These reasons do not apply to such a case as the present. In Fitzherbert's Natura Brevium, P. 162 B. C., it is said that "The writ of contribution lieth where there are tenants in common, or who jointly hold a mill pro indiviso, and take the profits equally, *and the mill *500] falleth into decay, and one of them will not repair the mill; now, the other shall have a writ to compel him to be contributory to the reparations. And, if there be three or four coparceners of lands, and the eldest sister do the suit to the lord of whom the lands are holden, for all the coparceners, and the others will not allow her their proportion for her charges and losses for the same suit; that coparcener who did the suit may have this writ of contribution." One of several cosureties in a bond may recover against any one of the others his aliquot proportion of the money paid by him under the bond, regard being had to the number of sureties: Cowell v. Edwards, 2 Bos. & Pull. 268. Here, the defendant was by the plaintiff's payment relieved from a personal liability. [MAULE, J.-And the plaintiff paid the money under legal compulsion,-which is equivalent to request.] Hence, an implied assumpsit arose on the defendant's part to repay his proportion. Most of the authorities upon this subject will be found collected in Davies v. Humphreys, 6 M. & W. 153,† and commented on by PARKE, B., in delivering the judgment of the court. The law does not affect to do complete justice in these cases between the parties: where there are six sureties, three of whom turn out to be insolvent, and one of the three solvent parties pays the whole, it would seem to be but reasonable that the contribution of the other two should be in thirds; but the rule of law is otherwise, and holds each liable only to reimburse his co-surety to the extent of one-sixth: Browne v. Lee, 6 B. & C. 689 (E. C. L. R. vol. 13), 9 D. & R. 700 (E. C. L. R. vol. 22); Kemp v. Finden, 12 M. & W. 421.† Even in the case of a partnership, assumpsit will lie for the balance of an adjusted account: Foster v. Allanson, 2 T. R. 479; Moravia v. Levy, 2 T. R. 483 (a).

v.

*The certified copy of the deed of settlement was improperly *501] received in evidence: it was not admissible to prove either the execution, or the contents, of the deed. The doctrine of Slatterie r. Pooley, 6 M. & W. 664,† which was supposed to justify its reception, is this,—that an admission by a party, may be proof of a fact, but not that it admits the contents of a deed. [MAULE, J.-What the party says, about the contents of a deed, is primary and original evidence.] The case of Slatterie v. Pooley is not to be extended. [MAULE, J.It certainly is not very satisfactory in its reasons. The decision was founded upon a passage in Phillips on Evidence, 8th edit. vol. I. p. 364, (a) which in itself does not seem to me to be very sound. What the party himself says, is not before the jury,-but only the witness's representation of what he said. What a man says, is, generally, and

(a) But see 10th edit. Vol. I. pp. 321--324.

very properly, evidence against him: but a verbal representation by a third person is quite another thing.(a)] The doctrine of Slatterie ". Pooley was under discussion in this court in Bringloe v. Goodson, 5 N. C. 738, 8 Scott, 71, and Howard v. Smith, 3 M. & G. 254 (E. C. L. R. vol. 42), 3 Scott, N. R. 574, in the latter of which it is somewhat narrowed. The deed is only before the court with reference to the admission that it is the deed referred to. [MAULE, J.-I rather think the rule laid down in Slatterie v. Pooley has been extended to all the words of the instrument.] The rule, at all events, does not apply, where there is an attesting witness: Bailey v. *Bidwell, 13 M. [*502 & W. 73;† Streeter v. Bartlett, 5 M. Gr. & S. 562 (E. C. L. R. vol. 57). In the latter case, it was held, that, in order to prove an admission of a debt, by the medium of an entry in a schedule filed by the defendant in the insolvent debtors court, it is necessary to prove the defendant's signature, by calling the subscribing witness,-even where the document has been acted upon by the court. [MAULE, J.You might as well attempt to dispense with the attesting witness, by proving that the party had sealed and delivered the deed,-the very thing the attesting witness is required for.] The act requires the deed to be enrolled by two of the directors: is the whole body to be bound by the admission of the two who deposit the deed? In Molton v. Harris, 2 Esp. N. P. C. 549, it was held that the memorial of a conveyance that has been registered, is not evidence of the contents of such conveyance, unless notice has been given to the opposite party to produce the conveyance. [MAULE, J.-That case was decided about half a century before Slatterie v. Pooley.] In Doe d. Loscombe v. Clifford, 2 Car. & K. 448 (E. C. L. R. vol. 61), it was held, that an examined copy of a memorial of a purchase-deed, registered in Middlesex, under the statute 7 Ann. c. 20, is only receivable as secondary evidence of the deed, against the parties to the deed, and all persons claiming under them; and that the fact that A. mortgaged the property to B., and delivered this deed to B. as mortgagee, is not sufficient to make it secondary evidence against A. That was a decision by one of the judges who were parties to Slatterie v. Pooley. [MAULE, J.—I cannot help thinking that "secondary" is a mistake there.] In Wollaston v. Hakewill, 3 M. & G. 297 (E. C. L. R. vol. 42), 3 Scott, N. R. 593, the registered memorial of a deed conveying lands in Middlesex, was held to be secondary evidence of the contents of such deed, against the personal representatives of the party by whom such deed is registered. The case of *The Fishmongers' Company v. Robertson, 1 M. Gr. & S. 60 (E. C. L. R. vol. 50), is also an authority in [*503 favour of the plaintiff, so far as regards the opinion of TINDAL, C. J.,

(a) According to Slatterie v. Pooley, what A. states as to what B., a party, has said respecting the contents of a document which B. has seen, is admissible, whilst what A. states respecting a document which he himself has seen, is not admissible, although, in the latter case, the ebance of error is single, in the former, double.

which is unaffected by the subsequent decision of the court of error.(a) [MAULE, J.-In that case it was sought to prove an admission by a defendant, that a certain paper was the original agreement: and it was objected that that could not be done without calling the attesting witness. That can have nothing to do with this case.] The Court of Queen's Bench in Ireland, in a recent case of Lawless v. Quale, 8 Irish Law Reports, 382, express very strong disapprobation of the doctrine of Slatterie v. Pooley. That was an action of use and occupation: the plaintiff proved by a witness the fact of the occupation by the defendant, and, on his cross-examination, he admitted that there was a written agreement in existence, which the plaintiff did not produce: and it was held, that such instrument ought to have been given in evidence, and that a declaration by the defendant, of holding at a particular rent, was not admissible. PENNEFATHER, C. J., there says: "Several cases were cited for the purpose of establishing, not that the broad principle of law was not right, but that, in these particular cases, certain exceptions to the rule of evidence may have been introduced, which would admit the introduction of parol evidence. The case of Newhall v. Holt, 6 M. & W. 662,† was relied on. That was an action for goods sold and delivered, and on an account stated; and it was held that a parol admission by the defendant of the debt due, was evidence under the account stated, though it appeared there was a written agreement relative to the goods. This was the decision of the court, though PARKE, B., observes What a defendant says is always evidence against him, although it may have arisen out of a written agreement.' It is not easy to encounter a loose and incorrect note of this *504] sort, because it is impossible to say to what Baron PARKE intended to apply that observation, and it is not sufficiently intelligible to be an authority. Slatterie v. Pooley is the next case, and appears to be the leading one in support of the doctrine that a parol admission by a party to a suit is always receivable as evidence against him, although it relates to the contents of a deed or other written instrument, and even although its contents be directly in issue in the cause. I cannot subscribe to what was said by PARKE, B., in that case, though it is added, that Lord ABINGER (who did not hear the arguments) concurred. The doctrine there laid down is a most dangerous proposition: by it a man might be deprived of an estate of 10,000l. per annum, derived from his ancestors by regular family deeds and conveyances, by producing a witness, or by one or two conspirators, who might be got to swear they heard the defendant say he had conveyed away his interest therein by deed, had mortgaged, or otherwise encumbered it; and thus. by this facility so given, the most open door would be given to fraud, and a man might be stripped of his estate through this invitation to fraud and dishonesty." And see the remarks of CRAMPTON, J., upon

(a) 6 M. Gr. & S. 896 (E. C. L. R. vol. 60).

the cases of Newhall v. Holt, Slatterie v. Pooley, and Howard v. Smith. [WILLIAMS, J.-It is impossible for us to overrule Slatterie v. Pooley, though we may think the reasoning not quite satisfactory.](a)

Byles, Serjt., and Bernard, in support of the rule.-The agreement under which Boulter, Brooke, and Peplow hired the premises in question, was made by them on behalf of the company; the premises were used for the purposes of the company: and the rent which was paid, was paid by checks upon their *bankers. The company, having thus [*505 recognised and confirmed the agreement, were bound by it: Lord Petre v. The Eastern Counties Railway Company, 1 Railway Cases, 462; Gleadow v. The Hull Glass Company, 19 Law Journ., N. S., Chan. 44. White and Gillett might have sued the company. [MAULE, J.-Not upon the agreement.] For use and occupation; and, judgment having been recovered against the company, execution might have been obtained against any of the shareholders. But one member could have had no remedy against another who had paid more than himself on account of the company. The case clearly falls within the authority of Holmes v. Higgins, 1 B. & C. 74 (E. C. L. R. vol. 8), 2 D. & R. 196. It was there held that an action was maintainable by an agent employed in endeavouring to pass a bill through parliament for making a railway, against the chairman of the committee, where the agent was himself a subscriber. In Sadler v. Nixon, 5 B. & Ad. 936 (E. C. L. R. vol. 27), (b) where A. recovered against B., C., and D., partners in trade, upon their joint contract, and took in execution B. only, who thereupon paid the whole sum recovered,-it was held, that B. could not recover in a court of law against his co-defendants, for contribution. In Bovill v. Hammond, 6 B. & C. 149 (E. C. L. R. vol. 13), 9 D. & R. 186 (E. C. L. R. vol. 22), where two persons jointly undertook to procure a cargo for a vessel, for certain commission which they agreed to divide equally between. themselves, and one of them received on account of such commission a certain sum of money,-it was held that the other could not maintain money had and received for a moiety, the demand arising out of a partnership transaction, and no account having been settled between them. So, in Milburn v. Codd, 7 B. & C. 419 (E. C. L. R. vol. 14), 1 M. & R. 238, a joint-stock company, in which A., B., and *C. were share[*506 holders, was dissolved: A. and B., being sued by a creditor of the concern, employed C., who was an attorney, to defend them: and it was held, that C. could not sue A. and B. for his bill of costs. Lord TENTERDEN there said: "The actions which the plaintiff defended, were actions brought against the defendants as members of a partner ship of which the plaintiff was also a member. When an action was commenced, it was the duty of all the partners in the late company,

(a) See Taylor on Evidence, 293, 294.

(b) S. C. (nom. Sadler v. Hickson) 3 N. & M. 258 (E. C. L. R. vol. 28). VOL. IX.-22

either to pay the money, or to resist the demand; and, in case of resistance, the expense ought to be paid by all,—the plaintiff among the rest."

The certified copy of the registered deed was properly received in evidence. [MAULE, J.-We all think so too.]

Charnock, who appeared for Brooke, submitted that he, at all events, was not liable in respect of rent accruing after he had resigned his office of committee-man, and his resignation had been accepted by his co-direct[MAULE, J.-White and Gillett might have sued Brooke for the whole rent, and he might have sued Boulter and Peplow for contribution. If he would be entitled to contribution, it could only be by virtue of the mutual contract.]

ors.

MAULE, J.-Two questions have been argued in this case. The court has already intimated an opinion that the copy of the deed was properly received, upon the authority of the dictum in Slatterie v. Pooley, 6 M. & W. 664, which has frequently been recognised and acted upon. That being so, the only remaining question, is, whether the plaintiff is entitled to recover contribution against the defendants in these two actions. It appears that *the plaintiff, Peplow, and Brooke, were *507] three of several persons who were associated together for the purpose of establishing a gas company; that the three applied to White and Gillett, the landlords of premises in the Old Jewry, to let the same to them that White and Gillett accordingly demised the premises to them, and to them only, by a written agreement; that, rent being in arrear, the plaintiff, Peplow, and Brooke were sued in a joint action; that Peplow and Brooke suffered judgment by default; and that White and Gillett recovered a certain sum in that action, the whole of which, together with the costs, was paid by the plaintiff. Prima facie, where one of three joint-contractors who are jointly sued, pays the whole debt, he is entitled to receive contribution from the other two. That state of circumstances exists here: and the only question is, whether there existed any other facts which afford an answer to the plaintiff's right to such contribution. It does not appear to me that any such answer has been given. It is suggested that there was a partnership, or a quasi partnership, between the plaintiff, Peplow, and Brooke, and others, and that, consequently, the plaintiff might be entitled to have an account taken in a court of equity, but not to contribution at law. But I think, supposing such partnership did exist, it by no means follows that the plaintiff would not be entitled to recover in this action. The three entered into a joint contract with White and Gillett, who probably would not have dealt with a larger number. Those three, therefore, alone incurred a joint liability to pay the rent; and they would be subject to contribution amongst themselves. Although it may be, that, when each of the three has paid his share of the rent in respect of that joint liability, each may be entitled to charge such