" GROSE, J. At any rate, I think it was for the jury to say, whether that which was done by the defendant did not amount to an adoption of the policy, subscribed, as appears to have been, by Beun." LAWRENCE, J. "I think there is sufficient to shew that the defendant had adopted the signature of Bean, as equivalent to his own, for he finds fault with the agent Markham, for not having settled the debt before, and he offers a bill for the debt, but refuses to pay the costs, though he afterwards changes his mind, and defends the action." RULE ABSOLUTE. 1804. AASON versus OSEPH. MADGE (Executor of THOMAS) versus FEAR.-June 4. In assumpsit by an executor for goods sold and delivered, the delivery was proved by one witness, but he also swore that he was partner with the deceased, notwithstanding, from a paper written by himself, the debt appeared to have been due only to the deceased; the jury found a verdict for the plaintiff for 81. 14s. and, notwithstanding the small ness of the debt, the verdict was set aside. Semble. The jury cannot give credit to part of the testimony of a witness and reject part. THIS HIS was an action to recover 81. 14s. for goods sold and delivered, and for work and labour as a taylor, tried before HoтHAM, B. at Kingston Lent assizes, 1804. The plaintiff called, as the first witness, Theophilus Thomas, the son of the deceased, who proved the work done and the goods delivered; but said, that he was at the time in partnership with his mother, Mrs. Venus Thomas, the deceased. Upon this, GARROW, for the plaintiff, put into his hands an account of debts due to Mrs. V. MADGE THOMAS) (Executor of versus FLAR. 1804. MADGE THOMAS) versus FEAR. Thomas, made out by the witness himself, in which act count this debt was stated, amongst others, as due to Mrs. (Executor of V. Thomas. The plaintiff then called the sister of the last witness, but she being entitled to a legacy, which was then due, and an objection being made to her testimony, she was rejected: and he then called one T. Barber, a button-maker, who dealt with the deceased, and he proved that the witness, Thomas, after the time of the delivery of the goods, was recommended to him as a customer by Mrs. V. Thomas, when she was about to quit business, upon which he dealt with, and trusted Thomas the son; but that, up to that time, he dealt with Mrs. Thomas, and she said he was her journeyman only, and he never considered him as a partner. ESPINASSE objected that there was no evidence for the plaintiff of any debt due, but, on the contrary, that the evidence was of a contract with Theophilus and Venus Thomas, and that Theophilus Thomas should have brought the action; and of this opinion was the learned Judge: but GARROW requesting to go to the jury, ESPINASSE addressed them at length upon the evidence, and they returned a verdict for the plaintiff; and, upon being requested by the learned Judge, to reconsider it, they then said that they gave credit to the papers proved by Theophilus Thomas, but not to the other part of his testimony, and there was a verdict for the plaintiff. And now, ESPINASSE having obtained a rule to shew cause why there should not be a new trial, THE COURT, upon reading the learned Judge's report, said, that there must be a new trial, because there was no evidence of the delivery of the goods, without believing the evidence of Theophilus Thomas, which must be received or rejected altogether. But had there been other evidence of the delivery of the goods, his testimony might have been rejected, and then the verdict might have stood. OSBORNE versus HARPUR.-June 4. An action being brought upon a joint contract against A. B. and C. two. money THE plaintiff, and the defendant, and a third party, had been in partnership; an action was brought against them all three for a joint cause of action, but at the time of commencing that action, the partnership was dissolved. Harpur pleaded bankruptcy, and the plaintiff in that action entered a nolle prosequi against him. It was stated by one of the counsel that he suffered judgment to go by default; but it could not clearly be collected whether it was so or not. There was a joint judgment against Osborne and the other partner, who afterwards paid the money in order to redeem themselves from an execution; and now Osborne brought his action against Harpur for money paid to his use. Upon these facts appearing at the trial, at the last lent assizes at Warwick, the plaintiff was non-suited, on the ground that it was a joint payinent by the plaintiff and the third partner, and that he ought to have been joined in the action. In Easter Term, VAUGHAN, Serjeant, obtained a rule to shew cause why there should not be a new trial; and cited Brand and Herbert v. Balcott where "A. B. and C. being appointed assignees under a commission of 3 Bos. and Pul. 235. 1804. OSBORNE versus HARPUR, bankrupt, and having acted as such, A. and B. had paid each half of his bill to the solicitor, it was held that A. and B. could not maintain a joint action against C. for his proportion of the money paid, but should each have brought a separate action." WOOD and CLARKE, N. G. for the defendant shewed cause, and stated that there were no cases directly in point; but they cited Noy 130; and also Ward and others v. Brampston, where two churchwardens brought a mandamus to be admitted to their office as churchwarden, and the surrogate having made a false return, they brought a joint action against him for damages, and upon demurrer the court gave judgment for the plaintiffs, saying, the mandamus and the whole prosecution and charge thereof were joint. They contended therefore that in this case the judgment being against two of the partners jointly, the three partners having been previously sued jointly, the two must now sue the third jointly to recover the proportion of the debt paid for him. LE BLANC, J. having asked whether the parties had at the time of the execution any joint funds, it was answered that they had not. WOOD. "As between the three defendants to the original suit, they had been in partnership, but had all, at the time of the suit, dissolved partnership, and the action being brought by the creditor of the partnership, the defendant pleaded bankruptcy, and was discharged as against the creditor. But the plaintiff, and the other partner, though there was a dissolution of the partnership, were entitled to recover against him the money paid for his use, it being paid since his bankruptcy; and as the money was paid jointly upon a joint execution, they must bring the action jointly." * 3 Levinz, 362. LAWRENCE J. "Suppose the execution had been only against one of them, must the other have been joined in the action?" Lord ELLENBOROUGH, C. J. "The case in Noy, is of a proceeding upon a judgment which must follow the entry of the judgment, and in the case in Levinz, the parties were overseers and quasi a corporation." LAWRENCE, J. "That was also on a demurrer. To adopt the expression used in one of the cases, there the action springs out of a joint action; here, on the contrary, it springs out of a payment, which may be several in its nature; and not having joint funds, they could not pay jointly." WOOD then cited Graham v. Robertson.* LAWRENCE J. "The action there was held to be wrongly commenced, because it should have been either by all the partners jointly or by each separately." Lord ELLEN BOROUGH, C. J. "The question will ultimately come to this single point, whether the parties actually paid the money out of a joint fund?" CLARKE. "I submit that this was a joint payment by the hands of the attorney, for both parties were liable to him. And this distinguishes the present case from the case of Brand v. Bolcott, for there it is expressly stated that each paid separately; but here they constitute a joint fund for the purpose of paying the money. In that case it by no means followed that the transaction of paying the costs made the assignees partners. Suppose the parties here had been taken in execution, they would have 1804. OSBORNE versus HARPUR, |