Sec 760

A party whose goods are attached in another's hands, or which, when in such other person's hands, are subjected to a lien for a debt of such other person, and who pays the debt of such other person in order to release the goods, is entitled on the same reason to recover the money so paid from the person to ease whom it was paid.4 sec 761. It is not necessary that the payment should be actually made under an attachment; it is enough if it is a payment which an attachment would compel.5 A debt enforceable only in equity stands in this respect on the same footing as a debt enforceable in law. "If the plaintiff had paid the money either under the fear of process of a court of equity or of a court of law, he could have recovered "it from the defendant."6 And as a general rule, where a party is in a position in which he is open to compulsion by law to pay a particular sum, it is not necessary for him to wait for an execution, or an attachment, to enable him to sue in this form of action.7 Even where an administrator of a surety paid a debt which was barred under the statute of limitation giving special protection to administrators, but which was not barred, so far as concerned the relations of the principal to the creditor, it was held that the administrator could recover the amount paid from the principal.1 But payment must not have been merely voluntarily made.2 And a surety who voluntarily pays a debt from which he is discharged by law, cannot maintain a suit against the principal for reimbursement.3

So of party whose goods are attached to pay another's debt.

Not neces sary that execution should actually issue.

1 Sargent V. McFarland, 8 Pick. 500; see Roche V. Savings Bank, 128 Mass. 10.

2 Kearney V. Tanner, 17 S. & R. 94; Trevor V. Perkins, 5 Whart. 244.

3 Keim V. Robeson, 23 Penn. St. 456.

4 Leake, 2d ed. 82, citing Johnson V. Packet Co., L. R. 3 C. P. 45; Sapsford V. Fletcher, 4 T. R. 511; Ticonic Bk. V. Smiley, 27 Me. 225; and see Sargent V. Currier, 49 N. H. 310; Hale V. Huse, 10 Gray, 99; Butler V. Wright, 6 Wend. 284.

5 Pitt V. Purssord, 8 M. & W. 538; Spencer V. Parry, 3 Ad. & El. 338; Brown V. Hodgson, 4 Taunt. 189; Shaw V. Loud, 12 Mass. 447; Firth V. Sprague, 14 Mass. 455; Randolph V. Randolph, 3 Rand. Va. 490. That execution may be treated as tantamount to payment, see supra, sec 758.

6 Hutton V. Eyre, 6 Taunt. 289.

7 Pitt V. Purssord, 8 M. & W. 538; Sleigh V. Sleigh, 5 Exch. 514; Goodall V. Wentworth, 20 Me. 322; Mauri V. Hefferman, 13 Johns. 58.

Sec 762

A party to whom no negligence is imputable,4 whose goods have been seized under a distress against another person in whose premises they may happen to have been, may by stress of the rule before us, recover from the latter person the value of the goods; or, if he pays the rent in order to release the goods, may recover the amount so paid.5 And an under lessee or lodger who is obliged, by compulsion of distress on his goods, to pay rent to the superior landlord, is entitled to deduct the amount so paid when sued by his immediate landlord. "When the tenant is compelled in order to protect himself to make payments which ought, as between himself and his landlord, to have been made by the latter, he is considered as having been authorized by the landlord so to apply his rent due or accruing due. All such payments, if incapable of being treated as actual payments of rent, would certainly give the tenant a right of action against his landlord as for money paid to his use; and so would, in an action of debt for the rent, form a legitimate subject of set-off."6 The same principle enables a tenant to recover from his landlord sums paid under compulsion for drainage;7 and for road repairs.8 But technically, as we have seen, there can be no recovery for money paid without proof of the payment of money or its equivalent.1 And a plaintiff who negligently left his goods on the defendant's premises, without any engagement with the defendant, cannot recover money paid by him to relieve such goods from a distress for rent due by the defendant.2 Where, also, the plaintiff and the defendant being under-lessees at distinct rents of separate parts of the premises, the plaintiff, under threat of distress, paid the whole rent, it was held that he could not recover a proportion of the payment from the defendant.3

Persons whose goods are distrained on another's premises may recover from such other.

1 Shaw V. Load, 12 Mass. 447.

2 Supra, sec 758 et seq.; West Chester V. Apple, 35 Penn. St. 284.

3 Kennedy V. Carpenter, 2 Whart.

4 See infra, sec 763.

5 Exall V. Partridge, 8 T. R. 308; England V. Marsden, L. R. 1 C. P.

529; see Sapsford V. Fletcher, 4 T. R. 511.

6 Per ear. Graham V. Allsopp, 3 Ex. 198; Jones V. Morris, 3 Ex. 742; Johnson V. Skafte, L. R. 4 Q. B. 705; cited in Leake, 2d ed. 83.

7 Dawson V. Liston, 5 B: & Ald. 521. 8 Baker V. Greenhill, 3 Q. B. 148.