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occupier is responsible to the public for the repairs of the bridge ; CH. III. s. 2. but he may demand reimbursement from the owner, in an action


Contracts for money paid to his use (o).

(Money So a trustee under a will, who pays the legacy duty upon an

Paid"). annuity, after the expiration of four years from the testator's death, Legacy duty. may recover the amount from the legatee as money paid to his use (p).

So where the indorser of a bill of exchange, having been sued by Bills of the holder, paid him part of the amount of the bill ; it was held

Exchange. that he might recover the same against the acceptor, as money paid to his use (q). So where A., having accepted a bill drawn upon him by B., for money lent by B. to A., compounded with B. and his other creditors, and paid the composition; and an indorsee of the bill afterwards sued A., and compelled him to pay the amount; it was held that A. might recover the same from B., as money paid to his use(r). And where the plaintiff had accepted a bill of exchange for the accommodation of one H., who deposited it with the defendant as a security for goods bought of him, at the same time disclosing the circumstances under which it had been obtained ; and H. afterwards paid for the goods ; but, he being further indebted to the defendant, the latter refused to restore the bill, and subsequently indorsed it for value to a third person, who sued the plaintiff thereon, and compelled him to pay the amount, with costs; it was held that the plaintiff might recover from the defendant the amount of the bill, on the count for money paid (8).

The defendant, having some bark to sell, applied to the plaintiffs to find a purchaser. The plaintiffs applied to T., who agreed to purchase the bark if equal to sample. The bark having been shipped, the defendant sent the invoice to the plaintiffs, and requested them to accept a bill of exchange for the price,—which they did, upon the offer of a del credere commission. The bark, however, not being equal to sample, T. refused to take it; and, the plaintiffs being called upon to pay the bill when due, it was held that they were entitled to recover the amount thereof, as money paid to the defendant's use (t).

And so, if a carrier deliver to B., by mistake, goods consigned to C., and B. appropriate the goods to his own use, and the carrier, on demand, even without action, pay C. their value; he,

(0) Baker v. Greenhill (1842), 3 Q. B. 148.

) Hales v. Freeman (1819), 1 B. & 2 391. See further, Foster v. Ley (1835), : Scott, 438 ; Bate v. Pane (1849), 13 VB. 900. (9) Pownal v. Ferrand (1827), 6 B. &

C. 439.

(r) Hawley v. Beverley (1843), 6 M. & G. 221. And see Mallalicu v. Hodgson (1851), 16 Q. B. 689.

(8) Bleaden v. Charles (1831), 7 Bing. 246.

() Hooper v. Treffrey (1847), 1 Ex. 17.

CH. III. s. 2. the carrier, may recover the amount from B., as money paid to

Implied his use (u).
(Money But where goods came to the wharf of A. consigned to B.; and
Paid ").

C. believing them to be meant for him, carried them from the What are not wharf, and used them; whereupon A. was called upon by B. to pay, compulsory payments. and did pay to him the value of the goods : it was held that A.'s

only remedy against C. was for tort ; and that he could not recover for money paid to his use (x).

So a payment made with knowledge on the part of the plaintiff that he is not bound to pay, will be held not to have been made with the implied authority of the defendant. Thus, where the drawer of an accommodation bill after the bill became due, paid part of the amount to the holder, but without having received notice of dishonour of the bill, and without any actual request from the acceptor; it was held that he could not recover the same from the acceptor, on the count for money paid (y).

So if, without any request from the defendant, the plaintiff voluntarily allow goods belonging to him to be or remain on the defendant's premises, and they are there distrained for rent due from the defendant, and the plaintiff pay such rent in order to redeem his goods; he cannot recover the amount so paid, as money paid to the defendant's use (2). So where the plaintiff and the defendant, respectively, were underlessees, at distinct rents, of separate portions of premises, the whole of which were held at an entire rent under one original lease; and the plaintiff, under threat of distress, paid the whole rent due under the original lease ; it was held, that he could not recover a proportion thereof from the other underlessee, as money paid to his use (a). And where by an award it was ordered, that the costs of the reference should be paid half by A., and half by B.; and B. took up the award and paid the whole: it was held that he could not recover half from A., as money paid to his use (6).

So if a sheriff or his officer is obliged, by reason of a breach of duty on his part, to pay to A. a debt due to him from B.; he cannot recover from B. the amount so paid (c).

So where one of two joint prize agents was imposed upon by a person who falsely pretended to be one of the seamen entitled to prize money ; and the agent in consequence paid money to the impostor, which he was afterwards obliged to pay over again to the Ch. III. s. 2. person legally entitled to receive it: it was held that he could not

(u) Brown v. Hodgson (1811), 4 Taunt. 189. See also Spencer v. Parry (1835), 3 A. & E. 331, 338.

(3) Per Lord Ellenborough, C. J., Sills v. Laing (1814), 4 Camp. 81.

(y) Sleigh v. Sleigh (1850), 5 Exch. 514.

(3) England v. Marsden (1866), L. R.

1 C. P. 529.

(a) Hunter v. Hunt (1845), 1 C. B. 300.

(6) Bates v. Townley (1848), 2 Exch. 152.

(c) Pitcher v. Bailey (1807), 8 East, 171.


Contracts recover from his co-agent a moiety of the money so paid (d). So (Money i

Paid"). where a cheque drawn by a customer upon his banker, for a sum of money described in the body of the cheque in words and figures, was afterwards unlawfully altered by the holder, who substituted a larger sum for that mentioned in the cheque, 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 anything beyond the sum for which the cheque was originally drawn, there being no genuine ord or authority to pay more (e).

But it would be otherwise if, by the carelessness of the customer in his mode of drawing the cheque, an opportunity had been afforded to the holder for altering the cheque, so as to increase the amount payable thereon (f),-for, in that case, the customer's own negligence would be held to have been the proximate cause of leading the banker into the mistake (g).

And after resistance, in the first instance, to a demand claimed to accrue due at intervals, the mission of such resistance, and subsequent uniform acquiescence, will sometimes preclude a party from contending, that moneys paid in respect of such demand were paid by compulsion. Thus where a distress was made on a tenant, for the whole of the rent due from him : and,—the landlord having wrongfully refused to allow the tenant to deduct the land tax,-he protested against his liability to pay it, but during five succeeding years he paid the land tax, without disputing his liability : it was held that he could not recover from his landlord, in an action for money paid, any part of the sums so paid by him for land tax (h).

(C) Implied Request, though Payment voluntary. There are cases, however, in which a request has been implied, Request may so as to support this action, although the party who paid the be implied money did so merely as a volunteer. Thus, where the plaintiff, in ment volunthe absence of the defendant, the husband, incurred expense

tary. burying the wife of the defendant, in a manner suitable to his

(d) I'Nreath or Macreath v. MargetMon (1785), 4 Dougl. 278.

e, Halt v. Fuller (1826), 5 B. & C.
750. And see very fully, Robarts v.
Tucker (1851), 16 Q. B. 560, Ex. Ch.
(f) See Young v. Grote (1827), 4 Bing.
23 ; per Parke, B., Robarts v. Tucker
(1851), 16 Q. B. 560, 579 ; per Cock-
barn," c. J., Swan v. North British
Australasian Company (1863), 2 H. &

C. 175, 189, Ex. Ch. ; Halifax Union v.
Wheelwright (1875), L. R., 10 Ex. 183.

(9) See Arnold v. Cheque Bank (1876), 1 C. P. D. 578. And see Fine Art Society v. Union Bank of London (1886), 17 Q. B. D. 705, C. A. ; McEntire v. Potter (1889), 22 Q. B. D. 438.

(h) Spragg v. Hammond (1820), 2 B. & B. 59.

Ch. III. s. 2. condition ; it was held that, inasmuch as the plaintiff, in so doing, Implied

had acted in the discharge of a duty which the defendant himself Contracts (Money was under a strict legal liability to perform, he might recover Paid).

from the defendant the money so expended, although there had been no express request or consent on his part to the plaintiff's act (i). And so, where one party voluntarily incurs expenses in burying another, the executor of the deceased, if he has assets, is

liable to repay the expenses so incurred (k). Tenancy No request can be implied from one tenant in common to another in common.

to expend money, as by the repair of a house, upon the property held in common. If one tenant in common chooses to repair a house held in common, he cannot, without previous express request from the co-owner, recover any part of the expense from him, however much the co-owner may be benefited, for there is no right of contribution between tenants in common (1).

(d) Payments by Sureties.

Payments by sureties.

Where one person becomes surety for another at his request, the law implies a promise by the latter, that he will repay the surety whatever he may be compelled to pay the creditor (m). And in such cases the surety has a right of action against the principal, the instant he pays the creditor, for so much money paid to his use (n). Thus, where the plaintiff, who was a shareholder in a banking company, became surety for advances to be made by the company to the defendant; and the defendant afterwards executed a composition deed, to which the plaintiff and the banking company were parties, and which contained a stipulation for a reserve of remedies against sureties for the defendant: it was held that, the plaintiff having been compelled to pay the defendant's debt to the banking company, he was entitled to recover the amount so paid, as money paid to the defendant's use (o). So, bail may recover against the principal, any expenses they may have reasonably incurred in taking him into custody for the purpose of surrendering him (p). So a party who accepts or indorses a bill of exchange, or who indorses a note, for the accommodation of another (q), is entitled, on paying the amount, to recover it from the party for whose benefit he thus became responsible.

(i) Ambrose v. Kerrison (1851), 10 C. B. 776; Bradshaw v. Beard (1862), 12 C. B., N. S. 344; Jenkins v. Tucker (1788), 1 H. Bl. 90.

(k) Rogers v. Price (1829), 3 Y. & Jer. 28. Per Jervis, C. J., Ambrose v. Kerrison (1851), 10 C. B. 776.

(1) Leigh v. Dickeson (1884), 15 Q. B. D. 60, C. A.

(m) Per Ashhurst, J., Toussaint v. Martinnant (1787), 2 T. R. 100.

(n) Per Parke, B., Davies v. Hur?. phreys (1840), 6 M. & W. 153.

(0) Kearsley v. Cole (1846), 16 M. & W. 128.

(p) Fisher v. Fallows (1804), 5 Esp. 171 ; 8 R. R. 843.

(9) The acceptor of a bill is not liable

So, it seems that if a surety take a bond or other specialty, as a Ch. III. s. 2. counter-security from his principal, he cannot resort to the action


Contracts for money paid (r).


Paid'). And any costs necessarily incurred by the surety, and which he may be entitled to recover from the principal, can only be recovered on a claim founded on the implied promise of indemnity.

(e) Contribution between Sureties.

If several persons become sureties for the same debt, either Contribution

between jointly or severally, or by the same or different instruments, and

sureties. one surety pays more than his proportion of the demand, he may recover against each co-surety an aliquot share of the excess, as money paid to his use (s).

So where there are several co-sureties, and one of them takes from the principal a collateral security, for the repayment of any sum which he may be called upon to pay in discharge of the principal's debt: such surety will still be entitled, on paying more than his proportion of that debt, to sue his co-sureties for contribution (t).

But where one of two co-sureties paid the debt of the principal, out of monies of the latter which he had in his hands at the time, and which he was entitled to apply to that purpose; it was held that he could not recover against his co-surety for contri

bution (u).

So it has been held, that if the surety from whom contribution is claimed, became bound at the request of the surety who seeks to recover it, he is not liable ; for, in such case, the implied promise is negatived (x).

Nor does the right to contribution extend to any part of the costs paid or incurred by the surety in attempting to defend, or in settling legal proceedings taken by the creditor against him to recover the debt (y). But where the plaintiff and the defendant bad executed, as sureties, & warrant of attorney to secure an

to an indorser (there being no privity although the surety paid the debt after between them independently of the bill), having given a bond' for it, without the for the costs of an action brought thereon knowledge of the co-sureties ; Dunn v. by the holder against the indorser ; Daw- Slee (1817), 1 Moore, 2; 17 R. R. 65). un V. Murgan (1829), 9 B. & C. 618. (t) Done v. Walley (1848), 2 Exch. (T) Toussaint v. Martinnant (1787), 2 198. I. R 100, 104; and see post, Ch. XVII., (u) Goepel v. Swinden (1844), 1 D. &

L. 888. 3) Davies v. Humphreys (1840), 6 M. (a) Turner v. Davies (1796), 2 Esp. W. 153, 168 ; Kemp v. Finden (1844), 478. 12 M. & W. 421; Deering v. Winchelsca (y) Knight v. Hughes (1828), Moo. & 1500), 2 B. & P. 270 ; Wh. & Tu., L. M. 247 ; Roach v. Thompson (1830), ib. C., vol. i. ; 1 R. R. 41.

487. The right to contribution arises,

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