(q) Hatsall v. Griffith, 4 Tyrwh. 488. In this case two of three part-owners of a vessel, acting for themselves and the other part-owner, employed an agent to sell the whole vessel. He did so, and paid the two their proportion of the proceeds. The other part-owner brought an action against the agent to recover his proportion. It was held, that he could not sue alone, as the agent was employed by all the owners. The case of Garret v. Taylor, 1 Esp. 117. contra, is not law. See ante, vol. i. p. * 29, n. But this rule does not apply in cases founded upon tort. Sedgworth v. Overend, 7 T. R. 279.

(r) "Because," says Lord Hardwicke, "they have each a power over the whole estate of the testator, and are considered as distinct persons." Can v. Read, 8 Atk. 695.

(t) In Can v. Bead, supra, if the report is correct, Lord Hardwicke stated in general terms, that payment to one assignee would not be a discharge without a receipt from the others also. In Smith v. Jameson, 1 Esp. 114, Lord Kenyon ruled, at Nisi Prius, that one assignee of a bankrupt estate might receive the money belonging to the estate, and give a legal and valid discharge for it. Afterwards, in Bristow v. Eastman, 1 Esp.

172, the same question was presented to Lord Kenyan again. That was an action of assumpsit for money had and received, brought by the assignees of a bankrupt. At the trial the defendant produced a receipt from one of the assignees. But, upon its being shown that it had been given against the will of the co-assignee, the learned judge said, "that all the rights of property of the bankrupt centred in the assignees, and though the act of one in receiving part of the bankrupt estate might, if fairly done, bind the estate by any discharge he might give for it, that it could never be, that where one assignee had shown his express dissent that the other might give a receipt, binding on the estate; as such a construction would enable one assignee to dissipate and destroy the estate, in despite of his brother trustee." See also Williams v. Walsby, 4 Esp. 220; Stewart v. Lee, Moody & M. 158.

(t) Barber v. Pott. 4 H. & N. 769.

(u) This is because the cestui que trust is obliged to proceed in a court or law in the name of the trustee; and as a court of law can only consider the parties on ' the record, whatever is an answer as to the trustee is an answer to the action. Gibson v. Winter, 5 B. & Ad. 96. In modern times, however, courts of law have been in the habit of exercising an equitable jurisdiction on motion, and preventing a defendant from availing himself of such a defence unjustly. See the next note.

from availing himself thereof on application by the plaintiff, made as soon as may be after a knowledge of the fraud. (v)

After the lapse of twenty years, there is a presumption of payment at law; and it has been held that it may arise earlier if there be additional circumstances tending to prove payment. (vv)

*2. Of Part Payment. * 618

It has been said, that the payment of a part of a debt, or of liquidated damages, is no satisfaction of the whole debt, even where the creditor agrees to receive a part for the whole, and gives a receipt for the whole demand; and a plea of payment of a small sum in satisfaction of a larger is bad even after verdict. (w) l But this rule must be so far qualified as not to include the common case of a payment of a debt by a fair and well-understood compromise, carried faithfully into effect, even though

(v) Barker v. Richardson, 1 Young & J. 362; Leigh v. Leigh, 1 B. & P. 447; Innell v. Newman, 4 B. & Ald. 419; Mountstephen v. Brook, 1 Chitty, 390; Manning v. Cox, 7 J. B. Moore, 617; Johnson v. Holds worth, 4 Dowl. P. C. 63; Payne v. Rogers, Doug. 407; Hickey v. Burt, 7 Taunt. 48; AIner v. George, 1 Camp. 392; Strong v. Strong, 2 Aikens, 373; Green v. Beatty, Coxe, 142. But a release from one of the several plaintiffs will not be set aside, unless a clear case of fraud is made out between the releasor and the releasee. Fraud upon the releasor alone is not a sufficient ground for calling upon the equitable jurisdiction of the court, since that may be replied. Wild v. Williams, 6 M. & W. 490. "If such a release," says Baron Parke, Phillips v. Clagett, 11 M. & W. 93," is a fraud in point of law upon one of the parties to it, the court would not interfere; that is the proper subject for a replication; they can only interfere when it is a fraud on third persons, and when a court of equity would clearly set aside the release, not merely as between the parties one of whom releases, but where they would set it aside as against the defendant." So in the still later case of Rawstorne v. Gandell, 15 M. & W. 304, the rule was laid down that the court will not set aside a plea of a release by one of several co-plaintiffs, unless it is clearly shown to have been made in fraud of the other plaintiffs, or unless the releasor be a mere nominal party to the action, having no interest whatever in the subject-matter of it. In the case of Alner v. George, 1 Camp. 392, Lord Ellenborough ruled that this equitable jurisdiction could not be exercised by a single judge at Nisi Prius.

(vv) Baker v. Stonebreaker, 36 Mo. 338.

(w) Pinnel's case, 5 Rep. 117; Cumber v. Wane, Stra. 426; Thomas v. Heathorn, 2 B. & C 477; Fitch v. Sutton, 5 East, 230; Blanchard v. Noyes, 8 N. H. 518; Wheeler v. Wheeler, 11 Vt. 60; Bailey v. Day, 26 Me. 88; Down v. Hatcher, 10 A. & E. 121; Geiser v. Kershner, 4 Gill & J. 305; Watkinson v. Inglesby, 6 Johns. 886; Dederick v. Leman, 9 Johns. 333 ; Seymour v. Minturn, 17 Johns. 169; Bobbins v. Alexander, 11 How. Pr. Rep. 100; Hinckley v. Arey, 27 Me. 362. But it has been held, that upon a plea of payment, the acceptance of a less sum may be left to the jury as evidence that the rest has been paid. Henderson v. Moore, 5 Cranch, 11; Blanchard v. Noyes, 3 N. H. 618. -Payment of a debt alone, without the costs, made after suit brought, is not a good payment to bar the action. Costs with nominal damages may still be recovered, at least up to the time of payment. Stevens v. Briggs, 14 Vt. 44; Goings v. Mills, 1 Pike, Ark. 11. And see Horsburgh v. Orme, 1 Camp. 558, note; Godard v. Benjamin, 3 Camp. 331; Goodwin v. Cremer, 18 Q. B. 757, 16 Eng. L. & Eq. 90; Kemp v. Balls, 10