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CH. III. s. 2. advance made to the principal; and, on default made by the prinImplied

cipal, judgment was entered up on the warrant of attorney, and (Money execution issued against the plaintiff: it was held that he was Paid").

entitled to recover from the defendant a moiety of the costs of such execution (2).

(f) Contribution between Joint Contractors. Other cases of If there be several defendants in an action, and they agree to contribution.

employ a solicitor to manage the defence on their joint responsibility, and one of them pays the solicitor's bill of costs, he may sue the others for contribution (a). And it appears that the case will be the same, even although the defendants were partners; provided it can be shown that the contract with the attorney was made independently of their relation as partners (6).

So, where one provisional committee-man paid more than his proportion of a debt contracted in respect of the scheme, it was held that he might sue the others in this action for contribution (c).

So, where several parties, not partners, are defendants in an action ex contractu, and the plaintiff recovers judgment against them, and one pays the whole demand, he may recover contribution against the others (d).

So, if two parties agree to employ an arbitrator, and one pays a sum of money to take up the award, he is entitled to recover from the other a moiety of the sum so paid (e).

So, if one of two contractors, upon a breach by them of their engagement, agree with the creditor to refer the amount of damages to arbitration; although this be done without the consent of the other co-contractor, still the former may, on paying the sum awarded, recover a moiety thereof from the latter, in an action for money paid (f). And where the plaintiff and the defendant were two of a committee, appointed at a vestry meeting for the purpose of prosecuting nuisances on the waste lands and highways of a parish ; and the committee appointed an attorney, who prosecuted, and obtained a verdict; after which the attorney sued the plaintiff for his bill of costs; and, the claim having been referred to

(2) Kemp v. Finden (1844), 12 M. & W. 421.

(a) Edger v. Knapp (1843), 5 M. & G. 753.

(6) Id. 758, 759.

(c) Batard v. Hawes (1853), 2 E. & B. 287; Boulter v. Peplow (1850), 9 C. B. 493.

(d) Sadler v. Nixon (1834), 5 B. & Ad. 936 ; Blackett v. Weir (1826), 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.

(e) Per Cur., Marsack v. Webber (1860), 6 H. & N. 6.

(f) Burnell v. Minot (1820), 4 Moore, 340.

arbitration, a sum of 2351., with costs of the action, was awarded Ch. III. s. 2. against the plaintiff: it was held that he might sue the defendant


Contracts for contribution (g).


id”). There is no right of contribution, if the contract be for an illegal purpose. Therefore, where plaintiff and defendant had No right of

contribution entered into an agreement to conduct an unlicensed theatre, and where con

tract illegal. the plaintiff had, at the defendant's request, paid certain monies for him, to persons whom he had employed in the management of the theatre; it was held that he could not recover from the defendant in this action, the money so paid (h).

So, in the case of an action against several for a tort, if judgment No right of for damages be recovered against them, and one be compelled to between tort pay the whole, he has in general no claim for contribution against feasors. his co-defendants (i). Where, however, one of two joint coach Merryweather

v. Nixan. proprietors was sued for an injury alleged to have been caused by the negligence of his servants, and it was proved that he was not personally present when the accident occurred; it was held that he was entitled to contribution from his co-proprietor, in respect of the damages and costs recovered against him in the action (k). But one proprietor could not, in such a case, maintain an action against his co-proprietor for money paid, if it appeared that there was a partnership fund out of which the expenses of the coach were first to be paid, and that then the residue was to be divided amongst the proprietors (1).

Sect. 3.-Implied Contract to repay Money Had and Received."

(a) Generally. The action for money had and received was called by Lord In general. Mansfield (m), “a kind of equitable action.” But the notion about the action for money had and received being an equitable action, is said to be “exploded in modern practice” (n). It seems, however, to be still law that " where money is due ex æquo et bono, it may be recovered in an action " for money had and received (o),

(g) Holmes v. Williamson (1817), 6 M. Burr. 1005, 1012 ; Clarke v. Shee (1774), & S. 158.

Cowp. 197. (h) De Begnis v. Armistead (1833), 10 (n) Per Pollock, C. B., and Parke, B., Bing. 107.

Miller v. Atlee (1849), 13 Jur. 431. Merryweather v. Nixan (1799), 8 (0) Per Tindal, C. J., Smith v. Jones T. R. 186, 16 R. R. 310.

1842), 6 Jur. 283, 284. (2) Wooley v. Batte (1826), 2 C. & P. In Johnson v. Johnson (1802), 3 B. & P. 417.

162, 169; 6 R. R. at p. 744, Lord (1) Pearson v. Skelton (1836), 1 M. & Alvanley, C. J., said, " that in Moses v. W.504.

Macferlan (1760), some principles were (m) See Moses v. Macferlan (1760), 2 said down, which are certainly too large,

CH. III. 8. 3. so that if A. assign to B., a debt due from C. to A., and C. after

Implied Contracts


pays that debt to A.; B. may recover the same from him in (Money Had an action for money had and received, although the assignment by and Received).

A. to B. was merely that of a chose in action (p).

This action, however, “ does not lie for money paid by the plaintiff, which was 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 during his infancy: or to the extent of principal and legal interest upon an usurious contract, or for money fairly lost at play; because in all these cases the defendant may retain it with a safe conscience, though by positive law he was barred from recovering. But it lies for money paid by mistake; or upon a consideration which happens to fail ; or for money got through imposition, express or implied; or extortion, or oppression; or an undue advantage taken of the plaintiff's situation, contrary to laws made for the protection of persons under those

circumstances " (q). Indorsement The form of declaration in this action, under the Common Law on writ, and Procedure Act, 1852, was, that the plaintiff sued the defendant statement of claim. "for money payable by the defendant to the plaintiff, for money

received by the defendant for the use of the plaintiff” (r). Since “ The Supreme Court of Judicature Acts, 1873 and 1875,” this form is no longer in use, and both the writ and statement of claim must be more specific. Thus, the writ must be endorsed “the plaintiff's claim is £ for money entrusted to the defendant as stakeholder, and payable to plaintiff,” or “the plaintiff's claim is £ for a return of money paid to the defendant by mistake," or as the case may be (s); and the statement of claim must contain a statement in a summary form of the material facts on which the

plaintiff relies (t). Evidence. As a general rule the plaintiff must in all cases prove :Defendant First, that the defendant himself, or his agent (u), has actually must, in

received the money which is sought to be recovered, or that somegeneral, have actually re- thing has occurred which is equivalent to a receipt thereof by the

defendant (x).

ceived money.

and which he did not mean to rely on;
such as, that wherever one

man has
money which another ought to have, an
action for money had and received may
be maintained.”

(p) Smith v. Jones (1842), 6 Jur. 283 ; and see Tibbits v. George (1836), 5 A. & E. 107, 116.

(9) Per Lord Mansfield, C. J., Moses v. Macferlan (1760), 2 Burr. 1005, 1012; and see 2 Pothier on Obl., by Evans, 369,

378, 379.

(r) 15 & 16 Vict. c. 76, sched. B.

(8) See R. S. C., App. A., Part III., sect. II.

(1) See ib., Ord. XIX., r. 4.

(u) Coates v. Bainbridge (1828), 5 Bing. 58.

(2) Per Cur., Prince v. Oriental Bank Corporation (1878), 3 App. Cas. 325, 328, J. C.

It must likewise appear, in general, that the defendant has CH. III. s. 3. received money or cash, and not merely money's worth (y). Thus, Implied

Contracts an action for money had and received will not lie, to recover the (Money Had value of bank or other public stock, improperly transferred to the and Received), defendant and still standing in his name (z); or to recover the value of foreign securities, unless the facts are such as to raise the presumption that they have been converted into British money (a).

But it seems that where property has been delivered to the defendant for the purpose of sale, and he refuses, after a reasonable time, to account for the proceeds; a sale by him, and receipt of such proceeds, will be presumed (6).

So this action will lie, although the money received was foreign, and not British money (c). And if a stakeholder receive country bank notes as money, the amount may be recovered from him as money had and received (d).

It is, in general, essential to this action, that the plaintiff should establish a claim to some particular or specific sum of money, as having been received to his use (e). And if a judgment creditor, who has an elegit on the lands of the judgment debtor, sue a receiver for rents received for his use, and there be prior incumbrances on the lands; it is necessary to prove that they have been satisfied, before the receiver can be held liable in respect of the rents, as for money had and received (f). There are cases, however, in which this action will lie, although Exceptions to

this rule. no money was ever received by the defendant, but where he has merely admitted that he holds value in money, to which the plaintiff is entitled (g), or has made representations to the plaintiff, which estop him, the defendant, from denying the receipt of the money claimed (h). Thus, where bankers who were authorized to receive certain dividends for their customer, had credited him in their books with the dividends as received, and had allowed him to draw upon them, without having any other funds in their hands; but the fact was, that the entries in the books had been fraudulently made by one of the partners, the dividends never having been received by

(y) Per Tindal, C. J., Scott v. Miller (1837), 5 Scott, 11.

(2) Nightingal v. Devisme (1770), 5 Burr. 2589.

(a) M'Lachlan v. Evans (1827), 1 Y. & J. 380.

(6) Per Lord Ellenborough, C. J., Punter v. Welsh (1816), 1 Stark. 224 ; and see Longchamp v. Kenny (1779), 1 Dougl. 137 ; per Cur., Leerey v. Goodson (1792), 4 T. K. 687.

(c) Ehrensperger v. Anderson (1848), 3 Exch. 148.

(d) Pickard v. Bankes (1810), 13 East,

20; per Best, C. J., Spratt v. Hobhouse (1827), 4 Bing. 173.

(e) Atkins v. Owen (1836), 4 A. & E. 819; Scott v. Miller (1837), 5 Scott, 11; Harvey v. Archbold (1825), 3 B. & c. 626.

(f) See Braithwaite v. Watts (1832), 2 C. & J. 318.

(g) See Spratt v. Hobhouse (1827), 4 Bing. 173.

(h) Per Cur., Prince v. Oriental Bank Corporation (1878), 3 App. Cas. 325, J. C.

CH. III. s. 3. the house; it appears to have been admitted, that if these entries

Implied had been communicated to the customer, the action would have Contracts (Money Had lain (i). So where A., being agent for the grantor and the grantee and Received). of an annuity, delivered an account to the grantee, by which it

appeared that the agent had received from the grantor certain sums on account of the annuity, which, in fact, he had not received: it was held that the agent was bound by the account delivered, unless he could show that he had given credit for these payments by

mistake (k). Privity be- Secondly, it is necessary, in order to maintain this action, that tween defen- the money sought to be recovered should have been received by plaintiff. the defendant, under such circumstances as to create a privity of

contract between him and the plaintiff (1). Where, therefore, the purchaser of a ticket in a Derby lottery sold it to the plaintiff, and the horse named in such ticket proved to be the winner, whereby the holder thereof became entitled to a prize in money; it was held that the plaintiff could not maintain an action for money had and received, to recover from the treasurer of the lottery the amount of the prize; for, although he held the money for the benefit of the plaintiff, yet there was no privity between them (m). And so, if money in litigation between two parties is paid over by mutual consent to a trustee or stakeholder, in trust for the party entitled ; it can be recovered by the party entitled to it, from the stakeholder only, and not from the other party by whom it was claimed (n).

So where the defendant, as the agent of an executor, wrote to a legatee, informing him of the legacy and its amount, and stating that he would remit it as the legatee might suggest; and he afterwards remitted the amount of the legacy to the legatee, minus a sum deducted for expenses : it was held that the defendant was not liable to the legatee, in an action for money had and received, for the sum so deducted, there being no privity between them (o).

So where a country solicitor, who is engaged in a cause, employs a London agent; and the proceeds of the cause are received by the latter in the ordinary course of his business; there is not, in

(i) Hume v. Bolland (1832), 1 C. & M. 130. In Hume v. Bolland (1826), R. & M. 371, Best, C. J., left it to the jury to say whether, on the above facts, the firm had, by their conduct in allowing the customer to draw upon them, as if the dividends had been received, adopted the act of the fraudulent banker; and in Prince v. Oriental Bank Corporation (1878), 3 App. Cas. 325, the Court in deciding against the plaintiff laid stress on the fact that there was no comniunication to him, but merely a mistake between the branch bank and the principal office corrected before it went out

side the walls.

(k) Shaw v. Picton (1825), 4 B. & C. 715 ; and see per Abbott, C. J., Shaw v. Dartnall (1826), 6 B. & C. 56, 65.

(1) See Barlowe v. Brown (1846), 16 M. & W. 128 ; Vaughan v. Matthews (1849), 13 Q. B. 187, 189; Jones v. Carter (1845), 8 Q. B. 134; Cobb v. Becke (1845), 6 Q. B. 930.

(m) Jones v. Carter (1845), 8 Q. B. 134.

(n) Ker v. Osborne (1898), 9 East, 378.

(o) Barlow v. Browne (1846), 16 M. & W. 126.

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