E. INDEBITATUS FOR MONEY HAD
AND RECEIVED.

(a) To try the right to an office.
(b) To recover money paid by mistake.
(c) Upon failure of consideration.
(d) Upon rescinding the contract.
(e) To recover money obtained by fraud.

the captain's table." Without an express promise, an officer, under these circumstances, is not liable to pay more than the regulation price, though he has a cabin to himself, and others, for the

and accommodation at

(f) For money paid by one party to an same indulgence, pay an advanced price;

illegal contract to the other.

(g) For money paid by constraint, (h) For money paid under legal process. F. NON ASSUMPSIT.

it not appearing that the cabin would have been let to any other person, Adderley v. Cookson, 2 Campb, 15. Ellenborough, C. J. 1809.

A. (b) Illegal.

7. No action lies for the price of libellous or immoral prints. Fores v. con-Johnes, 4 Esp. 97. Lawrence, J. 1802. And see TRESPASS, B. 6, 7.

A. CONSIDERATION.
A. (a) Where sufficient.
1. A promise, without any new
sideration, to give time for the payment
of a pre-existing debt, is not binding.
De Symons v. Minchwich, 1 Esp. 430.
Eyre, C. J. 1795.

Sed vide, AGREEMENT, A. (a) 1.
And see PLEADING, H. (b) 1.

2. Where the abandonment of a contract is the consideration of a new promise, it must be shewn that the former was such as might have been enforced. Walker v. Constable, 2 Esp. 659. Eyre, C. J. 1798.

And the court of C. P. refused to set aside nonsuit. Ibid, and 1 Bos. and Pul. 306.

8. Where premises are let for the express purpose of prostitution, no action can be maintained for the rent. Girardy v. Richardson, 1 Esp. 13. Kenyon, C. J. 1793.

S. P. Crisp v. Churchill, Selw. 65,
Acc. Howard v. Hodges, ibid.
Sed vide Lloyd v. Johnson, 1 Bos.
and Pul. 340.

9. A person who sells articles of dress to a woman of the town, may maintain an action for the amount, though he had notice of her situation; unless it can also be shewn that he expected to be paid out of the profits of her prostitution, or that the clothes were furnished for the purpose of enabling her to carry it on. Bowry v. Bennett, spinster, 1 Campb. 4. A. being possessed of information 348. Ellenborough, C. J. 1808. respecting a sum of money due to B.

See page 22, § 4. 60 § 9. 3. Assumpsit will not lie upon an implied promise to pay an arbitrator for his trouble. Virany, executor, v. Warne, 4 Esp. 47. Kenyon, C. J. 1801.

10. An agent employed to purchase as a residuary legatee, obtains a promise shares in an unchartered joint-stock of ten per cent. as the price of the com- company, fraudulently obtains from his munication. Semble, that the agree-employer double the premium paid. ment cannot be enforced against B. The transaction being prohibited by Jones v. Brindley, 3 Esp. 205. Kenyon, 6 Geo. 1, cap. 18. both parties are in pari C. J. 1800. delicto; and no action will lie to recover the excess of premium. Buck v. Buck, 1 Campb. 547. Mansfield, C. J. 1808. And see Rex v. Dodd, 9 East, 516, post E. (e).

But it appears, from the report of this case, in 1 East, that the defendant was nonsuited on the form of his special count.

5. After A. has paid the whole of a demand made by B., part of which was due to C. B. engages to indemnify A. against any claim by C., the consideration is sufficient. Lord Suffield v. Bruce, 2 Stark. 175. Ellenborough, C. J. 1817.

B. INDEBITATUS FOR WORK AND

LABOUR.

(And see ARBITRAMENT, C.)

11. In an action for work and ma

terials, evidence of the badness of the

20. A clérk retained by the quarter,

workmanship is admissible in reduction may sue for the balance of the quarter,

of the demand. Farnsworth v. Garrard, 1 Campb. 38. Ellenborough, C. J. 1807.

in the middle of which he had been discharged, unless a dissolution of the contract proved. Gandall v. Pontigney, 1 And see ante ACTION, E.; post, Stark. 198. Ellenborough, C. J. 1815. PLEADING C. (c). 21. An action lies for brokerage in 12. And where a wall is so badly procuring a medical partnership for debuilt that it must be pulled down, the fendant. Edgar v. Blick, 1 Stark. 464. defendant will be entitled to a verdict. Ellenborough, C. J. 1816. Ibid.

Acc. Havelock v. Geddes, 10 East, 555.

And see Davidson v. Gwynne, 12 East, C. INDEBITATUS, WHERE MAINTAIN

381.

13. Unless the value of the materials exceed the expense of removing them; in which case the builder may recover the difference, Ibid.

ABLE IN RESPECT OF SPECIAL CON-
TRACT.

22. A servant hired by the quarter, discharged without cause in the middle 14. An auctioneer, through whose of a quarter, may recover the wages for gross negligence the sale becomes nu- the whole quarter in indebitatus asgatory, can recover nothing for his sumpsit. Gandell v. Pontigney, 4 Camp. services. Denew v. Daverek. Ellen-375. S. C. 1 Stark. 118. Ellenborough, borough, C. J. 1813, 3 Campb. 451. C. J. 1816.

15. Upon the delivery of trade utensils contracted for at a certain price, and as of a certain quality, the vendee may reject them after a reasonable trial, giving notice to the vendor to remove them. Okell v. Smith and another, 1 Stark. 107. Bayley, J. 1815.

23. Where goods delivered on sale or return are not returned within a reasonable time, the value may be recovered in an action for goods sold and delivered, Bailey v. Goldsmith, Peake, 56. Kenyon, C. J. 1791.

24. Agreement for three months cre16. If the goods are not sent back, dit, and then if further time wished, a and no notice is given to take them bill at three months, indebitatus assumpsit away, the vendee must pay quantum lies at the end of the first three months, valebant. Ibid. if no bill given. Nixon v. Jepson, 2 17. In an action by heralds for making Stark. 227. Ellenborough, C. J. 1817. out defendant's pedigree, they are bound 25. Where an agreement for sale is to give some general evidence that the unsigned and unstamped, the purchaser pedigree is true, or made out according may recover the deposit on the common to the laws of heraldry; unless such counts. Adams v. Fairbairn, 2 Stark. proof have been dispensed with by the 277. Abbott, J. 1817.

acts of the defendant. Townsend and 26. So if the vendor of an estate another v. Neale, 2 Campb. 191. Ellen- have not such a title as by the conditions borough, C. J. 1809. of sale he engaged to make. Farrer v. 18. In an action for work, &c. in Nightingale, 2 Esp. 640. Kenyon, C. J. ornamenting a house, defendant may 1798.

inquire into the prices paid by the plain- And see Johnson v. Johnson, 3 Bos. tiff to artists employed under him, as a and Pul. 162, 6; Cripps v. Reade, 6 T. criterion of the fairness of the demand. R. 606; Giles v. Edwards, 7 T. R. Fricker v. French, 5 Esp. 79. Ellen-181. borough, C. J. 1803.

27. Unless the terms of a special 19. A count for work and materials will agreement, either by express stipulation, cover a demand for attendances as a or necessary intendment preclude the farrier, and for medicines administered. party from recovering for work and laClark v. Mumford, 3 Campb. 37. Ellenborough, C. J. 1811.

Acc. Wood v. Grace, Barnes, 344.

bour generally, he is entitled after the contract has been executed, and the day of payment is arrived, to declare gene

rally. Robson v. Godfrey and Thomas, Holt. 236. Gibbs, C. J. 1816.

And see Ellis v. Hamlyn, 3 Taunt. 52; Guy v. Gore, 2 Marsh. 273.

28. A consignee who, in order to obtain possession of his goods, pays freight according to the gross weights expressed in the margin of the bill of lading, may recover the excess beyond the freight on the net weights. Geraldes v. Denison, Holt. 346. Gibbs, C. J. 1816.

And see Brown v. Hodgson, 4 Taunt. 189.

29. Assumpsit for the price of a gun upon contract, to receive in payment another gun, and fifteen guineas over; held, that on defendant's refusal to deliver the other gun, a contract resulted to pay the whole price in money. syth and others v. Jarvis, 1 Stark. 437. Ellenborough, C. J. 1816.

34. If goods be sold to be paid forpartly in money, and partly in goods, the vendor, after receiving the goods, cannot declare generally for the balance, but must sue on the special contract. Palver and another v. West, Holt. 178. Gibbs, C. J. 1816.

35. Upon agreement to barter goods for goods, the balance is recoverable in money. Ingram v. Shirley, 1 Stark. 185. Ellenborough, C. J. 1815.

36. An outgoing tenant cannot declare for goods sold, against the incoming tenant, upon an executed agreement to take the fixtures. Nutt v. Butler, 5 Esp. 176. Ellenborough, C. J. 1804.

S. P. Lee v. Risdon, 7 Taunt. 188. 37. Mariners are to receive a share of For-the net proceeds of the voyage, in case of faithful service, &c. Money had and received will not lie against the owner, 30. Upon an agreement to pay for who has disposed of the cargo for the goods by bill at two months, to be given benefit of all concerned, unless an adat the end of one, the plaintiff may de-mission of faithful services, &c. can be clare generally after the expiration of shewn. The declaration should be spethe three months. Heron v. Granger, cial, averring performance of the con5 Esp. 269. Ellenborough, C. J. 1805.ditions. Evans v. Bennet, 1 Campb. S. P. Brooke v. White, 1 N. R. 330; 300. Ellenborough, C. J. 1808. Marshall v. Poole, 13 East, 98.

And see AGENT.

See Action D (c) Bills and Notes I. (d) Gaming A. (a) 2n; Vender and 31. Mariners are to receive a share Purchaser, C. 1, 2, 8, 9, 10, D. 2. F. 3. of the net proceeds of the. voyage, in 38. Held, that a lender who has received case of faithful service, &c.-Money had a gun as a security, may recover in an and received will not lie against the an action for money lent, without first owner, who has disposed of the cargo returning or tendering the gun. Lawton for the benefit of all concerned, unless v. Newland, 2 Stark. 73. Ellenborough, an admission of faithful services, &c., C. J. 1817.

can be shewn. The declaration should Contra, Plowd. And see MSS. Yearotherwise be special, averring perform-book of Edw. I., in L. I. Library, where ance of the conditions. Evans v. Bennet, the defendant having pleaded that she 1 Campb. 300. Ellenborough, C. J.

1808.

32. Defendant having contracted to finish houses in return for cordage sold, subsequently agreed that plaintiff should finish at defendant's expence. Held, that although nothing could be recovered

had deposited jewels as a security, which plaintiff had not returned, the court re fused to give judgment for the plaintiff, saying that they had no power to award restitution of the property.

which was part of this agreement, with- D. INDEBITATUS FOR MONEY PAID. out a special count; yet plaintiff could, under the common count, recover for excess of cordage supplied beyond the agreement. Dunn v. Body, 1 Stark. 220. Ellenborough, C. J. 1815,

33. But semble, that the amount to he delivered under the agreement must have been adjusted. Ibid.

D. (a) By surety against principal. (And see LIMITATION A. (b) 3.)

39. An accommodation acceptor who defends an action at the request of the drawer, may recover the costs as money

paid to the use of the latter without an him in giving security for the debt of undertaking in writing. Howes v. Mar-C.; B. is compelled to pay the whole; tyn, 1 Esp. 162. Kenyon, C. J. 1794. he cannot sue A. for a contribution. And see F. N. B. 103 B; ib. 122 K.; Turner v. Davies, 2 Esp. 478. Kenyon, ib. 135 A.; ib. 162 C.; ib. 234, 5; ex C. J. 1796. parte Marshall, 1 Atk. 130.

v. Brooke, 4 Taunt. 464.

Sed vide Cooke's case, 2 Freem, 97, pl. 107; F. N. B. 121. I.

And it seems that the drawer is liable for such costs without a request. Jones 45. So where a sale-note does not specify any time for delivery, evidence of 40. In an action for contribution a verbal agreement, or of an usage in against a co-surety, a declaration by the the trade for removing the goods immeobligee, as to the account to which he diately, is not admissible. Greaves v. carried money paid him by the principal Asklin, 4 Campb. 426. Ellenborough, obligor, is not evidence, unless the de- C. J. 1816. claration were made at the time of payment; the obligee must be called. Dunn v. Slee, Holt. 399. Park, J. 1816.

41. A. gives his promissory note for the debt of B., which the creditor accepts in satisfaction.-Held, that A. may immediately sue B. for money paid to his use. Barclay and Proctor v. Gooch, 2 Esp. 571. Kenyon, C. J. 1797.

Si mandato meo fundum emeris, utrum quum pretium dederis ages mecum mandati, AN ET ANTEQUAM DES? Et recte dicitur, in hoc esse mandati actionem, ut suscipiam obligationem quæ adversus te venditori competit. Dig. 45.

Sed vide Taylor v. Higgins, 3 East, 169. And see Nightingale v. Devisme, 2 Bla. 684; S. C. 5 Burr. 2592; Jones v. Brinley, 1 East, 1.

42. Bail above may recover against the principal any sum which they have fairly expended in endeavouring to take him. Fisher v. Fallows, 5 Esp. 171. Ellenborough, C. J. 1804.

S. P. Cod. 4. 35. 2.

43. But they cannot recover costs which have been occasioned by them, unadvisedly resisting the payment of those expences. Ibid.

And see Mildmay's case, 1 Rep. 1766; Motter v. Living, 4 Taunt. 104; Powell v. Edmunds, 12 East, 10; Cuff v. Penn, 1 M. and S. 27.

46. Time given to one co-surety does not discharge the rest. Dunn v. Slee, Holt. 399. Park, J. 1816.

D. (c) On other implied promises.

47. A sheriff's officer who pays the debt to the plaintiff, in consequence of the neglect of the defendant's attorney to put in bail according to his undertaking, cannot recover the amount, without shewing the defendant's consent to the payment, or the issuing of an attachment against the sheriff. Griffin v. Roberts, 1 Esp. 383. Eyre, C. J. 1795.

48. And it was doubted whether or not the action could have been maintained, had such proof been produced. Ibid.

N. That no action will lie, see Fuller v. Prest, 7 T. R. 109; Parker v. England, 2 Smith, 52; S. C. Tidd, 122.

49. But an officer who discharges the defendant, on payment of the sum inAnd see Duffield v. Scott, 3 T. R. 274. 7. dorsed and costs, and afterwards, to preAnd see Fitz. Abr. Pledges 9; Parson vent an attachment, pays the original v. Briddock, 2 Vern. 608; Philips v. plaintiff the residue of his demand beBiggs, Hardres, 164; Merryweather v.yond the sum sworn to, may recover the Nixon, 8 T. R. 186; Wright v. Morley, 11 Ves. 12; F. N. B. 103 B; ibid. note b; 5 Vin. Abr. Contribution; Bac. Abr. Obligation, D. 5; post D. (e) 14; F. N. B. 162, C. D.

D. (b) Against a co-surety. (And see ACTION, C (a) b.) 44. A., at the request of B., joins

amount as money paid to the defendant's use. Cordron v. Lord Massarecne, Peake, 143. Buller, J. 1792.

50. A. being in the Fleet on mesne process, at the suit of B., the latter countermands a written authority for his discharge. The warden imagining that such an authority is not revocable, discharges the defendant; and is sued for

an escape. He has no remedy over

against A., having been guilty of a breach | confined to county elections.

of duty. Eyles v. Faikney, Peake, 144, n. Kenyon, C. J. 1792.

And the court of K. B. discharged a rule for a new trial; ibid.

Morris v

Burdett, bart., 2 Campb. 218. Ellenborough, C. J. and K. B. 1808.

57. But a candidate for the representation of a city or borough, is not liable

And see 8 East, 172. n. S. C. differ-for hustings erected without his own conently reporter. sent, or that of his agents. Ibid.

51. Though in a former case it had 58. Secus in a county election, where been held that if after a voluntary the candidate is made liable by 18 Geo. escape the sheriff was obliged to pay 2. cap. 18. s. 7. Ibid. the debt, he might recover the amount as money paid to the debtor's use. Morris v. Bulkley, (or Berkley,) Peake, 144. n. Yates, J. assisted by Gould, J. Worcester.

S. C. 8 East, 172. n.

52. If in consequence of the defect of the memorial of an annuity, the grantee sue his own attorney for negligence, and recover from him the amount of the consideration, it is not money paid to the use and at the request of the grantor. Burdon, gent. v. Webb, 2 Esp. Kenyon, C. J. 1797.

59. A. declares to the sheriff that a particular candidate disclaims all parti cipation in the expenses of the election, and, at the same time, requires tickets of admission to the hustings for the friends of that candidate. If the candidate admit A.'s authority, he is bound by such demand to contribute to the expense of erecting the hustings. Ibid.

60. And if the authority be denied, the disclaimer must pass for nothing. Ibid.

61. In such case, proof that the hustings have been used by persons, whose acts the candidate has adopted, will be sufficient to make him liable. Ibid.

53. An action is brought by the vendee of an estate against the auctioneer, to 62. The goods of A. are taken in exrecover the deposit. The principal not ecution at the suit of B. after a secret act coming in to defend after notice, the of bankruptcy, and the money levied is auctioneer pays the deposit, the interest, paid over to B. The assignees recover the duty, and the costs of suit, to the ven-in trover against B., the sheriff, and the dee. The auctioneer may recover the bailiff; and the damages and costs are interest and duty as money paid to the paid by the bailiff; B. is not bound to use of the vendor, but must declare spe- indemnify the bailiff, or to contribute for cially for the costs. Spurrier v. Elderton, money in respect of the damages and one, &c. 5 Esp. 1. Ellenborough, C. J. costs. Wilson v. Milner, 2 Campb. 452. Ellenborough, C. J. 1801.

1809.

And see Moore v. Pyzhe, 11 East, 52; Vendor and Purchaser, E.

As to the effect of the notice, see 3 T. R. 377; Y. B. 10, H. 6, 26 ab. F. N. B. 135 A.; Fitz. Abr. Garranty de Charters, 9, 16, Pothier, Contrat de Vente, part 2, chap. 1, sect. 2, num. 95; Maydew v. Forrester, 5 Taunt. 615.

And see Philips v. Biggs, Hardres. 164; F. N. B. 162. C. D.

63. But the levy money may be re covered, being money paid over to the defendant under a mistake, when the bailiff was ignorant of A.'s bankruptcy and of the right of the assignees to the amount. Ibid.

55. A candidate at an election for 64. Goods come to A., a wharfinger, members of parliament is liable for no consigned to B. C., believing them to expenses except such as are imposed be meant for himself, carries them away upon him by positive statute, or by his and uses them. A. pays B. the value of own consent, express or implied. Morris the goods. This is not money paid for v. Burdett, bart., 1 Campb. 218. Ellen- C.'s use. Sills and others v. Laing, borough, C. J. 1808. 4 Campb. Eilenborough, C. J.

56. A candidate is liable to the sheriff

1814.

81.

for his proportion of the expense in65. A dinner is ordered by a person curred in administering the oaths of authorized by the parties to a wager, and allegiance and supremacy, under 34 the winner pays the amount of the tavern Geo. 3. cap. 73. upon the requisition of bill; it is money paid to the use of the another candidate, this statute not being loser. Hussey v. Crichett, 3 Campb. 168.