lawful money of Great Britain, to wit, at London: that afterwards and before the making of the promise and undertaking of the defendant thereinafter next mentioned, the plaintiff, at the special instance and request of the defendant, had delivered to him, the defendant, the said sum of money of the said George Yeoman, to wit, at, &c. : that before the time of the making of the promise and undertaking of the defendant thereinafter next mentioned, the said George Yeoman had threatened to commence an action at law against him the plaintiff, for the recovery of the said sum of money, to wit, at London aforesaid; and thereupon afterwards, to wit, on, &c., at, &c., in consideration that the plaintiff, at the special instance and request of the defendant, would defend any action which the said George Yeoman should commence against him for or on account of the said sum of money, the defendant undertook, and then and there faithfully promised the plaintiff to save him harmless from the consequences of the said action, to wit, at, &c. : that the said George Yeoman afterwards and before *300] the commencement of this suit, *to wit, on, &c., at, &c., did bring, commence, and prosecute an action against him the said plaintiff, in the Court of King's Bench at Westminster, for the recovery of the said sum of money, whereof the defendant then and there had notice; and although the plaintiff did, with the privity and consent of the defendant, and to the best of his ability and power, defend the said action or suit, yet such proceedings were afterwards had in the said suit, to wit, at, &c., that the said George Yeoman afterwards and before the exhibiting the bill of the plaintiff, to wit, in Easter term, in the ninth year of the reign of our lord the now king, in and by the consideration and judgment of the said Court, recovered and obtained against the plaintiff, in the said Court in the aforesaid action, at the suit of him the said George Yeoman, damages to a large amount, to wit, the amount of 427. 15s., to wit, at, &c.: that afterwards, to wit, on, &c., a certain writ of our said lord the king, called a capias ad satisfaciendum, issued out of the said Court of King's Bench upon the said judgment, directed to the sheriffs of London, by which said writ our said lord the king commanded the said sheriffs that they should take the said plaintiff if he should be found in their bailiwick, and him safely keep, so as that the said sheriffs might have his body before our lord the king at Westminster on Friday next after the morrow of the Holy Trinity, to satisfy the said George Yeoman the damage aforesaid in form aforesaid recovered; and that the said sheriffs should then have there that writ: that afterwards, to wit, on, &c., the plaintiff was taken and arrested by his body under and by virtue of the said writ of capias ad satisfaciendum, at the suit of the said George Yeoman, and was kept and detained in custody and imprisoned at his suit, under and by virtue of the said writ, for a long space of time, to wit, from thence until *301] the 6th day of June, in the year last aforesaid, when *the plaintiff, in order to procure his discharge from the said imprisonment, was forced and obliged, and did necessarily expend divers large sums of money, to wit, the sum of 421. 15s. so recovered by the said George Yeoman as aforesaid; and also the sum of 107. for poundage and officers' fees and other expenses. And the plaintiff was also, by means of the premises, put to other great charges and expenses of his moneys, amounting to a large sum, to wit, to the sum of 50%., and was imprisoned during all the time aforesaid, and thereby during all that time was prevented from following his necessary business and affairs, and lost, and was deprived of an opportunity of going upon a certain voyage, to wit, a voyage to the West Indies and back, and lost divers great gains which he might and otherwise would have made thereby, amounting to a large sum, to wit, the sum of 2007., and was and is by means of the premises otherwise greatly damnified, &c.

There was another special count varying the statement of the same cause of action; a count for money paid, and the other common money counts. The defendant pleaded the general issue. At the trial before Tindal, C. J., London sittings after Trinity term, the plaintiff proved the judgment in the actions of Yeoman v. Williamson, and called a sheriff's officer, who stated that he took the

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plaintiff in execution at the suit of George Yeoman, on the 24th of May, 1828, by virtue of a warrant directed to him in the cause of Yeoman v. Williamson, that the plaintiff remained in custody till the 6th of June, when, in order to relieve himself, he paid 427. 15s. and some costs. It was proved also, that after this action was commenced, the defendant's attorney served a summons on the plaintiff's attorney, to show cause, "why, upon payment of 427. 15s., the debt for which this action was brought, together with costs to be *taxed, all proceedings should not be stayed:" that this summons was attended at a judge's chambers; and that, upon the plaintiff's refusing to accept that sum as the whole of the debt due, the Judge declined making any order. No evidence was given of the writ of capias under which the plaintiff was taken. But it was proved, that by the imprisonment he had lost the opportunity of accepting an eligible situation which had been offered to him. The jury gave a verdict of 427. 15s. damages in respect of the money paid by the plaintiff, and 237. in respect of the injury sustained by him in consequence of the impri

sonment,

Russell, Serjt., moved for a rule nisi to set aside this verdict or to arrest the judgment, or to reduce the damages by 237. The plaintiff could not recover the 427. 15s. under the first count, because in that count the money was alleged to have been paid under a writ of capias, of which writ no evidence was given. Nor could he recover it under the count for money paid. Upon such a count a plaintiff can recover only sums paid by him, for which the defendant would have been primarily liable; as where an underlessee, upon compulsion of distress, pays rent due from the lessee. But where money has been paid for a defendant in pursuance of a special agreement into which he has entered, the party who makes the payment can only recover on the special agreement, and not on the common count: as where money has been paid on the faith of a guarantee. The principle is clearly laid down in Cooke v. Munstone, 1 N. R. 351, where the plaintiff having declared upon an agreement to deliver soil or breeze with a count for money had and received, proved that the defendant having agreed to deliver soil, he, the plaintiff, paid *27. 5s. for earnest, but that the defendant refused to deliver the soil. It was holden that he could not recover [*303 damages for the non-delivery on the first count, on account of a variance; nor the 27. 5s. upon the second, because the agreement was still in force. And this principle is illustrated by Lightfoot v. Creed, 8 Taunt. 268, where the defendant contracted to transfer stock on a certain day to the plaintiff, but failed to perform his contract; upon which the plaintiff bought the stock, and, to recover the consequent loss sustained by him, brought an action against the defendant for money paid. It was holden, that such action was not maintainable, as the plaintiff should have declared specially on the contract. So in Child v. Morley, 8 T. R. 610, it was holden that a broker who contracted with others for the sale of stock at a future day by the authority of his principal, who afterwards refused to make good his bargain, could not, by paying the difference to such third persons, maintain an action on an implied assumpsit against his principal for the amount.

This was not money paid to the use of the defendant, but money paid to discharge the plaintiff from a liability he had incurred at the request of the defendant, and which he could only recover under the defendant's special undertaking.

Then, the first count discloses a contract illegal on the score of maintenance, so that the count is ill; and the verdict having been given generally on the whole declaration, the damages cannot be severed, and the judgment must be

arrested.

At all events, the damages must be reduced by the amount of the 237. awarded for the imprisonment under the capias, of which, without evidence of the capias set forth in the declaration, there was no legal proof.

A rule nisi having been granted,

*Wilde, Serjt., showed cause. The defendant having taken out a summons to stay proceedings on payment to the plaintiff of 427. 15s. and [*304

costs, admitted thereby that the plaintiff had paid that sum to the defendant's use, so that an action for money paid well lay against him. But the sum might also be recovered on the first count of the declaration, for the gist of that count was, that the money had been paid in discharge of a judgment obtained by Yeoman, and the imprisonment under the capias was only matter of aggravation. There is no ground, therefore, for a nonsuit, or for arresting the judg ment, as the damages have been distinctly severed, and the verdict may be reduced by 237., if the Court shall be of opinion that the imprisonment ought to have been proved by the production of the capias, in addition to evidence of actual capture and detention. The imprisonment, however, being a legal consequence of the judgment, was sufficiently established by the officer, who stated, that he actually apprehended the plaintiff under a warrant directed to him in the cause of Yeoman v. Williamson.

The objection on the score of maintenance comes too late after verdict, if, indeed, it could be supported at all, for it must have been proved at the trial that the defendant had a sufficient interest in the cause of Yeoman v. Williamson to justify the undertaking he gave to the plaintiff. 1 Wms. Saund. 228, n. 1. [The Court appeared to think there was nothing in this objection.]

Russell was heard in support of his rule.

TINDAL, C. J. I think the verdict ought to be reduced by 237., the amount given by the jury for the imprisonment of the plaintiff; because, that imprisonment being alleged to have taken place under a capias ad satisfaciendum, the capias ought to have been proved. *But I see no reason why the 421. *305] 15s. should not be recovered under the first count. That count contains two distinct allegations: 1st, a judgment under which 427. 15s. was recovered against the plaintiff in an action defended at the request of the defendant; and, 2dly, a capias under which the plaintiff was imprisoned. It was sufficient to entitle the plaintiff to a verdict if he proved one of those allegations; especially, where, as in the present case, the damages were capable of being severed.

It is unnecessary, therefore, to say whether that sum could have been recovered under the count for money paid, although I have little doubt that it could, because the plaintiff, by taking out the summons to be permitted to pay a certain sum in discharge of the claim against him, admitted that so much had been paid to his use.

The rule, therefore, must be discharged, except as to reducing the damages by 231. Rule discharged accordingly.

*306] *AFLALO v. FOURDRINIER and MOSES ALMOSNINOS. Nov. 26. Defendants. A. and B., were sued on a bill of exchange accepted by them while in partnership. B. pleaded bankruptcy and certificate, and the plaintiff entered a nol. pros. as to him. Having released his surplus effects, Held, he was a competent witness for A.

THE plaintiff sued the defendants on a bill of exchange for 3007., drawn by Solomon and Moses Almosninos on Fourdrinier and Co. the 4th July, 1825, payable four months after date, accepted by Fourdrinier and Co., and endorsed by S. and M. Almosninos to the plaintiff.

At the time the bill was drawn, Moses Almosninos was a partner in the firm of Fourdrinier and Co. as well as in the firm of Almosninos, and it was he who accepted the bill in question in the name of Fourdrinier and Co.

Before the action he had become a bankrupt, and upon his pleading his certificate in bar, the plaintiff entered a nolle prosequi as to him, and proceeded against Fourdrinier alone.

At the trial before Tindal, C. J., London sittings after Trinity term, the defendant Fourdrinier called Moses Almosninos as a witness to show the nature of this bill transaction, when, although he had released his interest in the surplus of his effects, his competency was objected to on the ground that he was inter

ested in the result of the cause.

His testimony, however, was admitted, subject to a motion on the point in the present term, and on that testimony the defendant Fourdrinier had a verdict. Whereupon,

Spankie, Serjt., moved for a new trial, on the ground that Moses Almosninos ought to have been excluded as an incompetent witness.

*In Moody v. King and Porter, 2 B. & C. 558, the plaintiff, who had accepted, and paid for their accommodation, a bill drawn by the two de[*307 fendants, sued them for money lent; and a nolle prosequi having been entered as to Porter, who in the interval had become a bankrupt, he was permitted to be a witness for King, to prove that the bill had been accepted for the accommodation of him, Porter, alone; but this was permitted expressly on the ground, that they were not in partnership when the bill was drawn; that King, therefore, was only a surety for Porter, and as such might have proved under Porter's bankruptcy.

Now here, Fourdrinier having been the general partner of Moses Almosninos, was a joint debtor on the acceptance, and not a mere surety, and could not have proved under a commission against his own partner for a debt incurred by them jointly. Ex parte Taylor, 2 Rose, 175, Ex parte Heath, Buck. 455, Ex parte Ellis, 2 Glynn & J. 312. Fourdrinier's claim against Moses Almosninos, therefore, for his share of the debt to be paid in this action, if not for the costs, would not have been barred by the certificate, and consequently, the witness had an interest in defeating the action.

A rule nisi having been granted,

Wilde and Russell, Serjts., showed cause. They urged, that though Fourdrinier could not prove in competition with the creditors of the firm, he might prove the sum paid in this action against Moses Almosninos' separate estate; and even if it were otherwise, no action would lie for Fourdrinier against Moses Almosninos, for any portion of the sum to be recovered in this action. The plaintiff having entered a nolle prosequi as to Moses Almosninos, he was no longer under any legal liability; and Fourdrinier, therefore, could never allege in an action for money paid, that the money had been to the use or at the request of Moses Almosninos.

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Spankie. If there were any weight in the last argument, it might have been adopted by all bankrupts who, previously to the 49 G. 3, c. 121, were called on, after pleading their certificate to a demand made by the principal debtor, to satisfy their surety for the sum paid by him; and yet, till the surety was enabled by the 49 G. 3 to prove his debt, the bankrupt was always holden liable to him Wright v. Hunter, 1 East, 20. The word partner would have been employed in the statute, if it had been intended that he should prove in the same way as a surety; and from the case of Moody v. King, it must be inferred the Court thought a partner could not prove.

Cur. adv. vult.

TINDAL, C. J. The only question in this case is, whether Fourdrinier, upon payment of the whole debt, would be entitled to sue Moses Almosninos, his partner, for contribution, either in law or equity; for if Fourdrinier had this right, he could not call his partner as a witness, it being his direct interest to defeat the action. Before the statute 49 G. 3, c. 121, s. 8, it is clear that the solvent partner, who paid a partnership debt after the date of a commission of bankrupt issued against his partner, might recover the proportion of such debt by an action at law against the bankrupt, and that his certificate would be no bar to such an action. Wright v. Hunter. The only question is, Whether since that statute the solvent partner, after payment of the partnership debt, though subsequently to the commission, becomes entitled to prove? for if he can prove, he is obliged to prove; the certificate will be a bar to any action for contribution; and the bankrupt partner is an admissible witness.

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And upon consideration of that act, and of the cases decided thereon, we think Fourdrinier, after payment of this joint debt, would be allowed to prove the share paid by him for his bankrupt partner, and that the bankrupt, having

obtained his certificate, and released his right to any surplus, was, consequently, an admissible witness for the defendant.

The solvent partner, if not properly a surety for his partner's share, because each is originally liable for the whole, yet may, with strict propriety, be called as to the share belonging to his partner, a person liable for the debt of another; and in that character, would be entitled to prove under the commission.

And accordingly in Ex parte Young, 2 Rose, B. C. 40, Lord Chancellor Eldon held, that those words were adopted in the statute for the convenient latitude of comprehending all those who could not be strictly considered as sureties, but were responsible for another's debt; and allowed the solvent partner who had paid a debt after the commission, which the bankrupt partner had improperly contracted in the partnership name, to prove against the bankrupt partner's estate. Such proof, indeed, would not be allowed to come in competition with the claims of the partnership creditors: but if the debt can be proved at all the certificate is a bar. And in 4 Madd. Rep. 477, the Vice-Chancellor lays down the rule even more largely, by saying, "It is now settled that a solvent partner winding up the partnership concerns, is, under Sir S. Romilly's act, to be considered as a surety paying the debt after the bankruptcy in respect of his previous liability. Each partner is a principal debtor for his own share, and they are mutually sureties *to the creditors, for the share of each other;" *310] and the case of Wood v. Dodson, 2 M. & S. 195, leads to the same conclusion. We think, therefore, the witness was properly admitted, and that the rule nisi for setting aside the verdict, and for a new trial, must be discharged. Rule discharged.

WHITE v. TRUSTEES of the BRITISH Museum.

A will of lands subscribed by three witnesses, in the presence and at the request of the testator, is sufficiently attested within the statute of frauds, although none of the witnesses saw the testator's signature, and only one of them knew what the paper was.

THIS was a feigned issue upon the question, whether William White, deceased, did, by a certain paper-writing, purporting to be his last will and testament, demise his freehold estates or not. And, upon the trial, the jury found a special verdict, setting out the paper-writing in question, and finding that the whole of the same, except the names of the witnesses, was in the handwriting of the said W. White: that the said W. White signed the said paper-writing before it was signed by the witnesses, John Hounslow, Mary Bristow, and Thomas Badcock, or either of them: that he died on the 13th May, 1823; that about five months before his death, he requested the said John Hounslow and Mary Bristow to sign their names to the said paper-writing, and they respectively, in pursuance of such request, did sign the same in the presence of the said W. White, but that they did not see the signature of the said W. White to the said paper-writing, and were not informed by the said W. White, when they so signed the said paper-writing, or at any other time, what was the nature thereof, or the purpose for which he requested them to sign the same; that, about three months before the death of the said W. White, he requested the said Thomas *311] *Badcock to sign his name to the said paper-writing, which he immediately did in the presence of the said W. White: that at the time of signing the said paper-writing by the said Thomas Badcock, the said W. White informed him that the said paper-writing was his will. The special verdict then went on to state, that the paper-writing consisted of two sheets of paper produced to the jurors; that the two sheets were in the same room at the times of the respective signatures of the three persons above mentioned; and that William White was of sound and disposing mind and memory at the time he signed the paper, and also at the time the three other persons signed their names as aforesaid.

It appeared from the inspection of the instrument set out in the special verVOL. XIX.-19

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