
    Gibbs versus James Bryant.
    The plaintiff signed a promissory note with T., payable to W., for money lent by W. to T. and the defendant, and T. and the defendant gave the plaintiff a joint written promise of indemnity. The plaintiff paid the note; and it was held that he might sue upon the implied promise for money paid, or upon the written promise, at his election; and that, if the written promise contradicted the implication of law, the defendant might show it.
    T. not being served with the writ, although named in it is not a party to the suit, and, being released by the defendant, is a competent witness.
    Money paid for another carries interest from the time of payment.
    Assumpsit for money paid, laid out, and' expended. The action was brought against James and Thomas Bryant ; but no service was made upon Thomas, he being out of the Commonwealth. At the trial, before Parker C. J., the plaintiff having stated, as the ground of the action, that in 1811 he signed a promissory note with Thomas, payable to one Warner, for money lent by Warner to James and Thomas, and that he afterwards, in May 1812, paid the note, upon the demand of Warner. The defendant said, that a written promise to indemnify the plaintiff had been signed by himself and Thomas at the time of making the note, and that notice had been given to the plaintiff to produce it. The written promise was then produced in court; upon which the defendant moved that the plaintiff should be nonsuited, because, there being a special promise in writing to indemnify the plaintiff, he could not maintain the action upon an implied promise. This motion was overruled, and the plaintiff was permitted to prove the making of the note, the purpose for which it was made, the payment of it by himself, and the joint interest of James and Thomas in the money which the note was given to secure. The jury returned a verdict in favor of the plaintiff for the sum paid by him, with interest from the time of payment.
    The deposition of Thomas was offered in evidence by the defendant, but rejected, although the defendant offered to prove that he had released Thomas from all claims in consequence of any recovery against himself in this action.
    The defendant now moves for a new trial.
    
      J. Davis, in support of the motion.
    Where there is an express promise, the law does not raise an implied one. Tous
      
      saint v. Martinnant, 2D. & E. 100. The special contract in the present case was not rescinded nor waived, and a party cannot resort to indebitatus assumpsit, so long as the special contract subsists. Brig's case, Palm, 364; Power v. Wells, Cowp. 818; Weston v. Downes, Doug. 23. The express promise of indemnity was the best evidence of the plaintiff’s claim, but it was neither declared on, nor offered in evidence ; and it could not be offered in evidence to support this declaration. It ought to have been declared on, because the defendant would have pleaded the statute of limitations, if he had been aware of the ground of the plaintiff’s action. It makes no difference, that the money was lent to both James and Thomas. The note given to Warner was signed by the plaintiff and Thomas, and not by James, and if it was understood at the time that the money should be considered as lent to Thomas only, then James is protected by the statute of frauds.
    The testimony of Thomas did not come within the general rules for the exclusion of evidence, and ought not to have been rejected. Loker v. Haynes, 11 Mass. Rep. 500; Case v. Reeve, 14 Johns. Rep. 81; Van Nuys v. Terhune, 3 Johns. Cas. 82. He is not a party to the suit, because there has been no service upon him, and he stands in the same situation as if he had not been named in the writ. If he is to be excluded on the ground of interest, it must be in consequence of his being a party to the note to Warner, but that is no sufficient objection. Warren v. Merry, 3 Mass. Rep. 27; Charrington v. Milner, Peake, 6; Humphrey v. Moxon, ibid. 52; Adams v. Lingard, ibid. 117; Woodhull v. Holmes, 10 Johns. Rep. 231; Loker v. Haynes, before cited. He cannot gain or lose by the event of this cause, nor can the verdict be given in evidence in his favor, or against him, in another suit. Not against him, because he is not a party to this action. [ Wilde J. Suppose a partnership proved.] A judgment against one partner would discharge the other. [ Wilde J. Then James would claim contribution from Thomas.] James has given him a release. And the verdict cannot be used in favor of Thomas for the plaintiff can bring no action against him after having proceeded against James alone. Bac. Abr. Obligation, D. 4. If James is sued again, he may plead this action in bar, and if Thomas is sued alone, he may plead in abatement the nonjoinder of Jambs.
    Another objection to the verdict is, that interest was allowed on the money paid by the plaintiff from the time of the payment. Wood v. Robbins, 11 Mass. Rep. 504.
    Lee, for the plaintiff.
    There are many excep 'ions to the general rule, that when there is a special contract, it must be set out in the declaration. In no case, in which there was a simple contract in writing, where a right of action had ac crued, and nothing but a mere duty to pay money remained to be performed, has it been held that a common count was not sufficient. Felton v. Dickinson, 10 Mass. Rep. 290; Poulter v. Killingbeck, 1 B. & P. 397; Mussen v. Price, 4 East, 147; Dutton v. Solomonson, 3 B. & P. 582; Brooke v. White, 4 B. & P. 330; Hoskins v. Duperoy, 9 East, 498; Shaw v. Loud, 12 Mass. Rep. 447; Clarke v. Gray, 6 East, 569; 1 Chit Pl. 295. In the case of Toussaint v. Martinnant, there was a specialty, which rests on different principles. An action for money had and received will lie on a promissory note, or bill of exchange, which are as much special contracts as this • memorandum. The plaintiff alleges, that he has paid so much money for the use of the defendant. The defendant has had an opportunity to show that he did not pay it, or to plead the statute of limitations, or make any other defence. If the plaintiff had also declared on a special agreement, and failed to prove it, he might still recover, if his evidence supported the general counts. Tuttle v. Mayo, 7 Johns. Rep. 132; Keyes v. Stone, 5 Mass. Rep. 391.
    Thomas was a party to the record, and it would be dangerous to admit the testimony of a person so situated. He might go out of the Commonwealth on purpose to be a witness for his co-defendant. It is said, that if Thomas is sued, this verdict cannot be used as evidence ; but suppose an action brought against Thomas and James both, this verdict may then be used. Phil. on. Evidence, ch. 5, §§1, 2; Goodacre v. Breame, Peake, 176; Raven v. Dunning, 3 Esp. 25; Steinmetz v. Currie, 1 Dallas, 269; Bull. N. P. 285.
    On the question of the interest allowed, Lee was stopped by the Court.
   The opinion of the Court was delivered at the adjourned term, in November.

Per Curiam.

The first reason for setting aside the verdict is, that there was a special agreement which ought to have been declared on. This objection cannot avail the defendant, because the written contract produced contained nothing more than what the law would imply. The right of action rests upon the payment of money for the use of the defendant. The law raises a promise, and the plaintiff may make use of his written contract or not, as he pleases. If there is any thing in the written promise to contradict the implication of law, the defendant may show it.

Another objection to the verdict arises out of the rejection of the deposition of Thomas Bryant, and we are of opinion, that his testimony is admissible. He is no party to the suit, because the writ was not served upon him. His being a party to the contract is of no consequence, if he is not interested in the event of the suit. If the plaintiff recovered against his partner, it would be a bar to an action against him, because, there being a joint contract, bis partner could not be sued again, neither could he be sued alone. He was interested only because he was liable to a contribution to his partner ; but, being released by his partner, he was rendered a competent witness.

In regard to the other point, interest is to be allowed upon money, paid at t{ie request and to the use of another, from the time of the payment. The questions respecting interest have arisen in cases of money had and received.

New trial granted. 
      
       See Linningdale v. Livingston, 10 Johns. R. 36; M'Williams v. Willis, 1 Wash. (Virginia) R. 202; Goodrich v. Lafflin, ante, 57; Thurston v. Percival, post, 415.
     
      
       See Purviance v. Dryden, 3 Serg. & R. 402; Le Roy v. Johnson, 2 Peters’s S. C. R. 186. In an action against two partners, one of them, who was returned non inventus by the sheriff, may be sworn to prove the amount of the demand, on the part of the plaintiff; but he cannot be compelled to give evidence. Norman v. Norman, 2 Yeates, 154. See Henderson v Lewis, 9 Serg. & R. 379.
     
      
      
        Ward v Johnson, 14 Mass. R. 148; Robertson v. Smith, 18 Johns. R. 459.
     