charge of his bond. Long et al. v. VI. Assumpsit for Money had and re Greene et al. 7 Mass. 268. 20. Where A. executed a bond with sureties to the United States for duties, and A. was mentioned as the the importer of the goods, and B. the surety, paid the bond, it was held that he might maintain assump sit against A. though in fact, a third person was the real owner of the goods imported. Sluby v. Champlin. 4 Johns. Rep. 461. 1. ceived. Where money is paid to the servant and he misapplies it, the party has his remedy against the master or servant at election. Cary v. Webster. 1 Str. 480. 2. Assumpsit will not lie to recover back money paid by A. to B. if the same was fairly due, though the payment of the same could not have been compelled by law. Farmer 3. 4. 21. Where A., B. and C. being part- 22. A constable who suffers an execu- 23. The mere giving a bond for the debt of another, is no payment; and an action for money paid, laid out and expended, for the use of the defendant, will not lie, unless the plaintiff has actually advanced money. Cummings v. Hackley & Fisher. 8 Johns. Rep. 202, v. Aurundel. 2 Black. 824. 2 Indeb. will not lie against B. for money lent to A. at B.'s request, because the promise is collateral only. Butcker v. Andrews. 1 Salk. 23. 3 Salk. 15. Assumpsit for money had and re- · ceived will lie, if A. having obtained possession of goods entrusted to B. by C. to be sold at a fixed price, refuses either to return them to B. or to pay the fixed price, and B. being threatened with an action by C. pays him the price for A. shall be presumed to have sold the goods. Longchamp v. Kenny. 1 Douglas, 137. 6. But, in such a case the plaintiff must have given the defendant notice of the nature of his demand, because a party shall not be permitted to avail himself of the generality of a declaration for money had and received, to surprize the defendant. Ibid. 138. Quære. If assumpsit for mony laid out and expended would lie in the above case? Ibid. 138. 7. 8. If one recovers money mala fide by suit in an inferior court, indeb. ass. will lie in K. B. to make him refund. Moses Macferlan. Burr. 1005. 1 Black. 219. Case for money had and received, will lie by the true owner of money or notes against a third person, in to whose hands they have come mala fide; provided their idendity can be traced and ascertained. Clarke v. Shee & Johnson. Cowp. 197. 9. An action for money had and received does not lie to recover back money paid for the release of cattle damags feasant, though the distress were wrongful. The plaintiff's remedy is by action of trespass for taking his cattle. Lindon v. Hooper. Cowper, 414. 10. An action for money had and received does not lie against a revenue officer to recover an over payment. Cowper, 69. 11. Assumpsit for money had and received will not lie when the money has been paid on a contract, which the other party contends to be still Weston v. Downes. 1 Dou open. glas, 23. 12. Indebitatus assumpsit for money received to plaintiff's use, evidence payment by an obligor upon an usurious bond, and held not maintainable. Indebitatus assumpsit lies for money paid by mistake or deceit, but not for money paid knowingly on illegal consideration. Sed qu Tomkins v. Bernet. 1 Salk. 22. 13. An action for money had and received is a liberal action, in which you may waive trespass and damages where there is a trespass. Anonymous. Lofft, 320. 14. If an order of sessions direct the payment of money, and it is paid accordingly, though the order is quashed, an indebitatus assumpsit will not lie for the money. Mead v. Death. A L. Raym. 742. 15. Indebitatns assumpsit lies for money paid under the sentence of a court which has no jurisdiction. Newdigate v. Davy. 1 L. Raym. 472. (And see ANNUITY VI.) 16. The action of assumpsit for money had and received is like a bill in equity; and therefore the party must shew that he has conscience and equity of his side; so that it lies not against one who was known to be only a surety in an annuity bond for the payment of the annuity, to recover the consideration money after the annuity had been set aside for want of a memorial, though the surety had joined in a receipt for the money. Straton v Rastal!. 2 Term Rep. 370. 17. A. being indebted to B. for brokerage, and B. indebted to C. for money lent, B. gives an order to A. to pay C. the sum due from A. to B. as a security, on which C. lends B. a farther sum: and the order is accepted by A.; on the refusal of A. to comply with the order, C. may maintain an action against A. for money had and received. Israel v. Douglas and al. 1 H. Black. 239. (See Taylor v. Higgins. (AFFIDAVIT I.) 3 East, 169, in which the court of K. B. is said to have disapproved of this decision.) 18. The court of C. P. held that if A. actually receive money of B. to the use of C. on an illegal agreement between B. and C., this money may be recovered by C. in an action for money had and received. And it is doubtful how far the case is varied though A. be a party to the contract. Tenant v. Elliot. 1 Bos. & Pull. 3. Farmer v. Russell and al. 1 Bos. & Pull. 296. (See tit. AGREEMENTS II. ante II. and Cotton v. Thurland. 5 Term Rep. 405, &c. tit. WAGER.) 19. Where a man has actually paid what the law would not have compelled him to pay, but what in equity and conscience he ought to pay, he cannot recover it back again in an action for money had and received. Bize v. Dickason. 1 Term Rep. 286. 20. Neither can he recover back a sum paid for a debt which would otherwise have been barred by the statute of limitations, or a debt contracted during his infancy. 1 Term Rep. 286. 21. But where money has been paid under a mistake, which there was no ground in conscience to claim, the party may recover it back again in an action for money had and received to his use. 1 Term Rep. 286. 22. The testator having borrowed mo ney on a respondentia contract prohibited by law, his executors, the plaintiffs, refunded the money to the lenders, the defendants; held, that the executors could not maintain an action for money had and received to recover back this money, notwithstanding the defendants could not have compelled them to pay it. Munt v. Stokes. 4 Term Rep. 561. 23. Where money has been paid by the plaintiff to the defendant under the compulsion of legal process, and it is afterwards discovered that the money was not due, the plaintiff caunot recover it back in an action for money had and received. Marriot v. Hampton. 7 Term Rep. 269. 24. Money paid by one with full know ledge, or the means of such knowledge in his hands, of all the cireumstances, cannot be recovered back again on account of such payment having been made under an ignorance of the law. Bilbie v. Lumley. 2 East, 469. Qu. Where such payment was made under an uncertainty of the facts. Chatfield v. Paxton. 2 East, 471. 25. The action for money had and received to recover fees, was introduced in lieu of an assize. 6 Term Rep. 683. 26. Money given to A., and claimed by B., as perquisites of office, cannot be recovered by B. in an action for money had and received, unless such perquisites be known and accustomed fees, such as the legal of ficer could have recovered from A. Boyter v. Dodsworth. 6 Term Rep. 681. 27. Where a person has his election either to bring trover or an action for money had and received, he may maintain the former notwithstanding the bankruptey of the debtor after the cause of action accrued, and though the bankruptcy would be a bar to the latter. Parker v. Norton. 6 Term Rep. 695. 28. Assumpsit for money had and re ceived lies when a payment has been made on a contract which is put an end to. Towers v. Barret. 1 Term Rep. 133. 29. But if it continue open, the plaintiff can only recover damages for the breach of it; and then he must state the special contract. 1 Term Rep. 133. 30. The difference between those cases where the contract is open, and where it is not so, is this: if the contract be rescinded, as where, by the terms of it, it is left in the plaintiff's power to rescind it by an act, and he does it; or where the defendant afterwards assents to its being rescinded; the plaintiff is entitled to recover back his whole money; and then an action for money had and received will lie: but if the contract be open, the plaintiff's demand is not for the whole sum, but for damages arising out of it; and then he must state the special contract. 1 Term Rep. 133. 31. Where an act is to be done by each party under a special agreenient, and the defendant, by his neglect, prevents the plaintiff carrying the contract into execution, the plaintiff may recover back any inoney he has paid under it in an action for money had and received. Giles v. Edwards. 7 Term Rep. 181. 32. But a contract cannot be rescinded by one party for the default of the other, unless both can be put in statu quo, as before the contract. 5 East, 449. the period of the ten days, notwithstanding which B. still continued in possession: held that on account of B.'s intermediate possession of the premises under the agreement, he could not, by quiting the house for the default of A., rescind the contract, and recover back the 10l. in an action for money had and received, but could only declare for a breach of the special contract. Hunt v. Silk. - 5 East, 449. (As to actions founded on the rescindment or part performance of illegal contracts. See AGREEMENTS II.) 34. Assumpsit for money had and received lies against an overseer of the poor to recover money in his hands, which has been levied on a conviction which was afterwards quashed. Feltham v. Terry. Cited in Birch v. Wright. 1 Term Rep. 387. 35. Assumpsit for money had and received does not lie by the nominee of a perpetual curacy for the profits thereof, till he has had the bishop's licence. Powell v. Milbank. ·Term Rep. 399, N. 36. But it does lie by the nominee of a donative before the bishop's licence, against a person who receives the rents and profits. R. v. Bishop of Chester. 1 Term Rep. 403. 37. But where a donative had been twice augmented, it should seem the nominee cannot maintain such action without the bishop's licence. 1 Term Rep. 404. 1 38. If a trader become a bankrupt by Assignees of Bradley v. Clark. G 40. One partner may maintain an ac- 41. If a revenue officer seize goods as forfeited, which are not liable to seizure, and take money of the owner to release them, the latter may recover back the money in an action for money had and received; in which action the month's notice under 23 G.3. c. 70. s. 30. need not be given. Irving v. Wilson. 4 Term Rep. 485. 42. Assumpsit for money had and re- 43. A. with a view to accommodate B. fendant on his promising to pay the rent; held that an action for money had and received would not lie for the value of the goods, though the defendant did not pay the rent. Leery v. Goodson. 4 Term Rep. 687. 45. A., a feme sole, entitled to the profits of an estate vested in trustees for her separate use, conveys them for her separate use to B., a married woman, without the intervention of trustees: A. marries, and the trustees, without notice of the conveyance to B., pays the profits to A.; B.'s husband cannot maintain an action against A.'s husband for the money, as money received to his use. Davison v. Atkinson. 5 Term Rep. 434. 46. An action for money had and received will not lie to recover back from the underwriter the premium of a re-assurance (void by statute 19 G. 2. c. 37.) after capture. Andree v. Fletcher. 3 Term Rep. 266. 47. Where credit was given by insurance brokers in an account delivered in by them to an underwriter for the premiums of re-assurances, after which the assured gave notice to the brokers not to pay the money over to the underwriter, and indemnified them for withholding it: held that the underwriter could not maintain an action against the brokers to recover such premiums as for money had and received by them to his use, the transaction being illegal, and the money not having been actually paid, but only credit given for it on account. Edgar v. Fowler. 3 East, 222. 48. A. being indebted to B. in 700l. applied to C. to lend him that sum, who agreed so to do, provided A. would allow him to deduct therefrom sol. due from B. to himself upon stock-jobbing transactions; accordingly C. advanced 620l. and A. gave him a promissory note for Fool.; A. then paid over to B. the 620l. who gave him a discharge for the whole 700!.; the promissory note for 700l. given by A. being paid when due, B. brought an action against C. to recover sol. as money had and received by C. to his use: held that B. could not maintain the action, but that it must be brought by A. if by any one. Scholey v. Daniel. 2 Bos. & Pull. 540. 49. A., supposing himself the legal representative of a lessee for years, sold the term, and delivered the lease to the purchaser, but without any assignment or formal conveyance, saying, "the premises were his, and if any thing happened he would see the purchaser righted;" it was held that A. was liable to the purchaser in an action for money had and received, the rightful administrator of the tenant for years having ousted the purchaser by ejectment. Cripps v. Reade. 6 Term Rep. 606. 50. A. by his will devised to B. C. D. and E. two parcels of land upon trust to sell and divide the money among his brother's and sister's children. B. C. D. and E., the latter being one of 24 persons entitled under the will to a share of the money, were proceeding to sell, when it was agreed by the three first trustees, and the 23 other persons entitled to the money, that E. should become purchaser of the two parcels of land, paying 300l. for one and 700l. for the other. A conveyance was accordingly prepared and executed by B. and C. only, upon which E. took possession of the lands and paid the purchase-money, which was divided among the several persons entitled under the will. E. being afterwards evicted from the smaller parcel in consequence of a defect in the title derived under the will, brought an action for money had and received against one of the 23 persons, torecover the share of the 300l. received by him, at the same time refusing to give up the parcel of land for which 700l. had been paid: held that the purchase of the two pareels formed distinet |