Bail may rcover, 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, 1 Esp. 171. Money paid lies against a ship owner for money supplied to the captain, either in a foreign or English port, for necessary repairs, provided it be so applied, to prove which the captain is an admissible witness. Rocher v. Busher, 1 Stark. 27. Palmer v. Gooch, 2 Stark. 428. Robinson v. Lyall, 7 Price, 392. 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., the court of C. P. 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 Lord Ellenborough, in a similar case, ruled that it was necessary to declare specially. Sills v. Laing, 4 Campb. 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. If the money is paid in furtherance of an illegal transaction, it cannot be recovered. Mitchell v. Cockburne, 2 H. Bl. 380. Aubert v. Maize, 2 B. and P. 380; and see Cannan v. Bryce, 3 B. and A. 179,5 and post, p. 232.

81.

ASSUMPSIT FOR MONEY LENT.

In an action of assumpsit for money lent, the plaintiff will only 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 Str. 719; and see ante, p. 175. 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; Welsh v. Seaborne, 1 Stark. 474; but if the plaintiff can show 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. Carey v. Gerrish, 4 Esp. 9. If a parent advances money to a child, it is supposed to be by way of gift. Per Bayley, J., Hick v. Keats, 4 B. and C. 71. Interest is not recoverable on money lent, unless there be a contract or usage to that effect; Calton v. Bragg, 15 East, 223; but if the course of dealing between the parties be such, interest upon interest may be recovered. Newell v. Jones, C. and P. 124. vide infra. 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. 73.1

• 2 Eng. Com. Law Reps. 280. 3 Id. 416. 5 Id. 225. 2 Id. 473.

1 10 Id. 277. 19 Id. 304. 13 Id. 251.

228

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. 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 enrolled, 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. and C. 651.TM

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 banknotes, to recover their value; Noyes v. Price, H. 16 Geo. Ill. Select Ca. 242, Chitty's Bills, 426, 5th ed.; though, if not produced at the trial, the receipt of their value will be presumed, Chitty, ubi sup. citing Longchamp v. Kenny, Dougl. 138; see Harrington v. Macmorris, 5 Taunt. 228;" vide supra. The value of provincial notes received as money, may be recovered in this action. Pickard v. Bankes, 13 East, 20. Fox v. Cutworth, cited 4 Bingh. 179. The principle in all the cases is, that if a thing be received as money, it may be treated and recovered as such. Per Best, C. J., Spratt v. Hobhouse, 4 Bingh, 179. The plaintiff must give some evidence of a particular sum; and if he gives no evidence of the amount due he must be nonsuited. Harvey v. Archbold, 5 D. and R. 504 ;" and see Bernosconi v. Anderson, 1 M. and M. 183, post, p. 236.

Receipt of money by the defendant.] 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, Coup. 565, Horsefall 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. and S. 344. So if he pays it over, after notice that the right to it is disputed. Edwards v. Hodding, 5 Taunt. 815. Vide ante, p. 141. A receipt signed by an agent for his principals for "S. and W.," "W. R." is not evidence to support an action for money had and received against the agent.

18 Eng. Com. Law Reps. 291. 1 Id. 88. • 13 Id. 395. P 10 Id. 203.

Edden v. Read, 3 Campb. 339. 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.

On failure of or without 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. Shore v. Webb, 1 T. R. 732. So where one of several securities securing the annuity fails. Scurfield v. Gouland, 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). 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, 12. See Davis v. Bryan, 6 B. and C. 651, ante, p. 228. 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 by 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. Nockells v. Crosby, 3 B. and C. 814. So the money paid for the purchase of shares may, under similar circumstances, be recovered. Kempson v. Saunders, 4 Bingh. 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. Howlett, 1 B. and B. 1.▾

In cases of forgery.] Where a party paying money upon a forged instrument has not been guilty of any want of due 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," 1 Marsh. 157, S. C. 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 non-payment to the indorsers, it was held that

་

13 Eng. Com. Law Reps. 290. 10 Id. 237. 13 Id. 321. 5 Id. 1. - 1 Id. 166.

the money was recoverable from the holder. Wilkinson v. Johnson, B. and 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. and M. 49.

But where the party paying the money has the means of knowing, 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 drawers 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. Price v. Neal, 3 Burr. 1354, 1 W. Bl. 390, S. C. see B. and C. 434. So where a banker paid a bill which purported to be accepted payaable 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; see 3 B. and C. 435. 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 orginally drawn. Hall v. Fuller, 5 B. and C. 750,* 8 D. and R. 464, S. C.

a

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. See the cases last cited, and Bize v. Dickason, 1 T. R. 285. Milnes v. Duncan, 6 B. and C. 750. But where money is paid with a knowledge of all the facts, but under a mistake of the law, it cannot in general be recovered; Bilbie v. Lumley, 2 East, 469; Brisbane v. Dacres, 5 Taunt. 143; Cartwright v. Rowley, 2 Esp. 723; though it has been paid under a protest. Brown v. M Kinally, 1 Esp. 279. Where an article is sold, which turns out to be of less value than the price given for it, the extra price, if there be no fraud, cannot be recovered back; Per Le Blanc, J., Cox v. Prentice, 3 M. and S. 349; but where parties agree to abide

10 Eng. Coni. Law Reps. 140. 1 Id. 312. * 12 Id. 368. 13 Id. 293.

by the weighing of any article at any particular scales, and in the weighing, an error, not perceived at the time, takes place from an accidental misreckoning of some weight, and the thing is reported of more weight than it really is, and the price is paid thereupon, money had and received is sustainable. Per Lord Ellenborough, ibid. A tenant who has paid rent to his landlord, and has afterwards been ejected by a third person, who sues him for the mesne profits, and recovers for the period during which the tenant has paid his rent, may recover the rent so paid from his landlord in an action for money had and received, the landlord not having set up any title at the trial of the ejectment. Newsome v. Graham, 10 B. and C. 234. See 1 Freeman, 479 (note d), 2d ed.

As to money had and received on rescinding a contract, see ante, p. 141, and p. 190.

Money obtained by fraud or duress, &c.] Where money has been obtained by fraud or duress, this action lies to recover it; and money fraudulently obtained, may be recovered at law, although the defendant may be entitled to it by the ecclesiastical law. Crockford v. Winter, 1 Campb. 124. So where the defendant married the plaintiff, living his former wife, and received the rents of her land, they were held recoverable in this form of action. Hasser v. Wallis, 1 Salk. 28. So where the defendant fraudulently colluded with J. S. who was insolvent, to obtain wines from the plaintiff, the proceeds of which eventually came to the defendant's hands, in satisfaction of a debt due to him from J. S., the plaintiff was held entitled to recover in this action. Abbotts v. Barry, 2 B. and B. 369,° 5 B. Moore, 98, S. C.

So where a man has been compelled by duress to pay money, it may be recovered in this action, as where he has paid an exorbitant sum to redeem his goods from pawn. Astley v. Reynolds, 2 Str. 915. Where goods not liable to seizure are scized by a revenue officer, who extorts money to release them; Irving v. Wilson, 4 T. R. 485 ; where a corporation officer extorts a fee for granting a license; Morgan v. Palmer, 2 B. and C. 729, where a sheriff claims and receives a larger fee than he is entitled to; Dew v. Parsons, 2 B. and A. 568; where a toll-keeper exacts an illegal toll; Parsons v. Blandy, Wightw. 22; this action is maintainable. But where replevin would be the proper remedy, this action does not lic, as where money has been paid to release goods taken as a distress; Lindon v. Hooper, Cowp. 414; and where an action is brought, and the defendant pays the demand" without prejudice," he cannot afterwards recover the money so paid. Brown v. M.Kinally, 1 Esp. 279. So money recovered by legal process, though in fact not due, cannot be recovered by the defendant in the former action. Marriott v. Hampton, 7 T. R. 269; but this action lies to recover

• 6 Eng. Com. Law Reps. 157. d 9 Id. 232.