trust to the court allowing him more when he comes to be sworn; for perhaps the party may not call him, and then it may be difficult for him to get home again (n). But if a witness have received an adequate sum from one party for his expenses on being subpoenaed, and he consents to accept a shilling for his expenses with the subpoena when served by the opposite party, he will still be liable to an action by the latter if he does not attend pursuant to the writ (o).

A person who is subpoenaed and attends, but refuses to give evidence unless his expenses are paid, may yet maintain an action of assumpsit for his necessary expenses of attendance against the party who subpoenaed him (p). But the attorney retaining is not liable to be sued, unless he expressly promise payment (q).

The law does not give a witness any right to a compensation for his loss of time, as it is his duty to attend without reward; and consequently a promise to pay such compensation is not binding (r); and no action can be maintained thereon, although the witness were an attorney (s).

But a clerk of the petty bag office of the Court of Chancery, who attends at the trial of a cause under a subpœna duces tecum to produce the rolls of the court, is entitled to a reasonable fee for each day's attendance; for although he attends personally in pursuance of the subpoena, he produces the rolls of the court solely under the order of the Master of the Rolls, who may annex a fee to the production of the rolls, and if a party chooses to require the production of the rolls, he is bound to pay a reasonable fee imposed by the Master of the Rolls, and this whether

(n) Chapman v. Pointon, 2 Stra. 1150; Hallett v. Mears, 13 East, 15, 16, n. (a), S. C.; Bowles v. Johnson, 1 Bla. R. 36; Fuller v. Prentice, 1 II. Bla. 49; Ashton v. Haigh, 2 Chit. R. 201; Tidd, 9th ed. 806. But a witness subpœnaed by a defendant indicted for a conspiracy is bound to give evidence, although the defendant refuse to pay his expenses; Rex v. Jumes, 1 C. & P. 322. If the attorney of the defendant be subpoenaed by the plaintiff to produce books, he is not entitled to be paid as a witness; Pritchard v. Walker, 3 C. & P. 212.

(0) Bittley v. M'Leod, 3 Bing. N.

he is aware of the rules of the office requiring such fee or not (t). And the clerk of the petty bag office, in whose custody the rolls of Chancery are, is entitled to recover for attendances in court with the rolls, although he does not personally attend himself (t).

THE Common Count for money lent is not sustainable, if the loan were effected by a transfer to the defendant of bank stock; for stock is not money (x). Nor does it lie if the money were not lent to the defendant, and upon his sole credit, but was lent and actually delivered to another person, who was to become primarily liable to the plaintiff; so that the defendant's undertaking was merely collateral and conditional; that is, to pay if the party receiving the money did not (y). And on this ground a count that the defendant is indebted to the plaintiff "for money lent by him to E. F." (a third person) " at the defendant's request" is bad (2).

But if the defendant only were trusted, and he were in fact the borrower, although the money were delivered by the plaintiff to another person at the defendant's request, the common count for money lent may be sustained (a). And it has been decided that a declaration against a husband" for money lent to his wife

(t) Bentall v. Sydney, 2 P. & Dav.

416.

(u) See in general as to the money counts, 1 Chit. Pl. 349 to 359; 2 id. 60; Chit. jun. Prec. Pleading, 42 to 44.

(x) Nightingale v. Devisme, 5 Burr. 2589; 2 Bla. R. 684, S. C.; Jones v. Brinley, 1 East, 1.

(y) Marriot v. Lister, 2 Wils. 141; Butcher v. Andrews, Carth. 446; 1 Salk. 23, S. C.; Forth v. Stanton, 1

Saund. 211 a, b. The remedy is by special action of assumpsit on the guarantee; see Glyn v. Hertel, 8 Taunt. 208. What is not a loan within the meaning of a guarantee of future loans to a third party, no money passing, Glyn v Hertel.

(z) Id. See especially Marriott v. Lister.

(a) Id.; Bull v. Sibbs, 8 T. R. 328.

at his request" is maintainable; for in such case in point of law the defendant only could be liable (b).

And where the defendant gave a memorandum whereby he acknowledged the receipt from the plaintiff of a sum of money "on the behalf of E. F.” (an infant), and whereby the defendant promised to be accountable for such sum on demand, it was held that the memorandum was evidence to support a count for money lent against the defendant (c).

In James v. Cotton (d) it appeared that the plaintiff agreed to let the defendant land on building leases, and to lend him 40007. to assist him in the erection of twenty houses, the money to be repaid by June, 1828. The defendant agreed to build the houses, to convey them as a security for the loan, and repay the money. When six houses were built, and 11687. had been advanced, the plaintiff requested the defendant not to go on with the other fourteen houses, and the defendant desisted. It was held that after June, 1828, the plaintiff might recover the 11687. on a count for money lent; and that it was not necessary to sue upon the agreement, as it had been rescinded by mutual consent; besides which there was no condition rendering the advance of the whole sum essential to the recovery of the part advanced.

Where money is generally lent upon or secured by a deposit of goods, this will not deprive the lender of his remedy by action against the borrower, without returning the goods; and to discharge the person of the borrower, there must be a special agreement to stand to the pledge only (e). And in the case of a mortgage, it has been held that as every mortgage implies a debt, the mortgagor's personal estate will be liable, although there be neither a bond nor a covenant for payment of the mortgage money advanced (ƒ), and the common count for money lent will be sufficient.

Where money is advanced by a parent to a child, it appears

that the presumption is, that such advance was by way of gift, not as a loan (g).

Money lent to and applied by the borrower for the express purpose of accomplishing any illegal object cannot be recovered (h). And therefore money lent for the purpose of settling losses on illegal stock-jobbing transactions between the borrower and third persons, to which the lender was no party, cannot be recovered back by the lender, he having full knowledge of the illegal purpose to which the money was to be applied (¿). And where the plaintiff and defendant, being taken prisoners in Portugal, jointly solicited and obtained the liberation of themselves, and the ransom of the defendant's ship, contrary to the statute 45 Geo. III. c. 72; to effect which the plaintiff lent money to the defendant, who afterwards gave him a bill for the amount; the court held that the plaintiff could not recover on the bill (k). And money lent to the borrower for the purposes of gambling or playing at an illegal game is not recoverable (7).

Where a person lends money nominally on his own account, but really on account of another, the real lender cannot recover the money, unless he proves distinctly that the loan was in reality intended to be his, and was received as such. And therefore where A., as the managing owner of a vessel, was permitted by the other owners to have the possession of two warrants or orders of the East India Company to pay to the said owners or bearer the sum of money therein-mentioned for freight; and A. deposited these warrants in the hands of his bankers, and they received the money due on them, and gave him credit for it in account; it was held, on assumpsit brought after A.'s death by the surviving part-owners against the bankers, that on proof of the above facts, they could not recover the money, because it was not shown that the loan was upon their account, for the fact of the warrants being the property of all the part-owners when placed in the banker's hands, was, upon the evidence, consistent with the supposition that the loan of the proceeds to the bankers was A.'s loan (m). In general, where money is lent by one of se

(g) Hick v. Keats, 4 B. & C. 71; 6 Dowl. & R. 68, S. C., per Bayley, J. (h) M'Kinnell v. Robinson, 3 M. & W. 434; infra, note (I).

(i) Cannan v. Bryce, 3 B. & Ald. 179; see post, 600, 601; De Begnis v. Armistead, 3 Moo. & Sc. 511; 10

Bing 107.

(k) Webb v. Brooke, 3 Taunt. 6.

(1) M'Kinnell v. Robinson, 3 M. & W. 434; and post, tit. Illegal Con

tracts.

(m) Sims v. Bond, 5 B. & Ad. 389; 2 Nev. & M. 608.

veral partners in a banking firm, out of the funds of the bank, all should sue, unless there be evidence that the money was the private property of the one partner (n).

It has been decided that a declaration by the assignee of a bankrupt for money lent by him in that character, is good, at least after verdict (o). And it seems that an executor may, under circumstances, legally lend money out of the assets in his hands; and sue in his representative character for the recovery of the amount (p).

A bill of exchange or promissory note in the ordinary form seems to be evidence of money lent, as between the payee and drawer of the former, and the payee and the maker of the latter (7). But the mere fact of a person drawing a check in favour of another is not evidence of a loan (r). And an instrument payable on a contingency, in the following terms, "Nine years after date I promise to pay to, &c., the sum of -, &c., with interest, provided D. M. shall not return to England, or his death be duly certified, in the meantime," affords no presumption or evidence that the sum had been lent (s).

Where a legatee allows his legacy to remain in the hands of the executor on the terms that the executor shall pay him interest for the same, this becomes a loan to the executor, for which he may be sued at law, and plenè administravit would be no plea for him (t).

II. MONEY PAID.

The common count for money paid expresses that the defendant is indebted to the plaintiff in a certain sum, "for money paid by the plaintiff, for the use of the defendant, at his request," and in consideration thereof, promised payment.

To sustain this count, it is necessary, 1st, that money (u)

(r) Pearce v. Davis, 1 Moo. & M. 365; but see Boswell v. Smith, 6 C. & P. 60.

(s) Morgan v. Jones, 1 C. & J. 162.

(t) Wasney v. Earnshaw, 4 Tyr. 806; ante, 271. So proof of a deposit with a banker, and payment of interest by him, evidence of money lent, &c., Sutton v. Toomer, 7 B. & C. 416; 1 Man. & R. 125, S. C.

(u) Bank stock is not money, ante,

588.