8. OF A COMPULSORY PAYMENT OF THE DEBT &c. OF ANOTHER, MADE EITHER BY AN ATTORNEY, SHERIFF, GAOLER OR OTHERS.

Where an annuity has been vacated by reason of a defect in the memorial, and the attorney who prepared the conveyances is sued by the grantee for negligence, and a verdict recovered against him to the amount of the consideration-money paid for the annuity, which he pays, he cannot recover it over against the grantor. Thus, in the case of Burdon v. Webb, (u) which was an action of assumpsit for money paid. The facts were these: Webb had granted an annuity to A. B., and Burden was the attorney for the grantee. A memorial of this annuity not having been properly registered, on application to the court it had been set aside, and the grantee being at that time dead, his executors brought an action against Webb for money had and received, being the consideration paid to him for the annuity, and had a verdict against him; Webb being then in distressed circumstances, and not paying the money recovered against him, the executors brought an action against Burdon for negligence: before the trial, he gave a cognovit for the amount of the consideration money paid for the annuity, and afterwards paid it; and this action was brought against Webb for the money so paid. But Lord Kenyon, Ch. J. said, "It cannot be supported, that a party by his own act, and without the consent of another, by paying money for him, can maintain an action on it; if it was so, it would be of the worst consequences, as by that means a man might get his greatest enemy for his creditor: if a surety pays money for his principal, as such was paid by reason of the security, he may maintain an action for it against his principal. I have often ruled that point; but in the present instance the case is very different, the money has been paid by the attorney for his own negligence, and this being in consequence of an action brought against himself, it will not entitle him to maintain an action against the defendant." The plaintiff must be nonsuited.

So, where a sheriff or gaoler voluntarily suffers a prisoner to escape, and in consequence thereof is obliged to pay the amount of the debt for which the prisoner was committed to prison, he cannot maintain an action against such prisoner for the money so paid. Thus, in the case of Eyles v. Faikney, (v) where it appeared, that the defendant being a prisoner in the custody of the plaintiff (who was a warden of the Fleet Prison) on mesne process, at the suit of one Holland, a written authority came from Holland to the plaintiff to discharge the defendant out of his custody, but Molloy, the plaintiff's deputy, having doubts as to the

(u) 2 Esp. Rep. 527. Peake's Cas. N. P. 144. n. a. See also (v) K. B. East Term. 32 Geo. III. Pitcher v. Bailey, 8 East Rep. 171. S. P.

authenticity of the discharge, applied to Holland, to know whether it was his hand-writing. Holland confessed he had signed the paper, but said, that he had been imposed on by the defendant, and therefore countermanded the authority. The defendant insisted that the autho rity to discharge him was irrevocable, and threatened Molloy with an action if he detained him; and Molloy thinking that Holland could not revoke his order, discharged the defendant out of his custody. Holland afterwards brought an action in the Common Pleas against the plaintiff for an escape, and recovered a verdict and 3007. damages, to recover which money the present action was brought, as for money paid, laid out and expended. The cause was tried before Lord Kenyon, Ch. J. at Westminster; but his lordship being of opinion, that the plaintiff had been guilty of a breach of his duty in permitting this defendant to escape, ruled that he ought not to be permitted to come as a plaintiff into a court of justice; and therefore ordered a nonsuit. His lordship's opinion was afterwards confirmed by the Court of King's Bench, upon a rule to show cause why the nonsuit should not be set aside.

But a sheriff's officer, who discharges a defendant on payment of the sum sworn to, and is afterwards obliged to pay the residue of the debt in order to prevent an attachment against the sheriff, may recover it from the defendant as money paid to his use. For per Buller Just. (w) "This is not a voluntary payment, the officer would have been obliged to pay the whole sum due by law; for though bail above cannot be charged with more than the sum sworn to, yet it is not so with the sheriff or the defendant, against whom the officer may recover the whole of his debt. To bring this within the case of Eyles and Faikney, the defendant should show some improper conduct in the officer; but if I were to determine that he had done wrong in this case, I must say, that a sheriff's officer could not in any case receive the debt and costs, and discharge the defendant, which might be attended with very mischievous consequences to the defendant."

So, in the case of Wilson v. Milner, (x) where a levy was made on the goods of a trader after he had committed an act of bankruptcy, and the money levied was paid over to the party; an action of trover was afterwards brought by the assignees against him, the sheriff, and the bailiff, in which damages were recovered; and these together with the costs, were paid by the bailiff. It was holden by Lord Ellenborough Ch. J., "That there is no implied promise on the part of the plaintiff in the original suit to indemnify the bailiff, or to contribute to the damages and costs in the action of trover; but that the bailiff might maintain money had and received to recover back the levy money paid over.

(w) Peake's Cas. N P. 143. Cordron v. Lord Masserene.

(x) 2 Campb. 452.

CHAPTER VII.

ON PROMISES TO PAY MONEY DUE UPON AN ACCOUNT STATED;

AND IN WHAT CASES AN ACTION OF INDEBITATUS ASSUMPSIT WILL LIE THEREON.

IF

F two persons, having dealings together, balance their accounts, the law implies that he against whom the balance appears, has engaged to pay it to the other, though there be not any actual promise: and upon such implied promise an action of indebitatus assumpsit will lie. And actions of this kind are frequently brought; and in which the declaration states generally, that the plaintiff and defendant had settled their accounts together, insimul computassent, (which gives name to this species of assumpsit,) and that the defendant engaged to pay the plaintiff the balance, but has since neglected to do it. (a) Thus, in the case of Egles v. Vale, (b) in error, which was an action of assumpsit, "for that the plaintiff and defendant accounted together for monies received by the defendant, who was found in arrear 10., and in consideration thereof promised to pay it the 19th March following," &c. It was assigned for error, that there was no consideration; for the being found in arrear is not any cause to make a special promise, nor is any thing done on the plaintiff's part whereon this promise should be grounded, viz., forbearing the suit, &c. Sed non allocatur; for the debt itself, without other special cause, is sufficient to ground the action.

So, where partners balance their joint accounts inter se, the partner in whose favour the balance is struck may maintain an action of assumpsit against his co-partner for the amount of such balance, declaring generally upon an account stated. (c) So, where A. and B. having been partners in a particular commercial adventure, A. sends to B. an account stating a loss, and B. on application for one moiety of such loss, says that he will call and settle with A. This is evidence of an adjustment of the amount between the parties, in an action by A. to recover the moiety. (d)

See

(a) Vide 5 Bl. Com. 164. (b) Cro. Jac. 69. Yelv. 70. S. C. also 1 Rol. Abr. fo. 7. pl. 1. fo. 9. pl. 11. 2 Mod. 44. 1 Dan. Abr. 52.

(c) 2 Term Rep. 479. 483. n. et vide post. tit. Partners.

(d) Clarke v. Glennie, 3 Stark. 10.

E e

So, where parties having cross demands, settle and balance their accounts, though part of the plaintiff's demand was upon a transaction for which no action could be supported, the settlement of the accounts shall bind the defendant, so that he cannot set up that defence to an action for the balance. (e)

So, upon an agreement between two traders to supply each other, on the footing of goods for goods, after a balance struck between them, such balance is to be paid in money. (f) So, in Salmon v. Watson, (g) where the defendant agreed verbally with the plaintiff to take a house, and purchase the fixtures at a valuation to be made by two brokers. An inventory of the furniture and fixtures was accordingly made, described generally as "An inventory of the fixtures, &c." with the gross amount placed at the foot thereof. In an action for goods sold and delivered, with a count on an account stated; the Court of Common Pleas held, that the defendant having taken possession of and enjoyed the furniture and fixtures, and paid part of the sum determined by the brokers to be due for the same, he was liable on the account stated for the remainder, and could not afterwards object to the plaintiff's defective title to the house.

So, an admission by a defendant that so much was agreed to be paid to the plaintiff for the sale of standing trees, made after the trees had been felled and taken away by the defendant, will support a count upon an account stated; though not for goods sold and delivered. (h)

So, proof of the acknowledgement of one item of a debt only is good to support an action upon a count stating money to be due upon an account between the plaintiff and the defendant. Thus, in the case of Highmore v. Primrose, (i) which was an action upon a bill of exchange at the suit of the indorsee against the acceptor; and upon an account stated. At the trial, it appeared that there was a variance between the bill produced and the declaration; and therefore the plaintiff was obliged to resort to the count upon an account stated; and to support which he proved, that the defendant upon being applied to for payment of the bill admitted it to be his, but alleged his inability to pay at that time. It was objected, that the plaintiff could not recover on the first count by reason of a variance, the count describing the bill as drawn for value received by the drawer, the words "value received" in the bill itself importing value received by the drawee: secondly, that the defendant's admission being confined to one item, viz. the bill, the evidence was not sufficient to sustain the count upon an account stated. And these points being reserved, a verdict was given for the plaintiff. A rule nisi for a nonsuit having been obtained, the Court, after argu

(e) Dawson v. Remnant, 6 Esp. 24. (ƒ) Ingram v. Shirley, 1 Stark, 185. (g) 4 Mo. 73.

(h) Knowles v. Michel, 15 East Rep. 249. See also Teall v. Anty, 4 Mo. 542. (i) 5 Maule & Sel. 65.

ment, determined that the plaintiff was entitled to recover; and Lord Ellenborough Ch. J. said, “I think Knowles v. Michel (k) is an authority to show, that though in form a count upon an account stated is "of and concerning divers sums of money," yet proof of one item is good to maintain such a count; divers may be supported by evidence of one. The practice, I believe, has been so, and if there is any variation from it, it has arisen from not attending to the form of the count: the count does not import a mutuality of account, and there seems to be no reason why an account should not be stated consisting of one item only as a plurality." And Holroyd Just. said, "It has been held, that upon a count for goods sold and delivered, the plaintiff may prove the sale of one article, and that will be well enough. The same rule applies to this count, which is of and concerning divers sums,' as to the count for goods sold. If the count be good, it is enough if the plaintiff prove any part of it."

A promissory note reciting that "the defendant had been awarded to pay 500l. to the representatives of J. S.; and that he had paid him 100%. in his lifetime, and thereby promised to pay his representatives 400%. three months after his death pursuant to the award, first deducting thereout any interest or money J. S. might owe to the defendant on any account;" may be given in evidence in an action brought by the representatives of J. S. against the defendant, on an account stated between him and J. S., although it was improperly stamped as a promissory note. (1)

So, where a collector or renter of turnpike tolls, though illegally appointed, without the forms prescribed by the act of parliament, may still recover upon a count for an account stated, the amount of the tolls for which he had credited the defendant passing through the gate; no objection being made to the plaintiff's title by the trustees or creditors of the turnpike. And the plaintiff having sent to the defendant an account of the tolls due, who not long after sent 5l. inclosed in a letter to the plaintiff, in which he stated that he should have the remainder next week, is evidence of such an account stated, and a recognition of the intestate's title to be accounted with for the tolls. (m)

So, evidence of an account stated, whereby the defendant admitted a certain balance due to the plaintiff, is not done away, but confirmed in support of an assumpsit, by evidence of a foreign judgment recovered by the plaintiff for the same sum, with a stay of execution for six months to enable the defendant to prove a counter demand, if he had any and the plaintiff not having declared till after that period, it was held no objection that the writ was sued out and the defendant arrested before. (n)

(k) Ante, 418.

(1) Barlow v. Broadhurst, 4 Mo. 471.

(m) Peacock v.Harris, 10 East Rep. 104. (n) Hall v. Odber, 11 East Rep. 118.