1819. HALES v. FREEMAN. fied by a legatee as his principal; but it is doubtful whether money paid by a surety for the use of his principal, can be recovered at law, if both are equally liable to pay it; but a liability can now be supported on equitable grounds alone. But here there is no connection whatever between the plaintiffs and defendant; and unless the former be entitled to recover by the statute, the defendant cannot be liable to pay the sums now claimed by them, for the duties in ques tion. Mr. Serjt. Lens, in reply.-The object of the Legislature in passing the statute 36 Geo. 3. was not to make an executor or administrator personally or ultimately liable to the duties imposed thereby, but merely directed within what time such duties might be paid, in ease of the legatee. The case of Andrew v. Hancock, therefore, is beside the present question. It is quite clear the payments made by the plaintiffs were made on account of the defendant, and although their power of retaining was gone, more than four years having elapsed, still their right to recover them, as money paid to her use, still continues, as they remained liable to the Exchequer process, until the payments were actually made. Although no express authority for making such payments arises from law, still they were compulsory on the plaintiffs, as the defendant alone was ultimately liable, although they were bound to make them in the first instance, The law, however, raises an obligation, which if not express, is clearly implied. An executor would not be justified in paying all the duties in the first instance, for it is his duty to retain them during four years, and pay them proportionally at stated periods; and even if he pay in advance, he can only retain according to the provisions of the statute, the object of which was, not to distress the legatee by levying all at once, but allowing four years for that purpose. An executor is not beneficially interested. No limitation is given by the statute as to the time the executor may retain, but it merely provides that the duties shall be paid to Government within four years. As to the position, that the liability of a surety for a payment made on account of his principal, can be supported on equitable principles alone, it cannot be applicable to this case; for an executor is merely in the situation of a surety to Government for the payment of the duties, but the legatee is the principal and sole person who derives any benefit from the legacy, and is alone ultimately liable for the payment of those duties. Although the defendant had assigned the annuity before the payments in question were made, it is altogether immaterial, for she originally received the whole of the proceeds of the legacy, when the duties to Government should have been paid. This case, therefore, is wholly different from that of Andrew v. Hancock, as here both parties are debtors, and the payments by the plaintiffs, as executors, were compulsory in the first instance; but such payments were made for the use of the defendant, as legatee, who is the only person beneficially interested under the legacy, and from whom they have now a right to retain the sums in question. Lord Chief Justice DALLAS.-This case depends on the construction of various clauses in two acts of Parliament, namely, the 36 Geo. 3. c. 52. and the 45 Geo. 3. c. 28. The former of these relates to duties payable on legacies and shares from personal estates only, and by the sixth section of that statute, the duties were directed to be paid by executors or administrators, on retainer, on the payment of legacies, and finally provided, that if the duties were not duly paid before legacies were retained by executors, or discharged, they having deducted it, the amount was to be a debt from them to his Majesty, and that if they paid legacies without deducting the duties, it should be a debt from both the executor and legatee. The legacy in question was an annuity charged on a real estate, and the fifth section of the 45 Geo. S. c. 28. subjects property of that description to the provisions 1819. HALES v. FREEMAN. 1819. HALES v. FREEMAN. tors. contained in the 36 Geo. 3. c. 52. s. 6. The eighth section of the latter statute directs, that the value of any legacy given by way of annuity, and the duty chargeable thereon, shall be payable by instalments at certain periods therein stipulated. Here, more than four years had elapsed, and payments had been made by the plaintiffs, as executors, to the defendant, as legatee, of the annuity in question, without the deduction of the duties by the plaintiffs, as such execuThe defendant is therefore now called on by the plaintiffs to repay the amount of those duties which they had not deducted according to the provisions of the latter section, they having paid the whole amount of the legacy to the defendant. It must be considered, that the defendant is the only person beneficially interested. The present action is founded on the provision contained in the sixth section of the 36 Geo. 3. namely, that if executors pay legacies without deducting the duties at the time, such duties shall be considered as a debt from both parties. Although more than four years may have elapsed, the parties are still liable, and it is expressed, that the duties shall notwithstanding be a debt to his Majesty, both from the executor and the legatee. It must be deemed a debt from the former, to make him liable in the first instance, but notwithstanding this, it leaves the legatee in the same situation; for the debt remains due from such person, in case the deductions are not made by the executor. It has been contended by my Brother Taddy, that the instalments should have been paid within four years. If they had been regularly made, they must have been so. But the statute 36 Geo. 3. provides two things; first, that if the duty be not deducted at the time of the payment of the annuity, both the executor and legatee are liable; and, that if the instalments be not regularly made, the legatee remains liable as he did in the first instance. There is a continuing liability in the legatee, and he remains equally liable as if the payments were made within the four years. It is unnecessary to travel back to the previous cases that have been cited, as bearing on the present question, for it has been expressly provided for by the statute. The defendant is the only person beneficially interested. This is not like the cases of voluntary payments, or payments made in ignorance of the law, or by mistake, or under doubtful circumstances. It was compulsory on the plaintiffs, as executors, to pay the duties for the person beneficially interested. They certainly might have deducted them in the first instance; but if a legacy be paid without such deduction, the plaintiffs and defendant are both liable, the one as executor, the other as legatee. The duties were to be deducted from the funds of the defendant. They were paid by the plaintiffs on her account, and I therefore think they are entitled to recover. Mr. Justice PARK.-On the first view of this case, I thought it an apparent hardship that the defendant should be called on to repay this money, after so long a time had elapsed, and after the annuity had been assigned; but I now think that it would be a greater hardship if the plaintiffs were not entitled to recover; as the sums in question were paid by them on account of the duties on the defendant's legacy. The plaintiffs themselves had no beneficial interest whatever in the annuity. No reflection will be cast on the previous cases, as it is not necessary to touch on or question them for the purpose of this decision. In Denby v. Moore, the Court of King's Bench held, that the deduction for property tax must be made by the tenant out of the first payment of rent to his landlord, and that if the tenant were to lie by without making such a deduction at the time, he could not afterwards do so. The decision in that case was founded expressly on the Property Tax Act. In the case of Andrew v. Hancock, it was held, that a similar construction was applicable to the Land Tax and Paving Acts; but this Court there grounded their judgment on the words of those latter statutes. But this case is wholly distinguishable and disconnected with them, as here the plaintiffs were required to make the deductions by statute. This was not a voluntary 1819. HALES v. FREEMAN. 1819. HALES บ. FREEMAN. payment made by them, for they continued liable to the Crown until these duties were paid. Neither can this be considered as a payment by mistake, and falling within the cases of Brisbane v. Dacres, and Bilbie v. Lumley (a), for it was in fact a compulsory payment. These latter cases merely establish, that if a party pay money with full knowledge, or the means of knowledge, of the facts, such money cannot be recovered back; but here the plaintiffs paid the duty for the defendant as legatee. The parties, therefore, might be considered to stand in the relative situations of principal and surety. The plaintiffs, as executors, were in the nature of sureties, and the defendant, as legatee, was the principal, and the only person beneficially interested in the payment of the annuity in question. Mr. Justice BURROUGH.-The substantive cause of action in this case is founded on the plaintiff's right to recover a sum of money paid by them for duties on a legacy. In order to secure the payment of these duties, various provisions are made by two different statutes, but the legatee is the person who must ultimately bear the burthen of these duties. Their being made payable by instalments, and within four years from the time in which the annuity was granted, must be construed to be in ease of the party who is eventually obliged to pay them. Here, the defendant, as legatee, had the full benefit of the annuity for nearly five years, and during the whole of that time received more than she ought from the plaintiffs, as executors. The payments in question were not voluntary on the part of the plaintiffs, as they might be enforced to make them by Government, in their character of executors, and they might in fact be sued for that purpose. It is a clear principle, that where a person is compellable by law to pay money, he may do so without force, or being sued for that purpose. If the plaintiffs had been sued for and paid the duties, could they not have recovered (a) 2 East. 469. |