Ebenezer Huntington and Henry Howard, Administrators of Jonathan Shattuck, deceased, vs. Milton Wilder, 6 Vt. 334

The opinion of the court was pronounced by Williams, Ch. J. — The question which was principally re-lied on in the county court must have been made without attending to the ninety-first

section of the judiciary act. In that

section it is enacted, that the representative of one jointly hold-en by a contract rpay be charged as on a several contract.There could be no doubt, therefore, that the note mentioned-,, which was executed by the intestate, if there were no other valid objection to it, constituted adegal claim against his estate. There seems, however, to be other formidable objections to the claim of the plaintifFs, arising from the state of facts found by ^ie county court, and set forth in the bill of exceptions.

To maintain an action for money paid, laid out, and expended, (and it appears there was no count in the declaration for any thing else,) the money must have been paid on request of the person charged, either expressed or implied. No one can by voluntarily paying money for another, without request, make that person his debtor. Unless, therefore, Shattuck in his life time had given the note to Howard, not only for the benefit of the defendant, but at his solicitation, he could maintain no action against the defendant in consequence of having paid the money thereon.

It does not appear in the case that there was any such- request, or any privity between Shattuck and the defendant. 'The note was executed at the request and by the procurement of Fisher alone, who appears as the friend or agent of the defendant, the intestate, Shattuck, receiving as a pledge or security therefor an obligation against one Scott. Fisher’s agency did not authorize him to procure Shattuck to give this note for the benefit of the defendant.

His authority was specific for a particular purpose only, as appeared from the facts found; and whenever an agent is constituted for a particular purpose, and with a limited authority, he cannot go beyond that purpose or exceed the authority, and bind his principal, though he may bind himself. The only authority which Fisher had from the defendant was, to carry the note against Scott to Howard, and give it to him in discharge of the execution which Howard had against the defendant.

When Howard refused this arrangement, Fisher’s authority was at an end, and he was not at liberty to give his own note, or make any other security or payment of the execution. The defendant may have had a particular object in assigning or selling the Scott note. He might have had a legal defence against the demand of Howard, and been willing to give him this note rather than contest the claim. At all events, he gave no authority to Fisher to do any thing further for him than to give the • note in discharge of the execution.

As this authority was particular, no request can be implied from the defendant, either to Fisher to make any other payment of the execution, or to procure Shattuck to give the note which his administrators have paid. If any authority had been shown, or could have been. implied from the defendant’s authorizing Fisher to pledge or sell the Scott note to Shattuck, and the note proved unavailable for want of consideration, still it would not have enabled the plaintiff to maintain this action, but could only have been ground for an action for money had and received.

The judgment of the county court must therefore be reversed and a new trial granted. As thore is to be a new trial, some other questions which have been raised may properly here be disposed of, as they will probably come before the county court.

It has been contended, that the giving the note to Howard by Fisher and Shattuck was a payment of the execution against the defendant by them jointly; that the cause of action accrued on giving that note to Fisher and Shattuck jointly, and the action should have been brought in their names, or in the name of the survivor. ■ But it may be, and if there is evidence of a subsequent promise by the defendant to the plaintiffs as administrators, after they had paid the money to Chapin Howard, it probably will be inferred, that a request was made to the two to sign the note as joint securities ; and in that case the payment by either would give a right of action against the principal.

It is also said that the discharge given by the administrators to Fisher implies a payment, and that, as administrators, they are not authorized to give a discharge except upon payment. We think a discharge executed by an administrator to a witness, of a collateral interest, does not necessarily imply a payment; that they may release the claim of the estate against a witness, so as to discharge him, without receiving actual payment. By their proceedings they may make themselves accountable, and probably do so; but still it is not to be considered conclusive evidence of the payment of their claim.

The discharge from the heirs of Shattuckj who was introduced as a witness, should have been under seal. This, however, can be remedied at another trial. The judgment of the county court is reversed.