In this case, it appears, that Barrell and Gilbert, the defendants, had a note against Story, the plaintiff, to be paid out of the avails of a certain vessel, when sold, on which the plaintiff claimed, that he had paid 375 dollars to Barrell. Gilbert, on the sale of the vessel, had in his hands sufficient money to pay the whole note $ and after the dissolution of his partnership with Barrell, agreed with the plaintiff to retain the amount of the note, and promised in writ-*671ingto reruml to Iiim such sum as it should be found he had paid to Harrell, on a trial of the note then in suit. The suit, was withdrawn, so that the plaintiff bad no opportunity to prove what he bad paid on the note to Barrell. The money received by Gilbert was for the use of himself and Barrell.
When a man pays money on an obligation, his only remedy is to prove and apply such pay ment on the obligation : and no action will lie to recover it back. No action will lie to recover back money paid, with a full knowledge of all the facts. After the dissolution of a partnership, one, partner cannot do any act, by which he can subject the other to a new liability. On these principles, no action could be sustained for the money paid to Barrell; for it was a proper payment on the note, and Gilbert could not, after the dissolution of the partnership, subject him to an action for it. The withdrawing of the suit on the note was a rightful act, on the, part of Burrell : and it could not subject him to an action for a violation of the agreement with Gilbert. But it now appears from the verdict of the jury, that the sum of 375 dollars was paid to Barrell on the note, which was never applied : it also appears, that Gilbert retained the same sum ; that by reason of the withdrawing of the suit on the note, the plaintiff had no opportunity to prove the payment to Barrell, so as to give him a right to recover the money from Gilbert; and yet Barrell and Gilbert have received both these sums on account of the same debt. Here, the condition on which the money was paid, has not been fulfilled ; the con sideration for which it was paid, lias failed ; and though. .Barrell lias done no improper act, yet as he and Gilbert have jointly received the money under these circumstances, it is against good conscience that they should retain it; and they ought, on principles of justice, to refund it.
It is also contended, that the declaration is insufficient, because the promise is alleged to have been made after the date of the writ.
Where the day is material, as in written contracts, and must be proved precisely as laid, such an objection would be fatal \ but where the, day is not material, there this objection cannot be valid. Here, the plaintiff was not hound to prove the day alleged : he might have proved any other day, and it would have been sufficient. The averring of the promise, then, on a day after the date of the declaration, does not vitiate it.
*672Tuumbui.t,, Edmosd, Smith, Braisarh, Peters and Chapman, Js. were of the same opinion,