be evidence against them (u). But no action can be maintained by one of Money paid several co-trespassers, or other wrong-doers, to recover such contribution; by compulsion. for where the transaction is illegal, the law will not raise any implied assumpsit (r). So where the plaintiff, in consequence of the default of the defendant, has been compelled to pay money to relieve himself, which the defendant ought to have paid, the defendant's consent will be implied; as where the goods of the plaintiff, a lodger in the house of the defendant, are distrained upon by the landlord, and the plaintiff, on default of the defendant's paying his rent, pays the amount to redeem his goods (y). Where an accommodation acceptor defends an action at the request of the drawer, he may recover the costs as money paid to the use of the drawer (z). Where a carrier by mistake delivered to B. the goods of C., and B. appropriated the goods, and the carrier on demand, and without action, paid the money, it was held that he might recover against B. for money paid to his use (a). A. and B. were employed as assurance brokers, and A. paid the premium with his own money; after the bankruptcy of B. it was held that A. might maintain the action in his own name (b). transaction. If one of two debtors pay the whole of a joint debt, the law gives him a In an illegal right to recover a moiety in an action for money paid to the use of the other, on the ground that both are liable to pay; but if one pay the whole of a debt in furtherance of an illegal contract, he cannot recover a moiety upon an implied contract to pay, since no implied contract can arise out of an illegal transaction. And although the contrary was formerly held (c), it (u) Dic. in Powel v. Layton, 2 N. R. 365. (x) Merryweather v. Nixon, 8 T. R. 186. (y) Exall v. Partridge, 8 T. R. 308; supra, note (m). It has even been held, that an intermediate indorser of a bill who pays part of the amount to a remote indorsee, who has obtained a verdict against the acceptor for the whole amount, but who has not levied an execution for the part so paid, may recover the sum so paid from the acceptor, though there was no privity between them, except on the bill which the indorsee still continued to hold. Pownal v. Ferrand, 6 B. & C. 512. But he cannot recover the costs of a former action. Dawson v. Morgan, 9 B. & C. 618; and see Smith v. Napier, supra, 147; Fisher v. Fallows, supra, 76. Money paid by the drawer and indorser of a bill of exchange to the indorsee is paid for the acceptor. Le Sage v. Johnson, Forrest. 23. A. holds a lease under a covenant for re-entry for non-repair, and underlets to B., who undertakes to repair within three months after notice; after default by B. A. may repair, and recover the amount expended. Colley v. Stretton, 2 B. & C. 273. Note, the plaintiff declared specially. (z) Howes v. Martin, 1 Esp. C. 162. (a) Brown v. Hodgson, 4 Taunt. 189. But see Sills v. Laing, 4 Camp. 81. (b) Thacker v. Shepherd, 2 Chitty's C. T. M. 652. (c) In Faikney v. Reynous, 4 Burr. 2069, the defendant had given a bond to the plaintiff to secure the amount of one It was observed by Lord Kenyon, in That case was as follows: A. and B. having been jointly engaged in stockjobbing transactions, came to a settlement with their broker, who paid all the differences; A. paid his own share to the broker, and drew a bill on B. for his share, which B. accepted; A.'s executors were afterwards sued upon the bill by the broker, seems to be now settled, that if one of the parties pay the whole of such a debt at the express request of another party, and upon a promise of repayment, he cannot maintain the action, even upon the express promise. It For another seems to be now also settled on broad and satisfactory principles, notwithin an illegal standing the doubts which once prevailed, that money advanced by one person to another, with a knowledge that it is to be applied in furtherance of an illegal purpose, cannot, after it has been so applied, be recovered. transaction. In the late case of Cannan v. Bryce (d), which was an action to recover money lent, and applied by the borrower for the express purpose of settling losses on illegal stock-jobbing transactions, to which the lender was no party, it was held, on very broad principles, that such an action could not be maintained. The distinction between malum prohibitum and malum in se, was denied. It was said, that if it be unlawful in one man to pay the money, how can it be lawful in another to furnish him with the means of payment; and it was held, that the case was not distinguishable in principle from that of the druggist, who sold to the brewer, for the purpose of being mixed with beer, certain drugs, which the latter was prohibited by act of parliament from mixing with the beer (e). Where an officer permitted a prisoner to go at large, on his promise to pay the debt, in consequence of which the officer himself was obliged to pay the creditor, it was held that he could not recover the money from the who recovered the amount, and the exe- Steers v. Lashley, that the plaintiff, to whom the broker had indorsed the bill after it became due, was not entitled to recover. In Mitchell and others v. Cockburne, 2 H. B. 380, (Buller, J. being absent), A. and B. had entered into a partnership for insuring ships in the name of A., and A. had paid the whole of the losses, and it was held that he could not recover a moiety of such payments from B.; and Eyre, L. C. J. distinguished the case from those of Faikney v. Reynous, and Petrie v. Hannay, since those cases were one step removed from the illegal contract itself, and did not arise immediately out of it; and Heath, J. observed, that it did not appear that the payments had been made by A. at the request or with the consent of B. In the case of Aubert v. Maze, (2 B. & P. 371.) it was held that money paid by one of two partners on joint insurances, could not be recovered from the other partner. Lord Eldon in this case questioned the soundness of the decision in Petrie v. Hannay, and the distinction grounded upon an express consent of the partner; and Heath and Rooke, Justices, denied the distinction between the case of money paid in a concern which is malum prohibitum, and where it is paid in a transaction which is malum in se. The cases of Booth v. Hodgson (6 T. R.) and Sullivan v. Greaves (Park on Insurance, 8,) were also relied upon by the Court as strong instances to show that the Court would not assist a plaintiff in enforcing an agreement which is contrary to law. (d) 3 B. & A. 179. (e) Langton and others v. Hughes and others, 1 M. & S. 594. debtor, having been guilty of a breach of duty, from which he could not derive a cause of action (ƒ). The assignment of a debt without the assent of the debtor does not confer Money lent. a right of action, the ordinary rule being, that choses in action are not assignable; but if the debtor assent to the arrangement, it seems that the transaction is equivalent to a loan by the assignee to the debtor. If A. owe money to B., and B. owe the same sum to C., and the parties agree to the transfer, it is equivalent to a loan by C. to A. (g). Where the money has been advanced to the defendant's agent, the authority of the defendant to the agent must be proved. Such authority may arise out of the special circumstances. Thus a shipowner is liable for money advanced to the master in case of necessity (h). A promissory note given by the defendant to the plaintiff is evidence under this count (i), since the note imports the maker's having so much money of the payee in his hands. But the mere circumstance of the defendant having received money from the plaintiff is primâ facie evidence of the payment of an antecedent debt, and not of the loan of money (k). So the receipt of money by the defendant, on a cheque drawn by the plaintiff on his banker, primâ facie imports a payment, and not a loan, and is not evidence to go to a jury; unless the plaintiff can give evidence of money transactions between himself and the defendant, from which a loan can be inferred, or of some application by the defendant to borrow money (1). Interest cannot be recovered without proof of a contract to that effect express or implied, or unless a written security be given for the payment of the money at a time specified (m). A lender of money who has received goods as a security, may recover without proof of having returned or tendered the goods (n). Under the count for money had and received, the plaintiff must prove, 1st, the receipt of money by the defendant (o); 2dly, that it was received to his (the plaintiff's) use; i. e. his title to it (p). (f) Pitcher v. Bailey, 8 East, 171. (g) Wade v. Wilson, 1 East, 195. The assent of the debtor is essential, for he may have an account against the assignor, and choose to insist on his set-off; but if there be anything like an assent on the part of the holder of the money, it seems that the action for money had and received may be supported. See Lord Ellenborough's observations in Surtees v. Hubbard, 4 Esp. C. 203; and supra, 75, note (d). It must appear that at the time of the promise to pay the debt a defined and ascertained sum was due, Fairlie v. Denton, 8 B. & C. 305. Where the debtor of the plaintiff having goods at the defendant's wharfs, gave an authority to the defendant to sell them, and out of the proceeds to pay the plaintiff the balance of freight due to him, and the defendant accordingly sold the goods and received the proceeds, held that the authority did not require a stamp as an order for payment of money, and that after the sale and receipt of the money, the plaintiff was entitled to sue for money had and received. Humphreys v. Briant, 4 C. & P. 157. (h) Rocher v. Busher, 1 Starkie's C. 27. Even in an English port. Robinson v. Lyall, 7 Price, 592. (i) Story v. Atkins, 2 Str. 719; B. N. P. 136, 137. Harris v. Huntbach, 1 Burr. 373. (k) Welsh v. Seaborn, 1 Starkie's C. 474. If a parent advance money to a child, it is supposed to be by way of gift, per Bayley, J. Hick v. Keats, 4 B. & C. 71. (1) Cary v. Gerrish, 4 Esp. C. 9. (m) Calton v. Bragg, 15 East, 223. But see Trelawny v. Thomas, 1 H. B. 303. and tit. INTEREST. 73. (n) Lawton v. Newland, 2 Starkie's C. (0) It has been held that proof must be given of the receipt of some particular sum, and that in default the plaintiff must be nonsuited. Bernasconi v. Anderson, M. & M. 183. Harvey v. Archbold, 5 D. & R. 504. But see below, and Leeson v. Smith, 4 N. & M. 304. (p) The action cannot be maintained if it be against equity and good conscience that the money should be recovered. Davis v. Bryan, 6 B. & C. 651. Money had and re ceived. Actual re money. It must be proved that the money came into the hands of the defendant. ceipt of the And therefore the action will not lie to recover stock (q). The action is not maintainable against one of two grantors of an annuity, (upon failure of the annuity-deed for want of a memorial), who was a mere surety, and had received no part of the consideration (r). But a debt may be transferred to a third person by mutual arrangement between the parties, on a sufficient consideration. If A. be the creditor of B. for money had and received, and A. himself is indebted to C. in the same amount, and by mutual agreement A.'s debt is cancelled, and C. is to be the creditor of B., the money in B.'s hands is had and received to the use of C. (8). A bill of 2589. (q) Nightingale v. Devismes, 5 Burr. Nor against the finder of bank notes, although if they be not produced at the trial it may be presumed that their value in money has been received. Noyes v. Price, 16 G. 3; Roscoe on Evidence, 300; Select Ca. 242; Chitty on Bills, 426, 5th ed.; Longchamp v. Kenny, Doug. 138. Where the defendant, captain of the plaintiff's ship, drew at Rio a bill on the plaintiff's agent in London, for disbursements, and the bill was paid in London by the agent; it was held by the Court of C. P. that there was not sufficient evidence of the actual receipt of the money by the defendant. Scott v. Millar, 3 Bing. N. C. 811. Qu? (r) Stratton v. Rastall, 2 T. R. 366. Though he has given a receipt for the money, Ib. And see Scholey v. Daniel, 2 B. & P. 540. In an action for debt for penalties against the surveyors under the stat. 13 Geo. 3, c. 78, s. 48, by the succeeding surveyors, for not paying over monies in their hands, with a count also for money had and received, it was held that as it appeared that the monies collected had only come to the hands of one of the defendants, the count for money had and received could not be supported against the two, as there must be evidence of something done by each touching the receipt of the money, Heudebourch v. Langton, 3 C. & P. 566. A member in a banking firm forges a power of attorney to transfer stock belonging to trustees, and after the transfer makes entries of the crediting the trustees with supposed dividends upon the stock, on the ground of which cheques are drawn by the trustees on the firm, and paid. Though the circumstances afford primâ facie evidence against the firm of the receipt of such dividends, the amount is not money had and received by the firm to the use of the trustees; for the transfer being a nullity, they are entitled to receive the dividends at the Bank of England; but they may recover damages for the false representation that such dividends had been received. Hume v. Bolland, 2 Tyr. 575. (s) Wilson v. Coupland, 5 B. & A. 228. For the debt may be considered as a loan by C. to B., or as so much money had and received by B. to the use of C., and as so much due on an account stated. See Israel v. Douglas, 1 H. B. 239. Ld. Ellenborough's observations in Wade v. Wilson, 1 East, 195. Surtees v. Hubbard, 4 Esp. C. 203; supra, 75. 79. It is essential to such an agreement that A.'s debt is extinguished. Cuxon v. Chadley, 3 B. & C. 591. Wharton v. Walker, 4 B. & C. 165. And the debt transferred must be a wrong demand. Blackledge v. Harman, 1 Mo. & R. 344. Wharton v. Walker, 4 B. & C. 163. The expenses of a conveyance on the sale of an estate were to be paid equally by the vendor and vendee, and it was afterwards agreed that if the vendor would pay the whole of the expense of another transaction, the vendor should be discharged of his moiety of the expense of the conveyance; it was held that the transaction was the same as if the vendor had paid the vendee a sum of money, the vendee taking upon himself the vendor's share of the expenses of the conveyance, and that an attorney who had for a consideration undertaken to effect the conveyance, and not to apply for further remuneration if the vendor objected to pay any expenses, was entitled to recover against the vendee the amount of such expenses as money had and received to his use. Noy v. Reynolds, 1 Ad. & Ell. 159. Such an arrangement of transfer is binding, although before its completion the intermediate debtor to the one and creditor to the other party becomes bankrupt. Crowfoot v. Gurney, 9 Doug. 372. Note, that in that case the debt due to the middle party was not ascertained at the time of the agreement, but had been ascertained previous to the bankruptcy. But see on this latter point Fairlie v. Denton, 8 B. & C. 935. So the taking credit from a third person is in some instances equivalent to a receipt of money. A. on the 18th paid notes of the Dartmouth bank into the Totnes bank, to receive interest from that time. The Dartmouth bank continued to pay on their notes till the evening of the 19th, when the bank failed. On the morning of the 19th, according to the course of dealing between the two banks, the Dartmouth gave credit to the Totnes bank for the amount of the notes, and it was held that A. was entitled to recover, for the giving credit was equivalent to payment. Gillard v. Wise, 5 B. & C. 134. See 2 Ad. & Ell. 36. Spratt v. Hobhouse, the money. exchange payable to the order of the drawer, is evidence in an action by Receipt of the drawer against the acceptor of money had and received by the latter to the use of the drawer (t). The receipt of provincial notes by the defendant, which he has received as money, is evidence of a receipt of money by him (u); and it may be laid down as a general rule, that if a thing be received as money, it may be treated and recovered as such (x). Upon a count for money had and received by the defendant to the use of the plaintiff, the latter may prove the receipt of money by the defendant and his deceased partner, and also the receipt of money by the defendant himself to the use of the plaintiff; for every partner is liable for the whole, and the proving that another person, together with the defendant, received the money, does not negative the allegation that the defendant himself received it, and therefore there is no variance (y). Money received by the defendant's authorized agent, is money received by the defendant. But where money is received by the mutual agent of both plaintiff and defendant, it cannot be recovered by the former as received by the latter to his use (2). Where money was paid into a banking-house, for the purpose of taking up a particular bill then lying there for payment, although the banker's clerk said at the time that he could not give up the bill, but took the money, it was held to be money had and received to the use of the owner and holder of the bill, and that it could not be applied by the bankers to the general account of the acceptor, who had paid the money (a). But where A. sent bills to B., his banker, directing him to pay part of the produce to C., and B. refused to act upon the order, but received the produce of the bills, it was held that C. could not maintain an action against B. for so much money had and received to his use, since, as between the plaintiff and defendant, there was no privity, either express or implied (b). And where money has been received, with directions to pay it to another in discharge of a bill, but the order is revoked before payment, and the receiver is directed to hold it for another purpose, the holder of the bill cannot maintain this action (c). A banker who takes credit with the underwriter for a loss due to the principal, whereupon the name of the underwriter is proved from the policy, is 4 Bing. 173, where, per Best, C. J., the principle in all the cases is that if a thing be received as money, it may be treated as such in an action for money had and received. (t) Thomson v. Morgan, 3 Camp. 101. And see BILLS OF EXCHANGE. (u) Pickard v. Banks, 13 East, 20. Fox v. Cutworth, cited 4 Bing. 179. And even in a criminal case, on an indictment for obtaining money by means of a false token, the receipt of a bank-note of the amount has been held to be evidence to the jury of the receipt of the money at the Bank. (z) Per Best, J. in Spratt v. Hobhouse, 4 Bing. 179. An agent for the sale of goods, refusing to account after a reasonable time, may be presumed to have sold them. Hunter v. Welsh, 1 Starkie's C. 224. But where a defendant, sued for the proceeds of a bill, admitted that he had paid it into his banker's, and the banker's clerk VOL. II. was called to prove that credit was given (y) Richards v. Heather, 1 B. & A. 29, (z) Goods were consigned to A. and in the note. (b) Williams v. Everett, 14 East, 582. (c) Stewart v. Fry, 7 Taunt. 339; 1 Moore, 74. G |