carrier, on demand, even without action, pay C. their value, he (the carrier) may recover the amount from B. as money paid to his use at his request (u). But where goods came to a wharfinger, consigned to A., and B., believing them to be meant for himself, carried them from the wharf, and used them, before he discovered the mistake, Lord Ellenborough held, that the wharfinger, after paying A. the value of the goods, could not maintain an action for money paid to recover the amount (x). If one of two joint prize agents be imposed upon by a person who falsely pretended to be one of the seamen entitled to prize money, and in consequence pay money to the impostor, and is afterwards obliged to pay it over again to the person legally entitled to receive it, he cannot recover from his co-agent a moiety of the money so paid (y). The loss must fall wholly on the party who was defrauded. So 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 unlawfully 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 the larger sum to the holder; it was held, that he could not charge the customer for any thing beyond the sum for which the check was originally drawn, there being no genuine order or authority to pay more (z). Surety. Where a person becomes surety for another at his request, the law implies a promise by the latter, that he will indemnify the surety, and repay him whatever he may be compelled to pay the creditor (a). And bail may recover against the principal any expenses they may have reasonably incurred in taking him into custody, for the purpose of surrendering him (b). So a party who accepts or indorses a bill of exchange, or indorses a note, without value, for the accommodation of another (u) Brown v. Hodgson, 4 Taunt. 189; recognised in Spencer v. Parry, 3 Ad. & E. 338; 4 Nev. & Man. 770; ante, 593. (x) Sills v. Laing, 4 Camp. 81. (y) Mackreath v. Margetson, B. R., April, 1785, MS.; S. C., nomine M'Ilreath v. Margetson, 4 Dougl. 278; see Gingell v. Glascock, 8 Bing. 86; 1 Moore & S. 125, S. C. (z) Hall v. Fuller, 5 B. & C. 750; 8 D. & R. 464, S. C.; see post, 631. (a) Toussaint v. Martinnant, 2 T. R. 104; Davies v. Humphreys, 6 M. & W. 153, 167. See in general as to promises of indemnity, ante, 500 to 506. The contract between principal and surety being merely for indemnity, the surety who gets rid of a debt at less than its full amount cannot in equity, as against his principal, claim more than he has actually paid; Reed v. Norris, 2 Mylne & C. 361. (b) Fisher v. Fallows, 5 Esp. R. 171. person (c), is entitled, on paying the instrument, to recover the amount from the party for whose benefit he thus becomes responsible. In these cases, the debt paid by the surety may be recovered upon the common count for money paid. The law implies a request by the defendant to the plaintiff to make the payment. But any costs of an action, &c., necessarily incurred by the surety, and which he may be entitled to recover from the principal, can only be obtained under a special count upon the implied promise of indemnity (d). If a surety take a bond of indemnity, or other specialty counter security, from his principal, he cannot resort to the count for money paid on the implied assumpsit (e). Contribution between Sureties.-If several persons become sureties for a third party for the same debt, either jointly or severally, or by the same or different instruments, and one surety pay the demand, or more than his own proportion of it in reference to the number of his co-sureties, and thereby relieve the latter from liability, he may recover against each co-surety his aliquot share or proportion of the debt, or of the sum paid by him beyond his own proportion, upon an implied promise to contribute (ƒ). At law, the calculation is made upon the aliquot share, in reference to the number of sureties, although one be insolvent or a bankrupt; so that if there be three sureties for a debt of 300l., and one pay the whole, he can recover by action from a co-surety only 1007., although the third surety be unable to contribute (g): But the rule is otherwise in equity; where, therefore, in the above instance, the surety would recover a moiety of the 3001. from the solvent co-surety (h). If the surety from whom contribution is claimed became (c) The acceptor of a bill is not liable to an indorser (there being no privity or promise between them independently of the bill) for the costs of an action brought by the holder against the indorser thereon; Dawson v. Morgan, 9 B. & C. 618. (d) Seaver v. Seaver, 6 C. & P. 673; Bleaden v. Charles, 5 M. & P. 14; 7 Bing. 246, S. C.; see 2 Chitty, Pl. 6th ed. 199, and notes; ante, 501. (e) Toussant v. Martinnant, 2 T. R. 100, 104; see Crafts v. Tritton, 8 Taunt. $65; 2 Moore, 411, S. C. (f) Cowell v. Edwards, 2 B. & P. 268; Deering v. Winchelsea, id. 270; Davies v. Humphreys, 6 M. & W. 168 ; per Lord Eldon in Erparte Gifford, 6 Ves. 805; see 2 Pothier by Evans, 77 to 81. The right to contribution arises although the surety paid the debt, after having given a bond for it, without the knowledge of the cosureties; Dunn v. Slee, 1 Moore, R. 2. Payment of a note after an immaterial alteration is not a voluntary payment; Cutton v. Simpson, 8 Ad. & E. 136; 3 N. & P. 248, S. C. (g) Browne v. Lee, 6 B. & C. 697; 9 D. & R. 700, S. C. (h) Id.; Peter v. Rich, 1 Chan. R. 19, 31; Holl v. Harrison, id. 246; Layer v. Nelson, 1 Vern. 456. bound in that character, at the request of the surety who seeks to recover it, he is not liable; for the implied promise is in such case negatived (i). The right to contribution does not extend to any part of the costs paid or incurred by the surety, in attempting to defend, or in settling legal proceedings by the creditor against him to recover the debt (k). There cannot be any claim for contribution between partners (1). But if there be several defendants (not partners) in an action ex contractu, and the plaintiff recover judgment against them, and one pay the whole demand recovered, the law gives him an action for money paid against the others to recover contribution (m). And if one of two joint contractors, upon a breach by them of their engagement, agree with the creditor to refer the amount of damages to arbitration, which is done without the consent of the other co-contractor, the former, on paying the sum awarded, may recover a moiety thereof from the latter, in an action for money paid (n). And where the plaintiff and defendant were two of a committee appointed at a vestry meeting for the purpose of prosecuting nuisances on the waste lands and highways of the parish; which committee appointed an attorney, who prosecuted and obtained a verdict; and then sued the plaintiff for his bill of costs, which was referred to arbitration, and 2351. with costs of the action were awarded against the plaintiff; it was held, that the plaintiff might maintain assumpsit against the defendant for contribution (o). But in the case of an action ex delicto against several for a trespass, or for a tort (as an injury to the plaintiff's reversionary interest in a mill), if judgment for damages be recovered against them, and one be compelled to pay the whole, he has no claim to contribution against his co-defendants (p). There may, how (i) Turner v. Davies, 2 Esp. R. 478. A promise by one surety to indemnify the other, if he would become bound for the debt, need not be in writing; Thomas v. Cooke, 8 B. & C. 728; sed vide Green v. Cresswell, 2 P. & Dav. 430, ante, 516. (k) Knight v. Hughes, 3 C. & P. 467; Moo. & M. 247, S. C.; Rouch v. Thompson, Moo. & M. 487; ante, 501. (1) Sadler v. Nixon, 5 B. & Ad. 936; ante, 237, note (q), 503. (m) Blackett v. Weir, 5 B. & C. 387, 388. If a creditor recover against one of several joint, or joint and several debtors, in an action against him only, the claim to contribution equally arises; id. Contribution between the assignees of a bankrupt, Eden, 2d ed. 214; Hart v. Biggs, 1 Holt, R. 245; Lingard v. Bromley, 1 V. & B. 114. (n) Burnell v. Minot, 4 Moore, 310. (o) Holmes v. Williamson, 6 M. & Selw. 158. (p) Merryweather v. Nixon, 8 T. R. 186; Farebrother v. Anslay, 1 Camp. 343, 345; Wilson v. Milner, 2 id. 452. ever, be contribution between wrong-doers if the plaintiff was not aware that the act done by him was illegal, or if its nature was doubtful (q). And if a party recover damages in case against one of two joint coach proprietors for an injury sustained by a passenger, in consequence of the negligence of their servarts, such proprietor may, it seems, sue his co-proprietor for contribution, on proof at the trial that he (the plaintiff) was not personally present when the accident occurred, and therefore only a tort feasor by inference of law (r); though not then if there be a partnership fund out of which the damages are to be paid (s). In satisfaction of an illegal demand of a third person against the defendant. It has been held that an action lies to recover money paid by the plaintiff, at the defendant's request, to a person to whom the defendant had lost the amount on an illegal bet upon a horse race (t). But where the plaintiff, by the defendant's authority and in his name, laid illegal bets on horses, and the bets having been lost, the plaintiff paid them, without the defendant's subsequent orders, it was held that he could not recover the money so paid (u). In Petrie v. Hannay (x), it was held by the court (against the opinion of Lord Kenyon, C. J.,) that if two persons jointly engage in an illegal stock-jobbing transaction, and incur losses, and employ a broker to pay the differences, and one of them repay the broker, with the privity and express consent of the other, the whole sum, he may recover a moiety from the other party as money paid to his use, notwithstanding the statute 7 Geo. II. c. 8. The three judges decided the point, on the (q) Betts v. Gibbins, 2 Ad. & E. 57; 4 Nev. & M. 64; ante, 503. (r) Wooley v. Batte, 2 C. & P. 417; Pearson v. Skelton, 1 M. & W. 504; ante, 503, 238. (s) Id. (t) Alcinbrook v. Hall, 2 Wils. 309; see per Buller, J., Petrie v. Hannay, 3 T. R. 423, 424; see Young v. Cole, 3 Bing. N. C. 724; Pawle v. Gunn, 6 Scott, 286; 4 Bing. N. C. 445. (u) Clayton v. Dilly, 4 Taunt. 165. In this case the plaintiff was a principal actor in the illegal transaction; besides which, he paid the monies without orders. (x) 3 T. R. 418. This case was decided on the authority of Faikney v. Reynous and Richardson, 4 Burr. 2069, where, to an action of debt on a bond, the defendant pleaded the act of the 7 Geo. 2, c. 8; that the plaintiff and Richardson were jointly concerned in certain contracts, contrary to that statute; that the plaintiff voluntarily paid the differences; and that the bond was given by the defendants for securing to the plaintiff Richardson's proportion of that loss; and on demurrer, the court were clearly of opinion that the plaintiff was entitled to recover the amount which he had paid under the special authority of Richardson, though for an illegal purpose. ground that the defendant had expressly authorised the plaintiff to make the payment for him. But it seems difficult to support the judgment consistently with modern decisions, for the plaintiff' was a party to the original illegal contract; his claim sprung out of it; and, by allowing him to recover, some sanction was given to the transaction (y). And in a recent case, in which it appeared that the plaintiff and defendant had entered into an illegal agreement to conduct an unlicensed theatre, and the plaintiff had, at the defendant's instance, paid for him certain moneys the defendant was to pay to persons he employed in the management of it; it was held that an action for money paid could not be maintained (z). III. MONEY HAD AND RECEIVED. 1. In General: for what the common 7. Against Stakeholders. 8. To recover Money paid on a Failure of Consideration. 9. Or Money paid by Mistake. 10. Or obtained by Fraud. 11. Or Oppression or Extortion. 12. Or upon an Illegal Contract. 13. Or Money unjustly recovered at Law. 14. Or Fees of Office, &c. unjustly received by an Intruder. 15. Against Sheriffs, &c. 1. In general.—" This kind of equitable action to recover back money, which ought not in justice to be kept, is very beneficial, and therefore much encouraged. It lies only for money which ex aquo et bono the defendant ought to refund (a): it does not lie for money paid by the plaintiff, which is claimed of him as payable in point of honour and honesty, although it could not have been recovered from him by any course of law; as in payment of a debt barred by the Statute of Limitations, or contracted (y) And see Ex parte Mather, 3 Ves. jun. 373, per Lord Chancellor ; Chitty on Bills, 583; Aubert v. Maze, 2 B. & P. 371; Brown v. Turner, 7 T. R. 630; Booth v. Hodgson, 6 T. R. 405; Steers v. Lashley, id. 61; Mitchell v. Cockburne, 2 H. Bla. 379; and other cases cited Cannan v. Bryce, 3 B. & Ald. 181; and see per Abbott, C. J., id. 183. As to money lent to pay an illegal debt, see ante, 590. (2) De Begnis v. Armistead, 10 Bing. 107; 3 Moo. & Sc. 511. As to the power of justices and lord chamberlain to authorize dramatic performances; Levy v. Yates, 8 Ad. & E. 134; 3 Nev. & P. 349. (a) See Tibbits v. George, 5 Ad. & E. 107; 6 Nev. & M. 804; Noy v. Reynolds, 1 Ad. & E. 162. |