Taunt. 421; and Abbott, C. J., in Skaife v. Jackson, 3 B. & C. 422, and many other cases; which practice shows very clearly the opinion of the courts, that, but for their equitable interference, the real plaintiff would be barred. In Craib v. D'Aeth, 7 T. R. 670, note (6), the circumstances of fraud upon the real plaintiff were replied; but no objection appears to have been taken on this ground, and the general practice is undoubtedly to apply specially to the court. Again, in Alner v. George, 1 Campb. 392, where trustees, for the benefit of creditors, sued in the name of the insolvent, Lord Ellenborough held that a receipt in full for the amount by the plaintiff, was an answer to the action; and his Lordship said, ' If a motion had been made in term time to prevent the defendant from availing himself of this defence, perhaps we might have interfered. Sitting here, I can only look to the strict legal rights of the parties upon the record; and there can be no doubt that a receipt in full, where the person who gave it was under no misapprehension, and can complain of no fraud or imposition, is binding upon him. The plaintiff might have released the action; and it is impossible to admit evidence of his attempting to defraud others.1 In Jones v. Yates, 9 B. & C. 539, Lord Tenterden says: ' We are not aware of any instance in which a person has been allowed, as plaintiff in a court of law, to rescind his own act, on the ground that such act was a fraud on some other person, whether the party seeking to do this has sued in his own name only, or jointly with such other person;' and therefore it was held, that where one of two partners disposed of some of their effects in fraud of the other, both could not sue in a court of law to recover for them, in an action of trover." See also Wilkinson v. Lindo, 7 M. & W. 81; Bauerman v. Radenius, 7 T. R. 668.
1 Legh v. Legh, 1 Bos. & Pul. 447; Payne v. Rogers, Doug. 407; Skaife v. Jackson, 3 B. & C. 422; Gram v. Cadwell, 5 Cow. 489; Barker v. Richardson, 1 Younge & Jerv. 362.
2 Twopenny v. Young, 3 B. & C. 210. In this case Bayley, J., says, "In general, where a simple contract security for a debt is given, it is extinguished by a specialty security, if the remedy given by the latter is coextensive with that which the creditor had upon the former. We are not called upon to say whether that would be the case when the remedies are not coextensive; for where there is that in the instrument which shows that
§ 68. Where two or more persons, not being partners,1 are jointly, or jointly and severally, liable on the same contract, or on different contracts for one debt,2 and one of them, after the liability thereon has arisen, satisfies the whole claim or more than his own proportion of it, he is entitled to contribution from the other obligors, and may recover from them their several proportions of the common liability, in an action for money paid by him to their use.3 Nor is it necessary to prove that he paid such sum by compulsion4 upon suit brought, or judgment rendered against him. But if the sum paid by him be no more than his own share, he would not, of course, be the parties intended the original security to remain in force, the new one has not the effect of extinguishing it, as was recently decided in the case of Solly v. Forbes, 2 Br. & B. 38. There, a release was given to one of two partners, with a proviso that it should not operate to deprive the plaintiff of any remedy which he otherwise would have against the other partner; and that he might, notwithstanding the release, sue them jointly. A joint action having been commenced, the party released pleaded the release, to which plaintiff replied, that he sued him only in order to recover against the other; and, on demurrer, the replication was held good. Here, the language of the bill of sale shows that it was intended merely as a further security; that makes the effect of it the same as if an express proviso had been inserted, and prevents it from operating as an extinguishment of the remedy on the note, either as against Rummen or the defendant." See Pannell v. M'Mechen, 4 Har. & J. 474; s. c. Redf. & B. Lead. Cas. 569; Sohier v. Loring, 6 Cush. 537; s. c. Redf. & B. Lead. Cas. 574, and note; North v Wakefield, 13 Q. B. 536; Lancaster v. Harrison, 4 Moo. & P. 561.
1 The rules as to contribution do not apply to partners. Pearson v, Skelton, 1 M. & W. 504; Sadler v. Nixon, 5 B. & Ad. 936.
2 Deering v. Winchelsea, 2 Bos. & Pul. 270; Mayhew v. Crickett, 2 Swanst. 185; Craythorne v. Swinburne, 14 Ves. 160; Norton v. Coons, 3 Denio, 130; Chaffee v. Jones, 19 Pick. 260.
3 Kemp v. Finden, 12 M. & W. 421; Burnell v. Minot, 4 Moore, 342; Prior v. Hembrow, 8 M. & W. 873; Davies v. Humphreys, 6 M. & \V. 153; Pitt v. Purssord, 8M.&W. 538; Sison v. Kidman, 4 Scott, N. R. 429; Edger v. Knapp, 6 Scott, N. R. 707; Bachelder v. Fiske, 17 Mass. 469.
4 Pitt v. Purssord, 8 M. & W. 539. In this case the plaintiff and defendant, together with the principal debtor, signed a joint and several promissory note as sureties for the principal debtor, and the latter paid only a portion of the amount of the note when it became due, and the plaintiff then paid the residue, although no demand for payment had been made on him by the creditor, and subsequently brought his action against the defendant, his coentitled to an action for contribution.1 Nor does it matter in such case, whether the contract in respect of which the joint, or joint and several liability arises, be a contract under seal, or by parol, or merely implied.2 Thus, if four persons jointly retain an attorney to defend them from a civil or criminal charge, or to conduct an action for them, and one pay the retainer, the others are liable for contribution.3 But this implied promise of contribution may be rebutted by special circumstances, tending to show a different understanding between the parties.4 Thus, where one of four sureties qualified his obligation by adding to his signature the words "surety for the above names," it was held, that he was not liable for contribution to the first surety who had paid the debt.5