Exch. of Pleas, were due from the landlord, and made default; and the

1841.

PRIOR

v.

HEMBROW.

landlord having been obliged to pay, sued him for the amount as money paid to his use; it was held, that as the landlord was originally liable for the taxes, and exempted from them only by agreement with the tenant, he should have declared specially on such agreement, and could not recover in indebitatus assumpsit. That case goes much further than the present, because there the defendant was liable for the money, but as he was not liable to the person to whom the plaintiff paid it, it was not money paid to the defendant's use. Now this was money paid to a person who had no right to call upon the executors to pay him, and who could not have compelled them to pay it. [Alderson, B.— The substantial question, according to that case, is, are they liable to pay at all?] Whether these defendants are liable at all, is another question; but it is submitted they are not. This is not like the ordinary case where the executors are in the situation in which their testator would have been had he survived. What is the effect of this stipulation in the order of reference? It does not make the executors parties to the award. Its effect merely was to prevent the arbitration being revoked, and the case being, after so much expense incurred, sent back to the Court of Chancery. There is nothing in it to make the executors liable, or to shew that such was the intention. [Lord Abinger, C. B.-Could not the executors move to set aside the award?] No: they are not parties to it; much less parties to the reference. [Alderson, B.-They would be liable to the costs of the suit in equity.] That shews that the trusts remain. The executors have no interest in the award, nor was it ever intended that they should have any; and therefore it is not stipulated that they are to come before the arbitrator. The arbitrator has not decreed that the executors shall pay any costs. The defendants are here sought to be charged personally, and not merely as executors.

be

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v.

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Cresswell, in reply.-The defendants are not charged in Exch. of Pleas, their own right, but as executors. It has been held, that a count for money paid to the use of the executors may joined to counts on promises to the testator; which shews that the executor is charged in that action in his representative, and not in his individual capacity. Corner v. Shew (a), Ashby v. Ashby (b). In the latter case there is a semble to the marginal note, "that a count for money paid by the plaintiff to the use of the defendant as executor, may be joined with such a count upon an account stated." It is put as a semble, because it was not the point decided; but all the Judges say so. Each of these parties is a surety for the other, and the law therefore implies a promise to indemnify any one for what he shall be called upon to pay for the others. In Hutton v. Eyre (c), it was held that one joint contractor who pays money for another under an equitable claim, may recover it from the other as money paid to his use. [Lord Abinger, C. B.-Suppose Hembrow had died without a will, would his administrator have been a party to the reference?] Yes, for some purposes he would, though he would not be personally liable. [Alderson, B.— If the executors were not parties to the reference in some sense, it would amount to a revocation.] The defendants are liable as Hembrow's representatives, so as to bind his estate, and to render them liable to apply it to that purpose. If he has agreed that his estate shall be liable after his death, the arbitrator had full power over the costs, and might have awarded Hembrow to pay the whole; but he orders them to pay their costs proportionably, and his executors are therefore liable.

Cur. adv. vult.

The judgment of the Court was now delivered by

(a) 3 M. & W. 353.

(b) 7 B. & C. 444.

(c) 6 Taunt. 289; 1 Marsh. 603.

Exch. of Pleas, 1841.

PRIOR

V.

HEMBROW.

ALDERSON, B.-This was an action brought by the plaintiff against the defendants, as executors of John Hembrow, deceased, to recover from them a sum of 1471. 188. 6d. as money paid by the plaintiff to the use of the defendants as such executors. The plaintiff and the testator, and several other persons, were trustees and managers of the chapel in Tottenham Court Road; and disputes having arisen as to the conduct of one of their body of the name of Bateman, an information and bill was filed in the Court of Chancery, at the relation of all the trustees except Bateman, against Bateman and another person, praying, amongst other things, an account against Bateman in respect of such part of the trust funds as had come to his hand, and also praying for the interposition of the Court as to the future management of the trust. Bateman, by his answer, amongst other things, charged the relators and plaintiffs with breach of trust in their management of the trust funds. By an order of the Vice-Chancellor, on the 22nd November, 1837, the cause and all matters in difference were referred to Mr. Boteler, who was to have full authority over the costs of the suit and of the reference; and the order expressly provided, that the death of any of the parties should not operate as a revocation of the arbitrator's authority, but that his award should be delivered to the personal representatives of the deceased party or parties. During the reference J. Hembrow, the testator, died, and the defendants, as his executors, proved his will; and Mr. Boteler duly made his award, and thereby, amongst other things, directed that the costs of the reference should be borne and paid by the parties by whom the same were incurred.

The present plaintiff paid to the solicitor employed in the conduct of the reference the full amount of his costs, and the defendants paid to him the amount of the testator's share of those costs incurred in his lifetime.

The present action is brought to recover 1477. 18s. 6d.,

1841.

being the testator's proportion of the costs incurred after Exch. of Pleas, his death, including 277. 10s., as his proportion of the costs of the award.

The facts are brought before the Court on a special case stated under the provisions of 3 & 4 Will. 4, c. 42, s. 25, which was argued before my Brothers Gurney and Rolfe and myself, last term, and the question for our decision is, whether the plaintiff is entitled to recover. We think he is. It cannot perhaps be stated as a universal proposition, that in all cases where two or more jointly employ a third person, there is an implied undertaking in all to contribute rateably inter se, so as to bind the executors of a deceased co-contractor. Every such case must stand on its own ground. Here the joint employment of the solicitor was for the equal and several benefit of all; those who might die were interested in the reference, as well as those who survived. If Bateman could have established the point raised by his answer, that the relators had misapplied the trust funds, they would have been severally liable, and the assets of any who might die would have been liable to make good the breach of trust. It was an express stipulation in the order of the Vice-Chancellor, which having been made by consent must be taken as the agreement of the parties, not only that the reference should not fail by the death of any of the parties, but further, that the award should be delivered to the executors of any party dying pending the reference. This case, therefore, appears to us to stand on the same footing as that of several persons jointly contracting for a chattel, to be made or procured for the common benefit of all-the building of a ship, for instance, or the furnishing of a house, and as to which the executors of any party dying, before the work is completed, are by agreement to stand in the place of the party dying. In such a case, though the legal remedy of the party employed would be solely against the survivors, yet the law would certainly imply a contract on the part of the de

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Exch. of Pleas, ceased contractor, that his executors should pay their pro

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portion of the price of the article to be furnished.

We see no distinction in principle between such a case and the present, and we therefore think the plaintiff is entitled to judgment for the full amount of his demand.

Judgment for the plaintiff.

IN THE EXCHEQUER CHAMBER.

(In Error from the Court of Exchequer.)

Plea, to an action of covenant for rent due for

PALMER and Another v. GOODEN and Others.

A WRIT of error having been brought on the judgment

of the Court of Exchequer in this case (a), it was now turnpike tolls, argued by

that before it became due,

the trustees, on

&c., entered

the tolls, and then ejected, expelled, put out, and re

Erle, for the plaintiffs.-The objection to the replicainto and upon a tion, which is pointed out by the demurrer, is that it puts certain part of in issue two facts, a material and an immaterial one-the expulsion and the entry. But first, the plea contains a statement of one point of defence only, namely, an eviction. The entry and expulsion together amount to an possession eviction. If the defendant had alleged in the plea that kept and conti- the plaintiff had evicted him, that might have been traejected, &c., versed in the same terms by the replication. This case, from thence hitherto. Replication, that the trustees did not enter into or upon the said part of the said tolls, or eject, &c., the defendant from the possession thereof, modo et formâ.

moved the defendant from

thereof, and

nued him so

Held, on error in the Exchequer Chamber, (reversing the judgment of the Court of Exchequer), that this replication was good on special demurrer, although it put in issue not only the expulsion but also the entry, the latter being immaterial and impossible; and that the defendant having mixed up the entry and expulsion as constituting the eviction, the plaintiff had a right to follow him, and to accept the issue as tendered.

(a) 7 M. & W. 486.