Searcy's heirs v. Rearden

[528] OPINION of the Court, by Ch. J. Boyle. — This an acl;on Gf indebitatus assumpsit for money alleg- , . ' ~ , J r P ed to have been paid by the plaintiff to the use of the defendants as executors and heirs, at the request of the The judgment was taken upon a writ of inquiry without an appearance or defence by the defen-dams, who prosecute this writ of error, There is no doubt that the judgment is erroneous, It appears from the record that a part of the defendants were infants, and there was no guardian appointed to defend for them. If they had appeared in person or ... . / . • r, . , r . by attorney and defended the suit, the judgment against [529] them would nevertheless have been erroneous and liable to be reversed, and much more is it so as there was no appearance or defence by themselves or any one for them. With respect to the sufficiency of the declaration, -which is questioned bv the assignment of error, there is more room for doubt. We are however inclined to think that it is insufficient to charge the heirs. The money is not alleged to have been paid by the plaintiff at their request, but at the request of the executors only, But the executors cannot by their act make the heirs liable, if they would not otherwise have been so ; and ifc is settled that a man caniiot by the voluntary payment of the debt of another make himself the creditor of that other, and recover from him the amount of the debt so paid. To make the heirs liable, therefore, for the money advanced by the plaintiff the payment should have been alleged to have been made at their request. Their request might indeed be implied, if the plaintiff had been under an antecedent obligation to pay the money : as, for example, if he had been bound to do so in an obligation as security to their ancestor. But that circumstance would be properly matter of evidence only, and Could not supersede the necessity of alleging the request which it would have implied : for the request, whether express or implied, is equally necessary to be averred, as the precedents mthe books of practice uniformly shew; Judgment reversed with costs, and cause remanded for new proceedings.