actual loss sustained. Russell v. Shoolbred, 29 Ch. D. 254, C. A. As to recovery by lessee against the assignee under this indemnity of costs, to which he has been put by the action against him, by the lessor for breaches of covenant, see Howard v. Lovegrove, L. R., 6 Ex. 43. As to indemnity against liability under the Directors' Liability Act, 1890, see sect. 4, post, p. 852.

A legal obligation to pay for another's benefit will be equivalent to a previous request; as where one person is surety for another and is called on to pay, the money paid may be recovered, though not paid by the desire of the principal. Per Ld. Kenyon, Exall v. Partridge, 8 T. R. 310. See also Johnson v. R. Mail S. Packet Co., L. R., 3 C. P. 38. So if one co-bail pay the whole debt. Belldon v. Tankard, 1 Marsh. 6. So if an accommodation acceptor be sued on default of the drawer to pay, the acceptor may recover in this action; and he may sue alone though the loan was in fact advanced on account of the plaintiff and his partner, and paid out of their joint funds. Driver v. Burton, 17 Q. B. 989; 21 L. J., Q. B. 157. So the indorser of a bill who has been sued by the holder and paid him part of the amount of the bill, may recover that amount in an action for money paid against the acceptor. Pownal v. Ferrand, 6 B. & C. 439. See also Ex pte. Bishop, 15 Ch. D. 400, C. A., whence it appears that the indorser may also recover the interest which he has been compelled to pay. But if the drawer voluntarily pays the holder of a bill which he had drawn and indorsed for the accommodation of the acceptor without having received any notice of dishonour or any request from the acceptor to pay it, he cannot sue the latter for money paid; for there must be either legal obligation or request. Sleigh v. Sleigh, 5 Exch. 514. A person who pays a bill for the honour of one of the parties to it may sue him for money paid. But he must prove noting or protest before the payment. Vandewall v. Tyrrell, M. & M. 87, as explained in Geralopulo v. Wieler, 10 C. B. 707; 20 L. J., C. P. 105. When an executor has paid legacies in full and is afterwards obliged to pay the legacy duty, it was held, in Foster v. Ley, 2 N. C. 269, that he might recover the amount paid for duty in an action for money paid against the legatee. See Bate v. Payne, 13 Q. B. 900.

Where several are sureties, and one is compelled to pay the whole, he may recover in this action from each of his co-sureties a rateable proportion of the money so paid. Cowell v. Edwards, 2 B. & P. 268; Deering v. Winchelsea, El., Id. 270. A co-surety may sue as soon as he has paid more than his rateable share, but not till then. Davies v. Humphreys, 6 M. & W. 153, 168, 169; Ex pte. Snowdon, 17 Ch. D. 44, C. A. He may pay the debt when due without waiting for a demand or an action, and may then sue for contribution. Pitt v. Purssord, 8 M. & W. 538. The amount recoverable from each co-surety is ascertained by reference not to the number of principals but to the number of sureties; Kemp v. Finden, 12 M. & W. 421; and at law the contribution was in proportion to the number of the co-sureties without regard to their solvency; Cowell v. Edwards, 2 B. & P. 268, 269; Browne v. Lee, 6 B. & C. 689, 696; but in equity he was entitled to contribution, taking into account the numbers of solvent co-sureties only. Peter v. Rich, 1 Ch. Rep. 19; Hole v. Harrison, 1 Ch. Cas. 246; Dallas v. Walls, 29 L. T., N. S. 599, L. C. & L. JJ., M. T. 1873. See notes to Deeringv. Winchelsea, El., supra, and White and Tudor's Lead. Cases in Equity, 6th ed. p. 120. Under the J. Act, 1873, s. 25 (11), ante, p. 300, the rule of equity now prevails. See Lowe v. Dixon, 16 Q. B. D. 455, post, p. 570. Where A., B. and C. became sureties for D. by three separate bonds, and one of them was compelled to pay D.'s debt, each of the others must contribute in proportion to the amount in their respective bonds.

Deering v. Winchelsea, El. of, ante, p. 569. And even although A. did not know when he became surety that B. and C. were also sureties. Craythorne v. Swinburne, 14 Ves. 160, 165, per Ld. Eldon, C. A surety, A., is entitled to the benefit of any security his co-surety, B., has taken from the principal debtor, C., although B. consented to be surety only on the terms of having the security, and A. when he became surety did not know of the agreement for security. Steel v. Dixon, 17 Ch. D. 825. See also Atkins v. Arcedeckne, 24 Ch. D. 709. The division of the security is to be continued until it is exhausted or the co-sureties have been repaid. Berridge v. Berridge, 44 Ch. D. 168. In these cases the true nature of the transaction itself is to be considered without regard to the form of the instrument by which the relation is created. Reynolds v. Wheeler, 10 C. B., N. S. 561, 566; 30 L. J., C. P. 350, 351, per Williams, J. Thus, where the plaintiff had drawn a bill which C. accepted, and the defendant indorsed (both plaintiff and defendant putting their names for C.'s accommodation), the plaintiff having been obliged to pay the bill, was held entitled to recover contribution against the defendant as co-surety. S. C. So where the defendant and plaintiff both indorsed a promissory note of C. as sureties for him, the defendant signing first. Macdonald v. Whitfield, 8 Ap. Ca. 733, P. C., ante, p. 383. Where two are jointly liable for the expenses incurred for their common benefit, and one dies, the survivor who pays the whole may sue the executor of the deceased for money paid for the defendant as executor. Prior v. Hembrow, 8 M. & W. 873; semb. accord. Batard v. Hawes, 2 E. & B. 287; 22 L. J., Q. B. 443. See also Ramskill v. Edwards, post, p. 571. If premises are let to several persons for the use of a company or partnership of which the lessees are members, and one of them is called upon to pay rent, he may sue the co-lessees for contribution. Boulter v. Peplow, 9 C. B. 493; 19 L. J., C. P. 190. So if one of a managing committee is obliged to repay a loan borrowed for a club by authority of the committee, he may recover contributions from each of the others. Mountcashel, El. of v. Barber, 14 C. B. 53; 23 L. J., C. P. 43. If one partner advance to another the capital which the latter is to contribute to the joint capital, he may sue for the amount. French v. Styring, 2 C. B., N. S. 357; 26 L. J., C. P. 181. A partner who pays a note in which he has joined some of the other partners, may sue them for contribution in this action, though the money raised on it was for partnership purposes. Sedgwick v. Daniell, 2 H. & N. 319; 27 C. J., Êx. 116. In calculating the amount of contribution the number of solvent partners only is to be considered. Lowe v. Dixon, 16 Q. B. D. 455, vide ante, p. 569. One partner cannot, however, in general sue another in this form of action for contribution to a joint partnership liability. Brown v. Tapscott, 6 M. & W. 119, 123; Worrall v. Grayson, 1 M. & W. 166. The partnership account must first be taken. One tenant in common of a house, who expends money on repairs thereon, cannot sue his co-tenant for contribution. Leigh v. Dickeson, 13 Q. B. D. 60, C. A.

As a general rule this action does not lie for contribution or indemnity against a person jointly engaged with the plaintiff in doing a wrongful act by which the plaintiff is put to expense; Merryweather v. Nixan, 8 T. R. 186; or where money is paid in furtherance of an illegal transaction. Mitchell v. Cockburne, 2 H. Bl. 379; Aubert v. Maze, 2 B. & P. 371. But where the plaintiff was not aware that the transaction was illegal, or where its nature is doubtful, he may sue on the implied contract to indemnify. Betts v. Gibbins, 2 Ad. & E. 57; Pearson v. Skelton, 1 M. & W. 504; and see Dixon v. Fawcus, 30 L. J., Q. B. 137; 1 Smith's Lead. Cas., notes to Lampleigh v. Braithwait; and post, pp. 590, 591. So a trustee, A., is entitled to contribution from his co-trustee, B., in respect of

liability for a joint breach of trust in making an unauthorized investment; Ramskill v. Edwards, 31 Ch. D. 100; and in the event of B.'s death his executors are liable. S. C. So a director of a company, liable under the Directors' Liability Act, 1890, s. 3, is entitled, under sect. 5, to contribution from his co-directors; vide post, p. 852.

A notice to the party by whom an indemnity is given is not necessary before defending an action; but if such notice be given, and he refuse to defend the action, he is estopped from saying that the person indemnified was not bound to pay the money. Duffield v. Scott, 3 T. R. 374; and see Jones v. Williams, 7 M. & W. 493. The only effect of want of such notice is to let in proof that the course pursued was not justified under the circumstances, 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 leave 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. "Where a person's goods are lawfully seized for another's debt, the owner of the goods is entitled to redeem them and to be reimbursed by the debtor against the money paid to redeem them, and in the event of the goods being sold to satisfy the debt, the owner is entitled to recover the value of them from the debtor." Edmunds v. Wallingford, 14 Q. B. D. 811, 814, C. A. See The Orchis, 15 P. D. 38. 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 nonrepair on indictment, he may reimburse himself by this action against his landlord; per cur., Baker v. Greenhill, 3 Q. B. 163. So in cases of rates levied on the lessee in respect of such liability, if he has not covenanted to pay them. lb.

But where A.'s goods are seized on the land of B. for a tithe rentcharge, 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. Tindal, C. J., suggested that A. might have a remedy in equity. Id. 305. Where,

however, A. let land to B., who assigned the lease as to part thereof to C. at an apportioned rent, and underlet the residue to D., and C., under threat of distress from A., paid him the whole rent reserved by the lease: it was held that C. had no right of contribution against D., as they were under no common obligation. Johnson v. Wild, 44 Ch. D. 146. In England v. Marsden, L. R., 1 C. P. 529, it was held that if the plaintiff allowed his goods to remain on the defendant's premises with his knowledge, but without his express request, until rent became due, and the landlord distrained, he could not recover from the defendant the rent and expenses he so paid; this decision was, however, virtually overruled by the C. A. in Edmunds v. Wallingford, ante, p. 571.

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 have requested the plaintiff to pay. See ante, p. 551.

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 take 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. See further, ante, pp. 562, 563. 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 be 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. lend 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 601.;" 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. 593.

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.