Keith v. Congregational Parish

38 Mass. 261

• Court: Massachusetts Supreme Judicial Court
• Decided: October 29, 1838
• Status: Published

Opinion

Shaw C. J.

delivered the opinion of the Court. Where one party pays money for another under a legal liability, as a surety or indorser, such liability is deemed a request in law, and the party paying may have an action against the principal, as for money paid at his request. Where judgment is recovered against a parish, and execution issued, every parishioner is liable in his person and property to satisfy it. His individual property may be taken for that purpose. There is therefore much ground to maintain, that when a demand is made on a parishioner, by an officer, to satisfy an execution against the parish, he may pay it and maintain an action in his turn against the parish.

But it is not necessary to put the decision on this ground, because it appears, that the plaintiff’s property was actually under attachment on mesne process for this debt. For though the property has been receipted for, the officer could demand it of the receipter, and he would be compelled to deliver it or pay the amount. It was still therefore potentially in the custody of the law. The result is, that the plaintiff was under actual coercion, and was compelled to pay the debt to save his property from execution. It was in no sense a voluntary payment.

Judgment on the defqult