The opinion of the Court was drawn up by
Whitman C. J.The plaintiff and defendant, and one Mower, were co-promisors in a note, made by them to the Pres. D. & Co. of the Central Bank, for a large sum of money, of which, at the August Term of the District Court, at Augusta, in 1840, the sum of $857,93, was found to be due; and judgment was then rendered therefor,, with costs of *151suit, taxed at nine dollars, against the promisors; and execution thereon was subsequently issued, and levied upon the property of the plaintiff. He now seeks to recover of the defendant the one third part thereof.
It is generally true, that, if one of two joint contractors pays money, for which they may have made themselves jointly liable, an implied undertaking on the part of the other is inferred, that he will reimburse his co-promisor for the one half of the amount so paid. But if the debt were originally due from some third person, and the security had been given therefor by the co-promisors, in consideration of funds furnished by him, with which it was agreed the debt should be paid, and such funds had been intrusted to the management of him, who had been compelled to pay the amount in discharge of the joint promise, and he had not been careful to appropriate the funds according to agreement, no promise could be implied, that he should be reimbursed for any portion of the amount he might have been compelled to pay on the joint contract. The defence, in this case, is, that the plaintiff has been furnished with such funds, and has omitted to apply them as had been agreed.
Whether such was the fact or not was submitted to a referee, by rule of Court, by consent of parties, to be ascertained ; and he has reported in favor of the defendant. The reference, however, was with a reservation as to any questions of law, which might arise in the investigation, which were to be, by the referee, reported for the consideration of the Court.
The questions of law made by the counsel for the plaintiff, and reported by the referee, are numbered from one to ten inclusive; and certainly savor very much of subtilty, and an over nice attempt at shadowy distinctions. The first would seem to be rather a felo de se. It is, that co-assignees cannot recover of each other for any liability, either as such assignee, may incur; and yet the plaintiff's claim is founded upon such a liability. The three co-promisors were the assignees of the estate of one Dow, and had given the note, on which the action against them was founded, as such assignees. Some of *152the other questions are predicated upon an assignment, or assignments, made previously to the one under which the plaintiff acted; and upon obligations supposed to arise out of them. But nothing can be more manifest than that those previous assignments were all waived by and merged in the one under which the plaintiff acted. One other of the questions-relied upon is, that, as the co-promisors gave their joint note to the bank for the debt in question, before due from their-assignor, they thereby paid it, and so that Bow’s funds, in their hands, were thereby released from the priority attached to them, by the assignment, for that debt; and, thereupon, that the other creditors of Bow were let in to claim them. But the assignees had given their note, as such assignees, and, unquestionably, with a reliance, for the means of paying it, upon the funds in their hands;, by virtue of the assignment, specially appropriated for that purpose. Equity would consider them as- substituted for the bank, in reference to such funds, and the law could not consider them otherwise. And, moreover, there is not any pretence that the- other creditors of Bow ever attempted, upon any such ground, to interfere with the funds assigned.
Two of the questions made were, as to. the competency of witnesses admitted to testify before the referee, viz: the co-as-signee, Mower, and the assignor, Bow. But it is difficult to see upon what ground they should have been excluded. The decision in this case could not be used for or against either of them. It is not apparent that Bow could be affected, even remotely, by it, in any event. Mower may be considered as having an interest merely in the question, as he may stand in a-, similar condition as that of the defendant; but this could not affect his competency.
Report accepted.