Norwood v. Norwood

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

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 *62that 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,