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By the Court,

Woodworth, J.

The plaintiffs declared on the money counts. The bill of particulars stated the demand to be for$605,63 money received by the defendant for the use of the testator, being one half of $1211,26, paid by the testator to the defendant, under an agreement that Smith should equally bear and pay with Hicks, the losses and damages which Hicks might sustain by reason of becoming bail for one Webster, in a suit in favor of Cheeseborough and others against Webster and Griswold.

The plaintiffs proved a receipt, signed by the defendant February 7th, 1821, for a note drawn by Smith, M’Call & Co. at three months for $1211,26, being one half of a judgment in a suit mentioned in a paper on which the receipt was endorsed, which note, it was admitted, had been paid. The paper writing was then proved. It was executed by Smith, -and stated that it had been agreed between Hicks and Smith, that the former should become bail for Webster in the cause before mentioned, and that they should equally bear all losses, &c. in consequence of Hicks becoming bail. Smith covenanted to pay jointly and equally all such losses. This instrument bears date January 18th, 1820.

Griswold was then called as a witness. He testified that Webster died insolvent; that in 1822, Hicks stated that he had paid or was bound to pay a large sum as bail for Webster, and requested the witness to pay him, which he did by procuring a note for $1288,91, due April 1st, 1822, to be given to Hicks for the amount he had paid or was bound to pay. Hicks admitted the note was paid. The firm of Smith, M’Call & Co., of which the testator was a partner, was, at the time Hicks became bail, a creditor of Webster and Griswold to a large amount.

The judge nonsuited the plaintiffs. From this statement, it appears Smith stood in the nature of bail for Webster with *206Hicks, who, it is to be inferred, actually entered special bail £ an(^ fr°ra ih® written agreement which Smith gave to Kicks, the former bound himself to pay half, or, in other words, to become equally liablé. Although the paper was produced by the plaintiffs, it is evident that it had been in Hicks’ hands. He endorsed the receipt on it. After that, the writing being satisfied, it was natural to find it in the possession of the testator or his representatives. At the time the money was paid ,on Smith’s note, what.claim had .he ? manifestly, against Webster and Griswold, who were partners, and had been sued for a partnership debt. Smith had made himself liable at the solicitation of Webster, and was entitled to be reimbursed by them for the money advanced on their account. Thus far it is clear Hicks is protected. The. business between him and Smith was closed. Both Smith and Hicks seem to have been remediless, unless they could afterwards obtain payment from Webster and Griswold. . Their claim would bé separately for one half; for the payment of the judgment, of Cheeseborough and others, if paid, was not paid out of joint funds. This principle is' established by the case of Doremus & Wilber v. Selden, (19 Johns. R. 213.) Subsequently, however, Hicks demanded of Griswold, the surviving. partner, the money tie had paid as bail for Webster; and on the 4th April, 1822, received $1288,91. It does not appear that Gris-wold (who had not been arrested in the suit of Cheeseborough) had any knowledge of the fact that Smith had become jointly liable with Hicks at the request of Webster, and had previously paid one half the recovery; nor does it appear why Hicks accepted only about one half of the sum which it would seem he had become liable for as the bail of Webster, when he might have demanded the whole of Gris-wold, as so much money .paid for his use, on the implied promise of indemnity of his partner; nor is it material in this case to know why a less sum was accepted. Griswold made the payment, on the allegation of Hicks that he had been obliged to pay, or had been charged as special bail of Webster. Under these circumstances, the question arises, was Hicks equitably bound to let Smith participate with him in *207$he money thus recovered 1 The money was paid by Gris-wold to satisfy what had been advanced in consequence of Hicks becoming the bail of Webster. It was received with that intentj and if so, it seems to me, that as to one half, it was money had and received for the testator. Was not the claim of Smith against Webster and Griswold extinguished pro tanto, by the payment of Griswold to Hicks the special bail 1 It certainly would be, if Griswold was authorized to make the payment; and that he was so authorized, I think evident. Hicks was the surety, the only person known by Griswold in the proceedings. Griswold must be considered a stranger to the arrangement between Smith and the defendant. If the plaintiffs cannot recover in this action, I do not perceive they have any other remedy. The palpable injustice of allowing the defendant to retain the money cannot prevail, the principles applicable to the action for money had and received entitling the plaintiffs to recover. The objection that the claim proved does not conform to the bill of particulars cannot now be urged, as it does not appear to have been taken at the circuit.

I am therefore of opinion that the nonsuit be set aside and a new trial granted, with costs to abide the event.

New trial granted.

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