from him, however much the co-owner may be benefited, for there is no right of contribution between tenants in common (s). (d) Payment by Sureties and Contribution between Co-Sureties. Where one person becomes surety for another at his request, Payments by the law implies a promise by the latter that he will repay the sureties. surety whatever he may be compelled to pay the creditor (t); and in such cases the surety may sue the principal, as soon as he has paid the creditor, for so much money paid to his use (u). between On a similar principle, if several persons become sureties for Contribution the same debt, either jointly or severally, or by the same or sureties. different instruments, and one surety pays more than his proportion of the demand, he may recover against each co-surety an aliquot share of the excess, as money paid to his use. See further on this subject, Ch. XVII., post. (e) Contribution between Joint Contractors. If there be several defendants in an action, and they agree to employ a solicitor to manage the defence on their joint responsibility, and one of them pays the solicitor's bill of costs, he may sue the others for contribution (x); and the case will be the same, even although the defendants were partners, if it can be shown that the contract with the solicitor was made independently of any partnership relation (y). Joint employ ment of solicitor. Similarly, where two parties employ an arbitrator, and one of Of arbitrator. them in taking up the award pays the arbitrator's fees, in reason, justice and law he is entitled to recover half these fees from the other party (z). If one of two contractors, upon a breach by them of their engagement, agree with the creditor to refer the amount of damages to arbitration; although this be done without the consent of the other co-contractor, still the former may, on paying the sum awarded, recover a moiety thereof from the latter, in an action for money paid (a). Payment on award, though reference without contractor. consent of co contribution where con There is no right of contribution, if the contract be for an No right of illegal purpose. Therefore, where plaintiff and defendant had entered into an agreement to conduct an unlicensed theatre, and tract illegal. (8) Leigh v. Dickeson (1884), 15 Q. B. D. 60, C. A. (t) See Toussaint v. Martinnant (1787), 2 T. R. 100. (u) Per Parke, B., Davies v. Humphreys (1840), 6 M. & W. 153. (x) Edger v. Knapp (1843), 5 M. & G. 753; and see Holmes v. Williamson (1817), 6 M. & S. 158. (y) Edger v. Knapp (1843), 5 M. & G. at p. 758. (z) Per Cur., after C. A. V. in Marsack v. Webber (1860), 6 H. & N. 1. See post, Ch. XIX., sect. 4. (a) Burnell v. Minot (1820), 4 Moore, 340. CH. III. S. 2. the plaintiff had, at the defendant's request, paid certain moneys Implied Contracts for him, to persons whom he had employed in the management of ("Money the theatre; it was held that he could not recover from the Paid"). defendant in this action, the money so paid (b). No right of contribution between tort feasors. to pay the whole, he has in Merryweather against his co-defendants (c). v. Niran. "Thirdparty" procedure. So, in the case of an action against several for a tort, if judgment for damages be recovered against them, and one be compelled general no claim for contribution. Where, however, one of two joint coach proprietors was sued for an injury alleged to have been caused by the negligence of his servants, and it was proved that he was not personally present when the accident occurred; it was held that he was entitled to contribution from his co-proprietor, in respect of the damages and costs recovered against him in the action (d). But one proprietor could not, in such a case, maintain an action against his co-proprietor for money paid, if it appeared that there was a partnership fund out of which the expenses of the coach were first to be paid, and that then the residue was to be divided amongst the proprietors (e). In any case of right to contribution the party entitled had before the commencement of the Judicature Acts in 1875, to bring a separate action against the party liable, which action did not lie until the money in respect of which contribution was recoverable had been actually paid; but by sect. 25 (3) and R. S. C., Ord. XVI., rule 48, the party liable may by leave of the Court or judge be brought into the action by the defendant, upon the defendant giving a "third-party" notice. This procedure cannot be pursued by the defendant as of right, and the existing rule, which in 1883 took the place of a rule more extensive, has been construed to extend to an indemnity or contribution in the strict sense of the term, and to apply to a mere claim of damages over (ƒ). In general. SECT. 3.-Implied Contract to pay over Money Received. (a) Generally. The action for money received by the defendant for the use of the plaintiff was called by Lord Mansfield (g), " a kind of equitable (b) De Begnis v. Armistead (1833), 10 Bing. 107. (c) Merryweather v. Nixan (1799), 8 T. R. 186; 16 R. R. 310. (d) Wooley v. Batte (1826), 2 C. & P. 417. (e) Pearson v. Skelton (1836), 1 M. & W. 504. (f) See cases cited in the Annual Practice, especially Birmingham Land Co. v. L. & N. W. R. Co. (1886), 34 Ch. D. 261, C. A. (g) In Moses v. Macferlan (1760), 2 Burr. 1005, 1012. action"; and lies when the defendant has received money, which in justice and equity belongs to the plaintiff, under circumstances which render the receipt a receipt by the defendant to the use of the plaintiff (h). Therefore if A. assign to B. a debt due from C. to A., and C. afterwards pays that debt to A.; B. may recover the same from him in an action for money had and received, although the assignment by A. to B. was merely that of a chose in action (i); and the action lies "for money paid by mistake; or upon a consideration which happens to fail; or for money got through imposition, express or implied; or extortion, or oppression; or an undue advantage taken of the plaintiff's situation, contrary to laws made for the protection of persons under those circumstances" (k). CH. III. s. 3. (Money Had and Received). The writ in this action must be indorsed "the plaintiff's claim Indorsement on writ, and is £ for money received by the defendant as solicitor [or statement of factor, or collector, or &c.] of the plaintiff," or "the plaintiff's claim. claim is £ for a return of money paid to the defendant by mistake," or as the case may be (1); and the statement of claim must contain a statement in a summary form of the material facts on which the plaintiff relies (m). Evidence. must, in As a general rule the plaintiff must in all cases prove :First, that the defendant himself, or his agent (n), has actually Defendant received the money which is sought to be recovered, or that something has occurred which is equivalent to a receipt thereof by the defendant (0). So this action will lie, although the money received was foreign, and not British money (p). And if a stakeholder receive country bank notes as money, the amount may be recovered from him as money had and received (q). It is, in general, essential to this action, that the plaintiff should establish a claim to some particular or specific sum of money, as having been received to his use (r). And if a judgment creditor, who has an elegit on the lands of the judgment debtor, sue a receiver for rents received for his use, and there be prior incumbrances on the lands; it is necessary to prove that they have been (h) Per A. L. Smith, J., in Phillips v. London School Board [1898], 2 Q. B. at p. 453, citing the above case. (i) Smith v. Jones (1842), 6 Jur. 283; and see Tibbits v. George (1836), 5 A. & E. 107, 116. (k) Per Lord Mansfield, C.J., Moses v. Macferlan (1760), supra. (1) See R. S. C., App. A., Part III., sect. II. 58. (m) See ib., Ord. XIX., r. 4. (n) Coates v. Bainbridge (1828), 5 Bing. (0) Per Cur., Prince v. Oriental Bank Corporation (1878), 3 App. Cas. 325, 328, J. C. (p) Ehrensperger v. Anderson (1848), 3 Exch. 148. (q) Pickard v. Bankes (1810), 13 East, 20; per Best, C.J., Spratt v. Hobhouse (1827), 4 Bing. 173. (r) Atkins v. Owen (1836), 4 A. & E. 819; Scott v. Miller (1837), 5 Scott, 11; Harvey v. Archbold (1825), 3 B. & C. 626. general, have actually received money. CH. III. s. 3. (Money Had and Received). Exceptions to no action lies, unless money received. Privity between defendant and plaintiff. satisfied, before the receiver can be held liable in respect of the rents, as for money had and received (s). There are cases, however, in which this action will lie, although no money was ever received by the defendant, but where he has merely admitted that he holds value in money, to which the plaintiff is entitled (t), or has made representations to the plaintiff, which estop him, the defendant, from denying the receipt of the money claimed (u). Thus, where bankers who were authorised to receive certain dividends for their customer, had credited him in their books with the dividends as received, and had allowed him to draw upon them, without having any other funds in their hands; but the fact was, that the entries in the books had been fraudulently made by one of the partners, the dividends never having been received by the house; it appears to have been admitted, that if these entries had been communicated to the customer, the action would have lain (x). So where A., being agent for the grantor and the grantee of an annuity, delivered an account to the grantee, by which it appeared that the agent had received from the grantor certain sums on account of the annuity, which, in fact, he had not received: it was held that the agent was bound by the account delivered, unless he could show that he had given credit for these payments by mistake (y). Secondly, it is necessary, in order to maintain this action, that the money sought to be recovered should have been received by the defendant, under such circumstances as to create a privity of contract between him and the plaintiff (2). Where, therefore, the purchaser of a ticket in a Derby lottery sold it to the plaintiff, and the horse named in such ticket proved to be the winner, whereby the holder thereof became entitled to a prize in money; it was held that the plaintiff could not maintain an action for money had and received, to recover from the treasurer of the lottery the amount of the prize; for, although he held the money for the benefit of the plaintiff, yet there was no privity between them (a). (1) See Spratt v. Hobhouse (1827), 4 Bing. 173. (u) Per Cur., Prince v. Oriental Bank Corporation (1878), 3 App. Cas. 325, J. C. (x) Hume v. Bolland (1832), 1 C. & M. 130. In Hume v. Bolland (1826), R. & M. 371, Best, C.J., left it to the jury to say whether, on the above facts, the firm had, by their conduct in allowing the customer to draw upon them, as if the dividends had been received, adopted the act of the fraudulent banker; and in Prince v. Oriental Bank Corporation (1878), 3 App. Cas. 325, the Court in deciding against the plaintiff laid stress on the fact that there was no communication to him, but merely a mistake between the branch bank and the principal office corrected before it went outside the walls. (y) Shaw v. Picton (1825), 4 B. & C. 715; and see per Abbott, C.J., Shaw v. Dartnall (1826), 6 B. & C. 56, 65. (z) See Barlowe v. Brown (1846), 16 M & W. 128: Vaughan v. Matthews (1849), 13 Q. B. 187, 189; Jones v. Carter (1845), 8 Q. B. 134; Cobb v. Becke (1845), 6 Q. B. 930. (a) Jones v. Carter (1845), 8 Q. B. 134. So, where a country solicitor, who is engaged in a cause, employs a London agent; and the proceeds of the cause are received by the latter in the ordinary course of his business; there is not, in general, such a privity between the client and the agent as will entitle the former to recover such proceeds in an action against the agent for money had and received (b). Thirdly, the mere exister ce between two parties of the relationship of trustee and cestui que trust, will not entitle the latter to sue the former for money had and received to his use (c); but where money is due in equity, and the trustee states an account concerning it with the cestui que trust, it may be recovered at law in this action, or in an action on an account stated (d). CH. III. s. 3. (Money Had and Received). London agent of country solicitor. Action by cestui que trust against trustee. When plain tiff may waive a tort and sue in this action. Fourthly, there are also many cases in which the plaintiff may waive a tort committed by the defendant, and through the medium of which he has received money belonging to the plaintiff, and sue for money had and received (e), as where the defendant tortiously takes and retains the plaintiff's money (f); or takes his goods, and sells them, and receives the proceeds (g); or falsely assuming Receipt of to act as the plaintiff's agent, go and receive my rents from his tenants (h). The action will not lie by one tenant in common against his co-tenant, whom he alleges to have received more than his share of the profits, the remedy being by action of account under 4 Ann. c. 16 (i), s. 27 (k). But where a tenant, having paid rent to A., was ejected at the suit of a third person, who afterwards recovered mesne profits from him, for the period in respect of which he had paid rent to A. it was held that the tenant might recover back such rent from A., in an action for money had and received, he not having set up any title to the premises at the trial (1). (c) Bartlett v. Dimond (1845), 14 M. & W. 49; Pardoe v. Price (1847), 16 M. & W. 451; Bond v. Nurse (1847), 10 Q. B. 244. (d) Per Crompton, J., Howard v. Brownhill (1853), 23 L. J., Q. B. 23, 24; Roper v. Holland (1835), 3 A. & E. 99. (e) See Hambly v. Trott (1776), Cowp. 371; Clark v. Gilbert (1835), 2 Scott, 520; Pratt v. Vizard (1833), 5 B. & Ad. 808; per Tindal, C.J., Young v. Marshall (1831), 8 Bing. 43, 44. If the tort has once been waived, the defendant cannot afterwards be treated as a wrong-doer; Lythgoe v. Vernon (1860), 5 H. & N. 180. (ƒ) Neate v. Harding (1851), 6 Exch. (g) Id.; Lamine v. Dorvell (1706), 2 Ld. Raym. 1216; Foster v. Stewart (1814), 3 M. & S. 191. (h) See per Heath, J., in Lightly v. Clouston (1808), 1 Taunt. 112, 115; 9 R. R. 713, citing authority of Holt, C.J.; and see Hasser v. Wallis (1708), 1 Salk. 28, in which a bigamist who had let his bigamous wife's land and received rents, was successfully sued by her for the rents on her discovering the bigamy. (i) 4 & 5 Ann. c. 3, in the Statutes Revised. 28. (k) Thomas v. Thomas (1850), 5 Exch. (1) Newsome v. Graham (1829), 10 B. & C. 234; and see Barber v. Brown (1856), 1 C. B., N. S. 121; Cripps v. Reade (1796), 6 T. R. 606; 3 R. R. 273. rent by person assuming to be agent. |