ante, p. 528. So a wrongful receipt by the defendant of the proceeds of goods wrongfully sold may be treated as a receipt to the plaintiff's use by waiving the preceding tortious detention of them. Lamine v. Dorrell, 2 Ld. Raym. 1216; Kitchen v. Campbell, 3 Wils. 304. So where the defendant has wrongfully received payment of the plaintiff's cheque, vide ante, p. 396, or post office order for money. Fine Art Society v. Union Bank of London, 17 Q. B. D. 705, C. A. So where the defendants wrongfully seized money of the plaintiff, and paid it to their joint account at a bankers, it was held that this action lay against both. Neate v. Harding, 6 Exch. 349; 20 L. J., Ex. 250. Where a member of the defendants' firm sold the plaintiff's government stock under a forged power of attorney, and the defendants received the price innocently, it was held that the plaintiff could recover the price in this form of action. Stone v. Marsh, 6 B. & C. 551; Marsh v. Keating, 1 N. C. 198. The right to maintain this action seems in such cases to be founded, not on the right to treat a mere tort as a contract, but on the right to refrain from suing for the tort, and to estop the wrongdoer from setting up his own wrong to defeat the plaintiff's remedy for the proceeds. Thus if, after a wrongful sale of goods, the owner elect to claim and to accept part of the proceeds of the sale from the wrongdoer as money paid to his use, the tort is waived, and the owner's only remedy for the residue of the proceeds is by action for money had and received. Lythgoe v. Vernon, 5 H. & N. 180; 29 L. J., Ex. 164. See Smith v. Baker, L. R., 8 C. P. 350; Roe v. Mutual Loan Fund, 19 Q. B. D. 347, C. A. Conversely, where the plaintiff has elected to treat the conversion as a tort by recovering a judgment in trover against A., he cannot, even though the judgment be unsatisfied, sue for the proceeds of the sale by A. and the defendant, which sale was the conversion complained of, although the defendant alone received the proceeds. Buckland v. Johnson, 15 C. B. 145; 23 L. J., C. P. 204. Such a defence will, however, require to be specially pleaded. See further notes to Smith v. Hodson, 2 Smith's L. Cases, and post, Part III., sub tit. Actions by trustees of bankrupts.

This action lies to recover money in the hands of an overseer, levied on a conviction which has been quashed. Feltham v. Terry, cited 1 T. R. 387.

Money stolen by the defendant from the plaintiff constitutes a debt from the defendant to the plaintiff; but the generally received opinion has been that it could not be sued for until after the prosecution of the defendant for the felony. See Stone v. Marsh, supra; Chowne v. Baylis, 31 Beav. 351; 31 L. J., Ch. 757. And it has been held that the plaintiff would be non-suited, where his case was founded on an unprosecuted felony. Wellock v. Constantine, 2 H. & C. 146; 32 L. J., Ex. 285 doctrine on which these cases were grounded has, however, been said to be without legal foundation. Wells v. Abrahams, L. R., 7 Q. B. 554, per cur. See further on this subject, Ex pte. Ball, 10 Ch. D. 667, C. A.; Midland Insur. Co. v. Smith, 6 Q. B. D. 561, and Roope v. D'Avigdor, 10 Q. B. D. 412.

The

In case of wagering contracts.] By the 8 & 9 Vict. c. 109, s. 18, all contracts by way of gaming or wagering shall be null and void; and no suit can be maintained "for recovering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made: provided always that this enactment shall not be deemed to apply to any subscription or contribution, or agreement to subscribe or contribute for or toward any plate, prize or sum of money to be awarded

to the winner or winners of any lawful game, sport, pastime, or exercise." See Higginson v. Simpson, 2 C. P. D. 76.

The section prohibits only actions by one party to the wager against the other, or against the stake-holder to recover the stake won. Thus if the party depositing the sum staked, claim it back from the stake-holder, even after the event is ascertained, but before the money is paid over, he can maintain money had and received against him. Hampden v. Walsh, 1 Q. B. D. 189; Diggle v. Higgs, 2 Ex. D. 422, C. A. Money deposited as a wager upon a lawful game or race in which the depositors are engaged, does not come within the proviso in sect. 18, and can, therefore, be recovered from the stake-holder as money deposited on a void contract. S. C., overruling Batty v. Marriott, 5 C. B. 818; Trimble v. Hill, 5 Ap. Ca. 342, P. C. See also Batson v. Newman, 1 C. P. D. 573, C. A. A principal who has employed an agent, A., to make bets for him on commission, can sue A. for bets so made, and won and received by_him. Bridger v. Savage, 15 Q. B. D. 363, C. A.; Beeston v. Beeston, 1 Ex. D. 13. But he cannot sue A. for damages for not making the bets for him. Cohen v. Kittell, 22 Q. B. D. 680.

In cases of illegal contracts.] Where money has been paid in pursuance of an illegal contract, it is generally irrecoverable. See cases cited 2 Smith's Lead. Cases, 9th ed. 570, and Lowry v. Bourdieu, 2 Doug. 468. And there is no distinction in this respect between mala prohibita and mala in se. Aubert v. Maze, 2 B. & P. 371; Cannan v. Bryce, 3 B. & A. 179. But in some cases it is recoverable as money had and received to the use of the party paying it, as in the following cases: see 1 H. Bl., 4th ed., 65, n. :—

1. When the contract remains executory, though the plaintiff and defendant be in pari delicto; Tappenden v. Randall, 2 B. & P. 467; as a deposit upon an illegal wager; Aubert v. Walsh, 3 Taunt. 277; Busk v. Walsh, 4 Taunt. 290. Where the plaintiff authorized his money to be applied to an illegal purpose, he may recover it before it has been paid over or applied to such purpose. Bone v. Ekless, 5 H. & N. 925; 29 L. J., Ex. 438. See also Taylor v. Bowers, 1 Q. B. D. 291, C. A.

2. Money is recoverable from a stakeholder in whose hands it has been deposited upon an illegal consideration, though executed by the happening of the event upon which a wager is made; provided the money has not been paid over by the stakeholder to the other party, or was paid over after notice to the contrary. Cotton v. Thurland, 5 T. R. 405; Bate v. Cartwright, 7 Price, 540; Hastelow v. Jackson, 8 B. & C. 221; Hodson v. Terrill, 1 Cr. & M. 797.

3. The money is recoverable, though the contract be executed, if the plaintiff be not in pari delicto with the defendant. Per Ld. Mansfield, C. J., Lowry v. Bourdieu, 2 Doug. 472. As where money is extorted from the plaintiff by the threat of prosecuting a penal action against him; Unwin v. Leaper, 1 M. & Gr. 747; Williams v. Hedley, 8 East, 378; or, to induce the plaintiff to accept a composition, in common with the other creditors, on the plaintiff's debt to him. Smith v. Bromley, 2 Doug. 696, n.; Atkinson v. Denby, and In re Lenzberg's Policy, cited ante, p. 586. So where the plaintiff gave the defendant a promissory note for the like purpose, and was compelled to pay it at the suit of a third person, to whom the defendant had indorsed it, he was held entitled to recover the amount from the defendant in this form of action. Smith v. Cuff, 6 M. & S. 160. But in a similar case, where the plaintiff had voluntarily paid the note to the defendant, it was held to be a voluntary payment, which he could not recover back. Wilson v. Ray, 10 Ad. & E. 82.

4. Money is not recoverable where the contract is executed and the plaintiff is in pari delicto with the defendant. Andree v. Fletcher, 3 T. R. 266; Thistlewood v. Cracroft, 1 M. & S. 500; Stokes v. Twitchen, 8 Taunt. 492. Thus where on a criminal charge, an order has been made on A. to find a surety for his good behaviour, and B. becomes such surety on the terms that 501., the amount of the recognizance, should be deposited by A. with B. as security to him, A. cannot recover the 501. either before or after the expiration of the recognizance, and although he has made no default. Herman v. Jeuchner, 15 Q. B. D. 561, C. A. So in the case of a surety for the appearance of a prisoner in a criminal case. Wilson v. Strugnell, 7 Q. B. D. 548, as corrected by Herman v. Jeuchner, supra. So where the plaintiff has paid money to compromise a prosecution for disobeying an order of sessions, which he afterwards finds to be irregular and void, he cannot recover back his money. Goodall v. Lowndes, 6 Q. B. 464. So where the plaintiff paid money to the defendant on the terms that he should not appear at the public examination of a bankrupt or oppose his discharge. Kearley v. Thomson, 24 Q. B. D. 742, Ĉ. A. Partial execution of the contract is sufficient to prevent the money being recovered back. S. C.

The agent of a party to an illegal contract, who receives money paid under it to the use of his principal, cannot set up the illegality of the transaction to an action brought against him by his principal. Tenant v. Elliott, 1 B. & P. 3; Farmer v. Russell, Id. 296. But it is otherwise where the receipt itself is illegal, and the agent is therefore also particeps criminis. M'Gregor v. Lowe, Ry. & M. 57; per Crompton, J., in Nicholson v. Gooch, 5 E. & B. 1016; 25 L. J., Q. B. 137.

The defence of illegality must be specially pleaded. See Defence in actions on simple contracts, post, p. 635.

On transfer of debt.] Where A. was indebted to B., and B. to C., and B. gave an order to A. to pay C. the sum due from A. to B., and the order was assented to by A., on the security of which C. lent B. a further sum; it was held that, on A.'s refusal to pay, C. might maintain an action for money had and received against him. Israel v. Douglas, 1 H. Bl. 239; Wilson v. Coupland, 5 B. & A. 228; Walker v. Rostron, 9 M. & W. 411; Griffin v. Weatherby, L. R., 3 Q. B. 753. It seems, however, that the agreement must be such that the debt due from B. to C. is thereby extinguished. Cuxon v. Chadley, 3 B. & C. 591; Liversidge v. Broadbent, Wharton v. Walker, infra; Cochrane v. Green, 9 C. B., N. S. 448; 30 L. J., C. P. 97. Where A., being indebted to B., gave him an order upon C., his (A.'s) tenant, to pay the amount out of the next rent that would become due, and B. sent the order to C., but had not any direct communication with him upon the subject, and at the next rent-day C. produced the order to A., and promised him to pay the amount to B., and, upon receiving the difference between that and the whole rent, A. gave a receipt for the whole,-it was held that B. could not recover the amount of the order from C., either in an action for money had and received, or upon an account stated. Wharton v. Walker, 4 B. & C. 163; see the principle of the cases discussed in Liversidge v. Broadbent, 4 H. & N. 603; 28 L. J., Ex. 332. So where an overseer stopped part of a pauper's allowance, and engaged to pay it to the pauper's landlord for his rent, in pursuance of an understanding between the three, it was held that the landlord could not maintain money had and received against the overseer. Blackledge v. Harman, 1 M. & Rob. 344. Where, by the consent of all parties, the defendant is to pay to the plaintiff a debt due from defendant to A., who is the plaintiff's debtor, it lies on the plaintiff to show that there was, at the time of the agreement, an ascertained debt due from

defendant to A. Fairlie v. Denton, 8 B. & C. 395. A promise by A. to B. to pay money when A. receives a debt due to him from C., does not constitute an equitable assignment, so as to charge the debt in the hands of C., or to afford a defence in an action by A. against C. for the debt due to him. Field v. Megaw, L. R., 4 C. P. 660. But an undertaking to pay when and as received "all dividends coming to me in respect of my proof for 8007., upon the estate of J. L.," operates as an equitable assignment of such dividends. Ex pte. Brett, 7 Ch. D. 419. So a letter from A. and B. to their creditor, C.," we hold at your disposal the sum of about 4251., due to us from D. for goods delivered by us to them," is an equitable assignment to C. of D.'s debt. Gorringe v. Irwell India Rubber, &c. Works, 34 Ch. D. 128, C. A. An assignment of all the grantor's future book debts is good, although it is not confined to those arising in a particular business. Official Receiver v. Tailby, 13 Ap. Ca. 523, D. P. The assignment is subject to any lien or set-off available against the assignor. Roxburghe v. Cox, 17 Ch. D. 520, C. A.; Webb v. Smith, 30 Ch. D. 192, C. A. See also Young v. Kitchin, and Newfoundland, Government of v. Newfoundland Ry., post, p. 675. A writing opening a credit for a particular sum does not constitute an equitable assignment thereof. Larivière v. Morgan, L. R., 7 H. L. 423. If an order given by A. to B. to pay C. a debt due from B. to A. amount to a bill of exchange, as defined in the Stamp Act, 1870, s. 48 (ante, p. 236), it will in general be inadmissible in evidence unless stamped as such. Pott v. Lomas, 6 H. & N. 529; 30 L. J., Ex. 210. See Griffin v. Weatherby, ante, p. 591, and cases cited ante, pp. 238 et seq. It may be observed that the Bills of Exchange Act, 45 & 46 Vict. c. 61, s. 53, provides that "a bill of itself does not operate as an assignment of funds in the hands of the drawee, available for payment thereof.'

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Under the J. Act, 1873, s. 25 (6), ante, p. 300, any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only), of any debt of which notice in writing shall have been given by the debtor, is effectual to transfer the legal right to the debt and the remedies therefor from the date of the notice. Under this section the legal right to the debt itself passes to the assignee. Read v. Brown, 22 Q. B. D. 128, C. A. A mortgage of debts due to the mortgagor in the ordinary form, with the usual proviso for redemption, &c., 18 an absolute assignment (not purporting to be by way of charge only)." Tancred v. Delagoa Bay, &c. Ry. Co., 23 Q. B. D. 239, following Burlinson v. Hall, 12 Q. B. D. 347. Where the defendants, the trustees and executors under a will, sent G., a residuary legatee, an account showing the amount of the share due to him, and G. sent this account to H., with the direction, signed by him, "I hereby instruct the trustees in power to pay H. the balance shown in the above statement," whereof notice was given to the defendants, it was held that H. could recover under sub-sect. 6. Harding v. Harding, 17 Q. B. D. 442. Debts may be assigned under the sub-section before they become due. Brice v. Bannister, 3 Q. B. D. 569, C. A.; Walker v. Bradford Old Bank, 12 Q. B. D. 511. It is sufficient to give notice of assignment after the death of the assignor. S. C. The debtor cannot object that there is no consideration for the assignment. S. C. As to the deductions which the defendant may make in respect of claims he has against the assignor, see Young v. Kitchin, and Newfoundland, Government of v. Newfoundland Ry. Co., post, p. 675.

In case of partnership.] One partner cannot sue his co-partner for his share of the profits as long as the partnership is undissolved and accounts unsettled; therefore, where two persons agree to divide the profits of an

agency between them, and one of them receives, on account of such agency, a certain sum of money, the other cannot maintain this action for a moiety, it being a partnership transaction, and there being no account settled. Bovill v. Hammond, 6 B. & C. 149. A transaction between partners may, however, by agreement or a separate security, be so separated from the partnership affairs, though arising out of them, as to form the subject of an action by one against another. Such an action involves no general account. See Jackson v. Stopherd, 2 Cr. & M. 361; Coffee v. Brian, 3 Bing. 54; Pearson v. Skelton, 1 M. & W. 504; also cases ante, p. 570, Action for money paid, and post, p. 599, Action on an account stated. As to what constitutes partnership of persons inter se, see Walker v. Hirsch, 27 Ch. D. 460, C. A.

ACTION FOR INTEREST.

Where interest is recoverable by law, it is either claimed in a special claim on an agreement-or given by way of damages by the jury, though not demanded in the claim-or it is the subject of a separate claim for interest, which last form has been commonly adopted where the principal sum only is recoverable under another claim. Thus, as interest is not generally recoverable, at common law, on claims for goods sold, money lent or had and received (vide post, p. 594), it is usual, if interest be due at all, to demand it in a separate claim. Gibbs, C. J., in Maberley v. Robins, 5 Taunt. 625, thought that a separate count was not necessary to enable the jury to give interest by way of damage even on a count to recover a deposit paid on a sale, and in cases within the statute 3 & 4 Will. 4, c. 42, post, p. 596, the claim seems to be superfluous, for the jury may give interest on any issue in such cases. See also Edwards v. Gt. W. Ry. Co., 11 C. B. 588; 21 L. J., C. P. 72. A claim for interest is not supported by proof that the defendant, a widow, promised the plaintiff to pay interest on a debt of her husband, if the plaintiff forebore to "proceed against her" for payment of the debt; for the debt was not her debt. Petch v. Lyon, 9 Q. B. 147.

Under this head the subject of interest will be noticed generally, and without reference to a special claim.

Interest, when recoverable, is to be calculated down to the time of final judgment. Robinson v. Bland, 2 Burr. 1085-8. But if there has been a tender, it runs only to the time of such tender. Dent v. Dunn, 3 Camp. 296. Where a principal sum is payable with interest at a fixed rate the interest ceases to accrue on the recovery of a judgment for the principal, for the contract has then passed in rem judicatam. Florence v. Jenings, 2 C. B., N. S. 454; 26 L. J., C. P. 274; Ex pte. Oriental Financial Association, 4 Ch. D. 33, C. A.; Ex pte. Fewings, 25 Ch. D. 338, C. A., distinguishing Popple v. Sylvester, 22 Ch. D. 98. A judgment debt bears interest at 4 per cent. under 1 & 2 Vict. c. 110, s. 17. Ex pte. Oriental Financial Association, supra.

When due at common law.] The principle upon which interest is claimed at common law is, that it is matter of contract, express or implied, between the parties. "It is now established as a general principle, that interest is allowed by law only upon mercantile securities, or in those cases where there has been an express promise to pay interest; or where such promise

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