which he afterwards paid on their account. On the 14th of the same month the defendants executed an agreement for the dissolution of their partnership, by which the partnership was to be considered as dissolved from the 29th of May preceding, and the defendant King, in consideration of a sum of money, assigned his share of the partnership effects to the defendant Porter, who covenanted to indemnify him against all partnership debts. Notice of the dissolution was not inserted in the London Gazette until the 17th July. In February, 1822, the defendant Porter became a bankrupt, and shortly afterwards the plaintiff applied to the defendant King for payment of the bill, which he declined. The bill had been paid on the 18th July into the banking house of Lubbock and Co. where the defendants had kept cash, and was discounted by them. In answer to this case, it was proposed to call the defendant Porter, who had obtained his certificate, to prove that before his partnership with the defendant King he had frequent accommodation bill transactions with the plaintiff; that on forming the partnership he discontinued them for a time, but afterwards renewed them in his own name; that at the time of executing the deed of dissolution, the 14th July, he had a blank acceptance of the plaintiff's in his possession; that the bill in question was drawn either on the 17th, or 18th July, on his own account solely, and remained in Messrs. Lubbocks' hands till his bankruptcy, when it was taken up by the plaintiff; that when the bill became due, he (Porter) called upon Messrs. Lubbocks and begged time, which they granted; and that upon the plaintiff's communicating to him that he should apply to the defendant King for payment, he told him that " he knew Mr. King was not liable, and therefore it was of no use," that conversation taking place about a month only before his bankruptcy. On the part of the plaintiff it was objected that the defendant Porter was not a competent witness to prove these facts, on the ground that he had an interest in the result of the cause, because if the plaintiff recovered, he would be liable

1824.

MOODY

v.

KING.

1824.

MOODY

v.

KING.

over to Porter for contribution. The Chief Justice overruled the objection, and received the evidence, upon which the plaintiff was nonsuited, with leave to move to enter a verdict for him, if the Court should be of opinion that the evidence was improperly admitted.

Scarlett now moved accordingly, and renewed the objection. The defendants were joint debtors to the plaintiff. King was not a surety for Porter, and therefore his claim upon him could not arise until after the bill was paid. It has been held that where a party lends his name to a bill for the benefit of another, he is surety for the debt of that other, and is within the protection of the 49 Geo. 3. c. 121. s. S. Exparte Young. (a) But this is not like that case. This was a partnership transaction, and consequently, as King could not prove under Porter's commission until the bill was paid, the certificate was no bar to his claim. Porter therefore remained liable over to King for contribution in the event of a verdict against him, and upon that ground his evidence was clearly inadmissible.

ABBOTT, C. J.-The partnership as between Porter and King was actually dissolved on the 14th July; this bill bears date after that time, and therefore as between Porter and King it could not be a partnership transaction. If King had been obliged to pay the bill he might have had his remedy against Porter, but that would be a remedy for the whole sum in the character of surety, because it was not a partnership transaction between them. The argument is founded upon the supposition that as between King and Porter it was a partnership transaction, which is not the fact. I think that King was a surety for Porter within the meaning of the statute, and might have proved under the commission; but as he did not prove, his claim is barred by the certificate, and there remains no interest in Porter such as to exclude his evidence.

(a) 2 Rose, B. C. 40.

BAYLEY, J.-Even if it had been made out that King and Porter were partners at the time of this transaction, still I am quite satisfied that Porter's certificate would be a bar to any claim which King might have against him for contribution, because the certificate is a complete answer to the claims of everybody.

BEST, J. (a)—I am of opinion that King comes precisely within the words of the 49 G. 3. 121. s. 8. " as a surety or person liable for the bankrupt." On that ground the objection might be over-ruled; but independently of the statute, and before the statute, the certificate would have been an answer at law to any claim as between partners.

Rule refused. (b)

(a) Holroyd, J. was sitting in the Bail Court. (b) Vide 1 East, 48. 2 Camp. 617. 1 Stark. 375. 13 East, 175. 2 Rose, 40.

1824.

MOODY

v.

KING.

OPPERMAN v. SMITH and Another.

Thursday January 29.

G. 2. c. 19 ap

TRESPASS for breaking and entering plaintiff's house The stat. 11 and seizing his goods. Pleas-first the general issue, not plies to all guilty; and second, a justification under the statute 11 Geo. 2 cases where a landlord is, by c. 19., that the goods had been fraudulently and clandestinely the conduct of removed by plaintiff to the place in which, &c. to prevent his tenant in removing defendant from distraining them for rent in arrear. Repli- goods from cation, taking issue on both pleas. At the trial before premises for Abbott, C. J. at the adjourned Middlesex Sittings after due, turned last term, the facts were these:-The distress complained barren right of of was made on the 18th January, 1822, upon premises bringing an occupied by the plaintiff in Rosemary Lane, in the parish rent. Where of Whitechapel, for 77., a quarter's rent due for premises in Ship Alley, in the parish of St. George, held by the plain

which rent is

over to the

action for his

a tenant openly and in the face of day,

and with notice to his land

lord, removed his goods without leaving sufficient on the premises to satisfy the rent then due, and the landlord followed and distrained the goods: held that, although the removal might not be clandestine, yet as it was fraudulent (which was a question for the jury,) the landlord was justified under the statute.

1824.

OPPERMAN

v.

SMITH.

tiff as tenant to the defendant Smith, and which became
due on the 25th December, 1821. The plaintiff began to
remove his goods from Ship Alley to Rosemary Lane, on
the 17th January, in the middle of the day. The defen-
dant Smith lived next door to the plaintiff in Ship Alley.
Many of the goods, previously to their being carried away
to Rosemary Lane, were placed in the open street. The
defendant Smith had notice of the removal while it was
going on, and had an interview with the plaintiff on the
subject. The removal was continued on the next day, the
18th January, on which day, and before all the goods were
removed, the distress was made; but the goods not then re-
When the
moved were insufficient to satisfy the rent.
broker came to levy the distress, the landlord of the pre-
mises in Rosemary Lane remonstrated against it, and offered
to pay the rent due, if the goods remaining in Ship Alley
were not sufficient to cover it. The learned Judge told
the jury, that if they thought the goods were removed for
the purpose of depriving the defendant of his remedy by
distress, they were bound to find their verdict for the de-
fendants. The question was, what was the object of the
removal. It certainly appeared, that the goods were re-
moved in the most convenient manner; but it also appeared
that the goods ultimately remaining on the premises of the
defendant Smith were not sufficient to satisfy his demand.
To bring the case within the statute, the removal must be
clandestine, or fraudulent.
clandestine, but still it might
them to decide that question.
for the defendants.

Here the removal was not be fraudulent, and it was for The jury found their verdict

Scarlett now moved for a rule to show cause why this verdict should not be set aside, and a new trial had, upon the ground that the learned judge had misdirected the jury. The jury should have been told that there was no evidence to support the defendants' plea, and should have been directed to find a verdict for the plaintiff ; for, in fact, the plea

was wholly unsupported, and indeed negatived by the evidence. The statute requires that the goods shall be "clandestinely or fraudulently" removed, in order to justify the seizure; but here the removal was in open day, before the view of the landlord himself, and notorious to all the neighbourhood, and could not therefore be deemed either clandestine or fraudulent within the meaning of the statute, or of common sense. The present case is expressly within the decision of Eyre, C. J. in Watson v. Main (a), where he said "I am of opinion that, in order to subject goods to be taken as upon a fraudulent removal, the removal must be secret, and not open and in the face of day." The same principle was laid down by Lord Ellenborough, C.J. in Furneaux v. Fotherly (b), where he said, "Where goods are fraudulently removed from the demised premises in the night to prevent a distress for arrears of rent due the next day, the case certainly comes within the mischief intended to be remedied by the act." [Bayley, J.-The words of the statute are, "clandestinely, or fraudulently." A removal may be fraudulent, though it is not clandestine.] There was no dishonest conversion of the goods here; they were removed from one house where they were useless, to another where they were really wanted, both being in the occupation of the plaintiff. There was no evidence that the defendant had demanded his rent before the removal, and no ground for supposing that any fraud was intended towards him.

ABBOTT, C. J.-Certainly this cannot be called a clandestine removal; but if it was fraudulent, it will support the plea. The evidence of fraud, I admit, was slight, but I think there was some. One object of the statute was to give the landlord a more speedy remedy than an action for the recovery of his rent would afford him, and I cannot say that this landlord was not entitled to that remedy. I think there was evidence of fraud sufficient to go to the jury, and (b) 4 Camp. 136.

(a) 3 Esp. 15.

1824.

OPPERMAN

v.

SMITH.