Frederic W. Paine et al. Executors &c. versus William Drury, 19 Pick. 400

Putnam J. afterward drew up the opinion of the Court. We are all of opinion, that the plaintiffs cannot maintain this action. The holders of the notes were entitled to the money which they have received ; and the defendant has not requested the plaintiffs to pay any thing for him, or on his account. In regard to the note for $500, which is first mentioned in the statement of facts, the money borrowed was, at the time of the transaction, divided between the defendant and the plaintiff’s testator, viz. $ 300 to the former, and $ 200 to the latter.

In that proportion the parties were equitably bound to contribute towards the payment, notwithstanding the terms of the note ; and after the death of Abel, the testator, the executors paid the $200, which the testator should have paid, and the defendant paid the $ 300 which he was to pay ; and the note was taken up. But the estate of Abel, contrary to the expectation of the plaintiffs, proved to be insolvent; and they' now call upon the defendant to pay the difference between the full sum they have paid, and the amount of the distributive share of the estate of their testator.

This was a voluntary payment by the executors, of what Abel ought to have paid. If Abel had paid it himself, it is very clear that he could have no legal or equitable remedy against William; because each would have paid just what he was liable to pay ; and the executors are not in a better situation to recover any thing of the defendant on account of money paid upon that note, than Abel himself would be, if he were living and had paid it himself. And the case is equally clear for the defendant on the second note mentioned in the report. In í/taí, Abel was principal, and William, the defendant, was surety.

If the principal had paid the debt, it would be doing just what he ought to have done. Nobody could pretend, that he had any legal or equitable claim on William, the surety, for contribution or assistance. Now the executors of the principal have paid just what the principal ought to have paid ; and they have no right to reclaim any part of it from the defendant, the surety. The plaintiffs paid voluntarily and without any request by the defendant.

It is true .that the executors of Abel might have lain by, and that the bank might have sued the defendant, the surety, and compelled him to pay the debt; and in such case, the defendant could have had his remedy under the commission, as in the other case. But the executors did not do so ; they volunteered, without the defendant’s request, to pay the money. The cases cited for the plaintiffs do not sustain this cause. In Exall v. Partridge, 8 T. R. 308, the plaintiff was compelled to pay the rent, in order to get back his goods which had been legally distrained on the premises for non-payment of the rent.

It was the duty of the tenant to have paid the rent and relieved the plaintiffs’ goods. But it was not the duty of the surety to pay the debt of the principal; the duty was right the other way. So in the case of Colley v. Streeton, 2 Barn. & Cressw. 273, the superior landlord had required the plaintiffs, who were his tenants, to repair, under threat of an ejectment. The defendants were sub-lessees, and came under an obligation to repair, and were notified by the plaintiffs, that they, the plaintiffs, would repair if the defendants did not.

The defendants refused ; and the plaintiffs were compelled to repair for the preservation of their term. But there are no circumstances in the case at bar, from which a promise may be raised or implied by law, on the part of the defendant, to repay. The plaintiffs could not make themselves creditors of the defendant without his consent, express or implied. Here is neither. And we are all clearly of opinion, that the plaintiffs must be nonsuit.