And it CH. III. s. 3. (Money Had and Received). whatever, over or in respect of the subject-matter (k). also lies to recover money paid under process which the plaintiff has used colourably, and with knowledge that the debt claimed did not exist (l). The Court of Appeal in setting aside a final judgment always Recovery of orders the money paid under it to be refunded (m). But this action does not lie to recover money which has been paid to the plaintiff under a bona fide legal process, although it be afterwards discovered that the money was not due, and the original defendant, by finding a lost receipt or the like, be in a situation to prove that fact (n). Nor does the action lie to recover money paid, by mistake, into Court (0), or levied under a fieri facias, which was only irregular, and has not been set aside (p). Nor can money which was levied by a regular execution, under a judgment valid on the face of it, be recovered back in this action, on the ground that the judgment was signed, or the execution issued fraudulently, for the whole sum named in the judgment, although part of it had been already paid (q). And it is clear that if a party, with full knowledge of the facts, pay a sum of money which is sought to be recovered by action, at any time after proceedings have been actually commenced, this will be regarded as a payment under legal process, within the meaning of the rule which we are now considering; so that, if there has been no fraud, it cannot be recovered back (r); for the rule, that money paid under compulsion of legal process cannot be recovered back, applies although the process may never have terminated in a judgment, and although it may have been withdrawn at the date when proceedings are taken for the recovery of the money (s). (1) Action for Fees wrongly received. The action for money had and received is also maintainable, to recover from a party who has wrongfully received the known and accustomed fees of an office, which the plaintiff holds or is (k) Newdigate v. Davy (1701), 1 Ld. Raym. 742; per Lord Ellenborough, C.J., Thurston v. Mills (1812), 16 East, 254, 270. (1) Duke de Cadaval v. Collins (1836), 4 A. & E. 858. (m) Per Lindley, L.J., in Moore v. Fulham Vestry, infra, note (s). (n) Marriott v. Hampton (1797), 7 T. R. 269; 2 Sm. L. C.; 4 R. R. 439; Duke de Cadaval v. Collins (1836), 4 A. & E. 858, 867; Belcher v. Mills (1835), 2 Cr., M. & R. 150; Kist v. Atkinson (1809), 2 Camp. 63; 11 R. R. 664. (0) Malcolm v. Fullarton (1788), 2 T. R. 645. (p) Habberton v. Wakefield (1814), 4 Camp. 58. (2) De Medina v. Grove (1846), 10 Q. B. 152. (r) Hamlet v. Richardson (1833), 9 Bing. 644, 647. See per Holroyd, J., Milnes v. Duncan (1827), 6 B. & C. 671, 679; per Abbott, C.J., Miles v. Dell (1821), 3 Stark. 25, 26. (8) Moore v. Fulham Vestry, [1895] 1 Q. B. 399, C. A. money paid on void judgment-contd. Fees of CH. III. s. 3. entitled to hold, the amount of fees of which such party has wrongfully possessed himself (t). Implied Contracts (Money Had and Received). Goods wrongly seized. But this action will not lie by the nominee of a perpetual curacy, to recover the profits thereof from a party who was in possession, and who likewise claimed to be curate (u), nor 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 to the office (x). (m) Action against Sheriff. If the sheriff in levying execution wrongly seize and sell goods which do not belong to the execution debtor, an action will lie against him by the owner of the goods for the proceeds of the sale (y). Account must be stated with reference to SECT. 4.-" Account stated." Wherever there is an admission by one party, against whom another has money claims, that there is a balance due from him to the other, there arises from such admission a contract, which affords a distinct cause of action, to pay the balance on request (2), as upon "account stated." An admission is essential; the mere receipt without comment of a tradesman's bill is not enough. It is not necessary, in order to support a claim upon an account stated, to show the nature of the original debt, or to prove the existing debt specific items constituting the account. But it must appear that, or claim. Nature of evidence required to support. at the time of the accounting, certain claims existed, of and concerning which an account was stated (a); that a balance was then struck and agreed upon (b); and that the defendant expressly admitted that a certain sum was then due from him as a debt (c). The production by the plaintiff of an IO U, is primâ facie evidence that an account has been stated by the defendant with him although no name is mentioned in the instrument (d); and a (t) Per Lord Kenyon, C.J., Boyter v. (u) Powell v. Milbank (1772), 1 T. R. (x) Boyter v. Dodsworth (1796), 6 T. R. 681. (y) See Oughton v. Seppings (1830), 1 B. & Ad. 241. (≈) See Grundy v. Townsend (1888), 36 W. R. 530, C. A., and other cases cited in Bullen and Leake on Pleading, 5th ed., by Bullen, Dodd, and Clifford, at p. 85. (a) Per Blackburn, J., Laycock v. Pickles (1863), 4 B. & S. 497, 501. (b) Trueman v. Hurst (1785), 1 T. R. 40; Prouting v. Hammond (1819), 8 Taunt. 688. (c) Lane v. Hill (1852), 18 Q. B. 252; and see Barker v. Birt (1842), 10 M. & W. 61. (d) Fesenmeyer v. Adcock (1847), 16 M. & W. 449, 450. bill of exchange or promissory note is evidence of an account stated, as between the immediate parties thereto (e). So, a promise by the drawer of an over-due bill, to pay an indorsee and holder the amount thereof, is evidence of an account stated between these parties (f). But in such a case the plaintiff must show, that the defendant admitted that the amount acknowledged to be in arrear was actually due to him, the plaintiff; or he must show an admission by the defendant, that he was liable for the specified amount to the legal holder of the bill, and prove that he, the plaintiff is the holder thereof (g). If the plaintiff prove an accounting with the defendant, but it appears that the debt, which was the subject thereof, was not due from the defendant in his own right, nor to the plaintiff in his own right, the claim on an account stated will fail (h). And so, on the other hand, if the plaintiff claim upon an account stated with him in a representative character, for instance, as executor, it must appear that the defendant admitted that the debt was due to the plaintiff in that character (i). CH. III. s. 4. When debt claimed by plaintiff in a particular character. must admit It is further necessary, in order to support this action, to show, Defendant not only that the defendant admitted a debt, but also that, expressly or by reference, he acknowledged that some certain amount to amount of money was due from him (k). Thus, a letter of the defendant to the plaintiff in these words:-" I must request you to oblige me by holding my cheque till Monday, and, in the interim, I will send you the amount in cash "-was held not to be evidence of an account stated, so as to entitle the plaintiff even to nominal damages (1). So a mere conjecture expressed by one party to another, as to a certain sum being due to the latter, affords no proof of an account stated, unless it be adopted by the latter (m). Nor will this claim be supported by proving a mere offer by the defendant, to pay a sum of money to the plaintiff, unaccompanied by any admission that there was a debt due to the latter (n). solicitor's letter. But where, in answer to a letter written to him by the plaintiff's Answer to solicitor, demanding payment of a specific sum, the defendant wrote "I will call at your office in the early part of next week, (e) Burmester v. Hogarth (1843), 11 M. & W. 97, 101, 102; and see Fryer v. Roe (1852), 12 C. B. 437; Wheatley v. Williams (1836), 1 M. & W. 533, 541; Perry v. Slade (1845), 8 Q. B. 115. (f) Oliver v. Dovatt (1839), 2 Moo. & Rob. 230. (g) Jardine v. Payne (1831), 1 B. & Ad. 663. (h) Petch v. Lyon (1846), 9 Q. B. 147. (i) See Green v. Davies (1825), 4 B. & C. 235; Tucker v. Barrow (1828), 7 (k) Per Parke, B., Hughes v. Thorpe (1) Lane v. Hill (1852), 18 Q. B. 252; Erle, J., diss. (m) Hughes v. Thorpe (1839), 5 M. & W. 656. (n) Wayman v. Hilliard (1830), 7 Bing. 101. CH. III. s. 4. Implied Contracts (Account Stated). ment must be unqualified. and hope to make some satisfactory arrangement for the payment of Mr. T.'s, the plaintiff's, claim;" this was held to be a sufficient admission of the debt, to support a claim on an account stated (o). And the plaintiff cannot recover upon an account stated, unless Acknowledg he shows that the defendant, at the time of the alleged accounting, admitted a present, unqualified liability, to pay the sum claimed (p). Thus, where the indorsee of a bill of exchange stated to his immediate indorser, before it became due, that, in the event of the bill being dishonoured, he would send and take it up; this was held not to be sufficient to support a count on an account stated (q). Party may recover on an account stated, where he could not on the original debt. But where, on a settlement of accounts between the plaintiff and the defendant, a balance was struck, which the defendant agreed was correct-adding, however, that when he had done certain things, there would not be much, if anything, between him and the plaintiff, it was held that this was good evidence of an account stated (r). And so, where the defendant, on being shown the plaintiff's account, objected to one item, but made no remark as to the others, and promised to send corn for the balance; this was held to be sufficient evidence of an account stated (s). But there are some cases in which the settlement of an account and the admitting a balance to be due will, to a certain extent, afford a new cause of action, and confer a legal right which did not before exist in regard to the original debt. Thus, though, in general, one partner cannot sue his co-partner at law for his share of the profits; yet, if a final account be stated, and one partner admit that there is a balance due from him, he may be sued at Trust money. law by his co-partner for the amount (t); and so may a trustee who states an account concerning money due to his cestui que trust may be sued by him for it (u). Recovery of debt irrecoverable without written evidence. There are likewise cases in which a party may succeed in an action on an account stated, although the original debt might not have been recoverable, from the want of legal evidence to support it, as where a debt is admitted which arises out of an unwritten agreement, to prove which a signed writing is required by the Statute of Frauds (x), or where there is a promise to pay such a (0) Taylor v. Nicholls (1876), 1 C. P. D. 242. (p) See Calvert v. Baker (1838), 4 M. & W. 417; per Parke, B., Burgh v. Legge (1839), 5 M. & W. 418, 421; Evans v. Verity (1825), R. & M. 239. And it is for the Court to decide, whether an admission by the defendant is sufficient to entitle the plaintiff to recover on the account stated; Bishop v. Chambre (1827), 3 C. & P. 55, 58. (a) Burgh v. Legge (1839), 5 M. & W. 418. (r) Rigby v. Jeffrys, 7 Dowl. 561. (s) Chisman v. Count (1841), 2 M. & G. 307. (t) Foster v. Allanson (1788), 2 T. R. 479; Wray v. Milestone (1839), 5 M. & W. 21. (u) Per Crompton, J., Howard v. Brownhill (1853), 23 L. J., Q. B. 23, 24. (x) Cocking v. Ward (1845), 1 C. B. 858, 868. debt (y), or where the debt is also proveable by a memorandum CH. III. s. 4. inadmissible for want of a stamp (2). Implied Contracts (Account Stated). But where it can be shown that the original debt is absolutely void, as being founded on an illegal or immoral considerationor where it is made void by statute, as by the statutes against Except where gaming-then evidence is not admissible to prove an account stated (a). And if, in an action on a solicitor's bill, the plaintiff fails on the claim for work and labour, because no bill has been delivered, he cannot recover on an account stated, although he prove that the charges were assented to by his client (b). An award is not evidence of an account stated, as between the Award. parties to the submission (c). The statement of an account is not conclusive, but only presumptive evidence against the party admitting the balance to be against him (d), there being, as has been said, no rule of law which precludes a man from disputing, accounting for, or explaining, any particular item of such an account (e). But where parties having cross demands, settle and balance their accounts--notwithstanding that part of the plaintiff's demand could not have been recovered by action, the settlement of the accounts binds the defendant, so that he cannot set up that defence when sued for the balance (ƒ). Statement of an account is only presumptive evidence. The discovery of a fraud after account stated is good ground Fraud. for questioning the items (g). (y) Seago v. Deane (1828), 4 Bing. 459. (z) Singleton v. Barrett (1832), 2 C. & J. 368. (a) Cocking v. Ward (1845), 1 C. B. 858, 870, supra, note (x). (b) Brooks v. Bockett (1847), 9 Q. B. 847; Scadding v. Eyles (1846), ib. 858. (c) Bates v. Townley (1848), 2 Exch. 152. (d) See Trueman v. Hurst (1785), 1 T. R. 40. (e) Per Tindal, C.J., Rose v. Savory (1835), 2 Scott, 199, 203; Thomas v. Hawkes (1841), 8 M. & W. 140; Wilson v. Wilson (1854), 14 C. B. 616. (f) Dawson v. Remnant (1806), 6 Esp. 24; and see Laycock v. Pickles (1863), 4 B. & S. 497. (g) Vagliano v. Bank of England (1889), 22 Q. B. D. at p. 127, per Charles, J. |