therefore there must be a new trial. This is very different from the case of the haystack, for there nothing more could be done to confer a possession. DALLAS J. The only question here is, whether something else remained to be done; upon that point I have an opinion, but it is unnecessary here to disclose it, and I carefully abstain from stating what it is. The Court, altering the form of the rule, made it absolute for a new trial. 1817. BLENKINSOP บ. CLAYTON. EMMET and Another v. JOHN BUTLER, THOMAS HIS was an action for goods sold and delivered to the five Defendants, to which the Defendants John Butler, Thomas Butler, and Beecroft, pleaded, that after the stat. 49 G. 3. (a), to "alter and amend the law relating to bankrupts," and after the making of the alleged promises, and after the alleged causes of action had accrued, they became bankrupts, and a commission issued, under which they were duly declared bankrupts; that the plaintiffs proved under their commission, as a debt due from them the three Defendants, the same debt for which this action was brought, and thereby made election to take the benefit of the commission. Plaintiffs traversed their having proved under the com their June 19. Where three of five joint contractors had pleaded that after the pro mises and cause of action they became bankrupts, and the Plaintiffs proved their debt under the commission, and elected to The joined on the proof under the commission, a question arising whether the other two Defendants had continued partners to the time of the contract, though the evidence on the issue on the bankrupt's plea is for them, they are not entitled to a verdict in the midst of the cause that they may be called as witnesses for the other Defendants. Especially if the Defendants call witnesses. (a) C. 121. mission. 1817. EMMET บ. BUTLER. mission. Norris and Bradley pleaded the general issue. At the trial of this cause before Wood B. at the York Lent assizes, 1817, it appeared that the Plaintiffs had in February 1809 received an order to erect certain engines for the Calder Iron and Coal Company, wherein the Defendants had been partners, and which order the Plaintiffs had executed, partly in June 1809, and partly in August and November 1810. The Defendants Norris and Bradley contended that they were not liable, for that their partnership had been dissolved before the causes of action arose. To prove that all the Defendants jointly contracted, the Plaintiffs offered in evidence a deed of nine parts, dated 11th August 1810, whereby it was recited that Smyth had purchased in fee certain veins of coal and iron ore, and had wrought them in partnership with the Butlers and Beecroft; and that Bradley and Norris had afterwards agreed to become partners with them, each in one-eighth; and that by deeds of 23d November 1805 Smyth had conveyed in fee to a trustee for Bradley and Norris, two-eighths; that T. Butler and Crashaw had agreed to purchase the shares of Smyth, Bradley, and Norris; and the two Butlers, Beecroft, and Crashaw had agreed thenceforth to be partners in proportions specified, and to execute a partnership deed; and that the legal interest of the premises was in Smyth, Bradley, and Norris; and the parties had agreed that it should be conveyed to Dickin son as a trustee; and that inasmuch as no conveyance had been made to the Butlers and Beecroft, their shares also would pass by such conveyance. Then, in consideration of the premises, Smyth, Bradley, and Norris conveyed, and the Butlers, Beecroft, and Crashaw confirmed to Dickinson the premises in fee, to the use of the several intended partners in the stipulated proportions, they also conveyed to him all their stock and personal effects in trust for the new partners in the like proportions. For the two Defendants Norris and Bradley, a deed deed was put in evidence, dated 28th April 1809, between Bradley and Norris of the one part, and T. Butler and Crashaw of the other part, whereby it was covenanted that Bradley and Norris should sufficiently convey to T. Butler and Crashaw all their interest in the iron works, and in the implements; and Butler and Crashaw agreed to pay 6oool. by instalments, and proper conveyances were to be prepared and tendered to Bradley and Norris for execution, and a proper mortgage was to be made to them for securing the purchase-money, before June then next, and an engagement to indemnify Bradley and Norris against the debts of the Calder Iron Company. The Plaintiffs, however, proved that it was not till September or October 1810, that Bradley and Norris ceased to take an active concern in the business of the colliery. It appeared that Butler and Crashaw carried on trade with Beecroft from 1809 to 1812 in perfect solvency, and the Plaintiffs never applied to Norris and Bradley for the debt till 28th December 1815. The Defendants proved that the deed of 28th April 1809 was communicated to the Plaintiffs, and relied on their long acquiescence as a proof that they knew the partnership was dissolved. The proceedings under the commission of bankrupt were produced, under which the Plaintiffs proved a debt of 12007. under the title of Messrs. Smith, Bradley, and Norris, debtors to Emmet, and the Plaintiffs admitted it was this debt. This the learned Baron thought proved the issue of the Defendants the Butlers and Beecroft, and that this special plea must be found for those three Defendants. Hullock Serjt. then prayed, on behalf of the Defendants Norris and Bradley, that a verdict for the defendants Butlers and Beecroft might be recorded, and that they might give evidence for the other Defendants to prove that the partnership was dissolved before the causes of action arose, and that themselves alone had contracted. VOL. VII. Secondly, S s 1817. EMMET V. BUTLER 1817. EMMET V. BUTLER. Secondly, he urged that if not, still they were admissible witnesses, being disinterested in that cause as soon as it appeared that their plea under the statute was proved. Wood B. thought that the action being on a contract, he could not permit a verdict for some, as it would discharge the whole. He had never known that course to be pursued in an action on a contract, but only in trespass; and he refused to sever the cause, or admit the witnesses, and directed the jury, that a part of the work, a pump-engine, appeared by the evidence to have been ordered in February 1809, before the supposed dissolution in April 1809; and therefore Bradley and Norris would be so far liable, though they should have ceased to be partners before it was put up: he expressed his opinion that the agremeent of 28th April 1809 was not an actual dissolution, but an agreement for the future dissolution, and that as Bradley and Norris continued to act as partners till June 1810, after the residue of the work, a blast-engine, was put up, he thought them liable for both engines. A verdict passed for the Plaintiffs against the Defendants Norris and Bradley. Hullock Serjt. in Easter term, 1817, moved for a new trial, on the ground, first, that the three Defendants who pleaded their bankruptcy, ought to have had a verdict recorded in their favour, and been admitted as witnesses; secondly, that there had been a misdirection of the learned Baron in holding that the deed above stated was conclusive evidence that the partnership continued to exist at the date thereof, [but the learned Baron's report disaffirmed this ground for the rule.] As to the first point, this plea goes not in discharge of the contract, but is a mere personal discharge of the party pleading it; as under the statute of Ann., if one of two pleads bankruptcy, the Plaintiff may enter a nolle prosequi under that statute; whereas in a matter at common law, a nolle prosequi against one of two joint contractors, would discharge the whole contract. Moravia v. Hunter. (a) In Noke v. Ingham (b), and Raven v. Dunning (c), the only cases on the old acts of parliament relating to this subject, it was held, that the nolle prosequi as to one Defendant was not a discharge of the other. It was therefore quite competent for the plaintiff on the present occasion to enter a nolle prosequi against three Defendants, and in that case he would have been clearly at liberty to call the first as witnesses. In a cause tried before Le Blanc J. at Lancaster, Chapman v. Graves (d), the attempt was made to examine a Defendant as a witness for the Plaintiff: this is a case of examining the Defendant. As to the second point, he urged, that inasmuch as the deed contained no covenant defining the time when the partnership should begin, or in what shares, or for what debts the persons should respectively be liable; it was evidently a mere vehicle of the legal estate, and the partnership must necessarily be regulated by some other agreement or instrument. The Court granted a rule nisi. As to the Best Serjt. in this term shewed cause. first point, where any evidence at all has been adduced against a Defendant, he cannot be discharged. (e) This rule is to be understood where there is no manner of evidence against the Defendant; for if there be, his guilt or innocence must await the event of the verdict. There is no determination of any judge, that where any evidence has been given, the Defendant may be discharged. Raven v. Dunning and Chilton (f), cannot (a) 2 Maule & Selw. 244. n. (b) 1 Wäls. 89. (c) 3 Esp. 35, and Appendix to Peake on Evidence, lxxxiv. (d) 2 Campb. 333. n. Ss 2 be 1817. EMMET ข. BUTLER. |