(on the part of the insured,) the contract on which he has paid his money is not criminal, but merely void; and therefore, having advanced his premium without any consideration, he is entitled to recover it back."

So, if a servant illegally insures in the lottery, and pays the premiums of insurance with his master's money, the money so paid may be recovered back by the master in an action for money had and received against the lottery-office keeper. Thus, in the case of Clarke v. Shee and Johnson, (x) which was also an action for money had and received. At the trial, a verdict was found for the plaintiff, damages 459l. 4s. 4d. subject to the opinion of the Court, upon the following case: David Wood being a clerk to the plaintiff, a brewer, and receiving money from the plaintiff's customers, and also negotiable notes for the plaintiff's use, in the ordinary course of business, paid several sums with the said money and notes, at different times, to the amount of 4597. 4s. 4d. to the defendants, upon the chances of the coming up of tickets in the statelottery of 1772, contrary to the lottery act of that year. The Court determined that the plaintiff was entitled to recover in this action.

But, in the case of King v. Scrape, (y) which was an action for money had and received brought to recover several sums of money, stated to have been paid by the plaintiff to the defendant, for illegal insurances in the lottery, in the years 1793 and 1794. A witness of the name of Felton, called by the plaintiff, proved that he, in the beginning of the lottery, contracted with the defendant to insure for each day of the drawing at a settled price of insurance for each day; that he made insurances with different persons on his account, which he re-assured with the defendant, reserving to himself a certain profit per cent. He then proved, that King, the plaintiff, as well as other persons, insured the several numbers which he mentioned, with him (the witness), which he daily re-assured with Scrape, the defendant; but added, that he never informed Scrape of the persons whose numbers he had insured. This transaction was in 1794. Another witness was called, who proved that in 1793, King had insured in that year with Scrape, but that on the balance of the account the plaintiff was in defendant's debt, the sums paid by the defendant having exceeded the money received as premiums. Eyre Ch. J. said, "The case of Clarke v. Shee does not come up to the present. There the plaintiff's money was paid over to the defendant by the plaintiff's servant; the property passed directly from the plaintiff to the defendant, and he could follow it into the defendant's possession. But in the present case, the property is changed by the intervening contract with Felton, and became vested in him: there is therefore no contract with the defendant in this action. Though there may be some doubt as to the situation of the witness, whether he was (y) 1 Esp. Rep. 432.

(x) Cowp. 197. Loft, 756. S.C.

1

not the agent of the defendant, and the money paid to him for the defendant's use, yet as there is no direct evidence offered to support it, it must be taken from the evidence of Felton, to be otherwise, and the transaction to have been on his own account. And as to the transaction in 1793, as it there appears, that after payments and allowances on both sides, there was a balance in favour of the plaintiff, he therefore can have no right to maintain an action for money had and received, as he had in fact received more money than he paid." The plaintiff was therefore nonsuited.

So, money paid by the insurer, or lottery-office keeper, to the insured cannot be recovered back. Thus, in the case of Browning v. Morris, (a) which was an action for money had and received. The facts were as follow: The plaintiff and defendant were both lottery-office keepers; and during the drawing of the lottery, entered into an agreement mutually to insure the number of a ticket with each other, upon condition, that he whose number should be drawn on the day next following the agreement, should receive from the other an undrawn ticket, or the value of it at the market price. The defendant's number being drawn, he chose the price of an undrawn ticket, which came to 147. 3s., and received that sum from the plaintiff. The next day each insured another number, upon the same terms: and so the contract continued from day to day. It afterwards happened, that the plaintiff's number was drawn, when the defendant, instead of complying with the terms of the agreement, as the plaintiff had done, refused to give the plaintiff, either an undrawn ticket, or the value of one. Neither of them had any tickets in their possession, the consequence of which was, that the contract was illegal, and against the statute. But the question was whether the plaintiff was entitled, in disaffirmance of the contract, to recover back the sum which he had paid upon this illegal transaction?

The Court were of opinion that the plaintiff was not entitled to recover; for it was observed, the plaintiff did not bring his action for money paid by him to the defendant for insuring; but for money paid by him to the defendant in consequence of his having insured the defendant's tickets. So that the plaintiff was not only in pari delicto, but also stood in the light, and under the description of that species of insurer from whom the statute meant to protect the unwary.

(a) Cowp. 790. See also Drummond v. Deey, 1 Esp. Rep. 152. S. C.

21. IN WHAT CASES THIS FORM OF ACTION WILL LIE FOR FEES OR ACCUSTOMED DUES RECEIVED; AND WHICH ARE EITHER CLAIMED BY ADVERSE PARTIES, OR WHERE THE RIGHT OF TAKING THEM IS DISPUTED: AND AGAINST WHOM THE ACTION LIES.

Where a person has usurped an office belonging to another, and taken the known and accustomed fees of office; or where two persons claim title to an office, and one receive the profits, either by himself or his collector, the other may bring indebitatus assumpsit for money had and received, whereon the title must be proved. (b) But such action must be brought against the principal, and not against the collector. (c) So, where a person is entitled to an office with fees annexed, and a stranger intrudes into the office, and receives the fees, this form of action lies to recover them; but they must be certain, known, and accustomed fees annexed to the office, and such as the legal officer could himself recover in a court of law from the persons of whom they are claimed and received. Thus, in the case of Boyter v. Dodsworth, (d) which was an action for money had and received brought to recover back fees, received by the defendant to the use of the plaintiff, as belfry sexton, and church sexton of the cathedral of Salisbury. The plaintiff claimed under two patents in 1777, from the treasurer of the church, confirmed by the dean and chapter, granting to him for a valuable consideration the above offices for life. The one granted to him the office of belfry sexton, "together with the right and full power of keeping keys to and for the doors of the said church, with free liberty of ingress, egress, and regress into and from the said church for cleansing, showing, or otherwise officiating in the same." The other granted to him the office of church sexton, "together with all fees, wages, and profits belonging, &c. in as large and ample a manner as S. C., (his predecessor,) &c. had, &c." The plaintiff having proved these patents, and stated that the defendant had lately intruded into these offices, and had received several sums of money from strangers to whom the church had been shown, Buller J., before whom the cause was tried, called on the plaintiff's counsel to prove that there were certain known and accustomed fees annexed to the offices, and that the defendant had received fees, such as the legal officer could himself recover in a court of law from the persons to whom the church was shown. It was admitted that there were no such regular fees, but that it was usual for different persons to give what sums they pleased: the learned judge nonsuited the plaintiff. A motion, however, was afterwards made for a rule to show cause why the

(b) 2 Mod. 260. 265. 3 Lev. 262. 2 T. Jon. 127. 1 Danv. 27.

(c) 4 Bur. 1984. Bul. N.P. 155.

(d) 6 Term Rep. 681. See also Green v. Hewitt, Peake N. P. 182.

nonsuit should not be set aside, and a new trial granted: But the Court refused the rule, and determined, that money given to A. and claimed by B., as perquisites of office, cannot be recovered by B. in an action for money had and received, unless such perquisites be known and accustomed fees. And Lord Kenyon Ch. J. said: "There is no ground on which this action can be supported. If there had been certain fees annexed to the discharge of certain duties belonging to this office, and the defendant had received them, an assize would have lain; and the action for money had and received to recover fees has always been considered as being substituted in the place of an assize. But there is no pretence to say, that an assize will lie for a gratuity for money given, which the party might have refused to give if he had pleased. And with regard to natural justice, the person who performs the duty is, in justice, entitled to the money given for such duty: here the defendant, in fact, performed the service, and on principles of natural justice he is entitled to the reward. If there had been regular fees due for the duties performed, and the defendant had intruded into the offices, the plaintiff might either have supported an action for money had and received, or for disturbing him in his offices."

So, the nominee of a perpetual curacy, not having subscribed the articles, or been licensed by the bishop, cannot maintain an action for money had and received against one who is in possession of the profits, and who likewise claims to be curate, and has been licensed by the bishop. Thus, in the case of Powel v. Milbank, (e) which was an action for money had and received, brought by the plaintiff, as nominee of the perpetual curacy of Chester le Street, against the defendant, who was in possession of the profits, and claimed likewise to be curate. At the trial, the plaintiff set up a title under Mr. and Mrs. Jolliffe, who had nominated him to this living as a donative, and likewise under a nomination from the Great Seal, which was directed to the bishop in the usual form of presentations. As to the title under the crown, it was proved, that this formerly belonged to the deanery of the collegiate church of Chester le Street, and came to the crown on the dissolution of monasteries, and continued in the hands of the crown till 16 Jac. 1., when the deanery was granted away by the crown, excepting all advowsons, donations, dispositions, and rights of patronage to all churches, vicarages, chapels, &c., and reserving the annual sum of 10l. to be paid to the curate for the time being. No nomination or presentation could be proved by the crown since the 16 Jac. 1., but two or three, and no more, were shown by persons claiming under the grant. The plaintiff then entered on his title under Mr. and Mrs. Jolliffe, and proved the nomination under their seals: that he had taken the oaths of allegiance

(e) Mich. 12 Geo. 5. B. R. 1 Term Rep. 399. n.d.

and supremacy before them, and that he produced his nomination to the bishop, and tendered himself to subscribe the articles, and make the declaration of conformity before him: but the bishop refused to suffer him to do it, because he had before licensed the defendant; and the plaintiff never was licensed by the bishop.

The Court were of opinion, that the plaintiff could not recover; and Lord Mansfield Ch. J. said: "It seems impossible to maintain this action against the defendant, who is completely in possession. A license is never necessary if this action can be maintained, and you may as well bring an action for money had and received, where a man is not in possession, instead of an ejectment. Here this must be taken to be a cure of souls, for it is stated to be a parish; and in that case it is expressly required that there should be a subscription."

Where fees of office are demanded and received, but the party paying them disputes the receiver's right to them, or his own liability to be charged, an action of indebitatus assumpsit for money had and received will lie to try the question between them. Thus, in the case of Andrews v. Cawthorne, (f) which was an action of indebitatus assumpsit for money had and received, to recover back the sum of 3s. 4d. received by the defendant, by order of Dr. Vernon, rector of St. George's, Bloomsbury, as a burial fee claimed by the Doctor for the burial of A. M. in the new church-yard assigned and belonging to the parish of St. George's, Bloomsbury, by virtue of the stats. 9 Anne, c. 22. 10 Anne, c. 11. 1 Geo. 1. stat. 1. c. 23. 4 Geo. 1. c. 14. and 3 Geo. 2. c. 19. But the burial fees of this parish had not been fixed by the commissioners mentioned in the stat. 3 Geo. 2. c. 19. The Court determined, that no burial fee is due at common law: but it may be due by custom in any particular parish: and, with respect to St. George's, Bloomsbury, the burial fees must first be fixed by certain commissioners, as directed by the stat. 3 Geo. 2. c. 19. before they are demandable.

So, this form of action lies to recover back monies demanded and received by one, as Mayor, which were not due to him, but to the chamberlain, who afterwards claimed the amount, and compelled the plaintiff to pay it a second time. (g)

This form of action also lies against a post-master, for receiving more money than he is entitled to for the delivery of letters, or for receiving money of a person claiming the privilege of franking. (h)

So, if A. receives rent of the tenants of B. under pretence of title, it is said, an action of indebitatus assumpsit for money had and received lies against him; for in such case an account will lie: and wherever account lies, an indebitatus assumpsit will lie. (i) But Mr. Gwillim, in

(ƒ) Willes, 536.

(g) Bonnel v. Foulk, 2 Sid. 4."

(h) Smith v. Dennis, Loft. 753. Lord Petre v. Lord Auckland, 2 Bos. & Pul. 159.

(i) Per curiam, 2 Mod. 263. 12 Mod. 324. 1 Dan. Abr. 27.