and the loss or destruction of others, it seems to be agreed on all hands, that it will be impossible to do complete justice between the parties. ' '

We have considered the master’s report, and the evidence accompanying *it;*and we do not think from the evidence adduced, that he is warranted in assuming the principle, that it was proper to debit the defendants testator with the whole earnings of the partnership, and to credit him for such sums only as could be proved to have been paid by *him;*because it does not appear that Wyatt had the sole and exclusive direction and management of the books. There is no evidence of any agreement to that effect, and we cannot presume that there was, in order to make him so generally chargeable. And it. is not denied that the books were open to the inspection and view of the other copartners until they died; for they lived with Mr. Wyatt during the whole copartnership, and died at his house. It is presúmable therefore that the business was conducted to their mutual satisfaction.

In the confused state in which this case stands, the more equitable principle would be, for the master to charge defendants testator only with such earnings as are entered in the books, or which may be proved by other evidence were received by him, and to adopt the same rule with respect, to B. Richardson’s account. The bad debts must be the loss of the copartnership, until B. Rich-ardsons death, as it was equally his duty with Wyatt (for any thing that appears to the contrary) to look after the debts ; and we must believe that Wyatt, was as little inclined to lose a debt as the others .were. ■ It is hardly presumable that any debts were lost through Wyatt’s negligence, after B. Richardson’s death, he having survived Richardson but eight or nine months. If any have been lost since Wyatt’s death, the complainants are as culpable *482as the defendant, they having been in a state of hostility' with her ever since Wyatt’s death, & forbade the payment of any of the debts to her. The allowance for boarding the clerks, and rent of the land ought to stand *;*also the allowance for feeding of 2 horses employed for the use of tjle collcem. With respect to the 1400/. said to have been brought into the copartnership by the Richardsons, the testimony of Mr. Allison is positive that Wyatt told him so more than once. The witness supposes that B. Richardson was worth *SOOkor*600 in Pennsylvania. On the other hand, the evidence of Mr. Kyser, who knew the Richardsons for several years, is as positive that they could not have had that sum; and from the very singular circumstance which he positively swears to, that all the co-partners in the concern, he was certain could not at any one time have lent one hundred dollars to any one, we are rather inclined to believe that after a lapse of 23 or 24 years, Allison’s memory has failed him, and that the 400/. which Richardson has credit for in the books, is the real sum that Wyatt mentioned; especially too as Mrs. .L-ingard swore that when the Richardsons came to live with Wyatt, they were scarcely half cloathed.

As to the apprentice fees there is no evidence at all on that point to warrant a division of them among *the*copart-ners; no credit *therefore is to be given*in account for them-1 The defendant, Mrs. Wyatt is not entitled to dower in the lands of the partnership.