The opinion
The opinion of the Court was delivered by
Sergeant, J.
It would seem that where there is a general partnership, and one partner, during its existence, pays a partnership debt, he is not entitled to recover in assumpsit against the other for contribution; for this action is founded on contract, and there is no contract between them, of this kind, implied by the partnership, but the remedy is by action of account-render to compel a settlement of the accounts of the partnership and adjust the balance due on the one side or the other. If, however, the partnership has been dissolved, and the partnership accounts have been adjusted, and one partner is afterwards obliged to pay an outstanding claim not provided for, the action of assumpsit would seem to be the proper remedy to recover the proportion of it which the defendant ought to pay by reason of the joint liability. A contract on his part to do so would arise from the fact of payment, as money paid to his use for his proportion, and on ordinary principles the action would lie for contribution. 'The transaction would then come within the class which are termed insulated or cut off from the general partnership concerns, and would be the payment by a mere joint contractor on the common account. The authorities collected in Collyer on Partnership 156, 157, seem to sanction this principle. In the present case the payment was made in 1840. The partnership had been dissolved by a general assignment by the partners for the payment of their debts in August 1832, more than six years having elapsed from the dissolution till the payment of the claim and institution of this suit. These circumstances, we think, raise a fair presumption that the partnership accounts had been settled or terminated in some way, till it is overthrown by some evidence on the part of the defendant that the general partnership accounts yet continued open and current. This burden lies on him who seeks to avoid the plea of the Statute of Limitations to an action of account-render or assumpsit, by the replication that it was an account between mer *239 chant and merchant; for the replication to such plea must go further, and state that no account of said merchants was ever adjusted or settled. Godfrey v. Saunders, (3 Wils. 79, 80); 3 Williams’s Saund. 127, note. By analogy, therefore, after the lapse of six years it lies on the party setting up an'account to aver and prove that it remains open and current: and as the defendant here relies on the existence of unsettled accounts to defeat this action, the burden of making it out is thrown on him; and not having done so, there is no ground to defeat the action of assumpsit.
Judgment affirmed.