
    *Jonas Smith v. William Bing.
    Principal and security make an obligation. Special hail of principal, compelled to pay the money, can not subject the security to pay any part of it.
    This was an action of assumpsit, for money paid, laid out, and -expended ; plea, non-assumpsit. It was adjourned from the county of Gallia, and the facts of the case were as follow:
    Bing, the defendant, had executed a bond with one Watkins, in fact, as security, but that did not appear upon the face of the bond. Suit was brought against Watkins and Bing, in Yirginia, .and Watkins only arrested, and, upon a return that Bing was not found, the suit abated as to him. Smith became appear.ance bail for Watkins, and was subjected to the payment of a large portion of the debt, and to recover this from Bing was the object ■of the present suit. At the trial, Bing offered evidence that he executed the bond only as security for Watkins, without offering .any proof that Smith, at the time he became bail for Watkins, had knowledge of this fact. The plaintiff objected to this evidence, but it was admitted, and a verdict passed for the defendant. The plaintiff moved for a new trial, upon the ground that the court ■erred in admitting the evidence.
    Brasee, for plaintiff:
    The bond executed by William Bing and Russell Watkins, being unconditioned, and joint and several, McCulloch could have recovered the amount of it, either of Watkins or Bing, wherever he ■could find them, or either of them. They were both primarily liable to the payment of the money. It was forced from Smith by legal process; by the payment, both Bing and Watkins were •discharged from all legal liabilities under the bond; ex quo et bono, Smith should have recovered of those, or either of them, to whose benefit he had been compelled to pay, and whose obligation was discharged by that payment. It may, and probably will be objected, that, between Smith and Bing, there is no privity of contract. We ask, where is the privity of contract in the case of Exall v. Partridge, 8 Term, 308, which is regarded as analogous in principle ? Or where is the privity existing between co-sureties,, jointly and severally bound in a bond, when one *pays the whole debt, and brings his action of assumpsit against the others, and recovers of each his distributive share, which is every day’s practice, both in our own and in the English courts? Here is no more privity than in the case at bar; these recoveries are had, not upon any contract existing between the sureties, nor between Exall and the original lessees, but upon a principle of equity and natural justice. It is true, they are sometimes said, in the ele- • mentary books, to rest upon an implied assumpsit, but this implication is substituted for that equity and natural justice upon whicht. it rests, by reason of the implied knowledge and universality of those principles. This is an equitable action, and if, upon the broad principles of natural equity and justice, the plaintiff showed himself entitled to the money paid upon defendants’ bond, the charge of the court was erroneous, and a new trial should be granted.
    If Smith, by being compelled to pay this debt, acquired any legal right to call upon Bing to refund, we believe it will be conceded that the admission of parol testimony to vary or destroy that right was erroneous — it not appearing upon the face of the bond that either Bing or Watkins was the surety of the other; nor by evidence that Smith knew of such relation between them, which creates the fair presumption that Smith placed himself in that situation which rendered him liable to pay the money, as much upon the responsibility of the one as the other.
    King and Yinton, for defendants :
    The defendant opposes the claim oí plaintiff on the ground, that as to him he is a mere volunteer, having made himself liable, and paid a claim for which defendant was also responsible, without. his knowledge or assent.
    It is a well-settled principle of law, that no man can, by a voluntary payment of the debt of another, make himself that man’s-creditor, and recover from him the amount oí the debt so paid. 2 Comyn on Contracts, 151; Child v. Marley, 8 Term, 613; Exall v. Partridge and others, 8 Term, 310.
    It.had been decided, that if a third person, at the request of one joint obligor, pay the debt, he will be entitled to call *upon all to refund. This doctrine goes upon the principle, that it was the present duty of all the obligors to do the act done by such third per■sons for them, to wit: to pay the debt; and hence the law raises an implied promise in his favor against all the obligors, and places him in the same situation as though one obligor, without the request •of the other obligors, had paid the debt. But in the present case, the plaintiff undertook that Watkins, the original obligor, should •do an act fbr which Bing, the present defendant, and co-obligor of Watkins, was in no way bound, to wit: that Watkins should appear in court at the suit of McCulloch, the original obligee. This was a distinct and independent undertaking, to which Bing was no party, and on the non-performance of the condition of the appear.ance bail bond, the penalty of the bond attached against Smith, Watkins’ bail. Smith undertook nothing for Bing, and as Smith and Watkins only are parties to this transaction, it would seem, upon all principle, that Smith must look to Watkins for any consequences that may have resulted from Watkins’ breach of the ■condition of the bail bond. As regards Bing, therefore, Smith is .a mere volunteer, and it is believed could not call upon him for indemnity, even if Bing were the real debtor, instead of security, .as he in fact was.
    In addition to the foregoing remarks, the fact that Bing was himself only a surety for Watkins in the original claim, is, it is thought, conclusive of the present case. The action of assumpsit is an equitable action, and, while the plaintiff seeks to recover ■upon equitable principles, the court will look into the relative situation of the parties, and adjust the claim accordingly. In this aspect of the case, it is quite evident it was for Bing’s interest that the suit against Watkins should be prosecuted, and if .Smith had not bailed Watkins, and thus enabled him to escape, it is by no means certain that Watkins would not have paid the debt himself; and surely it is a matter of no moment to Bing, whether Watkins discharged the debt himself, or got Smith to do it for him, as a consequence of his (W.’s) non-appearance at court, on the .return of the writ. If the law will raise an assumpsit by Bing to Smith, it must be upon, at least, equitable principles. *In the absence of an actual promise, the equity of the case is clearly with Bing.'
    | It is supposed the plaintiff relies for his recovery upon the case of Exall v. Partridge, 8 Term, 308. In that case, three persons were joint lessors, two of whom had assigned their interest to the other. Exall put his carriage on the leasehold premises in the care of the assignee, and it was there distrained upon a process of distress issued against all the lessors; he paid the debt to relieve his property, and brought suit against the lessors who had assigned the lease, as well as against the assignee. It was contended that the latter only was liable to Exall, he having had notice of the assignment at the time he left his carriage on the premises. All the defendants were held to be liable. The court expressly recognize the doctrine, that the voluntary payment of another debt' gives no right of action; but they say that the plaintiff, Exall, paid upon compulsion, and for this plain reason, that a distress in England is in the nature of an execution, which was directed against all, and in paying he discharged the execution of all who were also all principal debtors. The secondary contracts among themselves in no way changed or affected their liability of relation to their landlord. That a distress partakes of the nature of an execution, the court are referred to 3 Black. Com. 9; Hutchens v. Chambers, 1 Burr. 588, 589. In the case of Hutchens v. Chambers, the court, in speaking of the nature of a distress, use this language: “ That the seizing under the 43 of Eliz. and such like acts of Parliament is but partly analogous to the common law distress (as being replevisable, etc.), but is more analogous to the common law execution; like a fieri facias, where the surplus after sale shall be returned.” In other parts of the same opinion, Lord Mansfield more than once says, that a distress under the statute is in the nature of an execution. It is believed that in England the statutory remedy of distress, on account of its efficiency, has long since, in practice, superseded the distress at common law, so that the latter is almost, if not wholly obsolete.
    The distress in the case of Exall v. Partridge, being against all the defendants, they stood upon the footing of judgment debtors against whom an execution may have ^issued, and a levy made upon the property of one only, who thereupon pays off the execution to release his property from execution. In this view of the case, the payment by Exall was anything but voluntafy.
    Nye, in reply:
    1. The evidence to prove that Bing was the surety of Watkins in the original obligation, was, as is thought to be quite clear, improperly admitted; for if Smith would be entitled to his action against B. in case that fact had not existed, he is equally entitled still; since it was not disclosed by the obligation, nor brought to-his knowledge, by other means, at the time of his becoming bail, or paying the money: It Smith was not then conversant of that, fact, evidence of its existence offered after the fact which constitute his claim to recover of JB. transpired, can not, and ought not, to-alter the case; he must be supposed to have relied upon the legal liability of both Bing and Watkins, apparent upon the face and character of the instrument. Admit that Smith would be entitled to resort to Bing, had not that fact existed, and it seems to follow, as a perfectly logical conclusion, that without a knowledge of it, he stands as if he did not. It is difficult to conceive how his right or conscience can be affected by a fact unknown by him at the-time of the transactions.
    2. Is Smith, then, entitled to recover, the fact of Bing’s security-ship being aside from the case ?
    
      Express assent is not in all cases necessary. If a right of recovery, or reimbursement, accrued to Smith at all, on payment of the money, it seems to have accrued against the parties whose-legal liability was discharged by the payment. In this view, Bing, as to Smith, was as much liable as Watkins. He was liable toMcCulloch, in solidum, for the debt; the process issued against both, and was running against both, when Smith undertook for the appearance of Watkins; and his liability for the debt was discharged by the payment of Smith; nor is there, here, any express agreement to counteract the implication of law. Suppose the ease of a negotiable accommodation note, signed by two (not as parties), and to give credit and security to the paper for the benefit of the *drawers, one of the drawers should apply to a third person to indorse, who thereby should be compelled to pay the amount of the note, would the other drawer be exempt from liability to the indorser? “ The defendant’s assent is implied in all cases where the plaintiff is under legal obligation to pay the money through the default of another. Now, Bing remained liable for the payment of the money, due by the obligation to McCulloch, until the payment of the money by Smith, and the consequent discharge of Bing; Smith’s undertaking for the appearance of Watkins neither discharged Bing, nor prevented his discharging himself from his liability for the debt by a payment to McCulloch. It was not a necessary consequence of Smith’s undertaking, that he should be compelled to pay the debt; that was a contingency which might not have occurred, as in every case of suretyship. The inception of all such undertakings is, of course, voluntary. After the undertaking of Smith, Watkins and Bing were still liable; the debt was not thereby discharged nor was that the immediate object of the bail bond. The unconditional liability of Smith to pay the debt accrued, or was consummated afterward, by a contingency which might not have happened. The payment of the debt, by S., was compulsory. This is not the case , of a, voluntary payment of the debt of another. In Exall v. Partridge et al., 8 Term, 308, the act of putting the carriage on the premises, by the plaintiff, whereby it might be liable to a distress, was as much voluntary as the act of S. here; and there the original lessees had assigned or underlet to the coachman, who, alone, was in possession; the plaintiff had no communication, nothing to do with them ; there was no assent of theirs to Exall’s putting his carriage in a situation to be distrained, to pay rent for which they were liable, and liable merely by the original covenants; had he not -done so, the tenant might have paid, or his property been distrained for the rent; and he was the person immediately liable to Exall, if the language of the defendant’s counsel here be correct; it is also to be observed, that there the plaintiff knew of the assignment, and the assignee only was in possession ; yet, in that case, the original lessees were recovered against, not because of any assent, for there was none but that which the law implied from their *logal liability for the rent. What privity, then, was there in that case more than in this? The inceptive act in both cases was voluntary ; the positive liability or the compulsion to pay, occurred afterward; and the plaintiff had as little to do with the lessees there, in the first instance, as Smith with Bing here. Indeed, the third paragraph of the argument for the defendant (by Mr. Yinton) seems to concede the whole ground on this point. That “if a third person, at the request of one joint obligor, pay the debt, he will be entitled to call upon all to refund;” and that “ the doctrine goes upon the principle that it was the present duty of all the obligors to do the act done by such third person for them, to wit: to pay the debt.” If, in that case, the plaintiff, at the request of one joint, etc., debtor, would, as is conceded, be entitled to recover against all, a fortiori, it would seem the plaintiff here is entitled to recover for the money paid by compulsion, in consequence oí undertaking at the request of Watkins, one of the joint and several obligors; for it was then, and at all times, “the present duty of Bing, as well as Watkins, to pay the debt to McCulloch.” As to Smith, it has already been shown, that Bing, as well as Watkins, stood in the situation of a principal. Accordingly, it has been decided that “where money is paid by a surety for two principals, the law implies a promise by each principal to reimburse the surety for the whole amount of debt.” Duncan v. Keffer, 3 Bin. 126.
    As to the objection for the want of privity, it might, with equal force, have been made in cases where, notwithstanding, recoveries have been had.
    In the case of Davis v. Tupper (Sup. Court, Washington county, before Judges Pease and Sherman, 1824), the plaintiff recovered on these facts: J. Holden had a mortgage, elder, from Yail, on land for his security. Vail owed Davis, who recovered a judgment against him and took a mortgage from Vail on the same land to secure it. He laid by and never prosecuted his mortgage nor process on his judgment. Tupper, in a subsequent term, recovered judgment against Yail; and (H. having pi’osecuted sci.fa. on his mortgage) had his execution in the sheriff’s'hands, with Holden’s, on whose execution the land was sold, and the surplus, over the satisfaction of Holden, on a sale, was paid by the sheriff to T. (D. having *no execution out.) In the action D. recovered that money of T. There, what privity was there between D. and T.? The court adjudged for D. on the ground, that by his mortgage he was ■ entitled to the surplus. So here, though the order is inverted, the ,;principle is the same: the debt of Bing was discharged.
    III. If Smith be not entitled to recover the whole sum paid, it ¡is submitted that he would be entitled to recover a moiety from Bing (2 Bos. & Pul. 268), if B. is to be treated as a surety; or he ¡is entitled to be substituted to the right of McC. against Bing, .as an original debtor for the whole. Or, -as between S. and B., ■ Smith has the same right to recover a moiety from Bing, as a joint ■debtor with Watkins would have were they both principal debtors; (for Smith stands as if they were, not having known the relative ■ character of B. and W. as between themselves.
    A reply to a remark by each of the defendant’s counsel will «conclude. Mr. Y. says that B. was not a party to the suit against Watkins, in Y.rginia, and would be precluded here (by a recovery) ¡from a defense to the original demand, by the record from Yir.ginia. This is not correct. The. execution of the obligation by B., and his original liability, were matters to be proved by the plaintiff here, if they had not been admitted. The recotfd could not conclude him, nor was it so contended as to that fact. Though, in cases of outlawry (and the case in Virginia was analogous), in an action on a joint undertaking, the execution of the instrument or promise of the outlawed party must be proved in the action against the party in court. Mr. King says, that B. could show his character as surety by virtue of our statute. This is deemed incorrect. This is not an action by the payee of the obligor, nor is it founded immediately upon that. It is but mediately the spring of liability, growing out of the discharge of that by its payment by the plaintiffs. The fact of suretyship, if admitted at all, must go to the very question of any liability to S. In that view, it would relate to the contract and not to the remedy; and the lex loci contractus hero being Virginia, our law does not apply.
    *In conclusion, it is respectfully insisted that the court erred in the points ruled at the trial, and that, therefore, a new one ought to be granted.
   By the Court :

The relation of principal and security, where the obligation itself imports a joint debt, is universally recognized by courts of justice, and parol proof admitted to establish its existence. In this case, therefore, the evidence was properly received unless the fact proved did not constitute a legal defense.

It is urged, for the plaintiff, that the execution of the bond created a joint duty which each obligor was bound to discharge, and the plaintiff, having been coerced to discharge it for them, has a remedy against each. But the conclusion does not follow the premises. When the plaintiff became special bail for Watkins, it was at the request of Watkins and for his benefit alone. The defendant had no beneficial interest in it. The undertaking was personal for Watkins, and the party making it can only look to him for compensation should he be prejudiced. He can acquire, through his connection with Watkins, no interest against third persons, which Watkins himself did not possess. Had Watkins been security, and Bing the principal, the payment of the dobt by Watkins would give him a legal right to demand it of Bing, and perhaps equity would, in such case, have permitted the bail to succeed to the right of Watkins and recover of Bing. This would be no more than transferring to the bail the same rights which the principal would have had upon the payment of the money. But, in the case before us, if Smith is allowed to charge Bing, he acquires, upon a separate undertaking for Watkins, rights which Watkins did not possess. We know of no principle of contractor doctrine of equity which would warrant a result of this character.

The case of Exall v. Partridge, 8 D. & E. 308, cited and relied upon by the plaintiff’s counsel is not analogous to this. There all the parties subjected wore originally liable for the rent as principal lessees, and the subcontract between themselves could not change the nature of their liabilities to third persons. In this case, if the debt had, in its origin, been the *joint debt of Watkins and Bing, and so existed at the time the bond was given, and, by subsequent agreement between themselves, Watkins had assumed the payment of the whole, the cases would have borne Some resemblance to each other, though it might not then follow that the bail of Watkins could subject Bing. But the original liability of Bing being only that of security, is a material circumstance in respect to the analogy, and places the two cases on totally different grounds. In our opinion, the claim of the plaintiff to subject the defendant is supported by neither precedent nor principle; the motion for a new trial is consequently overruled. '  