1838. PLACE v. DELEGAL. before and at the time of the making of the defendant's promise thereinafter next mentioned, certain transactions and dealings had taken place between the said William Miers and the defendant, and the defendant also claimed to be and represented to the plaintiffs that he was entitled to receive the said sum of 32l. 6s. 6d, of and from the plaintiffs, and then requested the plaintiffs to pay him, the defendant, the said sum of 321. 6s. 6d.; and thereupon, therefore, to wit, on the 26th December, 1831, in consideration of the premises, and that the plaintiffs, at the request of the defendant, had paid to him the said sum of 321. 6s. 6d. in respect of the share of William Miers or his assignees in the produce of the said estate called Black Bank, the defendant then undertook and promised the plaintiffs to indemnify the plaintiffs and save them harmless from and against any claim that might be made against them in consequence of their having so paid the defendant the said sum of 321, 6s. 6d., whether by the said William Miers or any other person claiming through him; that thereupon, afterwards, to wit, on the 11th February, 1835, by reason of the premises, and in consequence of the plaintiffs having so paid to the defendant the said sum of 321. 6s. 6d., the said James Chart and Alfred Newman, as assignees of the estate and effects of William Miers as such bankrupt according to the statutes in force concerning bankrupts, and claiming through him, did implead the plaintiffs in an action on promises for the recovery of, amongst other monies, the said sum of 32l. (s. 6d. ; and such proceedings were thereupon had in that action that the said James Chart and Alfred Newman, as assignees, afterwards, to wit, in Trinity Term, 1835, by the consideration and judgment of the court, &c., recovered in the same action against the plaintiffs a large sum, to wit, the sum of 321. 6s. 6d., and also the costs of the said James Chart and Alfred Newman, as assignees, in that behalf, amounting together to a large sum, that is to say 891., for their damages which they as assignees had sustained as well by reason of the premises as for their costs and charges by them about their suit in that behalf expended, whereof the plaintiffs were convicted, as by the record and the proceedings thereof remaining in the said court fully appeared: by means of which said several premises, they, the plaintiffs, afterwards, to wit, on the 29th July, 1835, were called upon and forced and obliged to pay, and did then necessarily pay and satisfy to the said James Chart and Alfred Newman, as such assignees, the said sum of money so recovered, to wit, the said sum of 321. 6s. 6d., and the said costs, amounting together to the said sum of 891.; and thereby also the plaintiffs were obliged to pay and did then pay to the said James Chart and Alfred Newman, as such assignees, other monies, to wit, to the amount of 40%., for other their costs by them incurred in the said action: of all which premises the defendant afterwards, to wit, on &c., had notice: yet the defendant did not nor would, although often requested by the plaintiffs to do so, pay the plaintiffs, or either of them, the said sums of 891. and 401., or either of them, or any part thereof, and thereby or otherwise indemnify or save harmless the plaintiffs, according to his the defendant's said promise; and by reason of the premises the plaintiffs were damnified to the amount of the said sums of 891. and 40%., contrary to the defendant's said promise. In the second count the plaintiffs claimed a sum of 197. 9s. 10d. for the costs of postponing the trial in Chart v. Place. The agreement mentioned in the first count was as follows: "Mr. John Evans, and also Messrs. Place and Meabry, as the executors of the will of the late Mr. John Miers: In consideration of your having paid to me the sum of 321. 6s. 6d. in respect of the share of Mr. William Miers, or of his assignees, in the produce of the estate called 1838. PLACE v. DELEGAL. 1838. PLACE v. DELEGAL. Black Bank, I hereby undertake to indemnify and save The cause was tried before Tindal, C. J., at the sittings at Westminster after last Michaelmas Term. The facts that appeared in evidence were as follow:-The plaintiffs were the executors of John Miers; the defendant a merchant in the city, who had married a daughter of the testator. A sum of 32l. 6s. 6d., William Miers's share of the produce of an estate of the testator called Black Bank, the sale of which had been effected by Evans as the attorney of the plaintiffs, was claimed by the defendant, and also by Chart and Newman as assignees of William Miers, who had become bankrupt. The plaintiffs agreed to pay over the money to the defendant upon his giving them the indemnity above set out. Chart and Newman thereupon brought an action against the plaintiffs, as well to recover the 321. 6s. 6d., as also a fourth part of an annuity of 20l. per annum to which they alleged the bankrupt was entitled. The defendant had notice of the action, was fully informed of all the particulars, and was consulted upon it throughout; and a case was stated for the opinion of counsel, in which he suggested a certain question, and the opinion when obtained was shewn to him. The action proceeded, and the then plaintiff's, Chart and Newman, obtained a verdict and judgment in respect of both the demands. The present action was thereupon brought, to recover from the defendant upon his agreement, the 327. 6s. 6d., and the costs of the action, together amounting to 917. 8s. 6d., and also 197. 9s. 10d., for costs incurred in postponing the former trial at the defendant's request, or with his assent, on the ground of the absence of a material witness. The jury returned a verdict for the plaintiffs on both issues, with separate damages-917. 8s. 6d. on the first count, and 197. 9s. 10d. on the second. Talfourd, Serjeant, in the last term, pursuant to leave reserved at the trial, moved that the verdict on the first issue might be entered for the defendant, or the damages thereon reduced to 321. 6s. 6d., or for a new trial.-Evans, being a party to the guarantie, ought to have joined in the action, or the action should have been brought in the name of one of the parties only. In 1 Wms. Saund. 154, n. (1), it is said: "The distinction which runs through all the cases is between actions brought by one of several covenantees, obligees, or by one of several with whom. any contract, whether in writing or parol, is made, and actions brought against one of several joint covenantors, obligors, or contractors. In the former case the action must be brought by all the parties: for, where there are several covenantees or obligees, and one of them only brings an action, without averring in the declaration that the others are dead, the defendant may either take advantage of it at the trial as a variance upon the plea of non est factum, or pray oyer of the deed and demur generally. So, where an action is brought by one of several with whom any contract has been made, the defendant may take advantage of it upon evidence at the trial upon the plea of non assumpsit; or, if it appears upon the face of the declaration that the contract was made with others as well as the plaintiff, it will be error." The case of a joint and several bond is familiar: and there are many cases to shew, that, where the contract is joint and several, the whole of the parties must be joined, or each must sue in respect of his individual interest. In Graham v. Robertson, 2 T. R. 282, where the plaintiffs together with A. and B., being owners of one ship, and the defendant of another, a prize was taken, condemned, and 1838. PLACE บ. DELEGAL. 1838. PLACE น. DELEGAL. shared by agreement between them; and afterwards the sentence of condemnation was reversed, and restitution awarded, with costs, which were paid solely by the plaintiffs, A. and B. having in the mean time become bankrupts it was held that an action could not be maintained by the plaintiffs alone for a moiety of the restitutition money and of the costs, because it was either a partnership transaction, when A. and B. ought to be joined, or not, when separate actions should be brought by each of the persons paying. This principle was recognized in Brand v. Boulcott, 3 B. & P. 235, where A., B., and C., being appointed assignees under a commission of bankrupt, and having acted as such, A. and B. paid each half of his bill to the solicitor, and it was held that A. and B. could not maintain a joint action against C. for his proportion of the money paid, but must each bring a separate action. [Tindal, C. J.The cases cited are cases where all the three parties were interested: here, Evans had no interest; he had merely acted as the attorney for the executors. How can the rule apply to such a case?] In Osborne v. Harper, 5 East, 225, A., B., and C., having dissolved partnership, C., after such dissolution, drew bills in the partnership firm in favour of D., he (D.) not knowing of such dissolution, upon which D. brought his action against all the former partners, and C. having pleaded his bankruptcy, D. entered a nolle prosequi as to him, and recovered judgment against A. and B., which was afterwards satisfied by the attorney of A. and B., who advanced part, and borrowed the rest of the money on their joint credit: it was held that the sum so paid in satisfaction of the judgment might be recovered in a joint action by A. and B. against C. With respect to the reduction of damages-inasmuch as the action by Chart and Newman against the present plaintiffs embraced two distinct demands, to one of which only the defendant's indemnity applied, the defendant |