385 the plaintiff having won all the defendant's ready money, lent him ten guineas at a time, and won it, till the defendant had borrowed one hundred and twenty guineas. Upon the trial it was contended that, by the stat. 9 Ann. c. 14. the plaintiff could not maintain this action, because that statute avoids all securities entered into or executed for money knowingly lent and advanced to game with; and the borrowing on an agreement to pay is a security. But Lee Ch. J. held this was not a case within the act; for there is not the word contract, as in the statute of usury; and he said, "the word securities, as it stands in this act, must mean lasting liens upon the estate. The Parliament might think there would be no great harm in a parol contract, where the credit was not like to run high; and therefore confined the act to neither securities." Wherefore the plaintiff obtained a verdict for 1267. So, in the case of Alcinbrook v. Hall, (i) which was also an action of assumpsit for money paid. The case was this: viz. the defendant having lost a sum of money above 101. upon a bet at a horse-race, requested the plaintiff to pay it for him, which he did. The defendant objected, that this money being lost at gaming, and recoverable back again by the stat. 9 Ann. c. 14. no action would lie: but the Court held that this was not a case within the statute; for there is not the word contract, as in the statute of usury; and judgment was given for the plaintiff. So, in the case of Robinson, Esq. v. Ann Bland, administratrix of John Bland, Bart., (k) which was also an action of assumpsit; and the declaration contained three counts. The first count was upon a bill of exchange drawn at Paris, by the intestate, Sir John Bland, on the 31st of August, 1755, on himself in England, for the sum of 6721. sterling, payable to the order of the plaintiff, ten days after sight, value received, and accepted by the said Sir John Bland. The second count was for 7001, monies lent and advanced by the said plaintiff to the said Sir John Bland, at his request. The third count was for 700. monies had and received by the said Sir John Bland, to and for the use of the plaintiff. At the trial, a verdict was found for the plaintiff, damages 6721.; subject to the opinion of the Court of King's Bench, on the following case, which stated, "That the bill of exchange was given at Paris for 300l. there lent by the plaintiff to Sir John Bland, at the time and place of play; and for 3721. more lost at the same time and place, by Sir John Bland, to the plaintiff, at play; that the play was very fair; and there was not any imputation whatsoever on the plaintiff's behaviour; that there were several gentlemen and persons of fashion then and there at play besides the plaintiff and Sir John Bland; that in France, money lost at play, between gentlemen, may be recovered as a debt of honour before the marshals of France, who can enforce obedience to their sen (i) 2 Wils. 509. (k) 2 Burr. 1077. Сс tences by imprisonment, though such money is not recoverable in the ordinary course of justice; that money lent to play with, or at the time and place of play, may be recovered there, as a debt in the ordinary course of justice, there being no positive law against it; that Sir John Bland was, and the plaintiff is a gentleman." The question for the opinion of the Court was, whether, under these circumstances, the plaintiff was entitled to recover any thing and what, against the defendant? The Court determined that the plaintiff could not recover upon the count on the bill of exchange, nor for the money won at play; but that he was entitled to recover on the second count for the amount of the money lent. And Lord Mansfield Ch. J. said, “In the present case the facts stated scarce leave room for any question; because the law of France and of England is the same. The first question is, whether the plaintiff is entitled to recover upon this bill of exchange by force of the writing. The second question is, whether he is entitled to recover upon the original consideration and contract, by the justice and equity of his case, exclusive of any assistance from the bill of exchange, and taking that to be a void security. As to the first question, the defendant has objected that the consideration of the bill of exchange is wholly money won and lent at play: therefore, by force of the writing, the plaintiff cannot by the law of England recover; such security being utterly void; and no doubt the law of England is so. "Then as to the other counts for money had and received to the plaintiff's use, and for money lent and advanced to him. Consider it distinctly, as to each part; the money won, and the money lent. First, as to the money won. By the rule of the law of England no action can be maintained for it. To this it has been objected, that the contract was made in France: therefore, ex comitate, the law of France must prevail, and be the rule of determination. I admit that there are many cases where the law of the place of the transaction shall be the rule; and the law of England is as liberal in this respect as other laws are. This is a large field, and not necessary now to be gone into. The point that the defendant must rest upon, in the present case, is this; the money was won in France; therefore it ought to be governed by the law of France; and it is recoverable there before the marshals of France, who can enforce obedience to their sentence. The parliament of Paris would pay no regard to their judgment, nor carry it into execution. The marshals of France proceed personally against gentlemen, as to points of honour, with a view to prevent duelling. They could not have taken cognisance of the present matter. It was not within their jurisdiction: it was no breach of honour in France: for the money was payable in England; and Sir John Bland could not be said to have forfeited his honour till the ten days were out, and till the money had been demanded in England, and payment refused there. Sir John Bland was actually dead in a very short time after he gave the note. The marshals of France can only proceed personally against the gentleman who loses the money, but have no power over his estate or representatives after his death. Therefore, as to the money won, the contract is to be considered as void by the law of France, as well as by the law of England, which makes it unnecessary to consider how far the law of France ought to be regarded."- Next, as to the money lent: The sense of the legislature seems to me to be agreeable to the cases that have been cited. The act of 16 Car. 2. c. 7. s. 3. does not meddle with money lent at play, but as to money (exceeding 1007.) lost and not paid down at the time of losing it, it says, "that the loser shall not be compellable to make it good, but the contract and contracts for the same, and for every part thereof, and all securities shall be utterly void,” &c. The words contract and contracts for the same,' are not in 9 Ann, and I dare say were designedly left out: it only says, "that all notes, bills, bonds, judgments, mortgages, or other securities, &c. for money won or lent at play, shall be utterly void," &c. Here the money was fairly lent without any imputation whatsoever. the borrower of it being in a foreign country, might very naturally have been distressed under his then situation amongst foreigners for want of having ready money, or knowing how to procure it: and it might be even a kind and generous, and commendable act to lend it to him at that time, to extricate him from his difficulties as he was then circumstanced. The jury have left it quite open to the court to determine whether any thing, and what, is recoverable. As to the money won, we think it cannot be recovered: as to the money lent, the plaintiff is entitled to it, both by the law of England and by the law of France." Sir John Bland, So, in the case of Wettenhall v. Wood, (l) which was an action of indebitatus assumpsit for money lent. The defence set up was, that the plaintiff kept a common gambling house; that the defendant being there at play with several other persons, and having lost all his money, applied to the plaintiff for the loan of some money, for the purpose of continuing the play, when the plaintiff lent him the sum for which the present action was brought. Lord Kenyon Ch. J., before whom the cause was tried, was clearly of opinion, "that this money was recoverable; for that the statute 9 Ann. c. 14. only avoided securities for money lent to play with, and did not extend to cases of mere loans, without any security taken." He therefore directed a verdict for the plaintiff. But in the case of Cannan v. Bryce, (m) it was determined, that money (m) 3 Barn, & Ald. 179. (2) 1 Esp. Rep. 18. Et vide Alcinbrook v. Hall, ante 385. lent and applied by the borrower for the express purpose of settling losses on illegal stockjobbing transactions cannot be recovered by action; the act of paying as well as receiving being expressly prohibited by the 5th section of the stockjobbing act 7 Geo. 2. c. 8. So no action lies for money lent for the ransom of a ship, contrary to the stat. 45 Geo. 3. c. 72. (n) (n) Webb v. Brooke, 3 Taunt. 6. CHAPTER VI. ON EXPRESS AND IMPLIED PROMISES TO REPAY MONEY PAID AND EXPENDED FOR THE USE OF ANOTHER. WHERE a person has paid and expended his own money for the use of another, either at his request or by compulsion, the law raises an implied promise of repayment, and upon which an action of indebitatus assumpsit will lie. (a) The subject of the present chapter will be considered under the following heads: viz. 1. OF MONEY PAID AND EXPENDED FOR ANOTHER, EITHER UPON 2. OF VOLUNTARY PAYMENTS MADE WITHOUT REQUEST, AND THE PARTY PAYING NOT BEING UNDER ANY LEGAL LIABILITY TO PAY, &c. 3. OF PAYMENTS MADE ON ACCOUNT OF ANOTHER UNDER A DISTRESS FOR RENT, IN ORDER TO REDEEM THE GOODS, &c. DISTRAINED: AND OF PAYMENT BY A TENANT OF THE LANDLORD'S TAXES, &C. AND WHEN SUCH PAYMENTS MAY BE RECOVERED BY ACTION OF INDEBITATUS ASSUMPSIT. 4. OF MONEY PAID FOR ANOTHER UPON BILLS OF EXCHANGE, PROMISSORY NOTES, OR OTHER SECURITIES. 5. OF MONEY PAID OR SECURITIES GIVEN BY A SURETY OR BAIL ON BEHALF OF THEIR PRINCIPAL. 6. OF CONTRIBUTION BETWEEN CO-SURETIES, OR OTHER PERSONS JOINTLY LIABLE FOR A DEBT OF THEIR PRINCIPAL: AND FOR CON (a) 5 Bl. Com. 165. Carth. 446. |