demand or an action, and then sue for contribution. Pitt v. Purssord, 8 M. & W. 538. And where two are jointly liable for expenses incurred for their common benefit, and one dies, the survivor, who pays the whole, may sue the executor of the deceased for money paid to the use of the defendant as executor. Prior v. Hembrow, 8 M. & W. 873.

As a general rule, this action does not lie for contribution or indemnity against a person jointly engaged with the plaintiff in doing an illegal act by which the plaintiff is put to expense. Merryweather v. Niran, 8 T. R. 186. But where the plaintiff was not aware that the transaction was illegal, or its nature was doubtful, he may sue on the implied contract to indemnify. Betts v. Gibbins, 2 A. & E. 57.; Pearson v. Skelton, 1 M. & W. 504.

Where one bail sues his co-bail for contribution, he must prove the judgment, as well as the execution. Belldon v. Tankard, 1 Marsh. 6. To support this action it must appear either that the defendant was primarily liable to the third party to pay the money, or that it was paid, or the liability incurred, by the plaintiff at his express request. It is not sufficient that he has agreed with the plaintiff to pay the money to the third party. Thus where the landlord is called upon to pay the taxes which his tenant is, by special agreement, bound to pay, he cannot sue the tenant for money paid. Spencer v. Parry, 3 A. & E. 331.; Lubbock v. Tribe, 3 M. & W. 607. An accommodation acceptor, who has defended an action on the bill at the request of the drawer, may recover the costs of such action as money paid. Howes v. Martin, 1 Esp. 162. So also the indorser of a bill, who has been sued by the holder and paid him part of the amount of the bill, may recover that amount in an action for money paid against the acceptor. Pownal v. Ferrand, 6 B. & C. 439. But he cannot recover the costs of the former action; for the custom of merchants does not make an acceptor liable for the costs of all actions against subsequent holders. Dawson v. Morgan, 9 B. & C. 618. A person who pays a bill for the honour of one of the parties to it may sue him for money paid. Smith v. Nissen, 1 T. R. 269. But he must prove that a formal protest was made before the payment. Vandewall v. Tyrrell, M. & M. 88. Bail may recover, as money paid, the expenses incurred by them in taking their principal; but not the costs of an action against them unadvisedly defended. Fisher v. Fallows, 5 Esp.

171.

A notice to the party, on whose behalf an indemnity is given, is not necessary before defending an action on the guarantee; but if such notice is given, and he refuses to defend the action, he is estopped from saying that the surety was not bound to pay the money. Duffield v. Scott, 3 T. R. 374.; Smith v. Compton, 3 B. & Ad. 408. Money paid lies against a ship-owner for money supplied to the captain, either in a foreign or English port, borrowed for the necessary repairs or use of the ship. Robinson v. Lyall, 7 Price, 592. But only where the necessity is so pressing that the owner himself cannot be consulted without prejudice and delay. Johns v. Simons, 2 Q. B. 425.

Where a carrier, by mistake, delivered to B. goods sold and consigned to C., and B. appropriated the goods, and the carrier, on demand without action, paid C., it was held that the carrier might recover from B. the sum so paid as money paid to his use; Brown v. Hodgson, 4 Taunt. 189.; but see Sills v. Laing, 4 Camp. 81. Where a party is compelled to pay money in consequence of his own neglect; Capp v. Topham,

6 East, 392.; or breach of duty; Pitcher v. Bailey, 8 East, 171.; the law raises no implied promise to repay him. So if the money is paid in furtherance of an illegal transaction. Mitchell v. Cockburne, 2 H. Bl. 379.; Aubert v. Maze, 2 B. & P. 371.; and see post, tit. Assumpsit. Defence. Illegality.

ASSUMPSIT FOR MONEY LENT.

In an action of assumpsit for money lent, the plaintiff will have to prove the loan of his money. Of this a promissory note given by the defendant to the plaintiff will be evidence. Story v. Atkins, 2 Stra. 719. To establish a loan, it is not sufficient merely to prove the payment of money to the defendant; for in such case the presumption of law is that the money is paid in liquidation of an antecedent debt; Welch v. Seaborn, 1 Stark. 474.; but if the plaintiff can shew any money transactions between the defendant and himself from which a loan may be inferred, or any application by the defendant to borrow money at the time, this, coupled with the passing of the money, will be evidence of a loan. Cary v. Gerrish, 4 Esp. 9. The mere production by the plaintiff of an I. O. U., though not addressed to him, is evidence of money lent by him to the defendant who signed it, and if U. meant some other person, the defendant must prove this. Douglas v. Holme, 12 A. § E. 641. If plaintiff lends money to defendant who contracts to repay on demand or to execute a mortgage," plaintiff may recover for money lent on defendant's refusal to execute. Bristowe v. Needham, 9 M. & W. 729. If a parent advances money to a child, it is presumed to be by way of gift. Per Bayley J., Hick v. Keats, 4 B. & C. 71. As to recovering interest, see post, p. 297.

A lender, who has received goods as a security, may recover in an action for money lent, without proving that he has returned or tendered the goods. Lawton v. Newland, 2 Stark. 73.

ASSUMPSIT FOR MONEY HAD AND RECEIVED.

In an action for money had and received, the plaintiff must prove the receipt of the money by the defendant, and his own title to recover it. The plea of non assumpsit operates as a denial both of the receipt, and of the existence of those facts which make it a receipt to the plaintiff's R. G. H. T. 4 W. 4., post, Appendix No. I.

use.

This action cannot be maintained if it be against equity and good conscience that the money should be recovered. Thus where A. purchased an annuity for her life, which was regularly paid up to the time of her death, but no memorial of the grant of the annuity was inrolled, it was held that A.'s executrix could not on that ground insist that the contract was void and recover back the consideration money paid for the annuity. Davis v. Bryan, 6 B. & C. 651.

Receipt of money.] The plaintiff must prove that money has been received; and therefore an action for money had and received will not lie to recover stock. Nightingal v. Devisme, 5 Burr. 2589. And it has been held that it will not lie against a finder of bank-notes, to recover their value; Noyes v. Price, H. 16 G. 3., Select Ca. 242.; Chitty's Bills, 426, 5th ed.; though, if not produced, the receipt of their value will be presumed; Chitty, ubi sup. citing Longchamp v. Kenny, 1 Doug. 138.; and the value even of provincial notes, if received as money, may be recovered in this action. Pickard v. Bankes, 13 East, 20. Fox v. Cutworth, cited 4 Bing. 179. Where the defendant, who was sued for the proceeds of a bill of exchange, admitted that he had paid it into his banker's, and the banker's clerk was called to prove that credit was given to the defendant for the bill, it was held that this evidence was insufficient without the production of the bill. Atkins v. Owen, 2 A. & E. 35. The principle in all the cases is, that if a thing be received as money, it may be treated and recovered as such. Spratt v. Hobhouse, 4 Bing. 179. If an agent refuses to account for goods delivered to him for sale, it shall be presumed, after a reasonable time, that he has sold them and received the proceeds in money. Hunter v. Welsh, 1 Stark. 224.

The plaintiff must give evidence of some particular sum; otherwise he must be nonsuited. Harvey v. Archbold, 3 B. & C. 626. ; Bernasconi v. Anderson, M. & M. 183.; or, at least, can only recover a nominal sum; Leeson v. Smith, 4 Nev. & M. 304. The drawing of a bill by the defendant on the plaintiff, who accepts and pays the holder, is not evidence of money had and received by the defendant to the plaintiff's use. Scott v. Miller, 3 New Ca. 811.

The plaintiff must prove that it was his money which the defendant received. Scarfe v. Hallifax, 7 M. § W. 288.

A re

Receipt by the defendant for the plaintiff.] The plaintiff must prove that the money has been received to his use by the defendant. The mere bearer of money from one person to another cannot be sued. Coles v. Wright, 4 Taunt. 198. So an agent who has paid money over pursuant to the directions of the party depositing it with him, and without notice of the plaintiff's title, cannot be sued; but merely passing it in account is not a payment; Buller v. Harrison, Cowp. 565.; Horsfall v. Handley, 8 Taunt. 136. ; and until there has been a change of circumstances by his having paid over the money to his principal, or done something equivalent to it, he remains liable. Cox v. Prentice, 3 M. & S. 344. So if he pays it over after notice that the right to it is disputed. Edwards v. Hodding, 5 Taunt. 815. ceipt, signed by an agent for his principals, is not evidence to support an action for money had and received against the agent. Edden v. Read, 3 Camp. 339. So where an attorney's clerk, in the absence of his master, received money due to the plaintiff, one of his master's clients, and gave a receipt, "B. for Mr. J.," and his master never returning, the clerk refused to pay over the money to the plaintiff; it was held that no action lay against the clerk, there being no privity between him and the plaintiff. Stephens v. Badcock, 3 B. & Åd. 354. An auctioneer is the agent of both parties, and a deposit on a sale that goes off may be recovered from him personally; but if the deposit money is paid to the vendor's solicitor, who receives it as such, the action should be brought

against the vendor and not the solicitor. Bamford v. Shuttleworth, 11 A. & E. 926. A person acting as a trustee (as the provisional assignee of a bankrupt) is not, in general, liable in this action for money received by an agent appointed by him with due care, and who has failed. Raw v. Cutten, 9 Bing. 96. Where money in litigation between two parties has by consent been paid over to a stakeholder in trust for the party entitled, it can only be recovered from the stakeholder, and not from the original debtor. Ker v. Osborne, 9 East, 378. In general an agent must account to his principal, and cannot set up the jus tertü to an action brought by him. Nicholson v. Knowles, 5 Mad. 47.; Crosskey v. Mills, 1 C. M. & R. 298.; White v. Bartlett, 9 Bing. 378. Where an agent receives money to pay over to a third person, he continues to be accountable to his principal until he has entered into some binding engagement with that third person to hold the money to his use; and not until then will he be liable to the third person in an action for money had and received. Baron v. Husband, 4 B. & Ad. 612.; WilEverett, 14 East, 582. ; Wedlake v. Hurley, 1 C. & J. 83.; Brind v. Hampshire, 1 M. & W. 365.

liams v.

Failure, or want, of consideration.] Where money has been paid on a consideration which has wholly failed, it may be recovered in this action by the party who has paid it. Thus, if an annuity be defective, and the deeds are set aside, the consideration money may be recovered. Shove v. Webb, 1T. R. 732. So where one of several securities, securing the annuity, fails. Scurfield v. Gowland, 6 East, 241. In such an action the deeds should be produced and their execution proved, and the setting them aside proved by the production of the rule of court. 2 Stark. Ev. 215 (n.), 1st ed. The receipt of the money must also be proved. The defendant in these cases may deduct the payments made by him in respect of the annuity. Hicks v. Hicks, 3 East, 16.; Davis v. Bryan, 6 B. & C. 651. Where a scheme for establishing a tontine was put forth, stating that the money subscribed was to be laid out at interest, and after some subscriptions had been paid to the directors in whom the management of the concern was vested, but before any part of the money was laid out at interest, the directors resolved to abandon the project, it was held that each subscriber might, in an action for money had and received, recover the whole of the money advanced by him, without any deduction for expenses. Nockels v. Crosby, 3 B. § C. 814. So the money paid for the purchase of shares in a joint stock company, may, under similar circumstances, be recovered. Kempson v. Saunders, 4 Bing. 5. Where a fixed sum has been paid to the parish by the putative father of a bastard, and the child dies, the residue of the sum unexpended may be recovered in this action. Watkins v. Hewlett, 1 B. & B. 1. And in Chappell v. Poles, 2 M. & W. 867., the money was held recoverable, though the defendants (the overseers who had received the money) had handed over the money to their successors; and semble that the whole sum paid was money had and received to the plaintiff's use from the time it was so paid; the contract being from the beginning illegal and void. Ibid. If A. pays B. money to be applied to a particular purpose, which B. neglects to do, A. may recover it back in this form of action; and this, although B. alleges (but does not prove) a loss by his own negligence. Parry v. Roberts, 3 À. § E. 118. So where the plaintiff abandons the purpose for which money

was deposited with the defendant, he may sue for money had and received. Baird v. Robertson, 1 M. & G. 981.

In cases of forgery.] Where a party paying money upon a forged instrument has not been guilty of any want of that caution, which, in consequence of the character which he fills, he is bound to exercise, and has not by his conduct affected the rights of any other parties to the instrument, he may in general recover back the money paid by him, as money paid under a mistake. A person, who discounts a forged navy bill, may recover back the money, as money had and received to his use. Jones v. Ryde, 5 Taunt. 488., S. C. 1 Marsh. 157. So in the case of forged bank-notes. Per Gibbs C. J., ibid. So where a banker by mistake paid a bill for the honour of a customer, whose name was forged, but, discovering the mistake, gave notice thereof to the holder in time to enable him to give notice of nonpayment to the indorsers, it was held that the money was recoverable from the holder. Wilkinson v. Johnson, 3 B. & C. 428. And so where the plaintiffs discounted for the defendants a bill of exchange, which the latter did not indorse, and the signatures of the drawer and acceptor (the latter of whom kept an account with the plaintiffs) were forged, it was ruled that the defendants were liable to refund the money. Fuller v. Smith, R. & M. 49.

But where the party paying the money ought to have ascertained, or is bound to know, that the handwriting is forged; or where, by his delay in discovering his mistake, he has deprived the holder of the means of resorting to other parties on the bill, he will not be allowed to recover. Thus where two bills were drawn upon the plaintiff, one of which he accepted and both of which he paid, and it appeared that the handwriting of the drawer was forged, it was held that it was incumbent upon the plaintiff to be satisfied that the bill drawn upon him was the drawer's hand, before he accepted or paid it, and that he could not recover the amount from the payee. Price v. Neale, 3 Burr. 1354., S. C. 1 W. Bl. 390. So where a banker paid a bill to a bona fide holder, which purported to be accepted payable at his house by one of his customers, and the forgery of the acceptor's name was not discovered until the end of a week, it was held that the money could not be recovered from the holder; Smith v. Mercer, 6 Taunt. 76.; and the banker in such a case cannot recover, though he gives notice of the forgery on the day after he has paid it; for the holder is entitled to know whether it is to be dishonoured, on the very day it becomes due. Cocks v. Masterman, 9 B. & C. 902. Where a check, drawn by a customer upon his banker for a sum of money described in the body of the check in words and figures, was afterwards altered by the holder, who substituted a larger sum for that mentioned in the check, but in such a manner that no person in the ordinary course of business could observe it, and the banker paid to the holder this larger sum, it was held that the banker could not charge his customer for any thing beyond the sum for which the check was originally drawn. Hall v. Fuller, 5 B. & C. 750.

Money paid under a mistake of facts or of law.] Money paid under a mistake of facts, and which the party receiving it has no claim in conscience to retain, is recoverable as money paid without consideration. Bize v. Dickason, 1 T. R. 285.; Milnes v. Duncan, 6 B. & C. 671. Where