CH. 9. Cowp. 197, Bl. 65. 3. The plt. paid £64 17s. 6d. premium to the deft., the office keeper, for insuring lottery tickets, and recovered of Art. 11. them that sum, the insurance being void by statute. Here Blackstone J. said the contract was not criminal, but merely void, 2 W. Bl. 1073, as to the plt., for as it was said the act makes the insurance 1075, Jaques v. Golightly. criminal only in the office keeper insuring, and not in the in- Co sured; and according to the case of Browning v. Morris, if 790.-1 H. the office keeper had paid the loss, he could not have recovCowp. 790 ered back the money. And 792, Ld. Mansfield said that the to 793, party paying usury may recover back the excess of interest; Browning v. and so if a bankrupt pay money to get his certificate, he may deft. agrees recover it back, for though he is a party to the illegal act, yet to pay the he is not in pari delicto: in the first case the statute punish- plt. his costs es only the lender on usury, and in the second the creditor the bankrupt. of Morris; the if he would not oppose the deft's. discharge unvent act, is der the insol void; 2 Johns. R. §4. Lord Mansfield in Dougl. 679, (cited,) made this distinction, "If the act be in itself immoral, or a violation of the general laws of public policy, then the party paying shall not illegal and have this action, for where both parties are equally criminal against such general laws, the rule is potior est conditio defen- 286, Waite v. dentis. But there are other laws which are calculated for the Harper. protection of the subject against oppression, extortion, and deceit; if such laws are violated, and the deft. takes advan- Robinson. tage of the plt's. situation, then the plt. shall recover. Bland v. 5. If A receive money to the use of B, on an illegal con- Tennant v. tract between B and C, A shall not be allowed to set up the Elliot, 1 Bos. illegality of the contract, as a defence against B; and Farmer & Pul. 3. v. Russell, 296. 6. So if I get A to insure my ship, and she is not sea- Mashall 557. worthy, I may recover back the premium, when no fraud is imputable to me; for the policy never attaches, the risk never begins; and some cases go so far as to say I may recover back the premium, even though I knew she was not sea-worthy when I received it. These cases go on the ground, that the underwriter never runs any risk in such a case, and so there is no consideration for his retaining the premium. But some doubt, and with some reason, if going so far does not afford very considerable temptations to practise fraud, because the assured has the temptation to throw the risk of a bad ship upon the underwriter, thinking he will not come to the knowledge she is not seaworthy, as the chance is always very considerable he will not, though in fact she be so. ART. 11. For monies mispaid to an agent, not paid over, Cow. 565, &c. 1. One question arises in many of these cases, what Buller v. is a paying over? It has been held that merely passing monies Harrison.177.-Stra. 480.-1 Camp. N. P. R. 396, Townson v. Wilson; for money over-received against parish officers.-4 Bos. & P. 260, Taylor v. Hare. 1 Com. D. Сн. 9. Art. 11. 4 T. R. 553, Hurd; in account &c., is not a paying over; as where the plt. paid on a policy to the deft., as agent for the insured £2100, thinking the loss fair, deft. on the payment passed it to the credit of his principals against £3000 they owed him; the plt. demanded the money as for a foul loss. There was no change of the agent's situation after notice of the loss: he had not accepted any fresh bills, nor advanced any new monies, nor given any new credit to his principals. Judgment for the plt. But held, that had the agent paid it over to the principals before called on, the action must have been against them. Where the agent acts fairly, it is very plain the action ought to be brought against the principal, especially when he holds the money. § 2. In July 1785, the plt. paid monies to Hurd, a collector of Greenway v. excise, on a statute which had been repealed, who, before the action was brought, had paid it over to the superior officer. Judgment for the deft., and the plt. must have recourse to the superior officer. See ch. 56, a. 3, s. 3. Whitebread v. Brooks banks. Lofft 529. 4 Burr. 1984, Sadler v. Evans. 4 Burr. 2133, 3. In this case the plt. paid quit rents to the deft., as the agent of Lady Windsor; the deft. had his receipt for the monies received to the use of Lady Windsor. Her right to the rents was denied by the plt., and he brought this action to try their rights. Judgment for the deft.; for the action should have been brought against Lady Windsor. As the money was paid to her known agent, whether he had paid it over or not, it was improper to try the right in an action against him, and when it was known he acted for her, and the court doubted as to the case of Jacob v. Allen. See 1 D. & E. 62.-i Ld. Raym. 742. 4. If I recover monies for my principal, my services Dale v. Sal- therein are a charge upon them, and may be deducted, and lett. 1 T. R. 285, v. Gelston. pay over to is not in the nature of a cross demand or mutual debt. 5. The plt. was a broker or agent, with a commission del Bige v. Dick credere, that is, he was absolutely liable to his principal, in the son & al. first instance. The bankrupt underwrote policies largely for assignees.9 Johns. R. the plt. for his foreign correspondents, on which the losses were 201, Ripley £661. These the plt. paid to his correspondents in consequence Notice to the of his del credere. The bankrupt owed the plt. this £661, not to and charged him with the premiums. At the time of the his principal bankruptcy the plt. owed the bankrupt £1356. This he paid money to the assignees, not knowing he was entitled to hold the £661 wrongfully due to him as a set-off. Afterwards finding his mistake, he and received, sued for and recovered this £661, which he had a right to is not neces- have retained &c. This case goes on the principle, that one ignorant of his right, may neglect to make his claim when he may do it, and yet afterwards assert it. And was not this ignopulsion, and rance of his legal right? demanded sary, where the payment is by com not made ex pressly to the principal's use. Cн. 9. Art. 12. 6. The plts. in this case confided, though improperly, in the mistaken affirmation of the defts., and paid them money. The court held, the plts. might recover it back in this form of action. As where the deft's. teller told the plts., that the defts. 3 Mass. R. received $850 checks of the plts. of one Rawson's which were 74, Union bad, and the plt's. teller giving credit to this assertion received United them, and paid the defts. for them, when in fact the defts. States Bank. received them of the Boston Bank. Bank v. 7. This was an action for money had and received. The 4 Mass. R. deft. received monies awarded him under the British treaty 326, Heard, of 1794, but in equity and justice it belonged to Geyer & assignee of Geyer & Son Son, and their assignee recovered in this action. According v. Bradford. to this case, if monies be justly due to A, and they be awarded to me, I hold them to his use, in trust for him, and his right to them may be enforced in a court of law in this form of action. In this the cestui que trust recovered against his trustee on parol evidence, proving he was such in fact, though it did not appear in the award. 321, Stiles v. 8. A and B agreed to buy certain goods jointly; A took 11 Mass. R. the whole to himself and sold a part, and applied the rest to Campbell. his own use. Held, he was liable to B for his proportion of the profits of the purchase. Dutch v. Warren. 2 Bos. & P. ART. 12. Several cases money had and received. § 1. In Stra. 406, this case the plt. paid to the deft. £262 10s. For this sum he promised to transfer to the plt. five shares in the Welsh cop per mines on a certain day named. On that day he refused to transfer, and the plt. sued him for the money, as being had and received to his use, and recovered £175, the value of the stock the day on which it should have been transferred. The court considered the action as brought not for the money, "but the damages in not transferring the stock at the time." Quære, if this action was correctly brought. Tompkins v. Bennet, 2. This action lies for a legacy, where the executor ac- Bul. N. P. 130 to 133, knowledges it is ready to be paid; this must be on the ground, Campden v. he has received the money to the legatee's use, though the Turnerbest practice is to sue specially for the legacy. So it lies for monies paid to a customhouse officer to run goods, which were seised. But the plt. must not be particeps criminis; for then Web. there is no reason he should have his money again, for he Bishop. parts with it freely, and volenti non fit injuria, and also the rule melior est conditio defendentis applies. But the rule of volenti &c. does not apply, where the party has not his freedom of exercising his will, and though his restraint is only that of a borrower on usury &c. 3. But this action does not lie, where the deft. enters into articles to account, for the plt. has a higher remedy, a special action on the articles; a special contract too excludes an implied one. Сн. 9. Art. 13. 4 T. R. 182 to 195, Hun ter & al. assignees v. Potts.-1 H. Bl. 665, Sill v. Worswick. -1 East 6, Smith v. Buchanan.Salk. 12.Ld. Raym. 40.-4 Mod. 403, Wil liams & al. v. Carey. 2 W. Bl. 684, Nightingale 4. Blanchard & Lewis in England became bankrupts, Potts, the deft., knowing it, attached a debt due to them from Russell, in Rhode Island, and recovered it. Their assignees, the plts., brought this action against Potts, and recovered, for when Blanchard & Lewis became bankrupts, the debt from Russell became due from him to their assignees, and then Potts recovered it to their use. 5. If an officer levy money on an execution, the plt may have this action; and if the officer die, this action lies against his executor. So if the plt. die, his executor may have it, though objected that it was a personal tort, that died with the plt.; for it is an injury to his estate, and within the equity of the statute of 4 Ed. 3, 13. § 6. But it has been decided, that stock in the funds cannot be demanded as money in this action; for where stock is to be demanded, it must be sued for, and the value of that, at the time it should have been transferred or delivered, is the mea-1 Burr. 589. Sure of damages, and it may be a question, if the form of the action in Dutch v. Warren was correct. v. Devisme. -1 East 1. 6 East 182. Cowp. 793, Jestons v. Brooks. § 7. Nor can the plt. in this action recover an unreasonable demand, though not usurious, as half the profits of a sale over and above principal and interest. Only the net sum without 1 Bo9. & Pul interest can be recovered; for as the action is only for money had and received, it can be only for the money actually received to the plts. use. But as to monies obtained or detained by fraud, see Interest. 306, Walker v. Constable. 1 Com. D. 176. 2 Burr. 1082, Robinson v. 5 T. R. 434, 435, David son. 8. This action lies for money lent at play; for by the statute of the 9 of Ann, the security, not the contract, is void. Had, therefore, the lender taken security, it would have been void, but the matter remaining in contract, that was not void. So was the decision in this case, and this nice distinction is visible, a contract made to me may be valid, and yet the security given to me may be void. A contract to pay me $1000, this may be valid, but his security for it, as his mortgage of lands in fee merely in writing, and not by deed, may be void. But was not the statute passed to prevent gaming? And if such a distinction as above can prevail, the winner will only take a contract, and trust to that and recover, and thereby generally defeat the statute. It may be well doubted if the legislature thought of any such distinction. ART. 13. In this action the husband cannot recover monies son. Atkin- secured to his wife's sole and separate use. § 1. In this case one Stoddart devised lands to three trustees, in trust, to sell for the benefit of certain persons, one of whom was the deft's.` wife, and under it to receive the rents and profits, and to pay a certain part to her, for her sole and separate use, exclusive of her husband's control. The land was not sold, but the trus CH. 9. Art. 14. Term 1799, trees let the collieries &c. The deft's. wife, before her marriage, conveyed one eighth part of the profits to the plt's. wife, then married, to her sole use, and exclusive of her husband's control. The trustees received rents, and paid the deft's. wife her whole part, not knowing she had sold one eighth to the plt's. wife. Judgment was for the deft; for this one eighth belongs to the plt's. wife, her husband cannot sue for it; and the said trustees may be considered as her trustees. If he could recover this money, he would destroy her separate right. § 2. This action dies not lie for money paid on a note. Mass. S. J. This was assumpsit for money had and received. Porter had Court, June a note against Rogers and sued it; and in this action Rogers Rogers v. attempted to prove payment on it, but failed to do it, and Por- Porter. ter recovered the whole note. Rogers then brought this action to recover the amount of the payments, and judgment was against him; for those payments were tried in the first action, and then was the time to try their validity; and that they could not be tried again, for a matter once tried in a personal action is final, and cannot again be tried, on an idea that new and subsequent evidence has been found, as was suggested in this case. In such case there can be no remedy, but in a review or a new trial in the usual course, or specially allowed by the court or the legislature. 3. The plt. paid monies to the deft. for a share in a 13 Mass. R. cruise, proposed to be made by a privateer, which cruise was 216, Woodprevented by a peace made. Held, the plt. could not re- ing. cover it back. ART. 14. Where there is a warranty, this action for money had &c. does not lie. Yet generally it does where plt. pays the deft. for a thing, and by his fault the plt. does not get it; because when there is a warranty, or special covenant, there is a remedy on a special contract to which the party must resort; as where this exists, the law does not, and need not raise an implied promise, or an assumpsit in law, the very ground of this action for money had and received. Nor does this action lie where the plt. ought to look to his title, nor where the contract is executed in part; for where executed in part, this action to recover back the consideration money, does not do final justice between the parties. See Ch. 122, a. 15, this subject further considered. ward v. Cow Read. 2. Carey Bartlett possessed a leasehold estate, and died, 6 T. R. 606, and his widow took administration on it, calling him Caleb Cripps v. Bartlett; she died, and the deft., Read, claimed the estate as 1 Com. D. her administrator, and sold it to the plt. for £42, and delivered 175, see to the plt. the lease itself, but made no assignment of it, or Johnson, any conveyance. The deft. said "the premises were his right 3 Bos. & P. 161, 170.Jones v. Ryde, 5 Taun. 488.-11 Johns. R. 527-12 Johns. 436.-But. Serg. & Rawle 42. Johnson v. |