stances, but the onus lies on the person indemnifying. Smith v. Compton, 3 B. & Ad. 408. And if knowledge of an action be brought home to the party indemnifying, and he leaves the defence to the party indemnified, the latter is not bound to defend, but may compromise the action to the best of his judgment, and sue for money paid, though the action might perhaps have been defended with success. Pettman v. Keble, 9 C. B. 701; 19 L. J., C. P. 325. A cestui que trust cannot, however, recover against his trustee, what he alleges he has been compelled to pay, through a breach of trust by the trustee, without showing that the loss was in fact occasioned by such breach of trust. Parker v. Lewis, L. R., 8 Ch. 1035, 1056. Where an action is brought against a surety who lets judgment go by default, there being no good defence, he cannot recover the costs, unless the writ was the first notice of default; in which case the costs of the writ can be recovered. Pierce v. Williams, 23 L. J., Ex. 322. But where A. who is indemnified by B. reasonably defends an action, he may recover against B. the costs of such action. Hornby v. Cardwell, 8 Q. B. D. 329, per Brett and Cotton, L.JJ.

To support this action, it must appear, either that the defendant was primarily liable to the third party to pay the money, or that it was paid, or the liability incurred, by the plaintiff at his express or implied request, or on his guarantee. See Brittain v. Lloyd, 14 M. & W. 762; Lewis v. Campbell, 8 C. B. 541. Therefore where the goods of A. on the premises of B. are distrained for rent, and A. is obliged to pay the rent to redeem them, B. is liable to A. in this form of action, for the sum so paid; Exall v. Partridge, 8 T. R. 308; so where the tenant is compelled to pay landlord's tax by distress, the action lies. Dawson v. Linton, 5 B. & A. 521. So, too, when the tenant of land, liable by prescription to repair a public bridge, is fined for non-repair on indictment, he may reimburse himself by this action against his landlord; per cur., Baker v. Greenhill, 3 Q. B. 163. of rates levied on the lessee in respect of such liability, if he has not covenanted to pay them. Ib.

So in cases

But where A.'s goods are seized on the land of B. for a tithe rent-charge, B. is not liable to indemnify A., for the rent-charge issues only out of the land and is not a personal charge on B. Griffinhoofe v. Daubuz, 5 E. & B. 746; 25 L. J., Q. B. 237, Ex. Ch. So, where A. and B. were under-tenants of adjoining houses which were held of the freeholder under one lease, and A. was compelled to pay the whole rent reserved by that lease, he could not sue B. at law, for a contribution as money paid to his use. Hunter v. Hunt, 1 C. B. 300. The remedy of A. was in equity; vide S. C., and is therefore now at law also. J. Act, 1873, s. 24, ante, pp. 280, 281. If the plaintiff allows his goods to remain on the defendant's premises with his knowledge, but without his express request, until rent becomes due, and the landlord distrains, he cannot recover from the defendant the rent and expenses he so pays. England v. Marsden, L. R., 1 C. P. 529.

Where A. paid the funeral expenses of his deceased daughter during her husband's absence, the husband was held liable to A. Jenkins v. Tucker, 1 H. Bl. 90; accord. Ambrose v. Kerrison, 10 C. B. 776; 20 L. J., C. P. 135. So, where the wife was living apart from her husband, and the plaintiff, in whose house she died, knew where he was and did not apply to him before burying her. Bradshaw v. Beard, 12 C. B., N. S. 344; 31 L. J., C. P.

273.

But, it is not sufficient that the defendant has agreed with the plaintiff to pay the money to the third party. Thus where the landlord is called upon to pay the taxes, to which a landlord is primarily liable, but which his tenant is, by special agreement, bound to pay, he cannot sue the tenant for money paid. Spencer v. Parry, 3 Ad. & E. 331; and see Lubbock v. Tribe, 3 M. & W. 607. So, where the transferee of shares in a company omits to

register the transfer, and the transferor is consequently obliged to pay calls subsequent to the sale, he cannot recover the amount from the transferee as money paid; but a special action for not registering is the proper remedy; Sayles v. Blane, 14 Q. B. 205; aliter, if the defendant has requested the plaintiff to pay. See ante, p. 514.

An accommodation acceptor, who has defended an action on the bill at the request of the drawer, may recover the costs of such action as money paid. Howes v. Martin, 1 Esp. 162; accord. Garrard v. Cottrell, 10 Q. B. 679. And such request is, it seems, implied. See Stratton v. Mathews, 3 Exch. 48, following Jones v. Brooke, 4 Taunt. 464. But the indorser of a bill who has been sued by the holder and paid the amount, cannot recover the costs of the former action; for the custom of merchants does not make an acceptor liable for the costs of actions against subsequent holders. Dawson v. Morgan, 9 B. & C. 618. Bail may recover, as money paid, the expenses incurred by them in taking their principal; but not the costs of an action against them to recover these expenses unadvisedly defended. Fisher v. Fallows, 5 Esp. 171. If one of two parties to an award takes it up and pays the whole expense of it, the award directing each party to pay only one half, he cannot, unless the amount due has been ascertained by the award or by taxation, recover half from the other as money paid. Bates v. Townley, 2 Exch. 152. Secus when it has been so ascertained. Semble, S. C. Even though the submission is silent as to costs. 2 Chitty, 157, n.; 2 Tidd. 9th ed. 831; Grove v. Cox, 1 Taunt. 165.

Money paid lies against a shipowner for money supplied to the captain, either in a foreign or English port, for the necessary repairs or use of the ship. Robinson v. Lyall, 7 Price, 592. But only where the necessity is so pressing that the owner himself cannot be consulted without prejudice and delay. Johns v. Simons, 2 Q. B. 425.

Where a carrier, by mistake, delivered to B. goods consigned to C., and B. appropriated them, and the carrier, on demand without action, paid C. the value, it was held that the carrier might recover from B. the sum so paid, as money paid to his use. Brown v. Hodgson, 4 Taunt. 189. See Sills v. Laing, 4 Camp. 81; Spencer v. Parry, 3 Ad. & E. 331, 338; and Coles v. Bulman, 6 C. B. 184.

Generally, if a party is compelled to pay money in consequence of his own neglect, Capp v. Topham, 6 East, 392; or breach of duty, Pitcher v. Bailey, 8 East, 171; though for the benefit of another, the law implies no promise on the part of the other to repay him.

ACTION FOR MONEY LENT.

Evidence of loan.] In an action for money lent, the plaintiff will have to prove the loan of his money. Of this a promissory note given by the defendant to the plaintiff is not alone evidence. Cary v. Gerrish, infra. It is not sufficient merely to prove the payment of money to the defendant; for in such case the presumption is, that the money is paid in liquidation of an antecedent debt. Welch v. Seaborn, 1 Stark. 474. But if the plaintiff can show any money transactions between the defendant and himself from which a loan may be inferred, or any application by the defendant to borrow money at the time, this, coupled with the payment, will be evidence of a loan. Cary v. Gerrish, 4 Esp. 9. When a parent advances money to a child, it is presumed to be by way of gift; per Bailey, J., Hick v. Keats, 4 B. & C. 71. Where money is advanced by A. to B. as a

gift, B.'s assent will be assumed, but if B. decline to accept the money except as a loan, the advance becomes one of loan. Hill v. Wilson, L. R., 8 Ch. 888. A transfer of stock may be evidence of a loan of money. Howard v. Danbury, 2 C. B. 803. Where the defendant was heard to ask for a loan, and the plaintiff then handed him a bank-note, of which the amount was not shown, the plaintiff cannot recover more than 57. as principal, for that is now the smallest note in circulation. Lawton v. Sweeney, 8 Jur. 964, M. T. 1844, Ex. An IO U is not evidence of money lent. Semble per cur. in Fesenmayer v. Adcock, 16 M. & W. 449. Contra, Douglas v. Holme, 12 Ad. & E. 641, but quære, see 10 L. J., Q. B. 43. If A. lends money to B., who contracts "to repay on demand or to execute a mortgage," A. may recover for money lent on B.'s refusal to execute. Bristowe v. Needham, 9 M. & W. 729. Where the plaintiff advances money to the defendant, for which the defendant deposits a security which is to be returned "upon repayment," a return, or offer to return, is not a condition precedent to the right of recovery for money lent. Scott v. Parker, 1 Q. B. 809; Lawton v. Newland, 2 Stark. 73. Where A., at the request of B., agreed to lend C. money on D.'s guarantee, and did so, receiving the following memorandum, signed by C. and D.: "We jointly and severally owe you 60l. ;" it was held that there was evidence of a loan to C. and D. jointly, or of an account stated with them. Buck v. Hurst, L. R., 1 C. P. 297. On a declaration containing special counts on debentures, and counts for money lent, and interest, the debentures were rejected as evidence on the special counts, for want of proper stamps, but were held admissible to show that they were void as debentures; and the plaintiff was, therefore, entitled to recover, on the common counts, the loan, with interest, for which the debentures had been given as collateral securities. Enthoven v. Hoyle, 13 C. B. 373; 21 L. J., C. P. 100. See as to interest, Action for interest, post, p. 553.

Where a married woman is entitled to pledge her husband's credit for necessaries, money advanced her to procure such necessaries, may now be recovered from her husband by the person who advanced it. Jenner v. Morris, 3 D. F. & J. 45; 30 L. J., Ch. 360; Davidson v. Wood, 1 D. J. & S. 465 ; 32 L. J., Ch. 400.

In ordinary trading partnerships, one partner is presumed to have authority to bind the rest, by borrowing money for partnership purposes, and the other partners will be liable to pay. Fisher v. Tayler, 2 Hare, 218; Rothwell v. Humphreys, 1 Esp. 406; Story on Partnership, s. 102. But, if one partner open a banking account on behalf of the firm in his own name, this presumption will not extend so as to bind the other partners. Alliance Bank v. Kearsley, L. R., 6 C. P. 433. In the case of a mining concern, carried on by a company, no such authority to borrow is to be presumed; the power must be given by the original settlement, or by the consent of every shareholder. Ricketts v. Bennett, 4 C. B. 686; Brown v. Byers, 16 M. & W. 252; Burmester v. Norris, 6 Exch. 796; 21 L. J., Ex. 43. If, however, mining be carried on as a trade by an ordinary private partnership, under a deed of partnership, the ordinary authority to bind each other exists. Brown v. Kidger, 3 H. & N. 853; 28 L. J., Ex. 66.

A loan of money secured by a mortgage is recoverable as money lent, if there is no covenant to pay the amount. Yates v. Aston, 4 Q. B. 182. But where a simple loan of money is secured by a covenant to repay the money, the creditor's only remedy is on the covenant Edwards v. Bates, 7 M. & Gr. 590; Baber v. Harris, 9 Ad. & E. 532; Mathew v. Blackmore, 1 H. & N. 762; 26 L. J., Ex. 150. And a mere acknowledgment, in a deed, of a debt being due will amount to a covenant to pay it, if such an intention to enter into a covenant appear on the deed; Courtney v. Taylor, 6 M. & Gr. 851; Saunders v. Milsome, L. R., 9 Eq. 573; but this is not the case

where the acknowledgment is made for a collateral purpose. Courtney v. Taylor, ante, p. 535; Marryat v. Marryat, 28 Beav. 224; 29 L. J., Ch. 665. It is a defence, that a simple contract has been subsequently merged by a security of a higher nature. Vide, Merger, post, p. 615. In each of the above cases an amendment would now, no doubt, be readily allowed, vide, ante, p. 270, and these decisions are, therefore, of much less importance than they formerly were. The defendant authorized S., his solicitor, to borrow 100l. on mortgage, giving him the title-deeds for the purpose. S. borrowed 400l. of the plaintiff, forging the defendant's signature to a mortgage deed for that amount, and appropriated the money to his own use, but afterwards advanced 190l. to the defendant, taking from him a mortgage to a third person; and it was held that the plaintiff had no cause of action against the defendant, even to the extent of 100l. Painter v. Abel, 2 H. & C. 113; 33 L. J., Ex. 60. Money of a customer at a banker's is money lent, and if left for six years without acknowledgment the right to recover it may be barred. Pott v. Clegg, 16 M. & W. 321; see. Pollard v. Ogden, 2 E. & B. 459; 22 L. J., Q. B. 439. If notes are left by the customer, and the banker gives a receipt for the amount as cash, and the notes turn out to be worthless, the customer cannot claim credit for the amount as money lent, or had and received, unless the banker has bought the notes or committed laches. Timmins v. Gibbins, 18 Q. B. 722; 21 L. J., Q. B. 403. But where C., the agent of a banker B., to whom B. sent the bills of his customer A. for collection, received the amount, but failed before he remitted the proceeds to B., B. was held liable for the amount to A. Mackersy v. Ramsays, 9 Cl. & F. 818.

ACTION FOR MONEY HAD AND RECEIVED.

In an action for money had and received, the plaintiff may be compelled by a proper defence to prove the receipt of the money by the defendant, and his own title to recover it as received for him.

This action has always been regarded as an equitable action, and was formerly held to lie whenever the defendant was "obliged by the ties of natural justice and equity to refund the money." Moses v. Macferlan, 2 Burr. 1012, per Ld. Mansfield; see Rogers v. Ingham, 3 Ch. D. 351. This definition was, however, found too vague, and the following cases will show the conditions necessary to sustain a claim for money had and received.

Receipt of money.] The plaintiff must prove that money has been received; and therefore an action for money had and received will not lie to recover stock. Nightingal v. Devisme, 5 Burr. 2589. See ante, p. 529. And it has been held that it will not lie against a finder of bank-notes to recover their value; Noyes v. Price, MS. Select Ca. 242; Chitty on Bills, 9th ed. 524; unless it can be shown that they have been cashed, or circumstances justify the presumption. Chitty, ubi sup., citing Longchamp v. Kenny, 1 Doug. 138. And the value even of provincial notes, if received as money, may be recovered in this action. Pickard v. Bankes, 13 East, 20; Fox v. Cutworth, cited 4 Bing. 179. The principle of the cases is, that if a thing be received as money it may be treated and recovered as such; per Best, C. J., Spratt v. Hobhouse, 4 Bing. 179. So the action is maintainable where the defendant has received foreign money for the plaintiff's use. See Ehrensperger v. Anderson, 3 Exch. 148, 156. Where a sheriff seized goods in execution at the suit and by order of A., who took by bill of sale for 256.,

Receipt by the Defendant for the Plaintiff.

537

and the debtor's assignees afterwards recovered their value from the sheriff, it was held that though no money passed as between the sheriff and A., the sheriff might recover from A. 2567, as money had and received, and that the return of fieri feci was no estoppel against setting up the right of the assignees. Standish v. Ross, 3 Exch. 527. And money allowed in account, under circumstances which would have entitled the party allowing it to recover it back if he had actually paid it, may be treated as paid, and may be recovered in this form of action. Gingell v. Purkins, 4 Exch. 720. The last two cases, however, seem to be at variance with Lee v. Merrett, 8 Q. B. 820. The vendee of an estate agreed with the vendor, after conveyance, to give up his claim to a moiety of the expenses in consideration of the vendor paying some other charges. Held that the vendee's attorney, who had agreed to charge the vendee nothing if the vendor refused to pay his share, might recover the amount set off, as money had and received by the vendee to his use. Noy v. Reynolds, 1 Ad. & E. 159. If an agent refuse to account for goods delivered to him for sale, it shall be presumed, after a reasonable time, that he has sold them and received the proceeds in money. Hunter v. Welsh, 1 Stark. 224. Where goods are given to an agent for a particular purpose, as to sell them, there is an implied promise to account for the proceeds, in respect of which this action lies. Wilkin v. Wilkin, 1 Salk. 9. Where a banker A., at whose bank a bill of exchange is accepted payable, by mistake cancels the acceptance, this does not give the holder a right to sue A. for the amount of the bill as money had and received. Warwick v. Rogers, 5 M. & Gr. 340; Prince v. Oriental Bank Corporation, 3 Ap. Ca. 325, P. C.

It seems that the plaintiff must give evidence of some particular sum, otherwise he will be non-suited. Harvey v. Archbold, 3 B. & C. 626 ; Bernasconi v. Anderson, M. & M. 183: see Baxendale v. Gt. W. Ry. Co., 14 C. B., N. S. 1, 42, 44; 32 L. J., C. P. 225, 239.

Cox

Receipt by the defendant for the plaintiff.] The plaintiff must prove that it was his money which the defendant received. Scarfe v. Hallifax, 7 M. & W. 288. Or that the money has been received to his (the plaintiff's) use by the defendant. Kelly v. Curzon, 4 Ad. & E. 622. The mere bearer of money from one person to another cannot be sued. Coles v. Wright, 4 Taunt. 198. And a mere agent who has paid money over, pursuant to the directions of the party depositing it with him, and without notice of the plaintiff's title, cannot be sued; Horsfall v. Handley, 8 Taunt. 136; but merely passing it in account, without new credit given, is not such a payment; Buller v. Harrison, Cowp. 565; and until there has been a change of circumstances by his having paid over the money to his principal, or done something equivalent to it, he remains liable to the true owner. v. Prentice, 3 M. & S. 344. So if he pays it over after notice that the right to it is disputed. Edwards v. Hodding, 5 Taunt. 815. An auctioneer is the agent of both parties, and a deposit on a sale that goes off may be recovered from him personally. But if the deposit money is paid to the vendor's solicitor, who receives it as such, the action by vendee should be brought against the vendor, and not the solicitor; Bamford v. Shuttleworth, 11 Ad. & E. 926; if the vendor demand the money of the solicitor before the question as to the title is settled, the solicitor is bound to hand it over; and if he do not, interest may be recovered from the demand. Edgell v. Day, L. R., 1 C. P. 80. Where money, in litigation between two parties, has by consent been paid over to a stakeholder, in trust for the party entitled, it can only be recovered from the stakeholder, and not from the original debtor. Ker v. Osborne, 9 East, 378. And where money has been paid to a stakeholder, A., to abide the decision of B. as to a certain event, the amount is not recoverable until the decision of B. has been communi