sum demanded and sought to be recovered by an action, commenced even by bailable process, but not prosecuted to judgment, he cannot recover back the amount, although the demand were unjust and unfounded. This, notwithstanding the action, shall be viewed as a voluntary, not a compulsory, payment (x).

14. Or fees of office, &c., unjustly received by an intruder.— An action for money had and received appears to be maintainable to recover the known and accustomed fees received by the defendant, in respect of an office which the plaintiff was entitled to hold, but of which the defendant has wrongfully possessed himself. The right to the office may, it seems, be tried in this form of action (y); but it is not maintainable to recover mere gratuities received by the intruder from third persons, for services rendered by him in exercising the plaintiff's office, such gratuities not being certain and appropriated fees annexed to the office (≈). And where a bankrupt assigned a policy of assurance on a life to the defendant, but the company with whom the policy was effected considered that the insurance was invalid, the life not being insurable; and thereupon it was admitted by the bankrupt and the defendant that they had no claim upon the office; but by way of gratuity or gift, not as a compromise, the office paid the defendant half the sum insured, on the policy being cancelled; it was held (upon the principle of Boyter v. Dodsworth), in trover by the

(x) Hamlet v. Richardson, 2 Moor & S. 811, 9 Bing. 644. See per Holroyd, J., Milnes v. Duncan, 6 B. & C. 679; Miles v. Dell, 3 Stark. R. 25, 26, per Abbott, C. J, ante, 497 ; and see Dupen v. Keeling, 4 C. & P. 102, cited ante, 496, note (r). But in Cobden v. Hendrick, 4 T. R. 432, note (a), which was an action to recover back money paid without consideration, Lord Kenyon drew a distinction between money paid under a compromise of an action, and money paid under the judgment of a court.

(y) Arris v. Stukely, 2 Mod. R. 260, the case of the office of comptroller of the customs; Howard v. Wood, Sir T. Jones R. 126, 2 Lev. 245, S. C., the case of the stewardship of an honour and court baron granted by the crown. In the latter case the court considered themselves bound by precedent. See per Heath, J., in Lighthly v. Clouston,

1 Taunt. 114, 115; and per Lord Kenyon, C. J., in Boyter v. Dodsworth, 6 T. R. 683. In Lamine v. Dorvell, 2 Lord Raym. 1217, Holt, C. J. seeins to have admitted the doctrine, but mentioned a case in which eminent counsel denied it, and said the action had crept in by degrees. It would certainly be more convenient to require that a form of action should be adopted (as case for the intrusion, &c.), which would place the question on the record. (z) Boyter v. Dodsworth, 6 T. R.

502

assignee to recover the value of the policy, that only the value of the policy, not the sum gratuitously paid, was recoverable (a).

15. Against sheriffs, &c.-The plaintiff in an action may sue the sheriff, or his executors, for money received by the sheriff, or his bailiff (b), under a fieri facias (c). And it seems the action may be brought before the return of the fieri facias (d); and without ruling the sheriff to return the writ, or demanding the money (e). But a mere seizure, without a sale of the goods, will not charge the sheriff in an action for money had and received (f). And if after having seized goods under the plaintiff's writ of fieri facias, he sell them, though irregularly, under another process of the court, at the suit and for the benefit of another party, an action as for money had and received cannot be maintained against him by the first plaintiff (g). The proceeds of the sale become money had and received to the use of the party under whose process it was effected (h).

In the case of Balme v. Hutton (i) it was held in the Exchequer chamber, in error, that a sheriff, who, under a writ of fieri facias, seizes and sells the goods of a bankrupt even before the fiat, but after an act of bankruptcy, though without notice thereof, may be made a wrong-doer by relation, so as to be liable for what he so does bona fide in his official character, to the assignees in trover, &c.

If the sheriff wrongfully seize and sell the goods of a third person under an execution, the latter may sue him for money had and received; and will make out a primâ facie case by proving

(a) Wills v. Wells, 8 Taunt. 264. (b) Underhill v. Wilson, 6 Bing. 697; 4 M. & P. 568, S. C. Aliter, where the bailiff acted expressly for and under the directions of the plaintiff himself; Cook v. Palmer, 6 R. & C. 739; Crowder v. Long, 8 B. & C. 598; Tidd, 9 ed. 1019; Higgins v. M'Adam, 3 Y. & J. 1.

(c) 3 Salk. 323; M'Neill v. Perchard, 1 Esp. R. 263.

(d) See Morland v. Pellatt, 8 B. & C. 726, 727, per Bailey, J., and Littledale, J.; sed vide Morland v. Leigh, 1 Stark. R. 388.

(e) Dale v. Birch, 3 Camp. 347; Tidd, 9 ed. 1019. But if the sheriff be sued without any prior demand of the sum levied, the Court will, on application, stay the proceedings against him, on payment of that sum, without costs;

(f) Thurston v. Mills, 16 East, 274. (g) Thurston v. Mills, 16 East, 254. See Reed v. James, 1 Stark. R. 134.

(h) Swain v. Morland, 1 B. & B. 370.

(i) 9 Bing. 471; 3 Moor & S. 1, S. C., reversing the Judgment of the Court of Exchequer, 2 C. & J. 19. As to the principle in case of insolvency under the insolvent act, Groves v. Cowham, 10 Bing. 5. That money had and received lies if there be a wrongful sale, &c.; Nottley v. Buck, 8 B. & C. 165; Groves v. Cowham, per Tindal, C. J. As to the sheriff taking an indemnity, see Young v. Marshall, 8 Bing. 43, 6 M. & P. 110, S. C.

merely his, the plaintiff's, possession of the goods at the time of the seizure. This was the case of Oughton v. Seppings (k). A sheriff's officer had wrongfully seized, under a fi. fa. against A., a horse belonging to B. The horse was sold by the sheriff, and the money paid over to the officer. B. brought an action against the officer for money had and received, to recover the amount. It appeared that the horse had belonged to the plaintiff's husband, but that after his death she had provided for its keep. No letters of administration were produced: yet it was held, that there was sufficient evidence against a wrongdoer, to entitle her to recover in an action for money had and received.

4thly. INTEREST.

By the late act for the amendment of the law (l), it is enacted, "that upon all debts or sums certain, payable at a certain time or otherwise, the jury, on the trial of any issue, or on any inquisition of damages, may, if they shall think fit, allow interest to the creditor, at a rate not exceeding the current rate of interest, from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time; or if payable otherwise, then from the time when demand of payment shall have been made in writing, so as such demand shall give notice (m) to the debtor, that interest will be claimed from the date of such demand until the term of payment: provided that interest shall be payable in all cases in which it is now payable by law."

Upon this salutary provision it may be observed: First, that it does not extend to special actions on contracts, strictly for the recovery of unliquidated damages (n) resulting from the breach of

(k) 1 B. & Al. 241.

(1) 3 & 4 W. 4, c 42, s. 28. The 29th section enables a jury "to give damages in the nature of interest over and above the value of the goods at the time of the conversion and seizure, in trover, or trespass de bonis asportatis ; and in actions on policies of assurance made after the act was passed," (i. e. after 14th August, 1833). The 30th section gives interest on writs of error, from the time execution was delayed, in any personal action.

(m) The following form may be adopted: "Mr. A. B."-" I do hereby demand of you the payment of the

such contracts, and ascertainable only by a jury:-Secondly, that it is discretionary in the jury, whether or not interest shall be allowed, even in the cases specified, it not being given absolutely:— Thirdly, that they have no discretionary power to award interest, unless there be proof of a written instrument, whereby the debt or sum certain is made payable at a certain time, or of a written demand of the money, comprising a notice that interest will thenceforth be claimed;-and Fourthly, that the jury have no discretion, and must give interest in all those instances in which it was claimable as a matter of right by law at the time the act was passed.

It will therefore be material to consider the state of the law upon this subject, at the time the statute was passed.

The form of the common count for interest is, that the defendant was indebted to the plaintiff in a certain sum, for interest upon and for the forbearance of monies due from the defendant to the plaintiff, and by him forborne to the defendant for a long time, at his request (o).

The general common law rule is, that the law does not imply a contract on the part of a debtor to pay interest on the sum he owes, although the debt may be of a fixed amount, and may have been frequently demanded (p). It is not due, as a matter of right, in the absence of an express stipulation, even in the case of written instruments; unless they be commercial instruments of a negotiable nature, as bills of exchange, &c. (q).

Thus interest is primâ facie not claimable, on a demand for goods sold, although the price was to have been paid on a certain day (r); or on a balance struck on an account for goods sold (s); or for work and materials (t) ; or on a debt for money lent to (u); or paid for, the defendant (x); or had and received by him, though

(0) A count for interest should be inserted, where it is claimed as a debt; Ashby v. Ashby, 3 M. & P. 186.

(p) De Havilland v. Bowerbank, 1 Canp. 50; De Bernales v. Fuller, 2 id., 426; Walker v. Constable, 1 B. & P. 307; Page v. Neuman, 9 B. & C. 378,380.

(q) Page v. Newman, 9 B. & C. 378, 380; Foster v. Weston, 6 Bing. 709; 4 M. & P. 589, S. C.

(r) Gordon v. Suain, 12 East, 419 ; Marshall v. Poole, 13 East, 99; De Bernales v. Fuller, 2 Camp. 428, 429;

Culton v. Bragg, 15 East, 225.

(s) Chalie v. Duke of York, 6 Esp. Rep. 45.

(t) James v. Cotton, 7 Bing. 273. See Trelawney v. Thomas, 1 H. Bla. 305; Blaney v. Hendrich, 3 Wils. 205.

(u) Calton v. Bragg, 15 East, 223; Gwyn v. Godby, 4 Taunt. 346; although the money was lent on a written contract to repay it at a time depending on a contingency; Page v. Newman, 9 B. & C. 378.

(x) Carr v. Edwards, 3 Stark. R. 132.

fraudulently, for the plaintiff's use (y). Nor is interest necessarily allowed on a guarantee (~), a sum insured, on a ship, &c., or life (a); or in an action on a foreign judgment (b); or on an attorney's bill (c); or upon a deed or covenant for the payment of money, even by instalments (d), unless there be a penalty; or upon a replevin bond (e); or recognizance of bail in the King's Bench (f); or upon a sum due upon a balance of accounts (g).

But in some instances the law impliedly gives interest; as upon bills of exchange, and promissory notes, where the claim to it is supported by mercantile usage (h). Thus the acceptor of a bill, and the maker of a note, are respectively liable to pay interest thereon (in the nature of damages (i),) from the time the instrument became due, although interest be not reserved on the face of the instrument, and there be no proof of any demand of payment (k). And the drawer or indorser of a bill, or the indorser of a note, is liable to pay interest from the time he receives notice of the dishonour (7). So, if there be a contract to

(y) De Bernales v. Fuller, 2 Camp. 426; Crockford v. Winter, 1 id., 129; De Havilland v. Bowerbank, id., 51; Walker v. Constable, 1 B. & P. 307; Tappenden v. Randall, 2 id., 472; Goodchild v. Fenton, 3 Y. & J. 481. Auctioneer not liable for interest on deposit, ante, 246. As to vendors' liability, ante, 249.

(2) Hare v. Richards, 7 Bing. 254; 5 M. & P. 35, S. C.

(a) Kingston v. M'Intosh, 1 Camp. 518; Higgins v. Sargent, 2 B. & C. 348; Buin v. Case, Moo. & M. 262; 3 C. & P. 496, S. C.

(b) Hilhouse v. Davis, 1 M. & Sel. 173. As to interest on a Scotch judgment, Arnott v. Redfern, 3 Bing. 353; 11 Moor, 209, S. C.; or Irish judgment, Bann v. Dalzell, 3 C. & P. 376; Moo. & M. 228, S. C. In an action on a Jamaica judgment, (Atkinson v. Lord Braybrooke, 4 Camp. 380; 1 Stark. 219, S. C.) Lord Ellenborough would not allow interest, and said the judgment constituted only a simple contract debt. On English judgment whether equity allows interest, Lewes v. Morgan, 3 Y. & J. 394. As to interest in India, see 3 Bing. 193. In the Scotch courts interest is, it seems, allowed; Arnott v, Redfern, 3 Bing. 353; Foster v. Weston,

6 id., 711,714. See Chitty's Practice, Preface xvii. In France, see Code Civil, Book 3, Tit. 3, sect. 4.

(c) Walker v.Bayley, 2 B. & P. 219. (d) Foster v. Weston, 6 Bing. 709; Higgins v. Sargent, 2 B. & C. 348; 3 D. & R. 613, S. C.

(e) Anonymous, 4 Taunt. 30.
(f) Anonymous, id., 722.

(9) Chalie v. Duke of York, 6 Esp. 45; Bain v. Case, Moo. & M. 262; 3 C. & P. 496, S. C. When equity will not allow interest on a balance in the hands of an attorney, Wright v. Southwood, 1 Y. & J. 531.

(h) Page v. Newman, 9 B. & C. 378; Foster v. Weston, 6 Bing. 709; 4 M. & P. 589, S. C.

(i) Exparte Williams, 1 Rose, Bk. C. 399; Cameron v. Smith, 2 B. & Al. 305; Maberley v. Robins, 5 Taunt. 626; In the Matter of Burgess, 8 id., 660.

(k) Bayl. 5 ed. 348; Chitty B. 8th ed.664. Interest runs from the date of a bill or note payable at a future time "with interest;" Kennerley ▼. Nash, 1 Stark. R. 452; Hopper v. Richmond, id., 507; Denman v. Dibden, R. & M. 380; Richards v. Richards, 2 B. & Ad. 447.

(1) Walker v. Barnes, 5 Taunt. 240.