two of them being leaky, as the deft. said, and replaced them, the three, as he also said, by three of his own. The deft. brought the five pipes to Baltimore, where the plt's. agent, by his order, received them and paid the duties. Held, the plt. might recover back the duties paid on the three pipes, by mistake, and on the deft's. misrepresentation, and because not paid on the plt's. wine, but by mistake on the deft's. wine. And in this case the act of the agent was viewed as the act of the principal, qui facit per alium facit per se. Cн. 9. Art. 15. 31, Shearer v. Fowler. § 12. General principles. This was assumpsit for money had and received. And held, when money is paid in consid- 7 Mass. R eration of a contract, which is void for want of in power one of the parties, or for any cause, other than fraud or illegality in the contract; the money so paid may be recovered back in this action. In this case Fowler and his wife were seised of land in her right, and she in her own right and as attorney to him, made a deed of it to the plt., who paid for it $160 &c., and gave his note for $200. Plt. sued to recover back the $160, the deed being void. See Fowler v. Shearer, ch. 130, a. 4. The note for $200 was nudum pactum; the land remained with Fowler and wife. Land taken in execution by the deft., viewed as money, ch. 32, a. 10, s. 7. §13. Assumpsit for money had and received. Nov. 25, 1793, the plt. lent the deft. $500 on bottomry, on the Schoon- 8 Mass. R. er, Charming Sally, the deft. owned, and on a voyage to the 340, 369, West Indies. He gave a bond in the usual form. She was Appleton v. Crowningcaptured in the voyage on her return by the British, and con- shield. demned in the lower prize court, but restored on the appeal, and the commissioners under Jay's treaty of 1794, awarded the owner the value of his vessel and freight, with interest. Judgment for the plt. for the sum lent, and interest received by the deft. under the said award. The plt. had sued on the bottomry bond, and judgment for the deft. in that action. ART. 15. For monies paid, laid out, and expended, recovered in this action &c. 1. The plt. may recover in assumpsit any monies paid, laid out, and expended for the deft's. use, and at his request, expressed or implied; and the law implies a request whenever the deft. ought, in justice and equity, to pay or contribute to the plt. The same principles govern in this case, as in the case for money had and received, but with several differences in their application; and the same general objections exist, that the deft. may not be able to be prepared for trial, and that the points decided do not appear on record. In the former case the deft. receives the plt's. monies, and in this the plt. advances, pays, and expends his own money for the deft's. benefit, and at his request, expressed or implied, in Сн. 9. 2 T. R. 100, 105, Toussaint v.Marti nent-Imp. M. P. 189. 7 D. & E. 568, Cowley v. Dunlap & al. 8 T. R. 186, Merryweather v. Nison. 2 Bos. & P. 268.-3 East 169. 1 T. R. 20, Stokes & al. v. Lewis & al. 8 T. R. 310, Exall v. Partridge.-1 H. Bl. 90. 3 T. R. 418.-- in 1 Com. D. 203.-See sect. 10. He carried them to, and sold three of them in, the West Indies, circumstances in which the deft. is bound in equity and by the ties of natural justice to reimburse the plt. 2. As where the plt., as surety, joins in a bond or note with the deft., and pays the debt. The plt. has this claim against the principal, the deft., for the amount, as money paid to his use; but not if the plt. had taken a counter bond, for the amount engaged for, for then he has a special contract and security, to which he must resort, for reasons before mentioned; also, after stated. 3. If A recover in assumpsit against two defts., and levy the whole damages on one, he may make the other contribute in this form of action for a moiety; but it is otherwise in cases of torts, for these are in their nature several, and each wrongdoer is originally liable for the whole, and two partners may join against one, if they pay money by his bad conduct. § 4. But assumpsit for money paid, laid out, and expended, does not lie, when the money has been paid against the express consent of the deft. As where two parishes have been used jointly to choose a sexton, and pay him, and then one elects one, it cannot make the other pay part of his salary; it is not paid on the express or implied consent of the parish not electing. And so one never can make me his debtor by voluntarily paying money to my use, and against my consent. And there never can be the deft's. express or implied consent in favour of the payment, when he expressly forbids or disavows it. See Jenkins v. Tucker, ch. 9, a. 20, s. 24; and Hunt v. Bate, Dyer 272; Hob. 105; D. & E. 20; 1 Rol. Abr. 11, and Hawkes v. Saunders, another chapter. ART. 16. On illegal contracts. § 1. In 1773, Keeble, Sadlier, Petree, and Haunay, joined in stock-jobbing, against the statute; all their acts were illegal, except the transfer of £10,000; incurred losses; and Jan. 8, 1774, settled with Portis, their broker, who had paid all the differences. Keeble repaid him all he had advanced, except £811 part of Hannay's share of the losses. For this Keeble drew a bill on him, in favour of Portis, which Hannay, the deft., accepted. This bill not being paid, Portis sued Keeble's executor, the present plt., who on recovery paid the bill, no defence being set up on account of the illegality of the transaction. £264, part of the sum the deft. accepted the bill for, was his part of the loss arising from the transfer of the £10,000. The plts. sued to recover the sum they had paid Portis; the declaration was for money paid by plt's. to the deft's. use. Verdict was for them for their whole demand. A motion was made to set the verdict aside, or to reduce it to the £264; this motion was denied. Cн. 9. Art. 16. This bill as to the £264 was fair; as to the rest of the bill Lord Kenyon was inclined against the plts. But Buller and the other two judges seemed to go on this ground, that this act was not malum in se &c., but malum prohibitum only; that though the law will not raise a promise out of such an illegal transaction; yet here was the deft's, express promise and consent; that he in fact requested Portis to pay the differences, and actually assented, which, in case of malum prohibitum, gave Portis an action against the deft., if so, the case was clear, that the deft., in fact, promised the testator by accepting the bill; so an express promise in such a case and good; that after this the deft. was bound in conscience to pay, as consenting and being privy, and if Portis had been plt. he might have recovered. And Buller J. said, that in a legal transaction "if one partner pay the whole partnership debt, without any express promise from the other, the law gives him a right to recover it back, in an action for money paid to the use of the other partner and it proceeds on this ground that both are liable to pay. But in case of illegal contracts, as they are not bound to pay, one of them cannot acquire a right of action against the other, by paying the whole without his consent; in such cases it is necessary to have the consent and direction of the other." That the court here may infer," that the money was paid with the knowledge, consent, and authority of the deft. ;" and, that also "Portis paid the money with the consent of the deft." Buller J. relied on Fackney v. Reynous & al. 4 Burr. 2069, 2073. There, Fackney the plt., and one Richardson were partners, and Fackney paid £3000 in stock-jobbing business, against the statute, £1500 Fackney v. on his own account, and £1500 on Richardson's account, and Reynous. the defts. gave the plt. their bond for £1500 for what he had paid for Richardson, and held good. The paying the £1500 was not malum in se, but only prohibited by the act of Parliament. According to these cases if two men be partners, and one pay $100 for smuggling goods, which is malum prohibitum only, though the law will raise no promise in the other to pay his half, yet if he give his note or bond, or make his express promise to pay, this he will be held to perform. 62, Steers v. 2. The deft. and others engaged in stock-jobbing busi- 6 T. R. 61, ness against the statute. One Wilson, his broker, paid the Lashley. differences for the deft. He and Wilson referred, and the award was, that there was due £306 12s. 6d. from the deft. to Wilson; for £100, part of which Wilson drew his bill on the deft. who accepted it, and Wilson endorsed to the plt. who was one of the referees; he was nonsuited, because the bill grew out of a stock-jobbing transaction, and the plt. knew it, and the bill was given for the difference. Сн. 9. 2 H. Bl. 379, Mitchell v. Hodgson. § 3. The plt. and deft. were partners in the insurance of ships &c. contrary to the statute of 6 George I. The business was carried on in the plt's. name, and he paid all the losses. He cannot recover of the deft. a share of the monies paid; for the plt. entered into illegal contracts to which the deft's. consent was not implied by law. The law will not raise a promise to an illegal purpose. § 4. An agreement to dispense with deceit is contrary to Doct. & Stud. good morals, is indecent, and void; upon the general principle that the law forbids every agreement or contract to do or have done any thing that is immoral. 38. Mass. S. Jud. June 1800, § 5. In this action the plt. sued for a balance of £30 on coln County, account, the deft. offered to pay £12. They played a game at cards to decide whether the deft. should give his note to the plt. for £30, or £15, the plt. won, and the deft. gave his note for £30. The court adjudged this to be a good note, on a plea on the statute against gaming; but was the play lawful? 6. In this action it was holden, that if A, an inhabitant of Guernsey, knowingly sell goods to B to be smuggled into EngCowp. 341, land, and assist him for the purpose, the contract of sale is void, and A cannot recover; but otherwise, if A be a foreigner. So possibly if A had not assisted. See Gaming. 4 T. R. 466, Clugas v. Penaluna. Holman v. Johnson. 5 T. R. 596, v. Reed. See Briggs v. Lawrence, 7. But in a later case the same disability was extended &c., Waymit to a foreigner, as when the plt. of Lisle sold to, and packed up goods for the deft., in a suitable manner to be smuggled into England, though he was not concerned in the risk of importing the goods into England; and the court held he could not recover the price of the goods, for so packing them was assisting in the smuggling. The assisting was the objection. 3 D. & E.454. 2 H. Bl. 379, Robertson v. Tyler.--Watson's Part. 114, 115. 2 Bos. & Pul. v. More. Watson on 8. No implied promise arises out of an illegal transaction, as if A and B be concerned in illegal insurances, and A pays the losses with B's express consent, he cannot compel him to pay his proportion of the losses so paid; but here was no express contract. 9. In this case all the former cases were examined, and 371, Aubert the authority of Mitchell v. Cockburn fully recognised. This was a case of losses paid by one partner on illegal insurances, and referees had awarded the other should contribute his part, and the court held the award was bad, and it was set aside. In this case the court seemed to doubt the distinction, between the cases of money paid by one man for another in malum in se, and malum prohibitum and Rooke J., thought that " every moral man is as much bound to obey the civil law of the land, as the law of nature." And on the whole, the sound principle is, the law will not raise or imply any promise in aid of a transaction forbidden by the law of the land; but it does not follow, the law will lend its aid to defeat an express contract, as a bond or note, or the maxim melior est conditio possedentis. CH. 9. Art. 17. Ch. 82, a. 35. ty.-1 Mass. ART. 17. For monies paid by sureties, bail, &c. §1. It is a settled principle in law and equity, that if a surety or bail pay his principal's debt, he may have this action for monies paid, laid out, and expended. The only question of any difficulty is, when he may have it. Dig. 12. 4. 4.-Fide-jussor Dig. 46. 16. 7.-Dig. 17. 1. 38. § 2. It has been holden, that if the surety pay the debt of 5 Co. 24, his own accord, though not arrested or sued, he may sue his case of principal. If there be a bond of indemnity, it is not necessary that the same should be sued, for if the surety pay the money without suit, the bond of indemnity is forfeited. 3. For the mode of indemnifying a surety, see the article, Save harmless, and Symonds v. Wheeler. Broughton.1 Esp.265. See Jenkins v. Tucker. Ch. 9, a. 20, 24. R. 137.-2 BI. Com. 70, Chris. Notes. shaw.-Cro. Cro. El. 369, Whight v. 13, Chris. 3. "The principal is not indebted to the surety, till he is obliged to pay the debt for him," and if this do not happen till after the bankruptcy, the surety cannot prove his debt under the commission. In ancient times if the surety paid the bond, he could not recover of the principal. It is well settled, that a surety need not wait till he is sued, but he may pay the debt when it becomes due, and when also judgment is recovered against him, so that his person or estate is exposed to execu- Harvy.tion, he may sue his principal for monies paid to his use, and 3 Bl. Com. at his request, implied in law; and this where the surety Notes.-2 T. relies on the legal assumpsit, raised merely by the operation R. 105.of law on the substantial principlies of justice and equity. § 4. But whenever the surety takes an indemnifying bond v. Johnson's in fact, or other security, he may then sue according to the adm.--4 In. tenor of it; for he may lend his credit for what time, or on 437-Cro. what terms he pleases; the surety is damnified by payment or James 339. judgment against him, though no execution has issued; for 2 T. R. 100, the reasons elsewhere in this article mentioned. § 5. So if the surety be sued, and obliged to retain in his case counsel, he is damnified, and whenever he is damnified he may sue. In one case it is stated, that if the money be not paid, by which the surety is chargeable, and dare not attend his business, he is damnified and may sue. 6. And in another case it is stated, that if the money be not paid at the day, it is a present forfeiture of the counter bond; for he has put the plt. in danger of being arrested, and it is a present damage. And in another case it is stated, that if the creditor endeavour to arrest the surety, he may call on his principal for indemnity; but though the surety is thus damnified, yet the amount of his damages will depend on the circumstances of the case. 1 Hen. & M. 449, Murrill Cl. 454, 430, stated in Ch. 169,a. 2.-In. Cl. 436, 442. 1934 In. --Mod. Int. Cl. 437, cites 3 Bulstr. 233.10 E. 487. Bulstr. 233. -10 E. 4, 27, 21, Cutler v. Southern. 28.-1 Saund. 2 T. 100, 7. On the counter security the surety may sue according Toussaint . to the provisions of it. As where, Nov. 1783, the surety join- Martinent.-ed in the original bond with his principal to A, to pay March 3 Wils. 262.- 7 D. & E. 548. |