So a party who accepts or indorses a bill of exchange, or indorses a note, without value, for the accommodation of another person (b), is entitled, on paying the instrument, to recover the amount from the party for whose benefit he thus became responsible. In these cases, the debt paid by the surety may be recovered upon the common count for money paid. The law implies a request by the defendant to the plaintiff, to make the payment. But any costs of an action, &c., necessarily incurred by the surety, and which he may be entitled to recover from the principal, can only be obtained under a special count upon the implied promise of indemnity (c).

It seems, that if a surety take a bond of indemnity, or other specialty counter security, from his principal, he cannot resort to the count for money paid on the implied assumpsit (d).

Contribution between Sureties. If several persons become sureties for a third party for the same debt, either jointly or severally, or by the same or different instruments, and one surety pay the demand, and thereby relieve his co-sureties from liability, he may recover against each co-surety his aliquot share or proportion of the debt, upon an implied promise to contribute (e). At law, the calculation is made upon the aliquot share, in reference to the number of sureties, although one be insolvent or a bankrupt; so that, if there be three sureties for a debt of 3007. and one pay the whole, he can recover by action from a co-surety only 100%., although the third surety be unable to contribute (ƒ). But the rule is otherwise in equity: where, therefore, in the above instance, the surety would recover a moiety of the 3007. from the solvent co-surety (g).

If the surety from whom contribution is claimed became bound in that character, at the request of the surety who seeks to recover

(b) The acceptor of a bill is not liable to an indorser, (there being no privity or promise between them independently of the bill), for the costs of an action brought by the holder against the indorser thereon; Dawson v. Morgan, 9 B. & C. 618.

(c) See 2 Chitty Pl., 5th ed. 316, and notes; ante, 401, 402.

(d) Toussaint v. Martinnant, 2 T. R. 100, 104; see Crafts v. Tritton, 8 Taunt. 365; 2 Moor, 411, S. C.

(e) Cowell v. Edwards, 2 B. & P.268;

Deering v. Winchelsea, id., 270; see 2 Pothier by Evans, 77 to 81. The right to contribution arises, although the surety paid the debt, after having given a bond for it, without the knowledge of the co-sureties; Dunn v. Slee, 1 Moor R. 2.

(f) Browne v. Lee, 6 B. & C. 697; 9 D. & R. 700, S. C.

(g) Id. Peter v. Rich, 1 Chan. R. 19, 34; Holl v. Harrison, id., 246; Layer v. Nelson, 1 Vern. 456.

it, he is not liable; for the implied promise is, in such case, negatived (h). The right to contribution does not extend to any part of the costs paid or incurred by the surety, in attempting to defend, or in settling legal proceedings by the creditor against him to recover the debt (i).

If there be several defendants in an action ex contractu, and the plaintiff recover judgment against them, and one pay the whole demand recovered, the law gives him an action for money paid against the others to recover contribution (k). And if one of two joint contractors, upon a breach by them of their engagement, agree with the creditor to refer the amount of damages to arbitration, which is done without the consent of the other co-contractor, the former, on paying the sum awarded, may recover a moiety thereof from the latter, in an action for money paid (1). And where the plaintiff and defendant were two of a committee appointed at a vestry meeting for the purpose of prosecuting nuisances on the waste lands and highways of the parish; which committee appointed an attorney, who prosecuted and obtained a verdict; and then sued the plaintiff for his bill of costs, which was referred to arbitration, and 2357. with costs of the action. were awarded against plaintiff : it was held that the plaintiff might maintain assumpsit against the defendant for contribution (m).

In satisfaction of an illegal demand of a third person against the defendant.-It has been held that an action lies to recover money paid by the plaintiff, at the defendant's request, to a person to whom the defendant had lost the amount on an illegal bet upon a horse race (n).

But where the plaintiff, by the defendant's authority and in his name, laid illegal bets on horses, and the bets having been lost, the plaintiff paid them, without the defendant's subsequent orders, it was held that he could not recover the money so paid (0).

(h) Turner v. Davies, 2 Esp. R. 478. A promise by one surety to indemnify the other, if he would become bound for the debt, need not be in writing; Thomas v. Cooke, 8 B. & C. 728.

(i) Knight v. Hughes, 3 C. & P. 467; Moo. & M. 247, S. C.; Roach v. Thompson, Moo. & M. 487; ante,

401.

(k) Blackett v. Weir, 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. Contribution between the assignees of a bankrupt; Eden, 2nd ed. 214; Hart v. Biggs, 1 Holt R. 245; Lingard v. Bromley, 1 V. & B. 114.

(1) Burnell v. Minst, 4 Moor, 340. (m) Holmes v. Williamson, 6 M. & Selw. 158.

(n) Alcinbrook v. Hall, 2 Wils. 309; see per Buller, J., Petrie v. Hannay, 3 T. R. 423, 424.

(0) Clayton v. Dilly, 4 Taunt. 165 In this case the plaintiff was a princi

In Petrie v. Hannay (p), it was held by the Court, (against the opinion of Lord Kenyon, C. J.,) that if two persons jointly engage in an illegal stock-jobbing transaction, and incur losses, and employ a broker to pay the differences, and one of them repay the broker, with the privity and express consent of the other, the whole sum, he may recover a moiety from the other party, as money paid to his use, notwithstanding the statute 7 G. 2, c. 8. The three judges decided the point, on the ground that the defendant had expressly authorised the plaintiff to make the payment for him. But it seems difficult to support the judgment, consistently with modern decisions, for the plaintiff was a party to the original illegal contract; his claim sprung out of it; and, by allowing him to recover, some sanction was given to the transaction (q). And in a recent case, in which it appeared that the plaintiff and defendant had entered into an illegal agreement to conduct an unlicensed theatre, and the plaintiff had, at the defendant's instance, paid for him certain moneys the defendant was to pay to persons he employed in the management of it, it was held that an action for money paid could not be maintained (r).

But in the case of an action ex delicto against several for a trespass, or for a tort, (as an injury to the plaintiff's reversionary interest in a mill,) if judgment for damages be recovered against them, and one be compelled to pay the whole, he has no claim to contribution against his co-defendants (s). If, however, a party recover damages in case against one of two joint coach proprietors for an injury sustained by a passenger, in consequence of the neg

pal actor in the illegal transaction; besides which, he paid the monies without orders.

(p) 3 T. R. 418. This case was decided on the authority of Faikney v. Reynous and Richardson, 4 Burr. 2069, where, to an action of debt on a bond, the defendant pleaded the act of the 7 G. 2, c. 8;-that the plaintiff and Richardson were jointly concerned in certain contracts, contrary to that statute;— that the plaintiff voluntarily paid the differences;-and that the bond was given by the defendants for securing to the plaintiff, Richardson's proportion of that loss;-and on demurrer, the Court were clearly of opinion that the plaintiff was entitled to recover the amount which he had paid under the

special authority of Richardson, though for an illegal purpose.

(q) And see Ex parte Mather, 3 Ves. jun. 373, per Lord Chancellor ; Chitty on Bills, 583; Aubert v. Maze, 2 B. & P. 371; Brown v. Turner, 7 T. R. 630; Booth v. Hodgson, 6 T. R. 405; Steers v. Lashley, id., 61; Mitchell v. Cockburne, 2 H. Bla. 379; and other cases, cited Cannanv. Bryce, 3 B. & Ald. 181; and see, per Abbott, C. J., id., 183. As to money lent to pay an illegal debt; see ante, 465, 6. (r) De Begnis v. Armistead, 10 Bing.

107.

(s) Merryweather v. Nixon, 8 T. R. 186; Farebrother v. Ansley, 1 Camp. 343, 345; Wilson v. Milner, 2 id.,

452.

ligence of their servants, such proprietor may, it seems, sue his co-proprietor for contribution, on proof at the trial that he (the plaintiff) was not personally present when the accident occurred (t).

In order to sustain the count for money paid, it is also in general necessary that the money paid should have been, at the time, a debt for which the defendant was originally or primarily liable to the third party; otherwise the remedy is on the special contract between the parties.

The instance (already mentioned) of a stock-broker paying, without express authority, a loss on a stock transaction or contract made by him for his principal (u), illustrates this rule. And in Lightfoot v. Creed (x), where the plaintiff purchased stock, which the defendant agreed to transfer on a given day, and, in consequence of a rise, the loss on the sale amounted to 457., which the defendant refused to pay; and the plaintiff afterwards paid that sum to another broker, by whom the transfer was made; it was held that the plaintiff could not recover in an action for money paid, but that he should have declared specially on the contract with the defendant, as his claim was in the nature of unliquidated damages.

3rdly. MONEY HAD AND RECeived.

1. In general: for what the common count for Money had and received lies; and of its form and nature.

2. Who may, in general, maintain it.

3. Against whom it lies, in general.

4. When it lies to recover a Debt transferred by a Creditor's Order on his Debtor to pay the Plaintiff.

5. Or Money which a Principal orders his Agent to pay the Plaintiff.

6. Between Principal and Agent.

7. Against Stakeholders.

8. To recover Money paid on a Failure of Consideration.

9. Or Money paid by Mistake.

10. Or obtained by Fraud.
11. Or Oppression or Extortion.
12. Or upon an Illegal Contract.

(1) Wooley v. Batte, 2 C. & P. 417. (u) Ante, 467; Child v. Morley, 8

Term Rep. 610.

(x) 8 Taunt. 268; 2 Moore, 255, S.C.

13. Or Money unjustly recovered at Law.

14. Or Fees of Office, &c., unjustly received by an Intruder.

15. Against Sheriffs, &c.

1. In general.—“This kind of equitable action to recover back money, which ought not in justice to be kept, is very beneficial, and therefore much encouraged. It lies only for money which ex æquo et bono the defendant ought to refund: it does not lie for money paid by the plaintiff, which is 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 (y).”

The form of the count is, that the defendant was indebted to the plaintiff in a certain sum, "for money had and received by the defendant for the use of the plaintiff." To support this, it is, as a general rule, necessary to prove that the defendant himself, or his agent (z), actually received money for the use of the plaintiff.

Therefore, if money in litigation between two parties has, by mutual consent, been paid over to a trustee or stakeholder, in trust for the party entitled, it can be recovered by the party

(y) Per Lord Mansfield, C. J., in delivering the judgment of the Court in Moses v. Macfarlane, 2 Burr. R. 1012; and see Longchamp v. Kenny, 1 Dougl. 138; Straton v. Rastall, 2 T. R. 370; Boyter v. Dodsworth, 6 T. R. 681; 1 Chitty Pl., 5th ed. 384; see 2 Pothier by Evans, 369, 378, 379. In Johnson v. Johnson, 3 B. & P. 169, Lord Alvanley, C. J., observed," that in the case of Moses v. Macfarlane, some principles were laid down, which are certainly too large, 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."

(z) Agent's receipt when a receipt by principal; Coates v. Bainbridge, 5 Bing. 58; 2 M. & P. 142, S. C.; ante, 174, 180. Various sums, received at different times, upon distinct transactions, may be recovered under one count for money had and received; 2 Saund. 118, note (2).