Turner v. Egerton , 1 G. & J. 430 ( 1829 )

Buchanan, Ch. J.

delivered the opinion of the Court.

This is the case of an administrator who thinking he has paid off all the debts of the deceased, delivered over to the children of the deceased, the proportions of the residue of the personal estate, to which they were respectively supposed to be entitled as distributees. But being afterwards compelled by a recovery at law, to pay a considerable debt due by the deceased, of which he was not at the time aware, and having in part paid the debts of the deceased, out of his own private funds, brought his suit against one of the distributees to recover a just proportion of the amount so recovered against, and paid by him. The counts in the declaration for matters proper chargeable in account, money lent and advanced, money had and received, and on an insimul computassent, are entirely out of the question, there being no evidence in the cause [in any manner or sense applicable to either of them; and the question is, whether, under the circumstances disclosed, the plaintiff is entitled to recover on the count for money laid out and expended.

It has been urged, that where one is benefited by the payment of money by another, the law raises an "assumpsit against the party benefited, in favour of the party paying the money, but the universality of that proposition is not admitted. A stranger cannot at his pleasure make me his debtor, whether I will or not, by paying a debt due from me to another. Such a payment might ordinarily be deemed to be for my benefit, yet the law does not in such a case raise an assumpsit. If it were so, it would be to put every man who owed a debt at the mercy of an enemy, who might choose to make himself his creditor with- j out his concent or authority, for the purpose of harrassing and dis-f tressing him: and to deprive him of defences which he might have had to a suit by his original creditor, but of which he would not be able to avail himself, against such newly created liability. It is true that where one is compelled to pay the debt of another, he may recover against him in an action for money-paid, &c. upon the promise which the law implies, as in the case of money paid by a surety in a bond, which is considered as paid to the use of the principal, and may be recovered in an action against him for money paid, &c. But that is not this case. Here was no debt due from the distributee to the creditor of the intestate, no demand which could have been enforced at law against her; and the money paid by the plaintiff, though not voluntarily, but under a recovery against him in a suit at law, was in discharge of his own liability as administrator, and not of a debt due from the distributee, nor on account of his being placed in a situation of responsibility by any act of hers. It was not therefore a payment of money to her use, for which the law will raise an implied promise of repayment, on account of there being in her hands a portion of the personal assets- of the intestate. If in such a case as this, an action at law could be maintained on the ground of an implied assumpsit, it would be in the power of fraudulent or negligent executors and administrators, by covinously or carelessly suflering judgments to go' against them, and constituting themselves creditors of legatees, and distributees without their knowledge or authority, so to change their predicament against their consent, as in suits at law instituted upon such implied promises, to deprive them of the benefit of defences, that might he accorded to them in proceedings in Chancery against theifunds in their'hands, by the original creditors of the deceased, which would be of mischiev,ous consequence to legatees and distributees. And it would be unjust to permit an executor or administrator, by thus constituting a legatee or distributee his debtor, without his consent or knowledge, to place him in a worse situation in relation to that debt than he stood in before; which would be the case if he could pursue him for the recovery of it, on an implied assumpsit, in a court of law instead of a court of equity, where alone-he could have been called upon before, where equity is administered, in a manner, in which it cannot be in a court of law. • A court of law not being a fit tribunal to investigate and unravel accounts of executors and administrators, and not being so constituted as to be able, to take into consideration, in the manner that a court of equity would, how the funds were in fact appropriated, and the mode in which they might, and ought to have been applied. With this view of the subject, we think with the court below, that the plaintiff is not entitled to recover,, and that in bringing his action in a court of law he mistook his-tribunal, and ought to have sought his remedy in a court of equity, where matters of the kind are properly cognizable, and: the interests of all parties equally protected.

judgment affirmed.