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Claim for money lent and interest.

1. At various dates between the 1st of July and the 1st October, 1874, the plaintiff lent to the defendant sums of money amounting in the whole to £150.

Money paid to use of plaintiff.

Request must be proved, except where plaintiff compelled

(a) The actions coming under the head of money are :--
1. For money paid to the use of the plaintiff at his request.
2. For money lent by the plaintiff to the defendant.

3. For money had and received by the defendant for or on behalf of the plaintiff.

Money paid to the use of the plaintiff.]-To maintain this action the following conditions are necessary, viz.-(a) That the money was paid by the plaintiff ; (b) That it was paid at the request of the defendant. To support the first of these it is necessary to show that money was paid, unless where stock (Ilonard v. Danbury, 2 C. B. 803), or a bill or note (Barclay v. Gooch, 2 Esp. 571) is taken as equivalent to money. It must also appear that the money paid was the plaintiff's. Voore v. Pyrke, in East, 52 ; Erall v. Partridge. 8 T. R. 308.)

A request must be proved, even where the plaintiff has paid a debt due by the defendant. *(Stokes v. Lewis, 1 T. Ř. 20.) But a legal obligation to pay another's debt, as in the case of a surety, dispenses with an express request. (See Johnson v. R. Mail Packet Co., L. R. 3 C. P. 38.) On this principle an accommodation acceptor who sued in default of payment by the drawer may recover from the latter the amount of the bill paid by him (Driver v. Burton, 21 L. J. Q. B. 157): aliter if he paid it voluntarily. (Sleigh v. Sleigh, 5 Ex. 514.) If he defends the action at the request of the drawer, he may recover the costs. (Garrard v. Cottrell, 10 Q. B. 679.) And such request is implied. (Stratton v. Mathews, 3 Ex. 48.)

Where the plaintiff paid the funeral expenses of the defendant's wife, who was living apart from him at her death, which took place in the plaintiff's house, he was held entitled to recover, though he knew where

to pay.

When request implied.

2. Such loans were made on the terms that the defendant Claim for

money1

y lent. should repay the same by the 1st of October, 1875, and should pay interest thereon after the rate of 15 per cent. per

to find the defendant, and did not apply to him. (Bradshaw v. Beard, 31 L. J. C. P. 273.)

If the plaintiff allows goods to remain on the defendant's premises with his knowledge but without his express request until rent has become due, and the landlord has distrained, the plaintiff cannot recover from the defendant money paid by him to pay out the distress.

An original lessee may recover in this action money paid by him for Lessee may breaches of covenant by the assignee, on the implied or express promise recover or covenant to indemnify (Moule v. Garrett, L. R. 5 Ex. 132 ; aff. Ex. money Ch. L. R. 7 Ex. 101. See also Roberts v. Crowe, L. R. 7 C, P. 636, per paid for Willes, J.; and Couch v. Tregonning, L. R. 7 Ex. 88.). As to costs paid breaches in action on such breaches, see Howard v. Lovegrove, L. R. 6 Ex. 43. of cove

If a person is compelled to pay money in consequence of his own nant by neglect or breach of duty, though it may be for the benefit of another, assignee of it cannot be recovered from the latter. (Pitcher v. Bailey, 8 East, the term. 171.)

If there has been an express request to pay, the plaintiff may recover, though the debt was one which could not have been enforced, such as a wager (Knight v. Chambers, 24 L.J. C. P. 121), or a time bargain. (Rosemarne y. Billing, 33 L. J. C. P. 55.) A subsequent assent to the payment will be evidence of a previous request. (1 Wms. Saund. 264, b (2).)

Money lent. ]- The plaintiff must show that the money was lent and not repaid. The mere payment of money to the defendant is not Mere payevidence of a loan, as the presumption is that it was in payment of a ment of debt. (Welch v. Seaborn, Stark. 474.) But if the plaintiff can show money not any transactions from which the loan may be inferred, or an application evidence for a loan at the time, this, coupled with payment, will be evidence of a of a loan. loan. (Cary v. Gerrish, 4 Esp. 9.) Where money is advanced by A. to B. as a gift, B.'s assent will be assumed, but if B. declines to accept it except as a loan, the advance is then a loan. (Hill v. Wilson, L. R. 8 Ch. 888.) Where A., at the request of B., agreed to lend C. money on D.'s What is guarantee, and did so, receiving the following memorandum, signed by evidence C. and D., “We jointly and severally owe you £60,” it was held that of a loan. there was evidence of a loan. (Buck v. Hurst, L. R. 1 C. P. 297.)

Money had and received for plaintiff.]-The plaintiff must show that money was received by the defendant, and that it was received by him on account of the plaintiff. The action will not lie to recover a bank note against the finder thereof, it not having been received (Chitty on Bills, 9th ed., 524); aliter if cashed. (10.)

An auctioneer is the agent of both parties, and a deposit on a sale that goes off may be recovered from him as money received to the plaintiff's

Where a deposit is paid to the vendor's solicitor, the vendor may recover it before the question of title is settled. (Edgell v. Day, L. R. 1 C. P. 80.)

Profits made by an agent in the course of his employment belong absolutely to the principal, who may recover them as money received to the use of the plaintiff. (Morison v. Thompson, L. R. 9 Q. B. 480.).

Where an agent receives money to pay over to a third person, though Person he assents to hold it for that purpose, it cannot be recovered from him to whom by such third person until he has entered into a binding agreement to money is hold it to his use or communicates the fact to the third person. (Baron paid for v. Husband, 4 B. & Ad. 611; Lilly v. Hays, 5 Ad. & E. 548.) The holder another not of a bill cannot sne the acceptor's banker for the amount of the bill put liable to into the banker's hands to pay the bill. (Hill v. Royds, L. R. 8 Eq. 290.) that other

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use.

Claim for annum.

Particulars have been delivered to the defendant money lent.

showing the sums lent, and when, and how much is due in till he has respect of interest on each of the said loans. agreed with him to hold the

In cases of a total failure of consideration this action lies to recover money to his use.

money paid on such consideration. But where A. conveyed land to B.,

and A. covenants for title, and B. is evicted owing to A.'s want of title, Money re

A. cannot sue B. for money had and received, but can sue him on coverable

his covenant. (Clare v. Lamb, L. R. 10 C. P. 334.) If the consideration on a total

has only partially failed, the money cannot be recovered. As where a failure of

premium is paid for instructing an apprentice for seven years, and considera

the master dies at the end of the first year, no part of the premium is tion.

recoverable from the personal representative of the master. "(Whincup

v. Hughes, L. R. 6 C. P. 78.) Money paid Money paid under mistake of law cannot be recovered back. (Platt v. under mis. Bromage, 24 L. J. Ex. 63; Barber v. Pott, 28 L. J. Ex. 381.) But take of law money paid under a mistake of facts, which the party receiving has no not re- claim in conscience to retain, can be recovered, though the plaintiff coverable. might have learned the real facts on inquiry. (Milnes v. Duncan, 6 B. &

C. 671 ; Lucas v. Worswick, 1 M. & Rob. 293 ; Kelly v. Solari, 9 M. & Aliter, W. 54.) Semble, before commencing an action a notice of the mistake where mis- should be given to, and demand of the money made of, the defendant. take is as Freeman v. Jeffries, L. R. 4 Ex. 189.) If a person voluntarily waives all to facts. inquiry into the truth, or pays the money with a full knowledge of the

facts, he cannot recover it. (Kelly v. Solari, supra; Viner v. Hawkins, 23 L. J. Ex. 38.)

Where bankers cash a customer's cheque, and afterwards discover that they have no assets of his, they cannot recover the money back from the person to whom they paid it. (Chambers v. Miller, 32 L. J. C. P. 30;

and see Pollard v. Bank of England, L. R. 6 Q. B. 623.) Money ob- Money obtained by fraud may be recovered as money had and received, tained by but it cannot be recovered after it passes into the hands of a person who fraud re- takes it bonâ fide and for value. (Watson v. Russell, 34 L. J. Q. B. 93, coverable. Ex. Ch.)

A person who seeks to recover the amount paid on shares which he

has been fraudulently induced to accept, must do so while he is in a But the position to put both parties in statu quo. He cannot do so if he has fraud, &c., received dividends, and has permitted the company to be incorporated. must be at (Addie v. Western Bank of Scotland, L. R. 1 H. L. Sc. 145, 165); but he once repu. may sue for damages for the fraud. (16.) If the allottee of shares has diated. repudiated them on the ground of fraud, and his name has been removed

from the registry, the sums paid on the shares may be recovered by him. Ship v. Crosskill, L. R. 10 Eq. 73 ; Askew's Case, L. R. 9 Ch. 664.

Where a cheque was stolen during its transmission, and the thief forged an indorsement of the name of the payee to C., a person ignorant of the theft, to whom, on presenting it, the amount of it was paid, held that the payee might waive the tort and recover the amount of it from C.

as money had and received. Money A person who involuntarily pays money, which he is not liable to pay, extorted in order to recover possession of his property or prevent some injury

being done to the plaintiff or his firm, may recover it back. (See Kendal recovered. v. Wood, L. R. 6 Ex. 243.) So where a party to a reference has been

obliged to pay an exorbitant fee to take up the award (Roberts v. Eber. hardt, 28 L. J. C. P. 74, Ex.), or where a public officer demands an excessive fee. (Steele v. Williams, 22 L. J. Ex. 225 ; Dew v. Parsons, 2 B. & A, 562.) So where a railway company refuses to deliver goods until payment of an unauthorized charge for carriage. (Sutton v. G. W.Ry.Co.,

may be

3. All times have elapsed and things happened necessary to Claim for entitle the plaintiff to be paid the said sums, yet the defendant

money lent. has not paid the same or any part thereof.

The plaintiff claims :-
(1.) £150 in respect of principal.
(2.) £37 in respect of interest.

case.

Claim by Plaintiff's in the Alternative for Money lent and on

an Account stated. 1. Between the 23rd of November, 1870, and the commence- Another ment of this action, the plaintiffs from time to time lent to the claim for defendant moneys amounting to £108 158. Od., and paid for the lent, setdefendant from time to time at his request sums amounting to ting out an £78 178. 9d., the particulars whereof are as follow :1870, Nov. 24th Cash lent

£30 0 0 25th ditto

20 0 0 1874, Jan. 15th ditto

3 6 8
17th ditto

4 0 0
Aug. 6th
ditto

9 12 0
Oct. 20th ditto

6 0 0 1874 to 1876, Cash lent in various small sums 35 16 4

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L. R. 4 H. L. 226; Baxendale v. L. & S. W. Ry. Co., L. R. 1 Ex. 137.) So if a sheriff obtain payment by wrongful seizure and threat to sell goods not liable to the execution. (Valpy v. Manley, 1 C. B. 594.).

Where a person pays money for the recovery of which an action is brought, even without prejudice, he cannot recover it, though the action was not well founded. (Bronn v. McKinally, 1 Esp. 279.) So if the money Money has been regularly recovered under legal process. (Hamlet v. Richard. obtained son, 9 Bing. 644.) Even though recovered after judgment by a writ under legal fraudulently issued to levy a sum already paid by the judgment debtor. process (De Medina v. Grove, 10 Q. B. 152.)

cannot be GG 2

recovered,

Another 2. The plaintiffs will in the alternative, if necessary, allege claim for money

that £85 168. 6d. of the said money was lent to the defendant lent, set- by the plaintiff M. R., and £22 188. 8d. by the plaintiff J. R., ting out an alternative and that the whole of the £78 178. 9d. was paid by the plaintiff case. J. R. for the defendant at his request.

3. The plaintiffs will further, if necessary, allege that on the

15th of March, 1875, the plaintiffs and the defendant met and An account went through the various items of the accounts set out in the 1st stated.

paragraph, and that on that day an account was duly settled between the parties, showing a balance of £187 128. 9d. due to the plaintiffs.

The plaintiffs and each of them claim £187 128. Id., and interest thereon till judgment.

Defence.

Statement of Defence. 1. The defendant denies that the plaintiffs, or either of them, ever lent to him or paid for him at his request any of the sums of money mentioned in the statement of claim, or any part of the said sums.

2. The defendant says that the said sums of money alleged to have been lent to him by the plaintiffs, or any of them, were all given to him by the plaintiffs, or one of them, in part payment of various services rendered by him to the plaintiffs, at various times between December, 1867, and July, 1876, in the capacity of secretary and otherwise to the plaintiffs, and secretary and manager of various companies started by them, and that the said sums of money alleged to have been paid by the plaintiffs or one of them, for the defendant at his request were all paid by the plaintiffs, or one of them, for clothes supplied to the defendant by thedesire and at the expense of the plaintiffs in further part payment of the said services, and in order that the defendant might support his character of secretary or manager as aforesaid by appearing well and respectably dressed in public.

3. The defendant further says that if he was at any time previous to the end of the year 1873 indebted to the plaintiffs in any sums of money, he at the end of that year satisfied and discharged all claims of theirs in respect of any such sums of money by payment.

4. The defendant denies that any accounts were ever stated between the defendant and the plaintiffs, or either of them

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