8 Gill 92 | Md. | 1849
delivered the opinion of this court.
The plaintiff below, in his declaration, sought to recover of the defendant, on the usual counts of general indebitatus assumpsit, money lent and advanced, and money had and received. The defendant pleaded non assumpsit, and filed two accounts in bar against the plaintiff: the one charging him with $300, due to him from the plaintiff, for the sixth part of the proceeds of sale of the schooner “W. T. Savin,” sold in the year 1837, and the other charging him with $60.07, one-sixth part of the freight received as the earnings of the schooner. To these accounts in bar, the plaintiff replied non assumpsit, and limitations and issues were joined thereon. At the trial, the plaintiff having proved his claim for money had and re-received, the defendant, to support the issues joined on his part, offered to prove to the jury that, in the year 1837, the defendant and plaintiff, and a certain Jas. C. Milbourn and George
It is not denied, that, as has been urged in the argument, if three or more persons, not partners in trade, and not purchasing with partnership names, become the purchasers of a vessel, they are regarded in law as part owners thereof, and not as partners; that they hold the vessel as tenants in common. But it by no means thence follows, that upon the termination of the joint ownership, by their authorised act, or during its continuance, the\7 can maintain actions at law against each other, either for the recovery of the vessel or their respective proportions of the freight received by the pari owners in the employment of the vessel; or that if one of the part owners, by the consent of all, and for the benefit of all the owners, sells the vessel and receives the proceeds of sale, as in the case before us, that each of the other part owners can separately maintain an action at law for the proportion of the proceeds of sale whieh Ire was entitled to claim of the part owner by whom the sale was made. In Collier on Partnership, sec. 1220, it is stated, that “the ordinary remedy of part owners to obtain an adjustment of the ship’s account among themselves, is a suit in a court of equity.” In section 1230, (where numerous authorities are referred to as sustaining the position,) it is stated, that all the part owners of a ship should join as plaintiffs for the recovery of freight; and the reason assigned for it is, “that all of them are partners with respect to the concerns of the ship.” “And even if part owners authorise their agent to sell the entire ship, they cannot, if they gave him a joint authority, maintain separate actions against the agent for their respective shares of the money received by him, on account of such sale, though each may maintain a separate action, if they separately authorised the agent to sell their respective shares. ” Prom the proof offered and rejected in this case, no such separate authority to
The second point on which the appellant has urged a reversal of the county court’s judgment, is, “that if the plaintiff’s indebtedness to the defendant is to be considered as a joint debt due from the defendant and others, it should have been permitted, so far as it belonged to the defendant, to be set off against the individual debt of the defendant to the plaintiff.” This point assumes what this court, in its remarks on the first point, has declared cannot be done, that the other three part owners can, at law, maintain a joint action against the appellee. But suppose this assumption were granted, can the principle of law, asserted in this second point, be then sustained? That it cannot, we entertain no doubt. In England, a joint debt cannot be set off against a separate one, nor a separate debt against a joint demand. If authorities be required for so familiar a principle, they may be found in the 6 Law Lib., 16, and Collier on Partnership, 1234. In 3 Mason, 145, Jackson vs. Robinson, and 2 Sumners C. C. R., 409, Howe vs. Sheppard, the broad doctrine is laid down, that “ joint debts cannot be set off against separate debts, or separate debts against joint debts, either at law or in equity.”
The third point of the appellant, which is, that “if the owners of the vessel are to be considered as partners, then it will be insisted, that the partnership terminated by the sale of the vessel, (the only partnership property,) and that the defendant’s one-sixth of the proceeds of sale, and of the freights received by the plaintiff, should have been permitted to be set off* against the plaintiff’s claim,” is sufficiently answered in what has been said upon the appellant’s first and second points. The judgment of the county court is affirmed.
JUDGMENT AFFIRMED „