not restrict himself from appointing again as soon as the voyage is made." It is quite clear the legislature would use words of that sort, if they had intended it; they knew how impossible it was to regulate transactions by such visionary notions as these. They introduce only corruption, as the thing which they could act upon that is personal corruption, pecuniary advantage; something in the nature of it ought to be derived from it. It is not proved that Captain Richardson ever did derive any pecuniary advantage from this transaction: it does not appear on the record, that either of those parties is to derive any pecuniary advantage or emolument whatever. The act, instead of being an authority in favour of the defendant, is an authority against him. We were referred to a great number of cases, but it is unnecessary to cite them, as they only proved that to which the Court acceded. It eannot be doubted for a moment, that it is an offence at common law to sell offices, and if a man do so, it is an offence, and he cannot maintain an action growing out of such a contract. That is all that has been decided by any one of the cases. In Blachford v. Preston (2) it was a direct sale. In Card v. Hope (3) it was not so; and it is distinguishable from Blachford v. Preston in that respect. It was decided on the principle of Blachford v. Preston, be cause, although there was not a direct sale, there was an indirect sale of the appointment. It was said to the plaintiff, "If you will buy these shares, you shall be the cap tain." It will occur to every man, if the shares were sold under such circumstances, something was added to the price of the shares it was a colourable sale of the com mand of the ship. There are expressions used by the Chief Justice in that case, which seem to bear on the present; but the expressions of every judge must be taken with reference to the particular case on which he decides; otherwise the law will get into extreme confusion-that is what we are to look at in all cases; the manner in which he is arguing is not the thing, it is the principle he is deciding; and if it could have been imagined for a moment, that it could have been extended to such a case as this, it would have led to manifest injustice, and tend to infinite confusion; and not one (2) 8 Term Rep. 89. (5) 5 Vesey, jun. 175. of the learned judges who decided that case, even conceived that its authority could be pressed to the extent to which it has now been carried. All that was decided in that case was before decided in Blachford v. Preston, with this difference, in Blachford v. Preston the sale was direct-and in Card v. Hope, it was indirect. All that the Court decided in those cases is, that that species of sale is void in point of law;-for these reasons, we are of opinion, that this rule for a new trial, and in arrest of judgment, must be discharged. 1824. Rule discharged. AARONS v. WILLIAMS, SEARLE, July 6. Where one of several defendants, who has SEVERED in defence, sues out a writ of error, the admission of one of the other defendants, that the writ was sued out for delay, will not authorize the plaintiff's proceeding to execu tion pending such writ of error. This was an action brought against the defendants as the acceptors of a bill of exchange. Two of the defendants appeared jointly, and pleaded a judgment recovered: the other appeared separately by another attorney, and demurred to the declaration. Judgment having been obtained by the plaintiff, a writ of error was sued out on behalf of Cann, (who had so appeared separately,) and was allowed by the officer of the court, and notice of the allowance served on the attorney for the plaintiff. The defendant Searle afterwards admitted that the writ of error was sued out for delay, and the plaintiff's attorney thereupon issued a ca. sa. against all the defendants. No admission of delay was made by Cann, or by Cann's attorney. Mr. Serjeant Bosanquet having obtained a rule nisi to set aside the writ, and subsequent proceedings, with costs Mr. Serjeant Vaughan, for the defendant, Cann, now showed cause, on the authority of Ellis and others v. Sweet, (1) in which a writ of error having been brought by one of many plaintiffs, and another of them having admitted it was for delay, the Court required an affidavit that there was real error. By the Court. This case is distinguish (1) Not yet reported. able from Ellis and others v. Sweet, which was an action by many joint plaintiffs; whilst here, the defendants have severed. One of them has purchased his writ of error, which is a writ of right; and though, where the party making the admission of delay was the party who sued out the writ, the Courts have interfered, they will not interfere in other cases. The case quoted in argument has no bearing on the present, and it goes to establish a practice-viz. the calling for affidavits to support a writ of right-with which we should feel a difficulty in concurring without the sanction of the legislature. Rule absolute. 1824. July 7. S PERHAM V. RAYNAL, FORSEY, An acknowledgment, within six years, by one of the joint makers of a promissory note, will revive the debt against the other, although he has made no acknowledgment, and only signed the note as a surety. This was an action against the defendants as the joint makers of a promissory note. The defendants pleaded the Statute of Limitations. At the trial, before Mr. Serjeant Bosanquet, at the Lent assizes for Somersetshire, it appeared, that the debt was of more than six years standing; that Milverton was only a surety, and had made no acknowledgment of the debt within that time; but an acknowledgment by one of the other defendants within that time, having been proved, the learned Serjeant directed the jury that such acknowledgment was binding on the defendants; and the jury accordingly found their verdict for the plaintiff, with liberty for the defendants to move to set it aside and enter a nonsuit. Mr. Serjeant Pell, on behalf of the defendant Milverton, having obtained a rule nisi to that effect Mr. Serjeant Wilde now showed cause, and contended, on the authorities of Whitcomb v. Whiting, (1) Jackson v. Fairbank, (2) and Brandram v. Wharton, (3) that an admission by one of many joint defendants was binding on the others, and that the principle established by those cases was not (1) Doug. 652. (2) 2 H. Bl. 340. (3) 1 Barn. & Ald. 463. shaken by Atkins v. Tredgold, (4) the latter case being clearly distinguishable, inasmuch as there the acknowledgment was not made by one of the parties jointly liable. Mr. Serjeant Pell, in support of his rule, argued, that the general principle of an acknowledgment or admission of one of many joint defendants being binding on the others, was not applicable to the present case, the defendant Milverton being only a surety, and having therefore a right to expect notice if the note was not paid. In Atkins v. Tredgold, two of the judges had used expressions impugning the authority of Whitcomb v. Whiting, and that case therefore must be considered as shaken; and Bland v. Haselrig (5) was, indeed, an au thority against that case; and, in Rooth v. Quin,(6) where, in an action against other in the name of the firm, the admissions in partners, on a bill accepted by a copartner him, were holden not admissible in evidence his answer filed to a bill in equity against against the rest. By the Court.-The question, in this case, is one of considerable importance; and the doubt has been raised by certain expres sions which have fallen from some of the Judges, impugning the authority of Whit comb v. Whiting. The words of the sta tute are exceedingly strong; and, looking at them, it might be concluded, that in no instance could a remedy for debt be had after six years: but that construction can→ not be adopted; otherwise, a party might elude paying the principal, although he had paid interest for six years: and it was decided, by all the Judges, in Heylin v. Hastings, (7) that after ten years, a bare acknowledgment was sufficient to revive the debt. The principle of that decision is, that the statute ought only to operate when, from the circumstance of non-claim for six years, it may be presumed, either that the cause of action never existed, or that it has been satisfied. The presumption certainly is, that the debt, if any, has been paid. But that presumption is rebutted by a subsequent acknowledgment. Since the deci sion of Heylin v. Hastings, it has always been held that a new promise revives the (4) 2 Barn. & Cress. 23. S. C. 1 Law (5) 2 Vent. 151. (6) 7 Price, 193. (7) Carth. 471. old debt, but does not create a new one. It has been argued, that there is a distinction where there are many defendants, and only one of them makes an acknowledgment: but there is no ground for this distinction. That an acknowledgment by one of many who are jointly concerned is binding on the others, appears clearly from Vicary's case; (8) and in Rex v. the Inhabitants of Hardwick, (9) Lord Ellenborough applied the same principle in cases of trespass. He says, "Evidence of an admission made by will one of several defendants in trespass, not, it is true, establish the others to be co-trespassers; but if they be established to be co-trespassers by other competent evidence, the declaration of the one, as to the motives and circumstances of the trespass, will be evidence against all who are proved to have combined together for the common object." In the same case, Mr. Justice Le Blanc extended the application of the principle to evidence in settlement cases, and the legislature afterwards acted upon his opinion. The same doctrine has been applied to acknowledgments in cases of conspiracy and other offences, up to high treason. There is nothing to distinguish cases under the Statute of Limitations from others; and the point has indeed been expressly decided in Whitcomb v. Whiting. In that case it was holden, that the admission of one of several drawers of a joint and several promissory note, took it out of the Statute of Limitations as against the others, and might be given in evidence on a separate action against any of the others. And the language of the Judge is, "Payment by one is payment for all, the one acting virtually as agent for the rest; and in the same manner, an admission by one is an admission by all; and the law raises the promise to pay, when the debt is admitted to be due." Bland v. Haselrig has been relied on as an authority the other way; but it ought not to have weight: one of the Judges differed, and other circumstances show it to be a case not now to be relied on. It is well observed of this case, by Lord Glenbervie, who is now authority, in a note to his report of it, "it may be explained on the manner of the finding; for, as the plea (8) Gilbert's Evidence, 51. (9) 11 East, 578. was joint, and the replication must have case which has been referred to, is Rooth v. (10) 4 Term Rep. 516. THE END OF TRINITY TERM, 1824. Discharged. (Injunction. Executor. Cre- Bailey v. Taylor, 66 CHANCERY. Parish v. Parish, 21 Patman v. Edwards, 159 Gilbert v. Wetherell, 138 Glassington v. Thwaites, 112, 208 Pitchford v. Hulme, 223 Gostling v. Smith, 5 Haddock v. Tomlinson, 133 181 Hyde v. Hyde, 130 Irving v. Harrison, 48 Jabat v. Campbell, 8 Kilshaw v. Crowther, 101 Lavice v. Croxton, 201 Mac Namara v. D'Evereux, 156 Netherwood v. Hall, 159 Ocklestone v. Benson, 142 Plunkett v. Cavendish, 1, 219 Potts v. Potts, 176 Pritchard v. Gee, 222 Rackstrow v. Bernard, 191 Ranken v.....) 88 Rawlinson, Ex-parte, in re Rich- Reeve v. Dunston, 155 Robson v. Cameron, 135 Salkeld v. Science, 19 Simonds, Ex-parte, in re Marsh, 99 Thackeray v. Dorrien, 89 Vansittart v. James, 205 Cuxon and Another v. Chadley, 63 Dartnall v. Howard and Gibbs, 246 James v. Sewell and Another, 167 Denn dem. Manifold v. Diamond, Joyce and Another v. Blount, 9 211 Dobell v. Stevens, 89 Doe dem. Holborow v. Perrett, 9 Doe dem. Maddock and Others v. Kenne v. Deeble, 75 Laidler v. Elliott, 96 Lambert v. Taylor and Another, 160 Lang and Others v. Anderton, 62 Down v. Halling and Others, 234 Lee v. Levy, 251 Duncan v. Thwaites and Others, 3 Lewis v. Jones, 270 — v. Lee, 22 Lloyd and Another v. Davis, 38 East India Company v. Tritton and Lovie v. Longster, 55 Evans v. Vaughan, 217 Greives, in a matter of ar- Flint, gent. one &c. v. Pike, 272 Gabay v. Lloyd, 116 Garrett v. Handley, 47 Gill v. Cubitt and Others, 42 Hammerton v. Stead, 33 Hull Dock Company v. La Marche, 10 Ireson v. Pearman, 119 Elsam, 75 Lowen v. Kay, 123 Lyttelton and Another v. Cross and Manifold v. Pennington, 182 Metcalfe and Wife v. Booty, 140 66 |