And in Burnett v. Lynch (q), where it appeared that "the lessee by deed poll" assigned his interest in the demised premises to A., subject to the payment of the rent and the performance of the covenants contained in the lease. A. took possession and occupied the premises under this assignment, and before the expiration of the term assigned to a third person. The lessor sued the lessee for breaches of covenant committed during the time that A. continued assignee of the premises, and recovered damages against the lessee; it was held that the lessee might maintain an action upon the case (r) founded in tort against A. for having neglected to perform the covenants during the time he continued assignee, whereby the lessee sustained damages, upon the ground that, during the continuance of the interest of the assignee, there is a duty on his part to pay the rent and perform the covenants. Bayley, J., in giving judgment, observed, the duty is commensurate with the time during which the assignee has an interest in the premises. This duty, we think, would arise from the mere relation between the parties, without any such words as those now under consideration, for the effect of the assignment is, that the lessee becomes a surety to the lessor for the assignee, who, as between himself and the lessor, is the principal, bound, whilst he is assignee, to pay the rent and perform the covenants running with the estate; and the surety, after paying the debt, or discharging the obligations to which he is liable, has his remedy over against the principal. And he would also, in all probability, have the same remedy over against each subsequent assignee, in respect of breaches committed during the continuance of the interest of each; for the lessee is, in effect, a surety for each of them to the lessor.

The general rule however is, that if two persons jointly commit a tort, and the injured party recover damages against them, and one pay the demand, there is no implied promise by the codefendant to contribute his share. And in Merryweather v. Nixon (s), in which this doctrine was recognized and acted upon,

(q) 5 B. & C. 589; and per Lord Denman, C. J., in Wolveridge v. Stewurd, 1 C. & M. 644, when observing upon Burnett v. Lynch; and see ante,

87.

() When assumpsit lies, ante, 87.

That covenant will not lie in such case, id.

(s) 8 T. R. 186. And see Adamson v. Jarvis, 12 Moore, 251, 252, per Best, C. J.; Farebrother v. Ausley, 1 Camp. 343, 345; Wilson v. Milner, 2 id. 452.

and where the damages had been recovered in the former suit for an injury done by the present plaintiff and defendant to a reversionary estate of a third person in certain premises, Lord Kenyon said he had never before heard of such an action for contribution having been brought where the former recovery was for a tort; that the distinction was clear between this case and that of a joint judgment against several in an action of assumpsit (t), and that the decision would not affect cases of indemnity, where one man employed another to do acts not unlawful in themselves, for the purpose of asserting a right.

But this general rule extends only to cases where both parties are actually employed in committing a tort, and does not apply where the party seeking contribution was a tort feasor only by inference of law, as where one of two stage coach proprietors is rendered liable for the act of a servant in negligent driving, although he was not present, and had no control over the servant at the time (u). This distinction was also recognized in Adamson v. Jarvis (x), where it is laid down that the rule that wrongdoers cannot have redress or contribution against each other, is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act.

So in Betts and others v. Gibbins (y), where it appeared that the defendant sold ten casks of goods to N., and sent them to the plaintiffs with notice that they were for N., ordering the plaintiffs to separate them from other articles sent at the same time, and to have them taken away distinctly from those. After they were separated N. took away two casks, and the defendant then ordered the plaintiffs not to deliver the remaining eight to N., but to another person, which order the plaintiffs obeyed. N. becoming bankrupt, his assignees sued the plaintiffs in trover for the eight casks. Plaintiffs then wrote to defendant, stating that they looked to him. for indemnity, and inquiring whether they should defend, and stated they should settle the action, in default of receiving instructions from him. Defendant denied his liability to indemnify, though he said he was advised the action could not be defended, but he

(t) But not then where they are partners; Sadler v. Nixon, 5 B. & Ad. 936; Pearson v. Skelton, 1 Mee. & W. 504; ante, 233.

(u) Pearson v. Skelton, 1 Mee. &

W. 504; and see Wooley v. Bate, 2 C. & P. 417.

(x) Adamson v. Jarvis, 4 Bing. 66. (y) 2 Adol. & Ellis, 57.

offered to place eight fresh casks of the same article in the plaintiff's hands. Plaintiff received the casks, and offered them to the assignees, who, two months after, refused to accept them. Plaintiffs then paid the sum claimed and costs to the assignees, and sued defendant for the sum paid and the costs of the action, declaring upon promises to indemnify, in consideration of their not delivering the casks to N., and delivering them to another person it was held, that a promise to indemnify to the full amount claimed might be implied from the facts; that whether the right of stoppage in transitu as against N. was determined or not, the detaining the goods by the plaintiffs was not such an evidently unlawful act as entitled the defendant to resist the action as an attempt to enforce contribution or indemnity among wrongdoers.

In Fletcher v. Harcourt (z), the declaration stated, that whereas the defendant had arrested one Batersby by a commission of rebellion, issuing out of the court of the lord president and council of the north, as he affirmed; and that the plaintiff kept a common inn at Otely, and had kept it for the space of five years, and had entertained men. That the defendant requested the plaintiff to keep the said Batersby in his inn at Otely by the space of one night, as a prisoner, and that he would keep and save him harmless; and averred that he had kept him for that night as a prisoner. That Batersby afterward brought an action of false imprisonment against him for the said keeping of him in his house, and that he had expended and laid out in defence thereof ten pounds; and that he had required him to save him harmless, and he refused. On non assumpsit, verdict for the plaintiff; and it was moved by Harvey, in arrest of judgment, that it is no sufficient consideration, because it doth not appear that he had lawfully arrested the said Batersby, for it is not affirmatively alleged. "The Lord Hobart seemed at first to doubt if it did not appear that it was a lawful arrest, then there was no consideration; but because the diversity, when the consideration appears to be for doing of a thing which is unlawful; as if one at the request of J. S., promised to better (query beat) J. D., and he promised to save him harmless; this is a void consideration. But if one request J. S. to enter into the Manor of Dale and drive out cattle, and that he will save him harmless,

(*) Hutton, R. 55; Winch. 48, S. C.; Bull. N. P. 146 a.

if he doth so; and after trespass be brought against him and recovery had, he shall have his action. So if a sheriff, pretending to have a writ where he hath none, arrest one, and request an innkeeper to entertain him in his house, or hire one to conduct the prisoner to the gaol, and promise to keep him without damage, if an action be brought, and recovery had thereupon, the party shall have an action of the case against the sheriff upon this promise; for he which doth a thing which may be lawful, and the illegality thereof appear not to him, he which employs the party, and assumes to save him harmless, shall be charged. And judgment was entered for the plaintiff."

But no indemnity can be implied against the consequences of a publication at the defendant's request of a libel on a third person (a). Nor, it should seem, can the proprietor of a newspaper, convicted and fined for the publication of a libel in the paper inserted without his knowledge or consent by the editor, recover against the editor the damages sustained through such conviction (b).

In the case of an accommodation acceptance or indorsement, there is an implied engagement on the part of the person requesting the accommodation, that he will indemnify the acceptor or indorser against the defendant, and such costs as may necessarily and reasonably be charged (c). But in ordinary cases, not accommodation bills, the indorser of a bill, who has had an action brought against him by the indorsee, is not entitled to recover the costs which he incurred in such action from the acceptor (d). Where a party is either expressly or impliedly indemnified against the demand of a third person, he cannot unnecessarily, and without express authority, defend an action by the latter, and then claim the costs of the action from the person guaranteeing; in other words, he cannot claim reimbursement, if the demand were so clear that a defence was hopeless. In Gillett v. Rippon (e), the plaintiff sued on a contract to indem

(a) Shackell v. Rosier, 3 Scott, 59; 2 Bing. N. C. 634, S. C.

(b) Colburn v. Patmore, 1 C., M. & R. 83.

(c) See the precedents and notes, 2 Chit. Pl. 6th ed. 199; Chit. jun. Prec. Pl. 124; Chit. jun. B. 38.

(d) Dawson v. Morgan, 9 B. & C.

618.

(e) Moo. & M. 406. And see per

Lord Ellenborough, Spurrier v. Elderton, 5 Esp. R. 3; Fisher v. Fallows, id. 171; ante, 501, n. (n). By the French law, a surety has no remedy for his expenses, except such as were incurred after he has given notice to the principal debtor of the proceedings against himself; French Civil Code, bk. 3, tit. 14, C. 1, S. 2.

nify him against the expenses of a commission of bankruptcy issued at his suit, and he claimed the costs of an action brought by the messenger for his bill. Notice was given to the defendant of the messenger's action (ƒ); and it was contended that the defendant should have paid or stopped the messenger's action, to which there clearly was no defence. Lord Tenterden, C. J., said, "I think the defendant is not liable for the costs beyond the writ; a man has no right merely because he has an indemnity to defend an action and to put the person guaranteeing to useless expense. If he has the costs of the writ it is quite enough." In a subsequent case (g), his lordship decided that the accommodation acceptor of a bill who pays it to a bona fide holder after action brought, cannot recover the costs of such action against a person who, having had the bill delivered to him for a purpose which was satisfied, had improperly indorsed the bill to the holder. The acceptor should have paid the debt when demanded, without suit. And in Baker v. Garratt (h), Best, C. J., said, that if a man become surety for a debtor, the creditor cannot recover from the surety the costs of a fruitless suit against the debtor, who has made default, unless he has given notice of his intention to sue (i).

2ndly. Guarantees how affected by the Statute of Frauds. The statute of frauds, 29 Car. II. c. 3, s. 4 (k), provides "that no action shall be brought whereby to charge the defendant

tions were wilfully and fraudulently, or knowingly made, and caused a damage to the party to whom they were uttered, an action on the case for the deceit and consequent injury was maintainable; see Pasley v. Freeman, 3 T. R. 51; Haycraft v. Creasey, 2 East, 92; Foster v. Brown, 6 Bing. 396. The object of the statute was thus, it seems, in some measure indirectly frustrated. To remedy this mischief, it is enacted by the statute 9 Geo. 4, c. 14, s. 6, that " no action shall be brought, whereby to charge any person upon, or by reason of, any representation or assurance made or given concerning or relating to the character, conduct, credit, ability, trade or dealings of any other person, to the intent or purpose that such other person may obtain credit, money, or goods