to his use. Surtees et al. v. Hubbard, 4 Esp. R. 204; 1 H. B.

239.

This doctrine, however, should not be carried too far. Ought the assignee, in any case, to be able to maintain an action as for money had and received, where the assignor could not have maintained the same?

Where negotiable paper is made payable to bearer, any bona fide holder of the note, may recover under this count against the maker or drawer. 3 Bur. 1516.

A, being indebted to B, promises to accept a bill to be drawn on him for the amount; B draws in favor of C; C indorses to D. This promise of A is not an acceptance, and D cannot maintain an action for the amount, either on a count, as for an acceptance, or on a count, for money had and received by A to his use. 1 East's R. 98, Johnson v. Collins,

If A pays money to B to be applied to a particular purpose, and B, by mistake, pays it to C, who is not entitled to it, A cannot maintain this action against C, for want of privity. 2 Camp. 123.

The acceptor of a bill of exchange gives B money to pay it; the holder sues B; B may take advantage of any defence which the acceptor might set up. Redshaw v. Jackson, 1 Camp. 372; Baker v. Birch, 3 Camp. 107.

Where a deposit is made on a contract which is afterwards rescinded, under this count, the deposit may be recovered back. 1 Camp. 337; 2 Esp. R. 639; 1 T. R. 133.

But not while the contract continues open. Doug. 24; 7 East, 274.

Wherever the insured are entitled to a return of premium, they may recover it back under this count. Thus, if the policy is void on account of a non-compliance with warranties; if the ship be not sea worthy and there is no fraud in the insured; if the voyage is divisible and part only of the risque is incurred; if by mistake of the insured, there is short property on board; either the whole or a proportional part of the premium, may be recovered back under this count.

But where the voyage is illegal, or the policy is a wager policy the premium cannot be recovered back. See Marsh. & Park on Return of Premium.

If a man, having lost his receipt, or having any other good defence pays money a second time, by the judgment of a court having jurisdiction, if he finds his receipt afterwards, he cannot recover the money back; otherwise, if he pays it without suit, through his own mistake or the fraud of the other party. 7 T. R. 269; 2 Stark. 85; 1 Esp. R. 279; 2 ib. 547. See also, Moses v. M'Farlane, 2 Bur. 1005; 2 H. Bl. 411; 16 Mass. R. 306; 17 ib. 394; 18 ib. 435; 12 Johns. 347; 4 T. R. 431.

If money is received under a void authority, it may be recovered back under this count, and although the authority claimed is judicial. 1 Ld. Raym. 742.

Under this count the plaintiff may recover money, which a sheriff has collected on execution, or it will lie against the sheriff's execu tors. 3 Salk. 323.

If a revenue officer seize goods not liable to seizure, and the owner pays him money to regain them, under this count the owner may recover back the money so paid. Irving v. Wilson, 4 T. R. 485.

If money is given to an agent, to expend upon an illegal transaction, after the agent has paid it over, no action lies against him, to recover it back. 1 Salk. 22. See Doug. 697. Nor against the receiver, if the consideration is executed. Cowp. 792. But otherwise while it is executory, for it may then be countermanded. 3 Taunt. 277. And, therefore,

Where A receives money of B, to pay over to C, on an illegal contract, C may recover it under this count, any time before B countermands it. 1 Bos. & Pul. 3, 296.

If A claims certain fees of office, to which he is not entitled, and B pays them, B may recover them back under this count. 2 Sid. 4; Willes, 536.

If an infant embezzles money, it is held, that the owner may recover it, in an action for money had and received. See Peake's Nisi Prius Cases, 223; 1 Esp. R. 172.

And generally, where money is obtained by fraud and deceit, it may be recovered back in an action for money had and received. Dana v. Kemble, 17 Pick. 545.

4. Money lent and advanced.

If money is advanced to B at A's request, this action may be maintained against A; for the loan is to A, though the money is paid to B. But, if declared on as a loan to B at A's request, it will be bad; or, if it is in fact a loan to B at A's request, A will not be bound without a memorandum in writing under the statute of frauds. 1 Vent, 311; 1 Bur. 373; 2 Wils. 141.

If money is paid to the wife at the husband's request, it may be declared on as a loan to the husband. 3 Wils. 388.

If public stock is loaned, the lender must declare specially on the contract, and cannot recover under this count. 1 East, 1; 5 Burr. 2589.

Money lent on a pledge may be recovered under this count; if, however, the pawn-broker agreed to stand to the pledge only, no action can be maintained. Str. 919.

5. Money paid and expended.

In this count it is necessary, that it should be alleged, that the money was paid at the defendant's request, as well as for his use. And this request may be implied, where the party was under a legal obligation to pay. But not if the plaintiff pays the money against the express prohibition of the defendant. Stokes v. Lewis, 1 T. R.

If A owes B a sum of money, and C, at A's request, satisfies the demand, by giving a note or bill of exchange, so that A is discharged from the debt to B; C may recover in this action, as for money paid and expended for A's use, and even although the note he gave, has not become payable. Quære. See Proctor v. Gooch, 2 Esp. R. 571. Otherwise of a bond, before payment. 3 East, 169; 2 Barn. and Ald. 51.

If one of the joint makers of a promissory note, after it becomes due, gives his bond to the holder for the amount of the note, he cannot maintain this action for contribution, until he has actually paid money on the bond. Maxwell v. Jameson, 2 Barn. & Ald. 51. The reason assigned by Justice BAYLEY is, that, if the obligor, should recover the money, it is still possible that he may never pay it over to the obligee.

This is the proper count for sureties, or bail to recover the sums of money which they have paid for their principals. And the bail, in this form of action can recover all necessary expenses they have been put to, in sending after the principal, and all charges which are necessary to secure themselves. Fisher v. Fallows, 5 Esp. R. 171; but not those, arising from an improvident defence of the action, brought by the creditor against themselves as bail. Ibid.

Under this count, one surety, who has paid more than his proportion, may recover a contribution from the others.

But it is decided, if there are three sureties, A, B and C, and A and B pay the whole debt, they must sue C severally to recover the amount which he is bound to contribute. Kilby et al. v. Steel, 2 T. R. 282; 5 Esp. 104, cites 3 Bos. & Pul. 235.

It seems that where there are more than two sureties, for instance, six, and four of them are insolvent, and one of the two others pays the whole debt, whether voluntarily or by compulsion of law, he can recover, of the other solvent surety, no more than his proportion of the whole debt, viz. one sixth; but in equity, perhaps it might be otherwise. 2 Bos. and Pul. 268, 270.

If A persuades B to become co-surety with him for another, and A pays the whole debt, he cannot recover contribution against B. Turner v. Davies, 2 Esp. R. 478.

If damages are recovered against several tort feasors, and the execution is levied on the property of one, he cannot recover contribution from the rest. 1 Camp. 343; 8 T. R. 186.

Where a sheriff or jailer voluntarily, though without any corrupt intention, suffers an escape, and in consequence is obliged to pay the debt, he cannot recover it of the debtor. Peake's N. P. C.

144, a.

It seems, if A does an act, wrong on the face of it, by B's order, and B expressly promises to indemnify A for it, A can recover neither indemnity nor contribution of B.

But, if the act is apparently doubtful or indifferent, A may recover on an express promise to indemnify him, made by B. Or, if the act, thus doubtful, is performed by B's order, the law will imply

16

a promise to indemnify, from B's express order, who, in this case, is the only tort feasor. See Betts v. Gibbens, 2 Adol. & Ellis, 57.

If one of two coach proprietors, is sued for a tort done by their servant, in their absence and without their concurrence, he may recover a contribution from the other proprietor. Wooly v. Batte, 2 Car. & Payne, 417.

Where A and B were jointly liable to a demand, and A alone was sued, and judgment was recovered against him alone, it was held, he could have no action for a contribution against B. Quære. 14 Johns. 318.

If A, at B's request, pays an illegal bet for B, he cannot recover the money of B. Clayton v. Dilly, 4 Taunt. 165. Otherwise if A should pay the winner, in compliance with an order from B, in general terms.

Where a husband went abroad, leaving his wife behind, who died in his absence, and the plaintiff paid the wife's funeral expenses, suitable to the husband's rank, without his knowledge, it was held, he might recover. 1 H. Bl. 90.

5. Account stated.

An action on this count cannot be maintained against an infant, not even for necessaries, because he has not discretion to state an account.

Under this count interest is not recoverable except

Where two persons balance their accounts against each other, the law implies a promise from the one against whom the balance is found to pay it to the other. And this action may be maintained between partners after the balance is struck between them on a dissolution, and though there is an express covenant by deed to account. 2 T. R. 479. And if some of the items of charge, allowed in the statement of the accounts, are such as would not have supported an action, still it is too late to object to them after the account is stated, and the defendant must pay the balance. Proof of the acknowledgment of one item is sufficient to maintain the count for so much, though the count is for" divers sums of money." 13 East, 249.

Wherever there is a liquidated and fair demand, this count may 'be supported. And money paid, may be proved under it, if defendant assents to the payment, of which very slight evidence will be sufficient. It is, therefore, a proper count to be inserted to guard against a variance, in declarations on bills of exchange and promissory notes; and is proper to be used in cases, where there 'has been an adjustment of a loss, under a policy of insurance.

A variance between the balance declared on, and the one proved, is immaterial. B. N. P. 129.

But, if A promises B, to pay him the balance, which may be found due, without stating a precise sum, it will not support an account stated. Teall v. Auty, 4 Moore, 543.

7. Quantum meruit and quantum valebant.

If goods are bought, without any price being agreed upon, the law implies a promise, on the part of the buyer, to pay the seller as much as they are reasonably worth, or, if work is performed, without any stipulation with regard to the wages, the law implies a promise, that the employer will pay the laborer, as much as he reasonably deserves to have. These implied promises are the foundation of the above counts, which may be used in all analagous cases.

8. Indebitatus assumpsit, for use and occupation.

This form of action may be used for the occupation of any real' estate, which is capable of being held by the defendant. It may be maintained too, where the occupation is by a third person under the defendant, to whom the plaintiff has given permission to occupy. So. also, it may be maintained against a trespasser who occupies, the plaintiff waiving the tort, and availing himself of an implied promise raised by law. See 1 T. Rep. 378. See also, Lamine v. Dorrill, 2 Ld. Raym. 1216. This action for use and occupation, may be maintained against an infant, as for necessaries. 3 Taunt. Rep.

578.

The tenant in this action is not allowed to dispute the landlord's title. 5 Term. R. 4.

For many other cases, where this form of action is proper, reference must be made to the precedents; but it may not be amiss to make a few passing remarks in relation to the recovery of interest.

9. Interest.

Where the principal sum is not due, but interest is to be paid in the mean time at stated periods, Assumpsit may be maintained for the interest as it becomes due. Greenleaf v. Kellog, 2 Mass. R.. 568.

If there is nothing in the contract itself to the contrary, the declaration may state, "that the defendant, being indebted to the plaintiff in the sum of - for interest on the forbearance of divers sums of money, before that time due and owing," &c. Lawes: on Ass. 487.

The general rule with regard to interest, in England, is, to allow interest in an action for money had and received, where there is an express promise to pay interest, or where any thing is shown in evi-dence to raise an inference of such promise; or where there is. proof that the defendant has made interest on the money; or lastly,. on negotiable instruments, made payable on a particular day, from that day. 1 Camp. 50.

Where interest has been allowed on former balances of account, between the same parties, from the time of striking them, it will.