
    Norwood vs. Norwood.
    Ams.u. from Baltimore county court. Jlssumpsit by the appellant against the appellee, for money laid out, expended and paid. Plea, the general issue. At the trial the plaintiff proved that an action of ejectment had heretofore been instituted in the general court, by Charles Carroll and ■other.-.’ lessee, against the plaintiff and defendant in the. present action, for two tracts of land called Enlargement and Brown’s ¿¡¿venture. That after the institution of that ejectment, Carroll and others’ lessee, brought another action of ejectment in the general' court also against the pudn!iff and defendant, for a tract called Yates his Ear" bearance, in which last action the plaintiff there obtained a verdict, and judgment, against the present plaintiff and defendant, for possession of the iract called Yates his Forhpnrrmre. am1 also for the costs exuendcd bv the plaintiff in ’ , ’ 1 • : that action, amounting to .-£186 4 10, the whole of wliifcli was. paid by tile present plaintiff. The plaintiff also proved, that iii the first aforesaid action of ejectment, a judgment of nonsuit was entered, from which there was an app'eál to the Court of appeals, where the saíne was reversed^ and judgment entered for Cdrrdll and others’ lessee, against íhé plaintiff and defendant in this action, for the costs of the appeal, amounting to ¿658 6 4, and which costs were also paid by the plaintiff here, to the agent of Cdrroll, and others, as by á receipt exhibited. This action was brought to recover a moiety of those costs. The defendant then proved; that in the' first mentioned ejectment for Enlargement and Brown’d Adventure, there had been Certain plots and locations made by order of the general court, which were returned and filed in that court as proceedings in that ejectment, and also that certain depo-v sitions of witnesses, relative to the boundaries and lines of those tracts of land, had been taken by consent in that action. That William, Hammond was- the legally authorised attorney of Carroll and others’ lessee, in both of the above mentioned ejectments, and that the plots and .locations, which had been made in the first mentioned action for Enlargement and Brown’s Adventure, were precisely the same that must necessarily be made in the Other ejectment for Foies his Forbearance, as far 'as they went, and that it would only be necessary to make some trifling additions to render them completely sufficient to try the ejectment for Yates his Forbearance, The defendant also proved, that Hammond, the attorney for Cdrroll and others’ lessee, enteied into the following agreement with the defendant in this action: “That the plots used in the former ■ ejectment, which was tried between Charles Carroll, and company, and Edward and Samuel Norwood, shall be used in the cause now depending between the same plaintiffs, and Samuel Norwood, each party having liberty to make such amendments to those plots as they may think necessary.” He also proved, that the plots mentioned in this agreement were the samé which had been made in the ejectment for Enlargement and Brown’s Adventure, and that the cause mentioned, as “now depending,” in the agreement, was the ejectment for Yates his Forbearance„ The defendant also proved, that he entered into another agreement with Hammond, the attorney of Carroll and others’ lessee, “that the admissions of boundaries, proofs " and depositions, taken in the former cause between the same parties, shall be received in evidence in the same ¡planner as if they had been taken in the present suit.” And that the depositions in the last agreement mentioned are the same depositions herein before mentioned, which were taken by consent in the ejectment for Enlargement and Brown’s Adventure, &c. The defendant also proved that hammand, the said attorney, after the two. agree" ments had been entered into, applied to the plaintiff in this action, and desired him, in order to save costs and trouble, to enter in to the same, agreement with him, to which the plaintiff at the time consented, but afterwards utterly refused to do, alleging as his reason, that he never would agree to any thing which was recommended by James Winchester, (the present defendant’s counsel,) and that new plots and locations must be made. The defendant. also proved, that after the judgment of nonsuit was given in the general court against Carroll an.d others’ lessee, in the ejectment fox Enlargement and Brown’s, Adventure, Carroll and others’ lessee, instituted another ejectment in the general court, for the two tracts of fond called The Enlargement and Brown’s, Adventure, and that it was agreed on all sides, both by the plaintiff and defendants in the last mentioned ejectment, thaf the plots and locations, which had been made is the first suit brought for the same tracts of land, should be used in foe last mentioned action for the same lands, and that the. said plots were so used, and no others were ever made in the last ejectment, That when the sheriff of Baltimore county served a notice on the defendant, to make locations in the last suit of the three ejectments in which lo ■ cations were made, he informed the sheriff that he should not make any locations in that case, nor would he pay any part of their expense. He also proved, that when the sheriff and surveyor were actually making locations, and and laying down pretensions, by the direction of the presentplaintiff, on the last occasion, he, the present defendant, told the sheriff and surveyor that he would have nothing to do with the locations they were making,_ nor would he pay any part of the expense. Tlie defendant also proved, that the defendants in the last mentioned ejectment, recovered a judgment in the general court for the sura of MlSl 2 S, it being the costs of the ejectment for Enlargement and Brown’s Adventure, in which a judgment of . norísüit was rendered against' Carroll and others’ lessee, and that of the said stun the defendant in this action received jS19 1 0,. alleging that he bad paid to that amount, and claiming no more, and that the present plaintiff'received the balance, being £112 1 3. That on the ejectment instituted for The Enlargement and Brown’s ■•Adventure, the defendants in that action were entitled to ¿“39 12 0, as costs, from Carroll and others’ lessee, which were discounted in payment of so much of the sum of £38 6 4, herein before mentioned, as costs recovered in the court of appeals by. Carroll and others’ lessee, against the present plaintiff and defendant, and is a part of the ¿38 6 4, stated to be paid to the agent of Carroll and others’ lessee, by the present plaintiff', in the receipt exhibited, and that the balance of the £38 6 4, viz. sS!8 14 4, was paid exclusively by the present plaintiff; and that the ¿58 6 4, was discharged as just above stated, and not by a payment of money by the plaintiff, as the receipt purports. The defendant then moved the court to direct the jury, that if they should believe that any part of the aforesaid costs were incurred by the plaintiff unnecessarily, and contrary to the wish and consent of the defendant, and contrary to the agreements herein before mentioned between Hammond and the defendant, that the plaintiff'was not entitled to recover in this action one half thereof from the defendant. But the court, (Nicholson Ch. J.) refused to give the direction to the jury; and directed the jury, that the plaintiff'was entitled to recover the same, inasmuch as the sum of money, for which the present suit was instituted, was the legal costs of suit which had been expended by Charles Carroll and others’ lessee, in prosecuting an ejectment against the present plaintiff' and defendant; that for these costs a judgment had been rendered in the general, court against the present plaintiff'and defendant; that each was bound for the whole to the plaintiff in ejectment, by tbe judgment which had been rendered against them, and that if the whole amount had been paid by either, he had a right to recover a moiety from the other. That the defendants in ejectment might have severed in their defence, and ought to have done so, if either had no confidence in the other; that by agreeing to defend the suit jointly, each had a right to direct such locations, as he thought would contri- • bute to their mutual defence. That this suit, however, was not for money paid by the plaintiff for locations made by himself, but for costs incurred by the plaintiff in ejectment in making his locations, and in otherwise prosecuting his suit for which a judgment had been rendered jointly against the present plaintiffand defendant. The plaintiff in ejectment might perhaps have insisted, at the trial, upon the agreement with the present defendant, and might not have made other locations than those contained on the old plots, but this he did not chuse to do. lie went on to make entire new plots, for the expense of which he recovered his judgment, and the present defendant is liable for his moiety to the present plaintiff, unless he can show himself entitled to other credits than those contended for by reason of the new plots. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.
    
      In an action of assumpsit for mu* tif-y laid out, ex* fended and paid! y E N tor S N, ’ being for one half , of She (tona reco* ’ voreii against them in an action of ejectment, wherein tht y were 1 joint defendants ami made a joint deten vu-H&td, that E 2C is entitled to ; recover a!tho?S jST# f with a view to • save costs* a^rc«tl with the plaintiff : in the action pf e* jectment,that eer* tain old plot', on which the lands in dispute were located, should be used iu evidence at the trial* but which agreement E N* refused to adcede to, and in® swed that new plots should be made out, whereby a large «¡mount of coil* was umiesesiat'Hy incurced* aitfl feltho* he gave notice tha* te would pay no pan of such <¿Oáts«
    
      The case was argued before Chase, Ch. 3. Buchanan, Gantt, and Earle, J. by
    
      Winder, for the Appellant,
    (who cited 2 Com. on Contr., 151,) and by
    
      Key, for the Appellee.
   The Court

concurred with the court below in the opinion given in the bill of exceptions.

Buchanan, 3.

In this case I differ in opinion with the rest of the court, fife here stated the facts.]

The question is, whether the plaintiff can, in an action for money paid, &c. recover from S. Norwood one half ot so much of the costs adjudged against them in the action of ejectment as might have been saved under the agreement.

The action of assumpsit is an equitable action, and in order to support it the law will often raise an implied promise according to the circumstances of the case. But there must always be either an express or implied undertaking, in this case there is neither, on the contrary all the equity is with the appellant. The costs of making out new plots, so far as they contain the same locations which were made on the old ones, and of the attendance of witnesses whose depositions had before been taken, were incurred by the plaintiff in the ejectment, in consequence of E. Norwood's refusal to accede to the agreement. But it is said, that the judgment in the action of ejectment was joint, and that each of the defendants in that suit was bound for the whole of the costs adjudged to the plaintiff, which the ap-t pellant might have avoided by severing in his defence. But I cannot perceive how his not having severed, in any manner affects the case; for defendants may sever in theirdefence in other actions of tort, and yet if a joint judgment for damages is rendered against two in an action of trespass or trover, &c. and ope pays the-whole, he cannot recover against the other a moiety of the money so paid. Nor can one security, who. ig compelled to pay the whole of the money, in all cases resort to his co- security for a contribution; as if one becomes a joint security at the in'-, stance of another, though he is thereby made liable to the person to whom the .security is given, yet he cannot be. called upon by the other, because it was at his instance that he became a security. And this is a stronger case, with more equity on the side of the appellant; for the costs, which are the subject of controversy, were not only incurred at the instance of the appellee, but against the consent of the appellant; and the law therefore, will not raise against him an implied undertaking to pay, and the judgment being joint makes no difference, and- cannot, shut out any equitable defence which the party might otherwise have. had.

JUDGMENT AFFIRMED,  