in full, inadvertently omitting to deduct the legacy duty, which he is required by act of parliament to deduct and pay to the crown, and was afterwards compelled to pay such duty, the statute declaring, that in case the executor omits to deduct the duty, such duty shall become a debt due to the crown from both the executor and the legatee; (q)—where the defendant employed the plaintiff, a sharebroker, to sell shares for him, and by mistake directed the plaintiff to sell 250 shares, meaning 50, and the plaintiff sold the shares; and before the arrival of the time appointed for the transfer and delivery of them, the price advanced, and the broker was obliged to buy 200 shares at the advanced price, to make good the requisite number, and pay the loss on the transaction out of his own pocket; (r)—where the defendant placed in the hands of the plaintiff, a stockbroker, for sale, certain securities, purporting to be genuine and available Guatemala bonds, saleable on the Stock Exchange, and the plaintiff sold them, and received the purchase-money, and handed it over to the defendant; after which it was discovered that the securities were spurious documents, perfectly worthless and unsaleable, and the stockbroker was obliged to take back the bonds, and refund the money; and the action was brought by him to recover from the defendant the amount previously paid him ; (s)-where the plaintiff, a carrier, by mistake, delivered to the defendant goods consigned to a third party, and the defendant appropriated the goods to his own use, and the carrier was obliged to pay the value of them to the consignor; (t)—where the defendant obtained possession of goods intrusted to the plaintiff to be sold at a fixed price, upon the terms that he should either re-deliver them to the plaintiff, or pay the price within a limited period, and the defendant refused to do either; and the plaintiff being threatened with an action, paid the price to the owner, and the action was brought to recover the amount so paid ; (u)— where the plaintiff had entered into a deed of composition with his creditors, upon the terms that they should receive ten shillings in the pound, and the defendant refused to sign the deed without receiving security for the payment of the residue of the debt; and the plaintiff privately gave the defendant his promissory note for the remainder of the debt, upon the terms that he should keep such note in his own hands; and the defendant, in breach of his agreement to that effect, negotiated the note, and the plaintiff was compelled to pay the amount thereof to the indorsee. (.) (q) Hales v. Freeman, 4 Moore, 21; 1 B. & B. 391, s. c. Foster v. Ley, 2 Sc. 438; 2 Bing. N. S. 269, s. c. (r) Sutton v. Tatham, 10 Ad. & E. 27. Pawle v. Gunn, 6 Sc. 286. (s) Young v. Cole, 4 Sc. 489; 3 Bing. N. S. 730, s. c. (t) Brown v. Hodgson, 4 Taunt. 189. (u) Longcham v. Kenny, 1 Doug. 137. (x) Horton v. Riley, 11 M. & W. 492. Bradshaw v. Bradshaw, 9 M. & W. 29. Smith v. Cuff 6 M. & S. 160. -where the plaintiff agreed to grant the defendant a lease, and the lease was prepared by the plaintiff's solicitor, and the plaintiff was obliged to pay for the lease by reason of the defendant's refusal so to do, it being shown that, according to the usual course of business in such cases, the lessor's solicitor prepared the lease, and the lessee paid the expense of it. (y) The law also raises an implied promise in respect of money paid in the following cases—where the plaintiff, at the request of the defendant, has become surety for him for the payment of money, and the plaintiff, by reason of the neglect of the defendant to pay at the time appointed, is compelled to pay the debt out of his own pocket; (2) where the defendant accepts a bill of exchange for the accommodation of the defendant, from motives of kindness, and without value or consideration, to assist the defendant in negociating the bill or note, and getting it discounted for his benefit, and the plaintiff is obliged to pay the bill when it comes to maturity, by reason of the defendant's neglect to provide the necessary funds for the purpose; also where the plaintiff indorses a bill or a promissory note for the accommodation and benefit of the defendant, and is obliged to pay the amount thereof; (a)-also where the acceptor neglects to pay a bill when due, and the plaintiff as indorser is compelled by the holder to pay him part of the amount. (b) In all cases it is sufficient, if the party paying the money shows that the legal obligation was cast upon him by the default of the defendant, and that the law compelled him to do what he has done, he need not wait for the actual issue of legal process, or abide the result of an action, in order to establish the fact of the compulsion. (c) But it has been held that if a party makes a voluntary payment in satisfaction and discharge of some disputed claim, with full knowledge of the facts, but under ignorance of the law, and from a mistake and misapprehension of his legal liability, and no fraud or concealment or wilful misrepresentation has been resorted to by the other side to induce the payment, the law will not help the party so paying the money to recover it back.(d) If an action, for example, has been commenced to enforce a claim put forward by the plaintiff, and the defendant settles the action, (y) Grissell v. Robinson, 3 Sc. 329; 3 Bing. N. S. 10, s. c. (2) Fisher v. Fellows, 5 Esp. 171; Lord Kenyon, 8 T. R. 310. (a) Bleaden v. Charles, 5 M. & P. 14; 7 Bing. 246, s. c. Seaver v. Seaver, 6 C. & P. 673. Reynolds v. Doyle, 2 Sc. N. R. 45. Horton v. Riley, 13 Law J., N. S. Excheq. 81. (b) Pownal v. Ferrand, 9 D. & R. 607; 6 B. & C. 439. (c) Maydew v. Forrester, 5 Taunt. 615. Austen v. Ward, R. & M. 116. White v. Leroux, 1 Moo. & Malk. 349. (d) Bilbie v. Lumley, 2 East, 469. Brisbane v. Dacres, 5 Taunt. 143. Kelly v. Solari, 9 M. & W. 58; Parke, B., 12 M. & W. 186; Tindal, C. J., Parker v. Gt. West. Rail. Co., 7 Sc. N. R. 874. and pays money in satisfaction and discharge of such claim, and then discovers that the claim was unfounded, and that there was no cause of action, he cannot recover back the money on the ground that it was paid by mistake; for there would be no end to litigation if that were to be permitted, and disputed questions and transactions so settled and adjusted were to be opened afresh. (ƒ) It is otherwise, however, if the party making the claim knows it to be unfounded, and wrongfully makes use of the process of the law for purposes of oppression and extortion. (g) “The rule also has always been that if a man has actually paid what the law would not have compelled him to pay, but what in equity and conscience he ought, he cannot recover it back again; as where a man has paid a debt, which was barred by the Statute of Limitations; or a debt contracted during infancy, which in justice he ought to discharge, though the law would not have compelled the payment, yet the money being paid, it will not oblige the payee to refund it." (h) The law also will raise no implied promise out of a transaction which has been a breach of duty, and will give no assistance towards the recovery of money paid in furtherance of an illegal or immoral purpose. (i) Of the IMPLIED PROMISE, in respect of MONEY HAD AND RECEIVED. Money received through mistake.-If a man, through some mistake or misapprehension or forgetfulness of facts, has received money to which he is not justly and legally entitled, and which he ought not, in foro conscientiæ, to retain, the law regards him as the receiver and holder of the money for the use of the lawful owner of it, and raises an implied promise from him to pay over the amount to such owner. (k) It has been held, for example, that the defendant was indebted to the plaintiff in respect of "money had and received by the defendant for the use of the plaintiff," and that the law consequently would imply a promise from the defendant to the plaintiff to pay him the amount received in the following cases-where a contract was entered into for the sale of merchandize, at a price to be calculated according to weight, and an error took place in the weighing, and the goods were reported to be of greater weight than they really were, and the price was calculated and paid by (f) Marriot v. Hampton, 7 T. R. 269. Goodman v. Sayers, 2 J. & W. 263. Hamlet v. Richardson, M. & Sc. 811; 9 Bing. 644, s. c. Knibbs v. Hall, 1 Esp: 84. (g) Duke de Cadaval v. Collins, 4 Ad. & E. 858; 6 N. & M. 324, s. c. (h) Per Lord Mansfield, Bize v. Dickason, 1 T. R. 286. (i) Pitcher v. Bailey, 8 East, 173. (k) Kelly v. Solari, 9 M. & W. 58. Lucas v. Worswick, 1 Moo. & Rob. 293. Milnes v. Duncan, 9 D. & R. 735; 6 B. & C. 677, 678. The same rule prevails in France and other countries, borrowed from the civil law. French Code Civile, tit. 4 liv. 3, art. 1376; Instit. lib. 3, tit. 28, § vi. vii. the plaintiff to the defendant according to such false reckoning, and the action was brought to recover the amount of the overpayment; (7)—where silver was sold in bars, at a price to be calculated according to the number of ounces of pure silver contained in each bar, to be determined by an assay of the metal, and a mistake was made by the assay master, and the plaintiff in consequence thereof paid the defendant for a greater quantity of silver than each bar was found subsequently to contain, and the action was brought to recover the amount of such overpayment; (m)— where the plaintiff had paid rent to the defendant, and it afterwards appeared that the defendant had no right to receive such rent, and the action was brought to recover it back, the title to the land not coming into question, and not being sought to be tried in such action; (n)—where money had been paid by the plaintiff to the defendant for the use of fixtures in a dwelling-house, which fixtures were found to belong to the landlord and not the defendant; (o)—where money was paid by the plaintiff to the defendant for the purchase of a leasehold estate, and it afterwards appeared that the defendant had no title to the lease, and the plaintiff was ejected from the land. (p) Money improperly received and wrongfully detained.-If one man has obtained money from another through the medium of oppression, imposition, extortion, or deceit, such money is, in contemplation of law, money received for the use of the injured party, it is not the money of the wrong doer, he has no right to retain it; and the law therefore implies a promise from him to return it to the lawful owner, whose title to it cannot be destroyed and annulled by the fraudulent and unjust dispossession. It has been held, therefore, that the defendant is indebted to the plaintiff in respect of "money had and received by the defendant for the use of the plaintiff, and that the law will raise an implied promise of payment in the following cases-where a man having a claim or lien to a certain amount on goods and securities in his possession, unlawfully refuses to give them up without receiving more than he is strictly entitled to claim, or having no lien at all upon them, wrongfully refuses to give them up without being paid for so doing, and the owner, in order to get the goods or securities, is obliged to satisfy and discharge the extortionate demand; (q)—where a married man, pretending to be (1) Cox v. Prentice, 3 M. & S. 349. (m) Ib. 349, 350. (n) Newsome v. Graham, 10 B. & C. 234, 236. Monypenny v. Bristow, 2 Russ. & Mylne, 117. The courts will not suffer a title to land to be tried in an action for money had and re ceived. Marshall v. Hopkins, 15 East, 313, Shaw v. single, marries a lady, and under colour of such pretended marriage, gets possession of her estates, and receives the rents; (r)-where one man takes and wrongfully sells the goods of another, (s) or exacts usurious and illegal payments from a distressed debtor, (t) or claims or receives rents or money under a false or pretended authority; (u) or wrongfully usurps the office of another, and receives the fees annexed thereto, (x) or receives a masquerade ticket to be sold or redelivered, and refuses to redeliver it, the presumption being in such a case that he has sold it and received the money. (y) The action upon such implied promise lies also against an agent, who wrongfully demands and receives money in the name and on behalf of his principal, although he may have paid the money over to the latter; (2) or an attorney, who wrongfully exacts money, either on his own account, or on behalf of his client, as the price of the liberation of deeds or securities, unjustly and illegally detained by him on behalf of such client; (a) or a vestry clerk, who wrongfully receives and detains, by the direction of the vestry, burial fees which belong to the rector; (b) or a steward of a manor, who demands and receives an extravagant charge, as the condition of his producing deeds and court rolls in his custody, which the party paying the money could not do without, and which the steward ought to have produced on tender of a reasonable compensation; (c) or a broker in possession of goods under a distress, who demands and receives unauthorised and excessive charges; (d) or a sheriff who exacts a larger fee than the law allows for executing the Queen's writ; (e) or a justice of the peace, who exacts a fee from a publican as the condition of granting him a license; (ƒ) or a toll collector, who exacts an illegal or unauthorised toll; (g) or an overseer of the poor, who levies money by seizing and selling goods upon a magistrates' conviction, which is afterwards quashed; (h) or a revenue Woodcock, 9 D. & R. 889, 892. Wakefield v. (u) Heath, J., Lightly v. Clouston, 1 Taunt. 414. Bonnell v. Foulke, 2 Sid. 4. Robson v. Eaton, 1 T. R. 62. Dupen v. Keeling, 4 C. & P. 102. (x) Howard v. Wood, 2 Lev. 245; 2 Jon. 127, s. c. Arris v. Stukely, Mod. 260. Holt, C. J., Pollard v. Gerard, 1 Raym. 703. (y) Longchamp v. Kenny, 1 Doug. 137. (2) Snowdon v. Davis, 1 Taunt. 359. (a) Smith v. Sleap, 12 M. & W. 588. field v. Newbon, 13 Law J., N. S. (Q. B.) 258 Wake 268. But a person who merely receives money as an agent or attorney is not liable. Stephens v. Badcock, 3 B. & Ad. 354. Howell v. Batt, 5 B. & Ad. 504. The action must be brought against the client or the principal. Bamford v. Shuttleworth, 11 Ad. & Ē. 926. (b) Spry v. Emperor, 6 M. & W. 639. (c) v. Pigott, cited 2 Esp. 723. (d) Hills v. Street, 2 M. & P. 103. (e) Dew v. Parsons, 2 B. & Ald. 562. (f) Morgan v. Palmer, 2 B. & C. 729; 4 D. & R. 283, s. c. (g) Lewis v. Hammond, 2 B. & A. 206. Waterhouse v. Keen, 4 B. & C. 200; 6 D. & R. 257, s. c. (h) Feltham v. Terry, Bull. N. P. 131 a.; cited 1 T. R. 387; 1 Cowp. 419 |