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charge of his bond. Long et al. v. VI. Assumpsit for Money had and reGreene et al. 7 Nass. 268.

ceived. 20. Where 1. executed a bond with

sureties to the United States for du- 1. Where money is paid to the serties, and 1. was mentioned as the vant and he misapplies it, the parthe importer of the goods, and B. ty has his remedy against the masthe surety, paid the bond, it was ter or servant at election. Cary v. held that he might maintain assuinp

Webster. 1 Str. 480. sit against A.though in fact, a third 2. Assumpsit will not lie to recover person was the real owner of the back money paid by A. to B. if tho goods imported. Sluby v. Cham- same was fairly due, though the plin. 4 Johns. Rep. 461.

payment of the same could not have 21. Where A., B. and C. being part- been compelled by law. Farmer

bers in a distillery, became jointly V. Aurundel. 2 Black. 824. bound with D., as their surety, in a 3. An action lies for money lost by the bond to the United States, for the defendant on a bet upon a horse payment of duties on distilled spir- race, and paid by plaintiff at his its, and A., one of the obligors, re- requist. Alcinbrook v. Hall. 2 quested E. to pay the amount due W'ils. 309. on the bond to the United States, and 4. Indeb. will not lie against B. for promised that he should be paid, inoney lent to 3. at B.'s request, heand E. paid the amount according- cause the promise is collateral only. lv. In an action of assumpsit brought

Butcker v. Andreu's. 1 Salk. 23. by E. against all the co-obligors of 3 Salk. 15. the bond, it was held, that D., one of 5. Assumpsit for money had and re-. the obligors, being a surety only, ceived will lie, if A. having obtainand having no interest in the distil- ed possession of goods entrusted to lery, was not liable; though the oth- B. by C. to be sold at a fixed price, er obligors, being parties in interest, refuses either to return them to B. would be liable on the implied as- or to pay the fixed price, and B. besumpsit arising from the promise of ing threatened with an action by C. A. Elmendorf v. Tappen and others. pays him the price for J. shall be 5 Johns. Rep. 176.

presumed to have sold the goods. 22. A constable who suffers an execu- Longchamp v. Kenny. 1 Douglas,

tion to sleep in his hands, and then 137. pays the inoney to the plaintiff, 6. But, in such a case the plaintiff without any previous demand on the must have given the defendant nodefenda nt, and without his request, tice of the nature of his demand, cannot maintain an action against because a party shall not be perthe defendant for the amount paid to

mitted to avail himself of the genthe plaintiff on the execution. Jones erality of a declaration for money v. Wilson. 3 Johns. Rep. 434. And had and received, to surprize the Menderback v. Hopkins. 8 Johns. defendant. Ibid. 138. Rep. 436.

Quære. I assumpsit for mony laid out 2. The mere giving a bond for the and expended would lie in the above

debt of another, is no payment; and case ? Ibid. 138. an action for money paid, laid out 7. If one recovers money mala fide and expended, for the use of the de- by suit in an inferior court, indeb. fendant, will not lie, unless the ass, will lie in K. B. to make him plaintiff has actually advanced mo- refund. Moses v Macferlan. ney. Cummings v. Hackley y Fish- Burr. 1005. 1 Black. 219. er. 8 Johns. Rep. 202,

8. Case for money had and received,

will lie by the true owner of money or notes against a third person, in

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to whose hands they have come mala to be only a surety in an annuity fide ; provided their idendity can be bond for the payment of the annuitraced and ascertained. Clarke v. ty, to recover the consideration mo

Shee x Johnson. Coup. 197. ney after the annuity had been set 3. An action for money had and re- aside for want of a memorial, thouglı

ceived does not lie to recover back the surety had joined in a receipt money paid for the release of cattle

for the money.

Straton v Rastal!. damag's feasant, though the distress 2 Teri Rep. 370. were wrongful. The plaintiff's re- 17. A. being indebted to B. for bromedy is by action of trespass for kerage, and B. indebted to C. for taking his cattle. Lindon v. Iloop- money lent, B. gives an order to A. er. Cowper, 414.

to pay C. the sum due from A. to B. 10. An action for money had and re- as a security, on which C. lends B.

ceived does not lie against a reren- a farther sum: and the order is acue officer to recover an over pay- cepted by A. ; on the refusal of A. ment. Cowper, 69.

to comply with the order, C. may 11. Assumpsit for inoney had and maintain an action gainst A. for

ceived will not lie when the money money had and received. Israel v. has been paid on a contract, which Douglas and al. 1 II. Black. 239. the other party contends to be still (See Taylor v. Higgins. (AFFIDAVIT open. Weston v. Downes. 1 Dou

I.) 3 East, 169, in which the court glas, 23.

of K. B. is said to have disapprov12. Indebitatus assumpsit for money re

ed of this decision.) ceived to plaintiff's use, evidence 18. The court of C. P. held that if A. payment by an obligor upon an usu- actually receive money of B. to the rious bond, and held not maintain- use of "C. on an illegal agreement able. Indebitatus assumpsit lies for between B. and C., this money may money paid by nistake or deceit, be recovered by C. in an action for but not for money paid knowingly money had and received. And it is on illegal consideration.

doubtful how far the case is varied Tomkins v. Bernet. 1 Salk. 22. though A. be a party to the con13. An action for money had and re- tract. Tenant v. Elliot. 1 Bos. of

ceived is a liberal action, in which Pull. 3. Farmer v. Russell and al.
you may waive trespass and dam- 1 Bos. & Pull. 296.
ages where there is a trespass. A. (See tit. AGREEMENTS II. ante II. and
nonymous. Lofft, 320.

Cotton v. Thurland. 5 Term Rep. 14. If an order of sessions direct the 405, &c. tit. WAGER.)

payment of money, and it is paid 19. Where a man has actually paid accordingly, though the order is what the law would not have comquashed, an indebitatus assumpsit pelled him to pay, but what in ewill not lie for the money. Mead quity and conscience he ought to v. Death. 1 L. Raym. 742.

pay, he cannot recover it back a15. Indebitatns assumpsit lies for mo- gain in an action for money had

ney paid under the sentence of a and received. Bize v. Dickason.
court which has no jurisdiction. 1 Term Rep. 286.
Newdigate y. Davy. 1 L. Rayın. 20. Neither can he recover back a sum

paid for a debt which would other-
(And see AnnuITY VI.)

wise have been barred by the stat16. The action of assumpsit for money ute of limitations, or a debt con

had and received is like a bill in tracted during his infancy. 1 Term
equity; and therefore the party Rep. 286.
must shew that he has conscience 21. But where money has been paid
and equity of his side; so that it under a mistake, which there was
lies not against one who was known po ground in conscience to claim,

Sed quo


the party may recover it back a- and though the bankruptcy would gain in an action for money had and he a bar to the latter. Parker vi received to his use. 1 'P'erm Rep. Norton. 6 Term Rep. 695.

28. Assumpsit for money had and red 23. The testator having borrowed mo- ceived lies when a payment has been

ney ou a respondentia contract pro- made on a contract which is put an hibited by law, his executors, the end to. 1owers v. Barret. 1 Term plaintiffs, refunded the money to Rep. 133. the lenders, the defendants; held, 29. But if it continue open, the plainthat the executors could not main- tiff can only recover damages for tain an action for money had and the breach of it ; and then he must received to recover back this mo- state the special contract. 1 Term ney, notwithstanding the defendants Rep. 133. could not have compelled them to 30. The difference between those cases pay it. Munt v. Stokes. 4 Term where the contract is open, and Rep. 561.

where it is not so, is this : if the 23. Where money has been paid by contract be rescinded, as where, by

the plaintiff to the defendant under the terms of it, it is left in the plainthe compulsion of legal process, and tiff's

power to rescind it by an act, it is afterwards discovered that the and he does it; or where the demoney was not due, the plaintiff fendant afterwards assents to its caynot recover it back in an action being rescinded; the plaintiff is enfor money had and received. Mar. titled to recover back his whole mo

riot v. Hampton. 7 Terin Rep. 269. ney; and then an action for money 24. Money paid by one with full know- had and received will lie : but if the

ledge, or the means of such know- contract be open, the plaintiff's deledge in his hands, of all the cir- mand is not for the whole sum, but cumstances, cannot be recovered for damages arising out of it; and back again on account of such pay- then he must state the special conment having been made under an tract. 1 Term Rep. 133. ignorance of the law. Bilbie v. 31. Where an act is to be done by Lumley. 2 East, 469.

each party under a special agreeQu. Where such payment was made nient, and the defendant, by his neunder an uncertainty of the facts. glect, prevents the plaintiff carrying

Chatfield v. Paxton. 2 East, 471. the contract into execution, the 25. The action for money had and re- plaintiff may recover back any ino

ceived to recover fees, was intro- ney he has paid under it in an aca duced in lieu of an assize. 6 Term

tion for money

ad and received. Rep. 683.

Giles v. Eduards. 1 Term Rep. 181. 26. Money given to A., and claimed 32. But a contract cannot be rescind

by B., as perquisites of office, can- ed by one party for the default of not be recovered by B. in an action the other, unless both can be put in for inoney had and received, unless statu quo, as before the contract. 5 such perquisites be known and ac- East, 449. customed fees, such as the legal of- 33. Therefore where A. agreed, in ficer could have recovered from A. consideration of 10l., to let a house Boyter v. Dodsworth. 6 Term Rep. to B., which A. was to repair and 681.

execute a leåse of, within ten days, 27. Where a person has his election but B. was to have immediate pos

either to bring trover or an action session, and execute a counterpart, for money had and received, he may and pay the rent; B. took possesmaintain the former notwithstand- sion, and paid the 101. immediateing the bankruptcy of the debtor ly; but A. neglected to execute the after the cause of action accrued, lease and make the repairs beyond the period of the ten days, notwith- Assignees of Bradley v. Clark, o standing which B. still continued in

Term Rep. 197. possession : held that on account of 40. One partner may maintain an acB.'s intermediate possession of the tion for money had and received apremises under the agreement, he gainst the other partner for money could not, by quiting the house for l'eceived to the separate use of the the default of 4., rescind the con- former, and wrongfully carried to tract, and recover back the 101. in

the partnership account. Smith v. an action for money had and receiv- Barrow. (tit. PARTNERS.) 2 Term ed, but could only declare for a Rep. 476. breach of the special contract. 41. If a revenue officer seize goods as Hunt v. Silk. . 5 East, 449.

forfeited, which are not liable to (As to actions founded on the rescind- seizure, and take money of the own

ment or part performance of illegal er to release them, the latter may

contracts. See AGREEMENTS II.) recover back the money in an action 31. Assumpsit for money had and re- for money had and received; in

ceived lies against an overseer of the which action the month's notice unpoor to recover money in his hands, der 23 G.3. c. 70. s. 30. need not be which has been levied on a convic- given. Irring v. Wilson. 4 Term tion which was afterwards quashed. Rep. 185. Felthain v. Terry. Cited in Birch 42. Assumpsit for money had and re

v. Iright. 1 Term Rep. 387. ceived does not lie against an excise 33. Assumpsit for money had and re- oficer to recover duties received by

ceived does not lie by the nominee him after the act imposing them is of a perpetual curacy for the profits repealed, if he have paid them over thereof, till he has had the bishop's to his superior; and in such case licence. Powell y. Milbank. 1 he is entitled to a month's notice Term Rep. 399, n.

before the action is brought by 23 36. But it does lie by the nominee G. 3. c. 70. s. 30.

Greenaway v. of a donative before the bishop's li- Hurd. 4 Term Rep. 553. cence, against a person who receives 43. A. with a view to accommodate B. the rents and profits. N. v. Bishop let him a bill drawn by himself up

of Chester. 1 Term Rep. 403. on and accepted by C. who had ef37. But where a donative had been fects of A. iu his hands; B. indors

twice augmented, it should seem the ed it to D. who indorsed it over; nominee cannot maintain such ac- the day before the bill became due tion without the bishop's licence. B. paid the amount to A., who on 1 Term Rep. 404.

hearing that C. had failed, gave B. 38. If a trader become a bankrupt by a check for the amount of the bill,

lying in prison two months after an and sent him with it to D. to enable arrest, his assignees may maintain him to pay the bill when due; four an action for money had and receiv- days after that time A. learning that ed against a person, who, having payment had not been demanded, notice that commission would be is- desired D. not to pay the bill, as sued against him, sold his goods and no notice of non-payment had been paid him the produce before the ex- given by the holder, and offered to piration of the two months. King indemnify him; notwithstanding v. Leith. 2 Term Rep. 141.

this D. afterwards paid the bill; 39. Money paid by a trader after a hield that he paid it in his own

secret act of bankruptcy to a carri- wrong; and that A. was entitled to er, for the carriage of goods, may recover back from him the money be recovered back by the bankrupt's he had so sent to him. Whitfieldi. assigrees in assumpsit for money had Sarage. 2 Bos. f Pull. 277. and received. Bradley and another, 44. Goods distrained by the plaintiff

were delivered by him to the de


fendant on his promising to pay the note for 7001. given by A. being paid rent; held that an action for money when due, B. brought an action ahad and received would not lie for gainst C. to recover sol. as money the value of the goods, though the had and received by C. to his use: defendant did not pay the rent. held that B. could not maintain the Leery v. Goodson.

4 Term Rep. action, but that it must be brought 687.

by A. if by any one. Scholey v. 15. A., a feme sole, entitled to the pro

Daniel. 2 Bos. Pull. 510. fits of an estate vested in trustees 49. A., supposing himself the legal for her separate use, conveys them representative of a lessee for years, for her separate use to B., a marri- sold the term, and delivered the ed woman, without the intervention lease to the purchaser, but without of trustees : A. marries, and the any assignment or formal conveytrustees, without notice of the con- ance, saying, “ the premises were veyance to B., pays the profits to his, and if any thing happened he A.; B.'s husband cannot maintain would see the purchaser righted;" an aetion against A.'s husband for it was held that A. was liable to the money, as money received to the purchaser in an action for mohis use. Davison v. Atkinson. 5 ney had and received, the rightful Term Rep. +34.

administrator of the tenant for years 46. An action for nioney had and re- having ousted the purchaser by e

ceived will not lie to recover back jectment. Cripps v. Reade. 6 Term from the underwriter the premium Rep. 606. of a re-assurance (void by statute 50. A. by his will devised to B. C. D. 19 G. 2. c. 37.) after capture. An- and É. two parcels of land upon dree v. Fletcher. 3 Term Rep. 266.

trust to sell and divide the money 47. Where credit was given by insur- among his brother's and sister's

ance brokers in an account deliver- children. B. C. D. and E., the lated in by them to an underwriter for ter being one of 24 persons entitled the premiums of re-assurances, af- under the will to a share of the moter which the assured gave notice Dey, were proceeding to sell, when to the brokers not to pay the money it was agreed by the three first trusover to the underwriter, and indem- tees, and the 23 other persons entinified them for withholding it: held tled to the money, that E. should that the underwriter could not main- become purchaser of the two partain an action against the brokers cels of land, paying 300l. for one to recover such premiums as for and wool. for the other. A conveymoney had and received by them ance was accordingly prepared and to his use, the transaction being il

executed by B. and C. Only, upon legal, and the money not having which E. took possession of the been actually paid, but only credit lands and paid the purchase-money, given for it on account. Edgar v. which was divided among the sevFowler. 3 East, 222.

eral persons entitled under the will. 48. A. being indebted to B. in 7001. E. being afterwards evicted from

applied to C. to lend him that sun, the smaller parcel in consequence who agreed so to do, provided 1. of a defect in the title derived unwould allow him to deduct there- der the will, brought an action for from sol. due from B. to himself money had and received against one upon stock-jobbing transactions : ac- of the 23 persons, torecover the share cordingly C. advanced 6201. and 1. of the 3001. received by him, at the gave him a promissory note for same time refusing to give up the Pool.; A. then paid over to B. the . parcel of land for which 7001. had 6201. who gave him a discharge for been paid : held that the purchase the whole 700!.; the promissory of the two parcels formed distinct

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