plaintiff, that it was a complete answer to the case.

He then gave in

evidence the payment of a legacy of 400l. to the plaintiff, under the testator's will, and also the Master's report, by which he disallowed the plaintiff's claim against the estate. But Lord Kenyon Ch. J. ruled, that neither was an answer to the plaintiff's demand: "that a legacy was never deemed a satisfaction for a legal demand, when that demand was unliquidated at the time of the legacy given, nor where it was given before the time when the demand accrued, or the debt was contracted, unless it was expressly said in the will that it should be a satisfaction; that nothing in this case appeared which could operate as an ademption of the legacy. As to the Master's report," his Lordship said, "it established nothing; that the party should never be concluded by it from suing in the regular course of law for his demand, though the Master might think fit to report that nothing was due. His Lordship added, that the law was well settled; that if the plaintiff had undertaken the several services proved, without any view to a reward, but with a view to a legacy, that he could not set up any demand against the testator's estate, but of that the jury were to decide." The jury found for the plaintiff 6007. damages.

So, where A. employs B. to show his house which is to let, and for his trouble promises that he will make him a handsome present; this is evidence of a contract to pay a reasonable compensation in an action of assumpsit on a quantum meruit. (e)

(e) Jewry v. Busk, 5 Taunt. 302.

CHAPTER IV.

AN

ON PROMISES TO PAY OVER MONEY HAD AND RECEIVED TO THE USE OF ANOTHER: AND IN WHAT CASES ACTION OF INDEBITATUS ASSUMPSIT LIES THEREON.

F a person receives money, or something which has been converted into money, belonging to another, and has no legal or equitable right to retain it, the law deems this to be so much money had and received to the use of the true proprietor thereof, and raises a promise by implication, on the part of the receiver, to pay it over to him; and upon his refusal to do so, an action of indebitatus assumpsit will lie against him at the suit of the rightful owner, as for money had and received to his use. It is observed, by the learned commentator upon the laws of England, "That this form of action is a very extensive and beneficial remedy, applicable to almost every case where a person has received money which ex æquo et bono he ought to refund." (a) And Lord Mansfield, who very much encouraged this form of action, has often declared, "That great benefit arises from this species of action, because the charge and defence are both governed by the true equity and conscience of the case. And in this form of action the plaintiff is not obliged to set forth in pleading the special circumstances from which he concludes, that ex æquo et bono the money received by the defendant ought to be deemed as belonging to him; but he is at liberty to declare generally, that the money was received to his use,' and to make out his case by evidence at the trial. It is also equally beneficial to the defendant, and the most favorable mode in which he can be sued; for he can be liable no further than the money he has received; and he is entitled, under the plea of the general issue of non assumpsit, to give all the circumstances of his case in evidence; he may claim every equitable allowance: in short he may defend himself by every thing which shows that the plaintiff, ex æquo et bono, is not entitled either to the whole or any part of his demand." (b) The courts, how2154. 1 Bos. & Pul, 506. 2 Bos. & Pul. (6) 2 Burr. 1010. Doug. 138. 4 Burr. 472.

(a) 3 Bl. Com. 163.

6

ever, take care that this general mode of pleading do not turn to the prejudice of the defendant: and therefore this form of action will not lie, where it would throw the burthen of special pleading from the plaintiff upon the defendant, or where it would subject him to uncertainty, as to the point to which he should direct his defence; or where it would trench upon established forms, or otherwise introduce inconvenience upon principles of legal policy. (c)

The cases on this subject are so numerous, and extend to such a vast variety of transactions, that it is somewhat difficult to class them in such a manner as to render the division clear and intelligible to the reader. I have, however, endeavoured to effect this object; and I now propose to consider and arrange the subject in the following order: viz.

1. OF MONEY HAD AND RECEIVED BELONGING TO ANOTHER, AND WHICH EITHER OUGHT TO BE PAID TO HIM OR TO BE APPLIED TO A PARTICULAR PURPOSE: AND OF MONEY DEPOSITED WITH A STAKE-HOLDER: AND IN WHAT CASES SUCH MONEY IS RECOVERABLE FROM THE RECEIVER IN AN ACTION OF INDEBITA

TUS ASSUMPSIT.

2. THIS FORM OF ACTION LIES ONLY WHERE MONEY HAS BEEN RECEIVED IN THE FIRST INSTANCE; OR WHERE GOODS, &C. THE PROPERTY OF ANOTHER, HAVE BEEN EITHER ACTUALLY SOLD OR DISPOSED OF; OR WHERE, UNDER PARTICULAR CIRCUMSTANCES, IT MAY BE REASONABLY PRESUMED THAT THEY HAVE BEEN CONVERTED INTO MONEY.

3. OF MONEY OR A DEBT DUE FROM ONE PERSON TO ANOTHER, WHICH, BY AGREEMENT, IS EITHER DIRECTED OR APPROPRIATED TO BE PAID OVER TO A THIRD PERSON: AND IN WHAT CASES IT SHALL BE DEEMED AS SO MUCH MONEY HAD AND RECEIVED TO THE USE OF THAT PERSON.

4. OF MONEY RECEIVED AND PAID BY BANKERS AND OTHERS UPON OR IN RESPECT OF BILLS OF EXCHANGE, PROMISSORY NOTES, CHECKS, OR OTHER SECURITIES: AND WHEN SUCH MONEY IS RECOVERABLE IN THIS FORM OF ACTION.

5. OF MONEY RECEIVED ON BANKERS' CHECKS, BILLS OF EXCHANGE, PROMISSORY NOTES, OR OTHER SECURITIES EITHER POST DATED, OR WITH FICTITIOUS OR FORGED NAMES THEREON.

(c) Cowp. 414. 818. 4 Burr. 1984. 1 Campb. 285. Bac. Abr. i. Vol. 260. Guillim's Ed.

6. of MONEY RECEIVED BY OR FROM AGENTS, SERVANTS, AND OTHERS, ACTING FOR THEIR PRINCIPALS.

7. OF TRUST MONEY RECEIVED; AND IN WHAT CASES RECOVERABLE BY ACTION OF ASSUMPSIT.

8. OF THE PRODUCE OF AN ADVENTURE IN THE SOUTHERN WHALE FISHERY BETWEEN THE CAPTAIN AND HIS CREW, SOLD BY THE OWNER AS THEIR AGENT: AND OF THE SEAMEN'S REMEDY TO RECOVER THEIR INDIVIDUAL SHARES BY ACTION FOR MONEY HAD AND RECEIVED.

9. OF MONEY RECEIVED UPON THE SALE AND PURCHASE OF LANDS, HOUSES, FIXTURES, GOODS, CATTLE, &c. OR IN RESPECT OF SOME ACT TO BE DONE, OR BENEFIT TO BE DERIVED; OR UPON THE SALE OF ANNUITIES, WHERE THE CONTRACT HAS EITHER BEEN RESCINDED, DISAFFIRMED, OR NOT PERformed, anD THE CONSIDERATION HAS FAILED: AND IN WHAT CASES THE MONEY SO RECEIVED MAY BE RECOVERED BACK.

10. OF FEES RECEIVED BY COUNSEL.

11. OF PREMIUMS RECEIVED ON MARINE INSURANCES.

12. OF MONEY PAID AND RECEIVED UNDER A MISTAKE; OR IN IGNORANCE BOTH OF THE LAW AND OF THE FACT: AND OF VOLUNTARY PAYMENTS MADE BY A PARTY EITHER WITH FULL KNOWLEDGE OF ALL THE CIRCUMSTANCES; OR, HAVING THE MEANS OF SUCH KNOWLEDGE AT THE time, omITTING TO MAKE DUE ENQUIRY, &c. INTO THE CIRCUMSTANCES UNDER WHICH

THE CLAIM IS MADE.

13. OF COMPULSORY PAYMENTS MADE EITHER UPON A PLEDGE OF GOODS, OR FOR A FINE UPON ADMITTANCE; OR UNDER LEGAL PROCESS, &c. OR UPON A THREAT OF AN ACTION, or DISTRESS, &c. OR UNDER MERE COLOR OF PROCESS.

14. OF MONEY RECEIVED UNDER A VOID AUTHORITY; WHETHER JUDICIAL OR OTHERWISE.

15. OF MONEY RECEIVED MALA FIDE, OR OBTAINED BY DECEIT, MISREPRESENTATION, OR OTHER FRAUDULENT MEANS.

16. IN WHAT CASES MONEY RECEIVED BY OR FROM SHERIFFS, BAILIFFS, GAOLERS, OR THEIR DEPUTIES, &c. MAY BE RECOVER

ED BACK.

17. OF MONEY RECEIVED BY THE RECEIVER GENERAL OF A COUNTY FOR A PARTICULAR PURPOSE; OR BY REVENUE OR OTHER PUBLIC OFFICERS, EITHER BY MISTAKE OR OTHERWISE. 18. OF EXCESS OF TOLL RECEIVED BY TOLL-GATE KEEPERS.

19. OF MONEY RECEIVED BY PARISH OFFICERS FOR THE MAINTENANCE OF BASTARD CHILDREN.

20. OF MONEY RECEIVED UPON AN ILLEGAL CONtract or trANSACTION WHICH IS EITHER MALUM IN SE, OR MALUM PROHIBITUM: AND IN WHAT CASES THE PARTIES ARE DEEMED IN PARI DELICTO TO SUCH AN EXTENT, AS TO DEPRIVE THE PARTY PAYING THE MONEY FROM RECOVERING IT BACK FROM THE RECEIVER.

21. IN WHAT CASES THIS FORM OF ACTION WILL LIE FOR FEES OR ACCUSTOMED DUES RECEIVED, AND WHICH ARE EITHER CLAIMED BY ADVERSE PARTIES, OR WHERE THE RIGHT OF TAKING THEM IS DISPUTED: AND AGAINST WHOM THE ACTION LIES.

22. OF PRIZE MONEY RECEIVED; AND WHEN THE RIGHT TO DISTRIBUTIVE SHARES MAY BE TRIED IN AN ACTION FOR MONEY HAD AND RECEIVED.

1. OF MONEY HAD AND RECEIVED BELONGING to another, AND WHICH EITHER OUGHT TO BE PAID TO HIM, OR TO BE APPLIED TO A PARTICULAR PURPOSE; AND OF MONEY DEPOSITED WITH A STAKE-HOLDER: AND IN WHAT CASES SUCH MONEY IS RECOVERABLE FROM THE RECEIVER IN AN ACTION OF INDEBITATUS ASSUMPSIT.

As a general rule it is said, (d) " that if a man receive money which ought to be paid to another, or be applied to a particular purpose, but to which he does not pay or apply it, an action of indebitatus assumpsit will lie as for money had and received." And therefore if A. delivers

(d) Willes Rep. 404.