¶1delivered the opinion of the court.
¶2This is an action on the case in which the plaintiff declax-ed for money had and l-eceived to his use by Adam Foulke deceased. *193it was proved on the trial, that the plaintiff and Adam Foulke were engaged as joint partners in an adventure to New-Orleans. The jury were of opinion, that on striking the balance of the partnership accounts, the sum of three hundred and twenty dollars was due to the plaintiff, and found a verdict accordingly. There was no proof that the partners had ever settled their' accounts; and at the request of the defendant’s counsel, the point was reserved for the consideration of this court, whether under these circumstances the plaintiff could support this action.
¶3It was my wish to support the action if possible, because the jury have decided on the-merits of the case. But upon considering the nature of the. action, and the authorities which have been cited on both sides, I am of opinion that the plaintiff cannot recover. The money received by one partner during the partnership, is not received for the use of either of the partners, but of both of them. All that either partner is entitled to, is a moiety of what remains after all the partnership debts are paid.-.
¶4The proper remedy for one partner against the other, is by an action of account render. No case has been cited by the plaintiff’s counsel to shew that an action like the present can be maintained, unless the partners have settled their account, and struck the balance. It is of importance that the forms of action should not be confounded. They are founded in good sense, and convenience. The defendant has an interest in insisting that the proper form of action should be preserved, of which this court has no right to deprive him. It is most convenient that the partnership accounts should be settled before auditors. It would be extremely difficult, and in many cases almost impossible to settle them by a jury. I am therefore of opinion that the plaintiff cannot maintain his action.