
    * Richard Austin versus Keyran Walsh.
    A and B jointly ship goods, and consign them to the master for sales and returns, A only being known to the master. After the ship’s departure, A and B agree to sever their interest in the adventure, and A gives B a written direction to the master to account with B for a moiety. Upon the ship’s return, B shows the ' direction to the master, and demands payment of him. The master not having brought the proceeds in the ship, refuses to account with B, but at the same time says he was ready to account with the right owner, and when the proceeds should arrive, he would pay them to B if they belonged to him. This was a sufficient promise to support an action of assumpsit by B against the master, for the moiety. In such an action, A is a competent witness for the plaintiff.
    This was an action of assumpsit for money had and received, and was tried before Parker, J., at the last November term, when a verdict was found for the plaintiff, subject to the opinion of the Court upon the report of the judge. From this report it appeared, that Walsh, in February, 1800, was master of the ship America, bound on a voyage from Boston to Teneriffe and La Vera Cruz lie received merchandise from one William H. M’Neil, to be sold at La Vera Cruz, and promised, in writing, to account with M’Neil for the amount of the invoice and one half of the profits. He made the voyage safely, and certain profits accrued, according to account rendered by him, amounting to one hundred per centum on the invoice price.
    At the time of the shipment, Austin advanced to M’Neil one half of the adventure, and was, by agreement with M’Neil, to receive one half of the proceeds of the whole adventure. This was proved by an acknowledgment subscribed by M’Neil on a copy of the invoice on the same day the shipment took place; and also by M’Neil himseli, who was admitted to testify to this fact, after being objected to by the defendant’s counsel; but it did not that Walsh had knowledge of Austin’s interest in the adventure before he sailed. After the ship departed on hei voyage, M’Neil, becoming insolvent, executed a deed in which he acknowledged Austin’s interest in the adventure, made him his attorney to receive the one half of the proceeds to his own use, and directed Walsh to pay over the same to him.
    
      vol. ii. 33
    
      On the return of the ship to Boston, Austin demanded of Walsh his half of the proceeds, showing him the evidence of his property, and forbidding him to pay it to any one but himself. Walsh refused to pay Austin, but said he was ready to account with the right owner, and promised, upon the arrival of the proceeds from the Havana, where he had left them, to pay to Austin, if they be longed to him.
    [ * 402 ] * Upon these facts the defendant’s counsel insisted, on the trial, first, that the interest of Austin and M’Neil being joint, this action could not be maintained by Austin alone for a part, but should have been brought by them jointly for the whole; secondly, that Walsh’s contract being with M’Neil alone, it could not be assigned in whole or in part, so as to authorize an action in the name of another.
    These objections were overruled by the judge, on the ground that it was sufficiently proved that Austin was originally interested in one half of the adventure ; that this had been made known to Walsh, and a promise made by him to pay Austin, if he were the owner; and also that the action was not founded upon the contract, and that Austin ought not to be compelled to unite in an action with an insolvent debtor, who might not have any interest in the contract at the time of bringing the action.
    It was also contended that. M’Neil was not a competent witness; but he being called merely to prove that the papers were executed at the times they respectively bore date, and to prove what Walsh had declared the profils to be, this objection was also overruled.
    As this trial was final on the part of the defendant, a verdict having been before rendered for the plaintiff, these questions were reserved for the opinion of the Court. A verdict was given for the sum due to the plaintiff, which is to be set aside, and a new trial granted, if the Court so determine; otherwise, judgment is to be entered according to the verdict. ”
    
      Everett, for the defendant.
    A creditor, whether on a special or simple contract, cannot sever his demand so as to subject his debtor to two actions, where he had originally made himself liable but to one. This action certainly grows out of the original contract made between M’Neil and the defendant; and the plaintiff, if he can maintain this action for a moiety of what is due from the defendant, must prevail in direct contradiction to the principle above referred to, and which is so well established that it would be idle to occupy the Court with hearing authorities in support of it. If M’Neil ought by law to have * been joined in the action, [ *403 ] it follows necessarily that he was not a competent witness in the trial.
    
      W. Sullivan,
    
    of counsel for the plaintiff, (being desired by the Chic f Justice to confine his observations to these two questions — whether there was evidence of Walsh’s assent to the severance of this con tract, and whether M’Neil was a competent witness,) said that, for the first point, he relied on the application made by the plaintiff to Walsh upon his return, in which he showed him the documents of his ownership, and demanded payment of the moiety belonging to him; and upon the answer made by Walsh to that application, in which he made no objection to the severing of the contract, but refused to account at that time, as indeed he well might, the property being then in the Havana, and added that, when it arrived here, he would be ready to account and pay to the right owner. The amount of this answer was, “ I am not competent to judge at this time on the legality of your claim upon me; but when I am satisfied that you are the real owner of this property, I engage to deliver it to you.” This, at least, was the construction the plaintiff gave to it; and the jury, to whom we contend the judge very properly referred the question, have by their verdict confirmed that construction.
    As to the second point, — M’Neil’s competency, —if he had any interest in the event of the suit, it was to testify against the party who produced him. If the plaintiff failed to recover in this action, Walsh would be accountable to M’Neil for the whole proceeds of the adventure, although the latter would undoubtedly be answerable to the plaintiff. This verdict never can be used for M’Neil, but it may go to lessen his demand on the defendant. If, therefore, his testimony had any weight in the trial, it was immediately against his own interest. But if, as we have contended, this contract was in fact severed, then all objections to his competency are done away
    
      Everett, in reply.
    What passed between the plaintiff and defendant, upon the arrival of the latter, was in effect no more than a declaration, on the part of Walsh, that he would pay this money to Austin, or any one else who should prove a legal * claim to it. He found M’Neil was in insolvent cir- [ * 404 ] cumstances. He might think that the law had made a disposition of his credits, or he himself might have made a legal assignment of this demand. He was therefore cautious. “ If the law gives you this money, as an honest man I am ready to pay it to you.” To construe this into an agreement to sever the contract, and t<r make himself liable to two actions, when he knew he had made but one engagement, is refining too much.
    Perceiving the Court to incline against him on the first point suggested by the Chief Justice, Everett said, if they were satisfied that there was a severance of the promise, so that Walsh was liable to the separate action of Austin, he would not insist on his objections to the competency of M’Neil as a witness.
   The opinion of the Court was delivered by

Parsons, C. J.

This case comes before the Court upon the reservation of the judge of certain points which arose in the trial of the cause.

It appeared at the trial that the plaintiff and one William II. M’Neil were jointly and equally interested in an adventure shipped on board the ship America, and consigned for sales and returns to the defendant, the master: that, at the time of 'the shipment, Austin was not known to Walsh, as a partner; and the defendant had agreed to account with M’Neil or his assigns. The adventure was profitable: and the defendant, before the commencement of this action, held the proceeds in cash, for one moiety of which the action was brought. Immediately after the shipment it was agreed by Austin and M’Neil, the partners, to sever their interest, and that Walsh should account with Austin for his moiety; and M’Neil gave Austin an order on Walsh for this purpose. When Walsh first returned, he had left the proceeds at the Havana; and immediately on his return, —M’Neil having in the mean time become insoh'ent, — Austin showed Walsh the evidence of his original partnership, of the agreement between him and M’Neil to sever their interest, and that Walsh should account with Austin for his moiety. Walsh refused to pay Austin, but said he was ready to [*405] account with the * right owner, and promised, on the arrival of the proceeds from the Havana, to pay Austin, if they belonged to him.

M’Neil was a witness for the plaintiff, to prove the execution of the writings which proved Austin’s partnership with him, and their agreement to sever their interest, and also Walsh’s confession of the amount of the profits of the adventure. His admission was objected to by the defendant.

On these facts the judge directed a verdict for the plaintiff for a moiety of the proceeds.

The defendant objected to the admission of M’Neil as a witness, because he was interested ; and he excepted to the direction of the judge, because M’Neil was not made a joint plaintiff with Austin.

After hearing the parties, the Court are very clearly of opinion that, M’Neil and Austin being original partners, no agreement ol theirs to sever their interest could entitle either of them to sue alone for his moiety, and that Walsh might take the exception in this case, under the general issue, unless, after notice of the partnership, and of an agreement to sever their interest, he had consented to it, and to account with each for his part, This consent might be either express or implied. If a factor should in fact account with and pay one partner his share, and thereby discharge all his interest in the partnership, this would be an "mplied engagement to account with each partner severally. The second exception must be decided according to the construction we put on the promise to Austin by Walsh, after his return. We cannot adopt the construction of the defendant’s counsel, that it was merely a.n engagement to do what the law would oblige him to do. Upon this construction, his promise is a mere nullity, and a waste of words. The natural construction is, that Walsh, not meaning to decide on Austin’s right, promises, if he should in fact be entitled to a moiety, to account with him for it. The evidence in the case establishes Austin’s right, and the promise of Walsh must be considered as obligatory to Austin to pay him his moiety. We are therefore satisfied that it was a proper direction of the judge to the jury, *that, if they believed the testimony [ *406 ] in the cause, they might legally infer that Walsh made the promise declared on. The jury have made this inference, and, we think, have done right.

As the action was grounded, not on the original promise to M’Neil, nor on any implied promise resulting from the partnership, but upon the express promise of Walsh to Austin, the exception against M’Neil, as an interested witness, has no foundation.

Let judgment he entered according to the verdict. 
      
      
         Peters vs. Davis, 7 Mass. Rep. 257. — Russell vs. Swan, 16 Mass. Rep. 314. 1 Chitty Pl. 10, 11, 16, 17, 18, 5th Lond. ed.
     