1 East' Rep. 96.

could not be recovered in an action for money had and received, after the ship had been captured.

In like manner it has been holden, that the premium, Vandyck v. Hewitt, paid on an illegal insurance, to cover a trading with the enemy, cannot, after the risk has been run, be recovered back again; although the underwriters could not have been compelled to make good the loss.

1 Selw. 84.

3 Bl. Com. 163. Carth. 446.

2 Keb. 99.

Per Kenyon, Ch. J. 8 T. R 310.

1 Selw. 65.

Merryweather v.
Nixan,
8 T. R. 186.

1 Seiw. 66.

Where a person has laid out and expended his own money for the use of another, at his request, the law implies a promise of repayment, and an action will lie on this assumpsit.

As where one person is surety for another, and compellable to pay the whole debt, and the surety is called upon to pay; it is money paid to the use of the principal debtor, and may be recovered against him in an action for money paid, even though the surety did not pay the debt by request of the principal.

But if A recover in tort against B and C, and levy the whole damages on B, B cannot maintain an action against C, upon an implied assumpsit, for a reimbursement of a moiety; for a contribution cannot be claimed as between joint wrongdoers. But a different rule holds in the case of a joint judgment against several defendants, in an action of assumpsit.

It is observable, that the mere circumstance of one person being benefited by the payment of money by another, is not sufficient to raise an assumpsit against the former ; if it were, and I owed a sum of money to a friend, and an enemy chose to pay that debt, the latter might convert himself into my creditor, nolens volens. The consent of the party, therefore, either express or implied, is essentially necessary to support the action.

So where a person makes a loan of money to another, at his request, the law in this case implies an assumpsit of repayment, and the lender may have an action, for money lent and advanced, against the borrower.

Assumpsit will lie for money lent, though the lender of South-Sea Company the money has taken a pledge for his security; for he shall

v. Duncomb,

2 Stra. 919.

be presumed to trust to the personal security of the bor

rower, as well as to the pledge, unless there appears a special agreement to discharge the person.

In declaring in assumpsit for money lent and advanced, 1 Esp. Dig. 134. it must always be to defendant himself.

Marriott v. Lyster,

For where plaintiff declared for money lent by him to one James Dalrymple, at the special instance and request of de- 2 Wils. 141. fendant, judgment was arrested; for the word lent, is a technical term, and imports a loan to J. Dalrymple ; if so, he is the debtor, and therefore defendant cannot be charged. But it had been otherwise, had the plaintiff declared for money delivered to such a person, at the request of defendant; for then the loan had been to defendant himself.

Butcher v. Andrews,
Salk. 23.

Stephenson v. Hardy,

But where plaintiff declared for money lent to defendant's wife, at his request, and it was attempted to arrest the judg- 3 Wils. 388. ment, on the authority of the cases above; the court held, that a loan to the wife at the husband's request, was a loan to the husband himself, and the plaintiff had judgment; for the husband and wife are but one person.

II. Of assumpsit on a quantum meruit; on a quantum valebat; and on an insimul computassent.

Another class of implied contracts are, such as result from natural reason, and the just construction of law: 3 Bl. Com. 161, 162. Which class extends to all presumptive undertakings or assumpsits; which, though perhaps never actually made, yet constantly arise from this general implication and intendment of the courts of judicature, that every man has engaged to perform what his duty or justice requires. Thus,

1. If I employ a person to transact any business for me, or perform any work, the law implies that I undertook or assumed to pay him so much as his labour deserved. And if I neglect to make him amends, he has a remedy for this injury, by bringing his action upon this implied assumpsit ; wherein he is at liberty to suggest, that I promised to pay him so much as he reasonably deserved to have, and then to aver, that his trouble was reasonably worth such a particular sum, which the defendant has omitted to pay. But this valuation of his trouble is submitted to the determination of a jury; who will assess such a sum in damages as they think he really merited.

Ibid. 162.

3 Bl. Com. 162.

Ibid. 163.

I Esp. Dig. 7.

2 Lev. 252.

I Esp. Dig. 10.

3 Selw. 1180.

2. There is also an implied assumpsit on a quantum valebat, which is very similar to the former; being only where one takes up goods or wares of a tradesman, without expressly agreeing for the price. There the law concludes, that both parties did intentionally agree, that the real value of the goods should be paid; and an action may be brought accordingly, if the vendee refuses to pay that value.

3. Likewise, upon a stated account between two merchants, or other persons, the law implies, that he against whom the balance appears, has engaged to pay it to the other, though there be not any actual promise. And, from this implication, it is frequent for actions to be brought, declaring, that the plaintiff and defendant had settled their accounts together, insimul computassent, (which gives name to this species of assumpsit) and that the defendant engaged to pay the plaintiff the balance, but has since neglected to do it.

III. Of other implied assumpsits.

1. If a person becomes a member of any society or company, he thereby agrees to abide by all legal claims arising against him from the by-laws or local regulations of that society to which he belongs.

Therefore, indebitatus assumpsit was held to lie against defendant for twenty pounds, being the penalty forfeited by the by-law of the company, for not serving the office of steward, in pursuance of such by-law.

2.

Wherever the law has imposed any duty upon a person, and given him certain aliowances or charges for it, he shall recover them in this action. As if a sheriff serves a writ, the law implies that the plaintiff in the action assumed to pay the legal fees arising from such service.

IV. Of assumpsit for use and occupation.

Formerly an action of assumpsit for rent arrear, upon a parol lease for years, could not have been maintained, either pending, or after the expiration of the term; because it was considered as a real contract: The only remedies were by distress, or action of debt. But, on a mere promise to pay a sum of money, or so much as the plaintiff deserved to

have, in consideration of the plaintiff's permitting the defendant to occupy lands, &c. an action of assumpsit might have been maintained at common law. In this case the objection as to the contract being real, was removed by considering the permission to occupy, as not amounting to a lease, and the mere promise to pay a sum of money, in consideration of such permission, as not amounting to a reservation of rent.

In order, however, more effectually to obviate the difficulties which occurred in the recovery of rent, where the 3 Selw. 1180. demise was not by deed, it was enacted by stat. 11 G. II. c. 19, s. 14, "that landlords, where the agreement is not by deed, may recover a reasonable satisfaction for the lands, tenements, or hereditaments, held or occupied by the defendant, in an action on the case, for the use and occupation of what was so held or enjoyed; and if in evidence on the trial of any such action, any parol demise, or any agreement, (not being by deed) whereon a certain rent was reserved, shall appear, the plaintiff in such action shall not therefore be nonsuited, but may make use thereof as an evidence of the quantum of the damages to be recovered."

And where there is a note in writing, expressing the

2 Bl. Rep. 1249.

quantum of the rent, no evidence of a parol agreement for Preston v. Merceau, the payment of any greater rent than is therein expressed, shall be admitted.

Elliott v. Rogers,

It will be proper to remark, that the statute provides a remedy in such cases only where the agreement is not by 4 Esp. Rep. 59. deed; but it has been holden in one case, where the de- Kenyon, Ch. J. fendant held under a mere agreement for a lease, which did not amount to an actual demise, that the plaintiff might maintain an action for use and occupation, although such agreement was by deed.

The words of the statute are, that the plaintiff may recover a reasonable satisfaction for the lands, &c. held or 3 Selw. 1183. occupied by the defendant, in an action for use and occupation. An occupation by the tenant of the defendant, is, as far as it respects the plaintiff, an occupation by the defendant himself. Hence if A agree to let lands to B, who 8 T. R. 327. admits C to occupy them, A may recover the rent in an action against B, for use and occupation.

Bull v. Sibbs,

1 Esp. Dig. 19.

2 Selw. 1186.

Girardy v. Richard

son,

1 Esp. Rep. 13.

I Esp. Dig. 11.

Ibid.

5 Burr. 2639.

The same statute of Geo. has further provided, that if any tenant for life dies before or on the day on which any rent was made payable, upon any lease which determined with the life of such tenant for life, his executors or administrators may, in this action, recover against the undertenant such a rateable part of such rent, as would be due to the tenant for life, for the time he lived.

The defendant in this action will not be allowed to impeach the title of the plaintiff, by whose permission he entered upon, and occupied the tenement demised. Hence a plea of nil habuit in tenementis cannot be pleaded. Upon the same principle, nil habuit in tenementis cannot be given in evidence in this action.

In an action for use and occupation, if it appear that the premises were let to the defendant for the purposes of prostitution, the action cannot be sustained; the contract being contra bonos mores.

V. Of assumpsit arising from sales.

This action, founded on sales, may be either at the suit of the vendor, for the price of the thing sold, on the express, or of the vendee to recover back the money he has paid, some defect appearing in the thing sold, or fraud in the vendor, on the implied undertaking.

For if a contract is made on a sale, it is always supposed that the vendor has a good title; if therefore there is any concealment of the circumstances affecting the title, and vendee has paid the purchase money, he may wave the bargain, and recover back his money.

As where defendant, who was an auctioneer, had sold an Burrough v. Skinner, interest in land, for which the plaintiff had made a deposit of fifty pounds; but upon an objection to the title, and the want of disclosure of some circumstances, the plaintiff declined going on with the contract, for sufficient reason, in the opinion of the court; in consequence of which, plaintiff recovered back the deposit so made.

Flureau v. Thornhill, 2 Bl. Rep. 1078.

But in such case, where the title is not good, the person who had become the purchaser can only recover back his deposit, with interest; not any further damages for the supposed loss of a good bargain.