Wetmore v. Baker , 9 Johns. 307 ( 1812 )

Per Curiam.

This ivas an action for money had and received, and as the money was received in the city of Albany, there cannot be a doubt but that the mayor’s court had jurisdiction of the cause of action, which was the money so received. Here was, in some respects, a joint concern between the plaintiffs and defendants and Ostrom, but each party was to have his separate portion of the road, and to furnish his own team, at his own risk and expense. The partnership between the two defendants below was sufficiently proved to charge them jointly with the moneys received, and to charge one with the acts of the other; and, as here was a liquidation of accounts, and a settlement, and a balance struck by a common agent of all the parties, and the sum of 144 dollars found to be specially due from the defendants to the plaintiffs below, the law raised an implied assumpsit in them to pay it. There was no partnership existing between all the five persons concerned in running the stage, so as to interfere with this suit. The covenant introduced by the defendants below had nothing to do with this case. It only went to prove that the parties had agreed with, each other to run a stage from Albany to Utica, but with distinct and separate interests and rights. Each party had his distinct share of the road. The judgment below ought, therefore, to be affirmed.

Judgment affirmed.