
    * John Bachelder versus Ebenezer Fiske and Another, Executors.
    
      issumpsit lies on an implied promise by one surety, to contribute towards in demnifying another.
    And where the money is paid after the death of the co-surety, the action lies against his executors, upon the implied promise of the testator.
    It is no objection to such action, that the plaintiff has received a partial indemnity from the principal, by an assignment of property; but the property so assigned enures to the benefit of both the sureties; and the defendant is liable for his proportion of the balance, paid by the plaintiff, beyond the indemnity.
    The declaration, which was in case, stated that one JEbenezer Fiske, on the 4th of October, 1813, was duly appointed guardian of one Elbridge Fiske, a minor under the age of 21 years; and that the plaintiff and the defendants’ testator became bound as sureties for the said guardian, to the judge of probate, in a bond for 10,000 dollars, conditioned for the faithful discharge of the said trust by the said guardian, and for the rendering of a just and true account, &c. And the said plaintiff and the said testator so being sureties as aforesaid, it was agreed by and between them that the plaintiff would save harmless and indemnify the testator, for one half part of all damages and charges that might or should happen to the testator by reason of his being so bound as aforesaid, and that he, the said testator, would save harmless and indemnify the plaintiff for one half part, &c. And in consideration of the said agreement, and also in consideration that the plaintiff, at the special instance and request of the testator, had promised him to fulfil and perform the said agreement, in all things therein contained on the part of the plaintiff to be performed and fulfilled, the said testator promised the plaintiff to perform and fulfil the said agreement in all things therein contained, on the part of the testator to be performed and fulfilled; and the plaintiff in fact saith that the said Ebenezer, guardian as aforesaid, did not faithfully perform his said trust of guardian as aforesaid, and that thereafterwards, on the 10th of June last, the said Elbridge came of full age, and required the said guardian to render an account of his said trust, and to pay to him the said Elbridge the moneys of the said Elbridge in his hands. And the plaintiff further says, that the said guardian then had in his hands moneys and effects of the said Elbridge, to the value of 5000 dollars, and that the said guardian then and ever since neglected to perform the said trust, * and to account with [ * 465 ] and pay to said Elbridge the moneys and effects so due and owing to him, in pursuance of the condition of the said bond; but the plaintiff says that thereafterwards, viz., on, &c., to prevent his goods and estate from being taken and attached to satisfy and pay the said sum of 5000 dollars, and his being put to further and great damages and charges, he was then and there compelled to pay the sum last mentioned to the said Elbridge, and has sustained other great damages and charges in the premises. And the plaintiff avers that 2500 dollars are one half part of the damages and charges he has sustained, and that- have happened to him, by reason of his so having become surety; of all which the defendants on, &c., at, &c., had notice; yet the said testator, in his lifetime, never indemnified and saved harmless the plaintiff therefor; nor have the defendants, executors as aforesaid, though alike requested since the death of their testator, saved harmless the plaintiff, for the said one haff part of the said damages and charges happening to him as aforesaid, but have wholly neglected and still neglect so to do.
    The plaintiff also filed the common money counts pro forma, as was said; but relied on the foregoing special count.
    The action was commenced on the 30th of August, 1820, and was submitted to the decision of the Court upon an agreed statement of facts, to the following purport:—Ebenezer Fiske, one of the defendants, was duly appointed guardian, as alleged in the declaration, on the 4th of October, 1813. The plaintiff and the testator then gave bond to the judge of probate for this county in the penalty of 10,000 dollars, as sureties for the said Ebenezer's performance of his said trust. In June, 1820, the said Elbridge came of age, and demanded of the said guardian an account of his trust. The guardian was insolvent, and the ward then required the plaintiff to pay him 4197 dollars, 71 cents, then remaining [ * 466 ] due to him from the guardian ; * which sum the plaintiff, on the 25th of August, 1820, paid to the ward, in pursuance of the said bond.
    The said guardian made an assignment of certain property to the plaintiff, for the purpose of indemnifying him against his liability as surety in the said bond.
    The defendants’ testator died on the 9th of April, 1815, leaving real and personal estate appraised at 3695 dollars. The defendants, on the 17th of the same April, gave bond to the judge of probate for the faithful discharge of their trust as executors. They gave no public notice of their appointment; except that within three months thereafter, they posted notifications in the town of the testator’s residence, and in two public places in an adjoining town, of the sale of the testator’s household furniture, which notifications were signed by one only of the executors. All the real estate of the testator was conveyed in mortgage, after his decease; and the personal estate was distributed among the legatees named in his will.
    If, upon the facts stated, the Court should be of opinion that the plaintiff was entitled to recover in this action, the amount of damages was to be assessed by a jury; if otherwise, the defendants were to recover costs
    
      B. Merrill, for the plaintiff.
    The defendants, not having given notice of their appointment, pursuant to the provisions of the statute, are as liable to the plaintiff’s action, as if it had been commenced immediately after they entered upon their trust The advertisement, if it had been of their appointment, and sub scribed by them both, would have been no conroliance witn the statute; so as to give them the benefit of the limitation furnished by it .
    
      Cummings, for the defendants,
    called on by the Court. There is no evidence of any contract made by the testator, in his lifetime, with the plaintiff. The plaintiff and the testator gave their bond to the judge of probate, as sureties for the guardian. The contract, therefore, was between the obligors and the judge. There was no express stipulation between the co-sureties; nor does the law imply any * contract between them, from the [ * 467 ] fact of their having become such ; and upon a view of the cases upon the subject, .it will be found the cause of action by one co-surety against another arises from the payment of the money. It is upon this ground of payment only, that the law implies a promise to contribute ; and the proper and only remedy between co-sureties, where there has been no express stipulation, is an action of assumpsit for money paid . But an action for money paid after the death of a testator will not lie against his executors; for if liable at all in such case, they are personally liable . The doctrine contained in the cases cited' has been recognized by this Court .
    The cause of action in the present case, if any, accrued after the death of the testator; and the executor cannot be sued upon any contract which was not made by his testator.
    The present action cannot be maintained, because the parties are not in cequali jure. The plaintiff has defeated his own claim to contribution, by taking an assignment to his sole use, of E. Fiske’s property, for the express purpose of indemnifying himself against his liability on the bond. He cannot, after this, in justice or equity, call upon the defendants to contribute; inasmuch as he has taken into his own hands that fund, to which the defendants would look as an indemnity, in the event of payment by them.
    The payment by the plaintiff was voluntary. Nor did he present any claim within four years after the executors took upon them the execution of their trust by proving the will.
    As to the objection to the notice given by the defendants, of their having taken upon themselves the execution of their trust, it is sufficient to answer, that the law does not require notice where the party has no claim. In this case it appears, that no claim did in fact exist, within four years after the defendants gave their bond.
    
      Merrill, in reply. Legal obligation is a sufficient consideration for a promise. When the parties became privy [ * 468 ] * to this transaction by consenting to be co-sureties, the promise declared on resulted by implication of law, not from the subsequent payment of the money. The right of action accrued when this was paid. In all cases where the money counts are sufficient, the plaintiff might substitute an historical narratio of the facts: in this case it is necessary, although in most cases it would be cumbrous surplusage on the records, and embarrass the plaintiff in his proof .
    
      
      
        Stat. 1788, c. 66, § 1.
    
    
      
       2 B. P. 268.
    
    
      
       1 H. Black. 108, Rose & Ux. vs. Bowler & Al., Ex'rs.—2 B. P. 434, Brigden vs. Parties & Al., Ex'rs.—4 D. & E. 347, Jennings vs. Newman, Adm.—1 Chitty on Pleading, 204.—2 Saund. 117, n.—Tidd’s Pract. 12, 3d edition.
    
    
      
       8 Mass. Rep. 199, Summer vs. Williams.—6 Mass. Rep. 58, Foster vs. Fuller.
      
    
    
      
       3 Mass. Rep. 438, Salem vs. Andover.—12 Mass. Rep. 190, Holmes vs. Dana — 9 Mass. Rep. 300, Sproat vs. Porter & Al.—11 Mass. Rep. 361, Johnson vs. Johnson — 18 Mass. Rep. 395, Royce vs. Burrell & Al.
      
    
   Jackson, J.,

delivered the opinion of the Court.

It has not been pretended that any notice was given by the defendants, of their appointment as executors, in the manner provided by the statute; and of course they cannot avail themselves of the limitation which that statute prescribes.

As to the main question in this case, it has been long settled in our courts that a surety, who has paid the debt of the principal, may have an action for contribution against his co-surety ; and the common form of the action here, as well as in the English courts, has been indebitatus assumpsit for money paid by the plaintiff for the use of the defendant, 2 B. & P. 268, Cowell, Adm., vs. Edwards. It is true that, in the case of Deering vs. The Earl of Winchelsea & Al., 2 B. & P. 270, it is said that this right of contribution is not founded on contract, but on “ a fixed principle of justice ; ” and it is likened to the case of contribution to a general average, when part of a cargo is thrown overboard at sea to save the residue ; in which case it is said, “ There is no contract express or implied, nor any privity in an ordinary sense.” But it has been deliberately decided in Birkley & Al. vs. Presgrave, 1 East, 220, that assumpsit will lie for contribution in this latter case; and every reason there given applies with equal force in support of the action of assumpsit by one co-surety against another. Accordingly, in the case before cited of Cowell vs. Edwards, the court seem to think it settled, that assumpsit will lie for the co-surety in such a case ; and, as was before observed, the action in that form has [ * 469 ] been uniformly maintained in our * courts. Indeed, it is difficult to conceive of a right in one party founded on “ the fixed principles of justice,” and recognized by the law of the land, which does not involve a corresponding obligation on the other party ; and a legal obligation is a sufficient ground of an implied promise. We are, therefore, satisfied, both on principle and authority, that assumpsit will lie on an implied promise by one surety, to contribute towards indemnifying another.

But there is a technical objection, in the present case, to the usual form of declaring; inasmuch as the plaintiff cannot allege that he paid the money for the use of the co-surety after the death of the latter; and if he alleges that he paid it for the use of the defendants as executors, it would be to charge the defendants in their own right, which cannot be done.

This objection is answered by the general principle, which is universally recognized; and which was applied in the case before cited from 1 East, 220, that when the law confers a right, it will also confer a remedy. That case also furnishes an authority, if any were wanted, as to the form of declaring. The declaration there contained the usual money counts; but it also contained a special count, setting forth all the facts on which the implied promise of the defendant was founded; and that count is particularly noticed by the Court, as exhibiting the grounds and nature of the action.

The actions of assumpsit in most common use seem to have acquired, in some measure, the character of the ancient-formed actions of the common law; but they are still only actions on the case, in which the plaintiff, whenever he finds it necessary or useful, may set out his whole case; and if that shows a valid legal promise by the defendant, whether express or implied, it is sufficient. Now, it is obvious that the same facts, which, when proved on a trial, would support the common count for money paid by the plaintiff, would have the like effect when disclosed in a declaration, and proved in like manner.

*This is not displaying the evidence, from which facts [ * 470 ] are to be inferred; as is sometimes done in declarations and other pleadings inartificially drawn ; but it is stating the facts, from which, if proved or admitted, the Court will draw the legal inference. And although a more compendious form of declaration is allowed, and is generally the most convenient, yet this does not preclude the plaintiff from stating his case more at large, when he shall find it necessary.

We are, therefore, satisfied that the plaintiff may recover in this case on a special count, setting forth all the material facts, and alleging the liability of his co-surety, and his promise, accordingly, to pay to the plaintiff one moiety of what he should be compelled to pay for the principal. It is not usual, on an agreed statement of facts, to examine the form of the declaration very critically ; and we have not done it in this case. The facts stated exhibit a suffi cient ground of action, and the declaration may be made conformable to them, if it is not already so.

As to the assignment of property, from the principal to the plaintiff, for the purpose of indemnifying him, his co-surety would have had reason to complain, if he had not done it when in his power. That assignment enures to the benefit of both the sureties; and if the plaintiff has received any money from that source, it must be deducted from the amount he has paid ; and the defendants will be liable for half the balance only. If the plaintiff, after recovering what he is entitled to in this action, should receive any further payment from the principal, either out of the property so assigned, or in any other way, he must account with the defendants for a moiety of it.  