Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

direction of the mortgagor, paid the sum demanded, under protest; held, that the mortgagor could recover the excess, as paid not under duress in the strict legal sense, but as paid involuntarily under undue pressure. Fraser v. Pendlebury, 31 L. J., C. P. 1. So, if a sheriff obtains payment by a wrongful seizure under a fi. fa. by a threat of selling the goods, though not liable to the execution; Valpy v. Manley, 1 C. B. 594; or, a solicitor illegally detains deeds till an undue claim is satisfied; Wakefield v. Newbon, 6 Q. B. 276; Turner v. Deane, 3 Exch. 836; even though he detain them as solicitor of the third person, who had no right to payment, and though he has paid over the money to his client; Oates v. Hudson, 6 Exch. 346; 20 L. J., Ex. 112;-in all such cases, this action is maintainable. See also Gibbon v. Gibbon, 13 C. B. 205; 22 L. J., C. P. 131. And in these cases it makes no difference that the defendant, who has obtained the money as an agent, has handed it over to his principal. See Steele v. Williams, 8 Exch. 625, and cases cited Id. 629; Oates v. Hudson, supra. Aliter-if the agent has received, without fraud, money paid under a mistake of facts, and has paid it over to his principal, or settled it in account with him. Holland v. Russell, 4 B. & S. 14; 32 L. J., Q. B. 297, ante, p. 545; Shand v. Grant, 15 C. B., N. S. 324.

Personal duress will of course avoid a payment made under its influence; and the wrongful detention of the plaintiff's goods or property for the purpose of obtaining money, will, we have seen above, be ground for reclaiming the money paid under such circumstances; but this is not on the ground of duress, but because the payment is involuntary. Where there is a fair and bona fide agreement, to pay for redelivery of the detained goods, and no undue advantage taken, the action will not lie; for generally mere duress of goods will not avoid a contract or agreement, so as to enable a party to recover back money paid under it. See Atlee v. Backhouse, 3 M. & W. 650; Skeate v. Beale, 11 Ad. & E. 983.

A party cannot try a title to land in an action for money paid, to release goods taken as a distress by a claimant of the land. Lindon v. Hooper,

Cowp. 414. And see the observations of the court in Gingell v. Purkins, 4 Exch. 725, and cases cited ante, p. 545. Nor can the owner of cattle, rightfully distrained damage feasant, recover in this action an excessive demand for damage, though paid under protest. Gulliver v. Cosens, 1 C. B. 788. So, it did not lie by a tenant against his landlord for the overplus after sale under a distress; for the proper remedy was an action for not leaving it in the hands of the sheriff or constable; Yates v. Eastwood, 6 Exch. 805; 20 L. J., Ex. 303; Evans v. Wright, 2 H. & N. 527; 27 L. J., Ex. 50; but it seems that the stat. 35 & 36 Vict. c. 92, s. 13, makes it the duty of the landlord to pay the overplus to the tenant, and this form of action is therefore now the appropriate remedy. Where an action is brought, and the defendant pays the demand "without prejudice," he nevertheless cannot afterwards recover the money so paid. Brown v. M'Kinally, 1 Esp. 279. So, money recovered by regular legal process, though in fact not due, cannot be recovered back in this action; Marriot v. Hampton, 7 T. R. 269 ; Hamlet v. Richardson, 9 Bing. 644; even though recovered after judgment by a writ fraudulently issued to levy a sum already paid by the judgment debtor. De Medina v. Grove, 10 Q. B. 152. But, where a certificated bankrupt, upon being arrested upon a ca. sa. for a debt provable under the commission, paid the money under a protest stating his bankruptcy and certificate, and warning the sheriff that he should apply to the court to have the money returned, it was held that this was not such a payment under legal process, with knowledge of the facts, as precluded the bankrupt from recovering back the money. Payne v. Chapman, 4 Ad. & E. 364. And, where defendant, knowing he had no real claim, arrested the plaintiff, a foreigner, on his

Against Officer de facto.-On Waiver of Tort.

549

arrival from abroad, for 10,000l., and, under the compulsion of a colourable legal process, extorted from him 500l., "as a payment in part of the writ," the court held that this action was maintainable. De Cadaval, Dk., v. Collins, Id. 858.

Against officer de facto.] Though a title to land cannot, as we have seen, be tried in this form of action, a title to an office or appointment is often tried in it. Thus, the person entitled may sue a usurper of an office for the fees wrongfully received, as in the case of the disputed title to a stewardship of an honour or a court baron; Howard v. Wood, 2 Lev. 245; Freem. 478, and cases collected ib. in 2nd ed.; or office of clerk of the papers in the King's Bench office; Woodward v. Aston, 1 Vent. 296; or office of clerk of the peace; Wildes v. Russell, L. R., 1 C. P. 722; or the office of registrar of an inferior court; Osgood v. Nelson, L. R., 5 H. L. 636; or a rightful against a tortious guardian in socage; obiter, per Holt, C. J., in Lamine v. Dorrell, 2 Ld. Raym. 1217; or the office of crier of a court; Green v. Hewett, 1 Peake, 182; or prothonotary; Campbell v. Hewlitt, 16 Q. B. 258. And in such actions it will be sufficient to show the fees received communibus annis; Montague v. Preston, 2 Vent. 170, 171; B. N. P. 76 (e); semb. Campbell v. Hewlitt, supra. But if there are no accustomed fees attached to the office, and the profits are only casual, as in the case of a sexton who receives only gratuities for showing a cathedral, no such action lies. Boyter v. Dodsworth, 6 T. R. 681. The action lies against a corporation which has taken, and wrongfully detained, fees belonging to an officer of it; Hall v. Swansea, Mayor, &c., of, 5 Q. B. 526; and thus the title to the office itself may be tried.

On waiver of tort.] We have seen that a taking or detention of goods from the plaintiff may be sometimes treated as a sale to the wrongdoer; ante, p. 493. So, a wrongful receipt by the defendant, of the proceeds of goods wrongfully sold, may be treated as a receipt to the plaintiff's use, by waiving the preceding tortious detention of them. Lamine v. Dorrell, 2 Ld. Raymi. 1216; Kitchen v. Campbell, 3 Wils. 304. So, where the defendants wrongfully seized money of the plaintiff, and paid it to their joint account at a bankers, it was held that this action lay against both. Neate v. Harding, 6 Exch. 349; 20 L. J., Ex., 250. Where a member of the defendant's firm sold the plaintiff's government stock under a forged power of attorney, and the defendants received the price innocently, it was held that the plaintiff could recover the price in this form of action. Stone v. Marsh, 6 B. & C. 551; Marsh v. Keating, 1 N. C. 198. The right to maintain this action seems in such cases to be founded, not on the right to treat a mere tort as a contract, but on the right to refrain from suing for the tort, and to estop the wrongdoer from setting up his own wrong to defeat the plaintiff's remedy for the proceeds. Thus, if, after a wrongful sale of goods, the owner elect to claim and to accept part of the proceeds of the sale from the wrongdoer as money paid to his use, the tort is waived, and the owner's only remedy for the residue of the proceeds is by action for money had and received. Lythgoe v. Vernon, 5 H. & N. 180; 29 L. J., Ex. 164. See Smith v. Baker, L. R., 8 C. P. 350. Conversely, where the plaintiff has elected to treat the conversion as a tort by recovering a judgment in trover against A., he cannot, even though the judgment be unsatisfied, sue for the proceeds of the sale by A. and the defendant, which sale was the conversion complained of, although the defendant alone received the proceeds. Buckland v. Johnson, 15 C. B. 145; 23 L. J., C. P. 204. Such a defence will, however, require to be specially pleaded. See further notes to Smith v. Hodson, 2 Smith's L. Cases, and post, Part III, sub tit. Actions by trustees of bankrupts.

This action lies to recover money in the hands of an overseer, levied on a conviction which has been quashed. Feltham v. Terry, cited 1 T. R. 387. Money stolen by the defendant from the plaintiff constitutes a debt from the defendant to the plaintiff; but the generally received opinion has been that it could not be sued for until after the prosecution of the defendant for the felony. See Stone v. Marsh, ante, p. 549; Chowne v. Baylis,31 Beav. 351;31 L. J., Ch. 757. And it has been held that the plaintiff would be nonsuited, where his case was founded on an unprosecuted felony; Wellock v. Constantine, 2 H. & C. 146; 32 L. J., Ex. 285. The doctrine on which these cases were grounded has, however, been said to be without legal foundation. Wells v. Abrahams, L. R., 7 Q. B. 554, per cur. See further on this subject, Ex pte. Ball, 10 Ch. D. 667, C. A., Midland Insur. Co. v. Smith, 6 Q. B. D. 561, and Roope v. D'Avigdor, 10 Q. B. D. 412.

In case of wagering contracts.] By the 8 & 9 Vict. c. 109, s. 18, all wagering contracts are made null and void; and no suit can be maintained "for recovering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been deposited in the hands of any person, to abide the event on which any wager shall have been made.” See Higginson v. Simpson, 2 C. P. D. 76.

But if the party depositing the sum staked, claim it back from the stakeholder, even after the event is ascertained, but before the money is paid over, he can maintain money had and received against him. Hampden v. Walsh, 1 Q. B. D. 189; Diggle v. Higgs, 2 Ex. D. 422, C. A. Money deposited as a wager upon a lawful game or race in which the depositors are engaged does not come within the proviso in sect. 18, as a sum of money

66

to be awarded to the winner of any lawful game," and can, therefore, be recovered from the stakeholder as money deposited, on a void contract. S. C. overruling Batty v. Marriott, 5 C. B. 818; Trimble v. Hill, 5 Ap. Ca. 342, P. C. See also Batson v. Newman, 1 C. P. D. 573, C. A.

In cases of illegal contracts.] Where money has been paid in pursuance of an illegal contract, it is generally irrecoverable. See cases cited 2 Smith's Lead. Cases, 8th ed. 547, and Lowry v. Bourdieu, 2 Doug. 468. And there is no distinction in this respect between mala prohibita and mala in se. Aubert v. Maze, 2 B. & P. 371; Cannan v. Bryce, 3 B. & A. 179. But, in some cases it is recoverable as money had and received to the use of the party paying it, as in the following cases: see 1 H. Bl., 4th ed., 65 n. ;—

1. When the contract remains executory, though the plaintiff and defendant be in pari delicto. Tappenden v. Randall, 2 B. & P. 467; as a deposit upon an illegal wager; Aubert v. Walsh, 3 Taunt. 277; Busk v. Walsh, 4 Taunt. 290; or on any other illegal consideration, which has not been executed. Wilson v. Strugnell, 7 Q. B. D. 548. Sed quære, whether the consideration was not executed in this case? Where the plaintiff authorized his money to be applied to an illegal purpose, he may recover it before it has been paid over or applied to such purpose. Bone v. Ekless, 5 H. & N. 925; 29 L. J., Ex. 438. See also Taylor v. Bowers, 1 Q. B. D. 291, C. A.

2. Money is recoverable from a stakeholder in whose hands it has been deposited upon an illegal consideration, though executed by the happening of the event upon which a wager is made; provided the money has not been paid over by the stakeholder to the other party, or was paid over after notice to the contrary. Cotton v. Thurland, 5 T. R. 405; Bate v. Cartwright, 7 Price, 540; Hastelow v. Jackson, 8 B. & C. 221; Hodson v. Terrill, 1 Cr. & M. 797.

3. The money is recoverable, though the contract be executed, if the plaintiff be not in pari delicto with the defendant; per Ld. Mansfield, C. J.,

[merged small][ocr errors]

On Transfer of Debt by and between Three Parties. 551

Lowry v. Bourdieu, 2 Doug. 472. As where money is extorted from the plaintiff by the threat of prosecuting a penal action against him; Unwin v. Leaper, 1 M. & Gr. 747; Williams v. Hedley, 8 East, 378; or, to induce the plaintiff to accept a composition, in common with the other creditors, on the plaintiff's debt to him. Smith v. Bromley, 2 Doug. 696, n.; Atkinson v. Denby, and In re Lenzberg's Policy, cited ante, p. 547. So, where the plaintiff gave the defendant a promissory note for the like purpose, and was compelled to pay it at the suit of a third person, to whom the defendant had indorsed it, he was held entitled to recover the amount from the defendant in this form of action. Smith v. Cuff, 6 M. & S. 160. But in a similar case, where the plaintiff had voluntarily paid the note to the defendant, it was held to be a voluntary payment, which he could not recover back. Wilson v. Ray, 10 Ad. & E. 82.

4. Money is not recoverable where the contract is executed and the plaintiff is in pari delicto with the defendant. Andree v. Fletcher, 3 T. R. 266; Thistlewood v. Cracroft, 1 M. & S. 500; Stokes v. Twitchen, 8 Taunt. 492. So, where the plaintiff has paid money to compromise a prosecution for disobeying an order of sessions, which he afterwards finds to be irregular and void, he cannot recover back his money. Goodall v. Lowndes, 6 Q. B. 464.

The agent of a party to an illegal contract, who receives money paid under it to the use of his principal, cannot set up the illegality of the transaction to an action brought against him by his principal. Tenant v. Elliott, 1 B. & P. 3; Farmer v. Russell, Id. 296. But, it is otherwise where the receipt itself is illegal, and the agent is therefore also particeps criminis; M'Gregor v. Lowe, Ry. & M. 57; per Crompton, J., in Nicholson v. Gooch, 5 E. & B. 1016; 25 L. J., Q. B. 137.

The defence of illegality must be specially pleaded; see Defence in actions on simple contracts, post, p. 592.

On transfer of debt by and between three parties.] Where A. was indebted to B., and B. to C., and B. gave an order to A. to pay C. the sum due from A. to B., and the order was assented to by A., on the security of which C. lent B. a further sum; it was held that, on A.'s refusal to pay, C. might maintain an action for money had and received against him. Israel v. Douglas, 1 H. Bl. 239; Wilson v. Coupland, 5 B. & A. 228; Walker v. Rostron, 9 M. & W. 411; Griffin v. Weatherby, L. R., 3 Q. B. 753. It seems, however, that the agreement must be such that the debt due from B. to C. is thereby extinguished. Cuxon v. Chadley, 3 B. & C. 591; Liversidge v. Broadbent, Wharton v. Walker, infra; Cochrane v. Green, 9 C. B., N. S. 448; 30 L. J., C. P. 97. Where A., being indebted to B., gave him an order upon C., his (A.'s) tenant, to pay the amount out of the next rent that would become due, and B. sent the order to C., but had not any direct communication with him upon the subject, and at the next rent-day C. produced the order to A., and promised him to pay the amount to B., and, upon receiving the difference between that and the whole rent, A. gave a receipt for the whole,-it was held that B. could not recover the amount of the order from C., either in an action for money had and received, or upon an account stated. Wharton v. Walker, 4 B. & C. 163; see the principle of the cases discussed in Liversidge v. Broadbent, 4 H. & N. 603; 28 L. J., Ex. 332. So, where an overseer stopped part of a pauper's allowance, and engaged to pay it to the pauper's landlord for his rent, in pursuance of an understanding between the three, it was held that the landlord could not maintain money had and received against the overseer. Blackledge v. Harman, 1 M. & Rob. 344. Where, by the consent of all parties, the defendant is to pay to the plaintiff a debt due from defendant to A., who is the plaintiff's debtor, it lies on the plaintiff to show that there was, at the time of the agreement, an ascertained debt

due from defendant to A. Fairlie v. Denton, 8 B. & C. 395. A promise by A. to B. to pay money when A. receives a debt due to him from Ĉ., does not constitute an equitable assignment, so as to charge the debt in the hands of C., or to afford a defence in an action by A. against C. for the debt due to him. Field v. Megaw, L. R., 4 C. P. 660. But an undertaking to pay when and as received "all dividends coming to me in respect of my proof for 8007., upon the estate of J. L.," operates as an equitable assignment of such dividends. Ex pte. Brett, 7 Ch. D. 419. A writing opening a credit for a particular sum does not constitute an equitable assignment thereof. Larivière v. Morgan, L. R., 7 H. L. 423. If an order given by A. to B. to pay C. a debt due from B. to A. amounts to a bill of exchange, as defined in the Stamp Act, 1870, s. 48 (ante, p. 225), it will in general be inadmissible in evidence unless stamped as such. Pott v. Lomas, 6 H. & N. 529; 30 L. J.. Ex. 210. See Griffin v. Weatherby, ante, p. 551, and cases cited ante, pp. 227, 228. It may be observed that the Bills of Exchange Act, 45 & 46 Vict. c. 61, s. 53, provides that "a bill of itself does not operate as an assignment of funds in the hands of the drawee, available for payment thereof.”

Under the J. Act, 1873, s. 25 (6), ante, p. 282, any absolute assignment by writing under the hand of the assignor, (not purporting to be by way of charge, only), of any debt of which notice in writing shall have been given by the debtor, is effectual to transfer the legal right to the debt and the remedies therefor from the date of the notice. An assignment by way of mortgage, is within this sub-section. Burlinson v. Hall, W. N. 1884, p. 61, Q. B. D.

In case of partnership.] One partner cannot sue his co-partner for his share of the profits as long as the partnership is undissolved and accounts unsettled; therefore where two persons agree to divide the profits of an agency between them, and one of them receives, on account of such agency, a certain sum of money, the other cannot maintain this action for a moiety, it being a partnership transaction, and there being no account settled. Bovill v. Hammond, 6 B. & C. 149. A transaction between partners may, however, by agreement, or a separate security, be so separated from the partnership affairs, though arising out of them, as to form the subject of an action by one against another. Such an action involves no general account. See Jackson v. Stopherd, 2 Cr. & M. 361; Coffee v. Brian, 3 Bing. 54; Pearson v. Skelton, 1 M. & W. 504; also cases ante, p. 532, Action for money paid, and post, p. 558, Action on an account stated.

ACTION FOR INTEREST.

Where interest is recoverable by law, it is either claimed in a special claim on an agreement or given by way of damages by the jury, though not demanded in the claim, or it is the subject of a separate claim for interest, which last form has been commonly adopted where the principal sum only is recoverable under another claim. Thus, as interest is not generally recoverable, at common law, on claims for goods sold, money lent or paid; vide post, p. 553; it is usual, if interest be due at all, to demand it in a separate claim. Gibbs, C. J., in Maberley v. Robins, 5 Taunt. 625, thought that a separate count was not necessary to enable the jury to give interest by way of damage even on a count to recover a deposit paid on a sale, and in cases within the statute 3 & 4 Will. 4, c. 42, post, p. 555, the claim seems to be superfluous, for the jury may give interest on any issue in such cases. See also Edwards v. Gt. W. Ry. Co., 11 C. B. 588; 21

« ΠροηγούμενηΣυνέχεια »