#### Hannah Rogers et al. executors of Fitch Rogers deceased, *versus*Nehemiah Rogers.

Feb. Term, 1828.

A court of law cannot take jurisdiction of accounts between partners. To an action upon a promissory note, the defendant 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 wqs 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*thérefore, had judgment on the demurrer. •

The declaration in this case contained two founts. 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 ind 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 secondlyin 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 óf 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-partnership in form, (but the defendant in fact,) was indebted to said *392“ 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, *tt*h Was discovered that the balance of account between the de- “ fendant and said testator, in said partnership account is against “ said testator in ¿ large amount, and was in fact, against said " testator at the time of the giving of said noteand 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 co-partnership accounts was not against the said testator at the time of the giving of said note, and by alleging “ that said testator and e‘ the said defendant were not *jointly*interested in the said real “ estate as co-partners under the firm of Rogers & Lambert, as in <c 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 aócount 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 có-partnership property. Fourthly, because the plaintiffs have not set out with sufficient certainty the title and interest which they aver then 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.]

*393He also insisted, that the causes of demurrer were well taken, 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 *1*Are they to be investigated by a jury at the trial, and can they examine the transactions of *394ye are perhaps, and measure out justice in an intelligent and impartial 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 1 It is obvious that the defendant has mistaken the proper mode of defending himself and has sought to !nvestigate 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.]*