#### Abraham Cole *versus*Ezra Trull.

Where the plaintiff and defendant, being owners of a brig, employed her in many voyages to and from the West Indies, sharing in the gain or loss, and their factor in tiie West Indies, being indebted to them jointly on account of the voyages, and also to the defendant individually, made shipments to the defendant to pay the in* dividual debt, the proceeds of which shipments exceeded that debt, it was *held,*that the defendant might retain the surplus against the factor, to be applied to the other debt.

*Held*also, that an entry by the defendant in his books, crediting the balance the owners of the brig, was evidence of an appropriation of the balance to the joint debt, although the defendant did not open any account between the factor and suca owners.

*Held*also, that the defendant had no right to appropriate the balance exclusive!} to his own share of the joint demand.

*Held*also, that the defendant was liable for interest on the plaintiff’s share of the bal* anee, an interest account having been kept between them.

Assumpsit on the common money counts, and on an account stated. Trial before *Parker*C. J.

It appeared that on May 7th, 1823, the plaintiff and the defendant became joint owners of the brig Sarah Maria, and continued so for several years. She was employed in voyages to the West Indies, with cargoes owned by them jointly, and was commanded by the plaintiff as master. The outward cargoes were purchased here and the return cargoes were sold here by the defendant; and the outward cargoes were sold and return cargoes were purchased in the West Indies by the plaintiff, who employed one Atkins, at Matanzas, as a commission merchant to make sales and purchases. In the course of business from October 1823 to March 1826, Atkins became indebted for property belonging to the plaintiff and defendant, for a balance of account, in the sum of $2893, and while thus indebted he became insolvent. On a subsequent voyage the plaintiff again employed Atkins, and obtained, by means of his services, a payment of $ 334, towards the above balance ; for one half of which he duly accounted to the defendant.

Three bills of exchange, dated December 9th, 1822, one for $1942, another for 1833, and the third for 1889, drawn by one Grozier upon Atkins and accepted by him, payable in six, twelve and eighteen months, were indorsed to the defendant, and were his exclusive property. The defendant having *331sent several letters to Atkins requiring payment of the bills, Atkins, on December 5th, 1823, writes,— “ remittances will be made you as soon as it is practicable for me to do so, not only for the amount appearing on the face of the bills, but also for the interest and all other charges accruing.” On February 14th, 1824, Atkins writes, — “ I shall make you a shipment of moVasses to cover the amount of Grozier’s drafts.” The defendant received from Atkins a shipment of molasses, by invoice dated March 4th, 1824, and another shipment of molasses by invoice dated May 2d, 1825. In a letter of May 2d, 1825, Atkins writes to the defendant to dispose of this last shipment of molasses and “ place the proceeds to my account.” This last shipment was by the brig Sarah Maria, and the freight was paid by the defendant, by being credited to the owners of the brig in account between them and the defendant. The molasses shipped by Atkins as above mentioned, was sold by the defendant, and the proceeds left a balance in the hands of the defendant, after paying the amount of the bills.

This balance the defendant claimed to hold on account ol his separate share of the debt due from Atkins to the plaintiff and defendant. The plaintiff contended, that the defendant must account to him for this balance as held on their joint account, and this action was brought to recover one half of it.

After this balance accrued in the defendant’s hands, he and the plaintiff settled several accounts as owners of the brig, in which no reference is made to this balance.

In the defendant’s books, where the account of Atkins is stated, it is entered at the bottom, “by balance to new account,” which is partly wiped out, and an entry is made under it, “ to Sarah Maria’s accountbut it appeared that the balance had never, in fact, been carried to the Sarah Maria’s account, unless that entry is such a credit ; there having never been any previous accounts in the defendant’s book, between Atkins and the owners of the brig.

Atkins drew an order, by his agent, dated November 8th, 1825, on the defendant, for $100, in favor of Grozier, which was paid.

Upon the foregoing evidence, the chief justice ruled in favor of the right of the plaintiff to recover, as a matter of *332law ; reserving the question for the consideration of the whole Court.

The jury found a verdict for the plaintiff for half of the balance, with interest from June 1st, 1825, to which time the account of the defendant was made up.

The defendant moved for a new trial, on the ground that in point of law the plaintiff was not entitled to any portion of the balance in the defendant’s hands, in his account with Atkins, and that he was not entitled to interest as it was computed.

The case was argued by *Fletcher*for the defendant, and by *S. Hubbard*for the plaintiff.

On the point, that the plaintiff and defendant must be considered as partners in regard to the cargoes of the brig, *Hubbard*cited *Mumford*v. Nicoll, 20 Johns. R. 611 ; *Cumpston*v. *M'Nair,*1 Wendell, 463; *Felichy*v. Hamilton, 1 Wash. Circ. C. R. 491 ; *Sims*v. Willing, 8 Serg. & Rawle, 103. *Fletcher*cited *Jackson*v. Robinson, 3 Mason, 141.

As to the defendant’s right to retain the surplus in question against Atkins, *Hubbard*cited *Hathaway*v. Russell, 16 Mass. R. 475.

*Per Curiam.*

The defendant states in his book, that the balance in his hands, after paying the bills of exchange, is to be carried to the credit of the owners of the brig Sarah Maria. This was not done in fact ; that is, no new account was opened with the brig; but we consider the entry as evidence of an appropriation of the balance to the joint interest of the two owners. Whether the defendant had a right to apply it to his own part of the joint debt, is questionable.1 We rather think he should be considered as agent or trustee of the other joint owner for his moiety.

It is objected that the property being shipped for the payment of the bills only, Atkins had a right to withdraw the surplus. It may be sufficient to say that Atkins has not called for it, and it is to be presumed he intended it should be applied to the joint debt; but further, if he had demanded it, tie defendant would have had a right to retain it against him.

*333The defendant objects to the allowance of interest; but it being evident that an interest account was kept between the parties, we think the verdict was right in this particular.

1

 See Chitty on Contr. (4th Am. ed.) 582 to 585, and cases cited; *Bar-ett*v *Lewis,*2 Pick. (2d ed.) 125, note 1, and cases there cited ; 10 Connect. R. 175, *Post Master*v. *Norvell,*Gilpin, 125.