37 Mass. 447 | Mass. | 1838
delivered the opinion of the Court. The action of assumpsit for contribution is founded purely upon equitable principles. It proceeds upon the broad ground, that when two or more are subject to a loss or burden common to all, and one bears the whole or a disproportionate part, it lays an equitable claim for contribution, from those who are thereby proportionably relieved. But it follows, as a necessary consequence, that when the party claiming has been reimbursed and has sustained no loss, this principle of equity does not apply. Prom all the facts in the case, the Court are satisfied that the plaintiff has been fully reimbursed for all payments made by him, as surety for Warner to Anna Marsh, from funds provided for his relief, that he has in fact sustained no loss, and that this action against his co-surety cannot be maintained.
At the trial of this cause at the last term, the plaintiff filed a paper, reciting the circumstances under which this action is brought, and claiming to recover the sum demanded, for the
This is a novel experiment, an attempt to convert an action in his own name and in his own right, into an action in his representative capacity, and that only hypothetically. In the first place, this would require the Court to settle a question between the plaintiff and another party not before the Court.
But further, such a proceeding would produce a confusion of rights, duties and remedies, unfavorable to simplicity and clearness in the administration of justice. Suppose one cause of action in his own right, and another in favor of the estate he represents ; can he join them ? If so, how should he declare ; in his own name, or as administrator ? How should the judgment be rendered ? What would be his liability to account in his probate settlements ? Besides, what would amount to a perfect defence to a cause of action in his own right, would be no defence to an action by the representative of the estate of one deceased. A defendant might be led into a long and expensive litigation, making a good and successful defence against one cause of action, and then be taxed with the costs, on another cause of action, set up by the plaintiff in his representative capacity, which if originally put forth he might never have resisted. The claim to recover, in this stage of the cause, in his own name, for the use of the estate of which he is administrator, if not entitled in his own right, such claim in his own right not being relinquished, is, in every view, wholly inadmissible. If the plaintiff is still the administrator of Stratton’s estate, the judgment in this case will be no bar to an action gainst the defendant.
Judgment on the verdict.
