his edition of Bacon's Abridgment, (k) puts this quære, whether, when the defendant claims title, an action of assumpsit for the rents received will lie against him? for he adds, that Wilson J., in such an action, nonsuited the plaintiff; and was of opinion, that the mode of proceeding was either by ejectment, or where that could not be brought, by an action against the tenant for the rent wrongfully paid by him to the person not entitled to it.

So, in the case of Littlewood v. Williams, (I) where it appeared that a practice had prevailed during the incumbency of several vicars, that upon the burial of any stranger in the parish of H. certain fees should be paid, of which the vicar took one moiety, and the churchwardens the other, for the use of the poor. The fees were paid to the sexton, who paid over the moieties to the respective parties. A new vicar refused to accede to this arrangement; he buried several strangers, and procured the sexton, to whom the fees were paid, to pay over the entire fees to himself. Held, that the churchwardens might recover one moiety as had and received to their use.

But an action for money had and received cannot be maintained against a churchwarden to recover back dues, which, previous to the commencement of the action, had been paid over to the treasurer of the trustees of a chapel. (m)

22. OF PRIZE MONEY RECEIVED; AND WHEN THE RIGHT

TO DISTRIBUTIVE SHARES MAY BE TRIED IN AN ACTION FOR MONEY HAD AND RECEIVed.

It is said (n) to be established upon the authority of a regular series of decisions, that the question of " prize or no prize" cannot be tried at common law, but must be tried before the judge of the High Court of Admiralty; and that the jurisdiction depends not upon the locality, or upon the parties, but upon the nature of the question, which is such, as is not to be tried by any rules of the common law; but by a more general law, the law of nations, administered by forms best adapted to the subject of its jurisdiction, and the interest of all the parties. But after the court of prize have pronounced sentence in favour of the captors, and the property captured is sold, and converted in money for the purpose of being duly distributed amongst the captors, an action at common law for money had and received will lie at the suit of any one of the captors for his share, either against the agent (o) who withholds it, or against the person to whom such share may have been

(k) 1 Vol. 260.

(4) 6 Taunt. 277. 1 Mar. 589. S. C. (m) Horsefall v. Handley, 8 Taunt. 136. 2 Mo. 5. S. C.

ed.

(n) Vide 2 Bro. Cas. in Parl. 429. 8vo.

(0) 4 East Rep. 238. 3 Bos. & Pul. 257. 6 East Rep. 220.

wrongfully paid. (p) So, the captor of a prize may legally assign his share therein before condemnation; and the assignee may maintain indebitatus assumpsit for money had and received to his use against the ship's agent for not paying it over to him after condemnation, &c. (q) But every instrument by which a seaman or marine conveys his prize money or wages in the hands of the public officers, must be drawn in the form prescribed by 26 Geo. 3. c. 63., and the statutes to which it refers, (r) otherwise it will be void.

For more concerning money had and received, vide post, tit. Principal and Agent. Partners - Infants.

(p) Doug. 324. 1 H. Bl. 261. 8 Term Rep. 224. 2 East Rep. 507. 8 East Rep. 502. 1 Taunt. Rep. 1.

(q) Morrough v. Comyns, 1 Wils. 211.

(r) Turtle v. Hartwell, 6 Term Rep. 426. Macdonald v. Pasley, 1 Bos. & Pul. 161.

CHAPTER V.

MON

ON PROMISES TO REPAY MONEY LENT.

"ONEY lent by one person to another, may be recovered by action of indebitatus assumpsit, either upon an express or implied promise to repay the money. So, where money is advanced to B. at the request of A., who undertakes to be accountable for it, the lender may maintain an action of indebitatus assumpsit against A. for so much money lent and advanced to him. Thus, in the case of Harris v. Huntback, (a) which was an action of indebitatus assumpsit upon a declaration for money lent and advanced by the plaintiff to the defendant, and at his request. And upon the trial, a note of the defendant's was produced in evidence by the plaintiff, in the following words: " 3d December, 1751, Received of Mr. Harris the sum of 191. on the behalf of my grandson, which I promise to be accountable for on demand. Witness my hand S. Huntback." It appeared that the grandson was an infant at the time of advancing the money. The Court of King's Bench determined that this evidence was sufficient to support the declaration. And Denison J. said, "This note is evidence of money lent: and as between the plaintiff and defendant, this is certainly an original undertaking; and the money was paid at the defendant's request. And there is no privity between the plaintiff and the infant."

So, if money be lent to A. and advanced to B. at the request of A., an action of indebitatus assumpsit on an implied promise will lie against A. for so much money lent and advanced to him. (b) And the declaration, in such case, must be for money lent and advanced to A.; for money lent to a third person at another's request is bad. (c)

It has, however, been determined, that a declaration for money lent to a feme covert at the request of her husband is good. Thus, in the case of Stephenson v. Hardy (d), which was an action of indebitatus

77.

(a) 1 Burr. 375.

(c) Carth. 446. 1 Salk 23. S. C. Mar

(b) 1 Ventr. 311. 2 Ventr. 36. 6 Mod. riot v. Lister, 2 Wils. 141. S. P.

(d) 3 Wils.388. See also Stone v. Macnair in error, 7 Taunt. 432. S. P.

assumpsit, and the declaration stated "That the defendant on such a day and year, was indebted to the plaintiff in 30l., for money before that time lent by the plaintiff to Ann the wife of the defendant, in his absence, and at his special instance and request, and being so indebted he promised payment." It was proved at the trial, that the defendant being about to set out upon a voyage to Ireland, desired the plaintiff to lend his (defendant's) wife money, if she should have occasion for it in his absence: the plaintiff accordingly did lend her the sum for which this action was brought. At the trial, the plaintiff obtained a verdict. But the counsel for the defendant afterwards moved the court in arrest of judgment, upon the ground that a husband cannot be indebted for money lent to his wife, because she cannot contract or borrow money; but they said, that if it had been alleged that the defendant was indebted in so much money advanced by the plaintiff to Ann, the wife of the defendant, at his instance and request, it would have been right enough; but they argued that the word lent was a technical term, the legal idea or meaning of which is so certainly established and fixed, that it is as impossible for the husband to be indebted for money lent to his wife, as it is for A. to be indebted to B. for money lent to C., a third person, and cited Marriot v. Lister, 2 Wilson, 141. and 1 Salk. 23. 2 Vent. 36. But Lord Chief Justice De Grey said, "It is admitted, that if the word advanced had been inserted in the count instead of the word lent, it would have been good: Now, I think, (in this case,) the word lent is the same as the word advanced; and that this is not like the cases cited, which are good law; I think that a loan to the wife, at the request of the husband, is the same in law, as if the loan had been to the husband himself." And of this opinion were all the other judges. The motion for arresting the judgment was therefore discharged.

Where money is lent on a pledge, the lender may recover it by action of indebitatus assumpsit, unless there be a special agreement to stand to the pledge only. This was determined in the case of the South-Sea Company v. Duncomb, (e) upon a trial at bar, in an action for money lent, it appeared that 8000l. was advanced to the defendant by the plaintiffs in 1720, upon a pawn of 2000l. stock. And the defendant not repaying it, the question to be tried was, whether the plaintiffs could proceed against the person of the defendant, or must stand to the remedy against the stock. And after proof of many particulars, to induce a belief that in these loans no regard was had to personal security; the court left it to the jury upon this point, that where money is generally lent upon a pledge, it will not deprive the lender of his remedy against the person; and that to discharge the

(e) Stra. 919. 2 Barnard. Rep. B. R. 48. S. C.

person of the borrower, there must be a special agreement to stand to the pledge only." The jury accordingly found for the defendant.

But in the case of the Governor and Company of the Bank of England v. Glover, (f) which was an action of indebitatus assumpsit brought by the plaintiffs against the defendant for 4547. 18s. 3d. lent to the defendant by the plaintiffs: and at the trial, before Holt Ch. J., the case in evidence was as follows. "The defendant, January 31st, 1700, brought a note of Mr. Shepherd, a goldsmith, payable to Robert Stamper, for 4547. 18s. 3d., to the Bank of England, and prayed Mr. Maddocks, the cashier of the bank, to give him a specie bank note payable to the said Stamper for the said note of Shepherd; which Mr. Maddocks refused, but told the defendant, that if he would promise to pay the bank the 4547. 18s. 3d. in case Shepherd did not pay the said note, he would give him a specie bank note, payable to himself, for the said sum; to which the defendant agreed. Whereupon Mr. Maddocks accepted Shepherd's note, and gave the defendant, Glover, a specie bank note of 4541. 18s. 3d. This was done upon the Friday. On the Monday following Shepherd's note was sent to him to be paid, but Shepherd refused to pay it. In the mean time Glover gave this bank note to J. S. for a debt owing by him to J. S., and J. S. received the 454/. 18s. 3d. of the bank." And after debate by the counsel on both sides, Holt Ch. J. was of opinion, that this evidence did not maintain the action. For (by him) this was not money lent, nor laid out for the use of the defendant; but it was a buying of the note of Shepherd, with a warranty of it from the defend. ant; and therefore the plaintiffs might well maintain a special action, but not a general indebitatus assumpsit. It was urged by the plaintiffs' counsel, that this note was only a depositum or pledge. But to that the Chief Justice answered, that that could not be, because it was not redeemable by the defendant; and redemption is incident to the nature of a pledge. The plaintiffs therefore were nonsuited.

If A. lend stock in the public funds to B., it cannot be recovered in an action of indebitatus assumpsit as money lent; but the lender must declare specially upon the promise of the borrower; because stock is not considered as money. (g)

Money lent to game with, or to pay a gaming debt, is recoverable by action of indebitatus assumpsit; for the statute 9 Anne c. 14. s. 1. only avoids securities given upon a gaming consideration, but does not extend to loans. And upon this subject the following decisions have been made in the case of Barjeau v. Walmsley, (h) which was an action of indebitatus assumpsit for money lent: it appeared that the plaintiff and defendant gamed together, at tossing up for five guineas at a time and

(ƒ) 2 Ld. Raym. 753.

(g) 5 Burr. 2589. 2 Bl. Rep. 684. 1 East. Rep. 1.

(h) 2 Stra. 1249. See also 1 Bl. Rep.

260.