It is a reasonable practice that he, who makes good to the crown the default of its

debtor, should

have the same remedy that the crown itself would have.

application to the Court, they were ordered to stand in the place of the crown, and to have the aid of the Court of Exchequer to reimburse themselves what they so paid in discharge of the crown debt. Attorney-General v. Chitty, 1 Fowler's Exchequer Practice, 104.

An extent was issued against Bennett, a property-tax collector, for the township of Stockport, and there being a deficiency after the sale of his property, the amount was re-assessed upon the inhabitants of the townships in pursuance of the acts of parliament imposing the property-tax. The amount so re-assessed having been paid, upon motion [and affidavits], the question was raised whether the township was not entitled to the benefit of the extent, on the ground of the payment of the above deficiency by a re-assessment upon the inhabitants. On behalf of the township it was argued, first, that wheresoever an individual pays a sum of money due from any defaulter to the crown, he is allowed the aid of the prerogative process of the Court of Exchequer, and is permitted to stand in the place of the crown: and manuscript cases were cited mostly of sureties paying the crown's debt, and who were permitted to stand in the crown's place, and to have the aid of the crown process to recover either the whole debt against the principal, or a proportion against a co-surety; next, that the debt was a personal debt to the crown, and was not cancelled by the crown having recourse to a re-assessment upon the parish. Chief Baron Macdonald said that the cases cited were perfectly analogous; the township stood very much in the nature of sureties, and it was a reasonable practice that the party, who had made good to the crown the default of its debtor, should have the same remedy that the crown itself would have: it was besides unanswerable that the debt was upon record and still subsisting: nor could it be satisfied by the re-assessment of the township. Mr. Baron Wood, after observing that the matter there before the Court was for the exercise of a summary jurisdiction, which he considered as an equitable jurisdiction, added that, on the equity of the case there could be no doubt. The crown debtor might either have applied to the Court to enter up satisfaction on the record, or he might have brought an audita querela: but by neither mode of proceeding could he have been relieved: for the Court would not [upon summary application] have permitted him to enter up satisfaction, because neither had he paid the debt himself, nor had any person paid it on his account: and as for the other remedy by audita querela, that being an equitable remedy,

there was no pretence for it. The King v. Bennett, Wightwick, 1.

and afterwards

crown debtor

Hollis was a distributor of stamps. An extent was issued Court where against him, and an extent in aid against Bingham, Hollis's debtor. debtor paravaile discharged Bingham took the benefit of the Insolvent Debtors' Act. Hollis under Insolvent Debtors' Act, then paid his debt to the crown, and the commissioners of stamps cancelled the bond given by him. Hollis having sued out a scire facias, the question was whether Hollis being no longer pays the debt. a debtor to the crown, could avail himself of the extent in aid against Bingham. It was argued on behalf of Hollis, that as Hollis was indebted to the crown when the extent was issued, that that was sufficient: that the mere cancelling of the bond would not destroy the crown debt: that a quietus was necessary. Mr. Baron Bayley said, that the consequence of the discharge of Bingham under the Insolvent Act, as between himself and Hollis, was, that as a subject, Hollis could have no claim against Bingham for that debt: but Hollis having previously obtained prerogative process against him, contended that though he could not proceed in his private character, yet that standing in jure coronæ he might enforce payment. That might be so between the crown and Bingham; but if the crown's debt is discharged aliunde, so that it has no longer occasion for the money from Bingham, it would be unjust to hold that Hollis is entitled to prerogative process to enforce payment of a debt, which no longer exists as between him and the crown, and which if once due to him in his private capacity was discharged by the operation of the Insolvent Act. That in the case before the Court circumstances had arisen, which, as between the original creditor and debtor, would bar the claim of the former: while as between the crown and the subject, the crown, though originally interested, had ceased to be so then could the Court suffer a man, who, having been a crown debtor, has ceased to be so, to defeat the operation of the insolvent act as between the parties by putting in motion prerogative process on an extent in aid that Hollis therefore acted on his peril, and the scire facias must be quashed with costs thereof to be paid by him. Rex v. Bingham, 3 Tyrwhitt, 938; S. C. 1 Crompton & Meeson, 862; 2 Dowling, 128.

In a prior stage of the same case, Mr. Baron Bayley said, that when a debt from a subject to a subject has been seized, on an extent in aid, into the hands of the crown, and proceedings take place, which as between the parties themselves would have barred the debt itself: there is no authority to show that that result shall not still happen, where it does not appear that the crown is not

Cases as to

paying the bond

satisfied. Rex v. Bingham, 2 Tyrwitt, 46; S. C. 2 Crompton & Jervis, 130.

Consider a dictum of Lord Eldon, 3 Swanston, 376, connected with the doctrine laid down in some of the above cases.

See a remark of Mr. Baron Penne father, Hayes, 584.

Hotham v. Stone was a case before Sir William Grant, and is claim of surety reported in a note to Copis v. Middleton, Turner & Russell, 226. There the executor of the surety paid the bond, and was declared to be a specialty creditor of the estate of the deceased principal for the amount.

to be considered a specialty creditor of the principal.

Lord Eldon said, in Copis v. Middleton, page 230, the authority of Hotham v. Stone was as great as that of a single judge can be, but there was then an appeal from the decision, attended by compromise, which seriously affected the case: that he confessed he was astonished to hear that it had been decided, that when there was merely a bond and payment of the bond, without more, the surety was to be considered as a specialty creditor: that it was a common thing in bankruptcy, before the late act of parliament enabling the surety to prove, for the creditor to go in and prove the debt when the principal became bankrupt, and then the surety took the benefit of the proof; but if the surety paid the debt before the creditor went in, no proof could be made; and when the creditor would not prove, some one was found to purchase the bond, an assignment was made, and the purchaser went in and proved for himself.

The above is probably the case alluded to in Dowbiggin v. Bourne, Younge, 111, 116. Chief Baron Alexander said he remembered a case, which occurred before Sir William Grant, in which that learned judge thought that where a joint bond had been paid off by one of the obligors, it might, in the hands of that obligor, be treated as a specialty debt against the estate of the co-obligor. That the case came before him as a Master in Chancery, in taking the accounts directed by the decree, and he considered that the bond having been paid, there was an end of it. Exceptions being taken to his report, the subject was discussed before Sir William Grant, who was of a different opinion. That the point afterwards came before Lord Eldon, who concurred in the view which he (Sir W. Alexander) had taken.

In Robinson v. Wilson, 2 Maddock, 434, the personal representative of a surety in a bond, and out of whose estate the debt had been paid, claimed to be a specialty creditor of the estate of the principal debtor. Sir Thomas Plumer seems to have been favourable to the claim, but there was no final judgment

Gayner v. Royner is a case stated in the last case, and ante, page 625. As Lord Eldon observed in Copis v. Middleton, Turner & Russell, 230, it by no means follows from the statement of the case of Gayner v. Royner, that it established that a surety, paying a specialty debt, has a right to be considered as a specialty creditor of the principal.

In Copis v. Middleton, Turner & Russell, 224, 231, Lord Eldon said, that the doctrine that the surety was to be considered as a specialty creditor, to stand in the place of the person whom he paid, appeared to him to be contrary to all that had been settled during the whole time he had been in the Court. Every thing that was arranged in bankruptcy, before the late statute enabling the surety to prove; every thing determined before, appeared to him to have authorized the Court to consider it quite clear, that if there was nothing in the case beyond what he had stated, [no other assurance executed at the time, no mortgage made to secure the debt, no counter-bond given by the principal to the surety], the surety having paid the bond, could be nothing more than a simple contract creditor in respect of that payment. That in the case before him, the bond was not assigned to any body in consideration of a sum of money paid, which was one way those things used to be managed: there was no counter-bond given, which was another way in which those things used to be managed, so that if the surety paid one bond, he became instantly a specialty creditor by virtue of the other bond.

Jones v. Davids, 4 Russell, 277.

Salkeld v. Abbott, Hayes, 576, 582.

When a person pays off a bond, in which he is either coobligor or bound subsidiariè, he has at law an action against the principal for money paid to his use, and he can have nothing more. The joint obligation towards the creditor is held to give to the principal notice of the payment. This is necessary, for enabling any man who pays another's debt, to come against that other, because a person cannot make himself the creditor of another, by volunteering to discharge his obligation. But beyond this claim, which is on simple contract merely, there exists none against the principal by the surety who pays his debt; nor, when the matter is closely viewed, ought there to exist any other. The obligation by specialty is incurred, not towards the surety, even in the event of his paying, but only towards the obligee; and there is no natural reason why, because I bind myself under seal to pay another person's debt, the creditor requiring a secu

rity of that high nature, I should therefore have as high a security against the principal debtor. If I had chosen to demand it, I might have taken a similar obligation when I became so bound; and if I omitted to do so, I can only be considered as possessing the rights which arise from having paid money for him, which I had voluntarily, and without consideration, undertaken to pay. Hodgson v. Shaw, 3 Mylne & Keen, 183, 190.

In the above case of Copis v. Middleton, Lord Eldon also said (pages 228, 229), that if one of two joint obligors, being a surety, pays off the debt in the lifetime of the principal, he is at law merely a simple contract creditor of the principal; and if the principal lives for twenty years after the payment of the debt, he continues during all that time, to be at law a simple contract creditor only. The question then was, whether by the death of the principal, he is to be converted in a Court of equity into a specialty creditor against his assets. That with respect to the bond paid off after the death of the principal, the questions are, whether inasmuch as at the death of the principal there was money due upon the bond, there was an equity on the part of the surety to compel the creditor to go in against the assets of the principal, and whether there having been no interposition for that purpose, the right of the surety to stand in the place of creditor can be maintained.

Living the principal debtor, the surety could only bring indebitatus assumpsit for the money he had paid to that principal's use. The death of that debtor cannot clothe him with a higher title. Living the debtor, the creditor could not have assigned the bond on payment by the surety; for there was no longer any thing to assign. The death of the debtor cannot surely operate a revivor of the specialty, enable the creditor to assign it, or the Court to hold it assigned in equity, and empower the surety to sue upon it the executors or administrators of him who, had he chanced to survive, never could have been sued, except on the money counts in an action of assumpsit. Observe the consequence that would have followed from any other principle, while the law of debtor and creditor continued as it was till the recent alteration, and when landed estates were not real assets for payment of simple contract debts. If the principal debtor continued alive, the surety could not in any way touch his real estates, except through the medium of a judgment; but if he happened to die, his real estates became assets, although the