Sec 757

While, however, the principle is settled that the mere payment of money by A. on behalf of B., unless requested by B., does not give A. a claim against B., yet it is not necessary, in order to prove a request, that an express application from B. to A. should be shown. "We may infer a request from the prior business relations of the parties; from the fact that B. was aware at the time of the payment and encouraged it; from the fact that the payment was in pursuance of a plan previously approved by him; from his acceptance of its fruits; in fine, from any circumstances from which we may hold it probable that A. paid the money at B.'s instigation, or, at all events, with B.'s approval.1 The most familiar illustration of the principle before us is to be found in the payments by general agents advancing money in the ordinary course of business for their principals, which advances, when within the range of the agent's duties, the principal is bound to refund.2 The same rule applies to payments made by one party to an adventure for its promotion, which payments were in furtherance of the common plan, and which he is entitled to recover from his co-adventurers.3 Where, also, certain lands were bought in at an auction sale, and the duties imposed by government were paid by the auctioneer, he was held entitled to use this form of action to recover the money back from the party whose property was relieved.4 A trustee, also, under a will, who pays a legacy duty upon an annuity, may recover, in the same way, the money paid from the legatee.6 So, also, where the London custom in negotiating and perfecting a lease, was that while the lessor's solicitor should draw the papers, the expense was to be paid by the lessee, it was held that such expenses, having been prepaid by the lessor, could be recovered back in this form of action from the lessee.1 The furthest limit that has been reached in this direction is in respect to services rendered in the interment of the dead. It has been held that a party who voluntarily incurs expenses in burying another, can recover the expenses of the funeral from that other person's estate;2 and that a husband, absent at the time of his wife's death, is liable to a party who supplied the funds for her burial in a way suitable to the husband's condition.3 In these cases a general agency to friends may be inferred.

Request may be inferred from circumstances.

1 Sutten V. Tathara, 10 Ad. & El. 27; Foster V. Ley, 2 Bing. N. C. 269; Brown V. Hodgson, 4 Taunt. 189; Knox V. Martin, 8 N. H. 154; Seymour V. Marlboro, 40 Vt. 171; Moreland V. Davidson, 71 Penn. St. 371; James V. O'Driscoll, 2 Bay, 101.

2 Westropp V. Solomon, 8 C. B. 345;.

Pollock V. Stables, 12 Q. B. 765; Pawle V. Gunn, 6 Scott, 286; 4 Bing. N. C. 445; Prior V. Hembrow, 8 M. & W. 873.

3 Bailey V. Haines, 13 Q. B. 815.

4 Brittain V. Lloyd, 14 M. & W. 762.

5 Hales V. Freeman, 1 B. & B. 391.

Sec 758

It is necessary, to sustain the suit, that money or its equivalent should have been paid by the plaintiffs to the defendant's use.4 Hence, it has been argued that the mere fact that the plaintiff's goods had been seized under a distress by the defendant's landlord on account of rent due by the defendant, does not by itself sustain a suit for money paid,5 though it would be otherwise if the goods of the plaintiff had been sold under an execution for a debt due by the defendant, and the proceeds actually applied to the payment of such debt.6 Merely giving a bond by the plaintiff, as surety, for the defendant's debt, is not paying money;7 though it has been ruled that giving negotiable paper is such payment.3 And when goods are paid as an equivalent to cash, they are to be so treated in this connection.9 It has been held in several cases that execution on a surety's property, on judgments obtained against him for the principal's debt, enables him, on money being paid, to sustain an action for money paid against the principal.1 If the money is paid, as will appear hereafter more fully, it is not necessary that an execution should have issued compelling the payment, if the case were one in which an attachment could at any time have issued.2 sec 759. We have already noticed cases in which, from acceptance of service, or from acceptance of goods, supplied at the request, express or implied, of the party accepting, a contract to pay for such services or goods is assumed. We have now to recur to cases in which one party is assumed to have contracted to repay money paid for him by another, not because he requested such payment, but because the party paying was in the eye of the law authorized to act for the party for whom the payment was made.3 Thus the guardians of a union workhouse have been held entitled to recover the expenses of removing nuisances from the vestry whose duty it was to remove the nuisances;4 an indorser, who, when sued by a holder of a bill, pays the holder, is entitled to recover from the acceptor;5 a surety who pays his principal's debt is entitled to recover from his principal, and one co-surety is entitled to recover from the other;6 a carrier who has by mistake delivered goods to a wrong person, and who has been compelled to pay the value of the goods to the owner, is entitled to recover these goods from the person who thus wrongfully appropriated them;7 an auctioneer, as in a case already noticed, who pays auction duty, is entitled to recover the amount from the parties in whose relief it was paid.8 - Where, also, a mortgagee Money must have been paid.

1 Grissell V. Robinson, 3 Scott, 329; 2 Ch. on Cont. 11th Am. ed. 885. In this case Park, J., said: "As the plaintiffs were liable to their own attorney in the first instance, and all the evidence shows that according to the custom the defendant is ultimately to pay for the lease, he must be taken to have impliedly assented to the payment made by the plaintiff, and the action lies for money paid to his use.".

2 Rogers V. Price, 3 Y. & Jer. 28.

3 Ambrose V. Kerrison, 10 C. B. 776; Bradshaw V. Beard, 12 C. B. N. S. 344; 2 Ch. on Cont. 11th Am. ed. 889, citing also New Salem V. Wendell, 2 Pick. 341; Forsyth V. Gamson, 5 Wend. 558; Sears V. Giddey, 41 Mich. 90.

4 Supra, sec 756 et seq.

5 See Brittain V. Lloyd, 14 M. & W. 773; supra, sec 756-7; infra, sec 759, 762.

6 Rodgers V. Maw, 15 M. & W. 444.

7 Taylor V. Higgins, 3 East, 169; Power V. Butcher, 10 B. & C. 329; Morrison V. Berkey, 7 S. & R. 238; Pursel V. Ellis, 5 W. & S. 525.

8 Pearson V. Parker, 3 N. H. 366; Chandler V. Brainard, 14 Pick. 285; Doolittle V. Dwight, 2 Met. 561. .

9 Garnsey V. Allen, 27 Me. 366.

When A. is required by law to make payment for B. he may recover payment from B.

1 Lord V. Staples, 23 N. H. 448; Randall V. Rich, 11 Mass. 494; Bonney V. Seely, 2 Wend. 481; Morrison V. Ber-key, 7 S. & R. 238; and cases 2 Ch. on Cont. 11th Am. ed. 880. Infra, sec 7(51.

2 Infra, sec 761.

3 Child V. Morley, 8 T. R. 610; Jenkins V. Tucker, 1 H. Bl. 90; Kenan V. Holloway, 16 Ala. 53.

4 Halborn Union V. St. Leonard's, L. R. 2 Q. B. D. 145.

5 Pownal V. Ferrand, 6 B. & C. 439;.

Jefferys V. Gnrr, 2 B. & Ad. 833; for other cases of liability on negotiable paper see Bate V. Payne, 13 Q. B. 900; Hawley V. Beverly, 6 M. & G. 221; Mallalieu V. Hodgson, 16 Q. B. 689; Bleeden V. Charles, 7 Bing. 246; Hor-back V. Reeside, 6 Whart. 47. 6 Pitt V. Purssord, 8 M. & W. 538.

7 Brown V. Hodgson, 4 Taunt. 189.

8 Brittain V. Lloyd, 14 M. & W. 762. "The law is, that a party by voluntarily paying the debt of another does bought at sheriff's 3ale the mortgaged property, and then, to protect the property from further execution, paid the taxes which had accrued on it while the mortgagor was in possession, it was held that he was entitled to recover the amount thus paid from the party who should primarily have paid it.1 "It is a clearly established principle," said Trunkey, J., "that no assumpsit will be raised by the mere voluntary payment of the debt of another person; from such act a request and promise are not implied. Another principle is, that when the plaintiff is compelled to pay the defendant's debt, in consequence of his omission to do so, the law infers that he requested the plaintiff to make the payment for him. There was a strict liability on the part of the defendant to pay the taxes. And it was his duty. Prompt payment of taxes is to the public advantage. Attempts by him who owes and ought to pay them to evade payment, or shift the burden upon another, ought not to be encouraged; the defendant has shown nothing which in good conscience should relieve him. He wittingly became owner and held possession of the lots subject to the mortgages, and had as little right to create or suffer an incumbrance which would take preference of the mortgage, as the mortgagor would have had had he remained owner and in possession. The mortgagee was compelled to pay the taxes in relief of the land purchased for his debt, the land not raising a sufficient fund to pay both liens. We are of opinion that this is a clear case for the application of the principle that he who is compelled to pay another's debt, because of his omission to do so, may recover on the ground that the law infers that the debtor requested such payment." And it has been held that one of two tenants in common who pays the mortgage for both, acquires a lien on his co-tenant's share of the mortgaged property which he holds in security for the not acquire any right of action against that other; but if I pay your debt because I am forced to do so, then I may recover the same; for the law raises a promise on the part of the person whose debt I pay to reimburse me. That principle was fully established in the case of Exall V. Partridge, 8 T. R. 308." Bayley, J., Pownal V. Ferrand, 6 B. & C. 439; see Davis V. Humphreys, 6M. & W. 153.

1 Hogg V. Longstreth, 97 Penn. St. 255.

amount paid in excess of his share of the mortgage debt,1 And, as a general rule, where a vendor of real estate is compelled on a personal suit to pay a mortgage which the vendee agreed to discharge, the vendor may sue the vendee for reimbursement.2 But when a vendee undertakes to pay the amount of an incumbrance, and expressly covenants to pay the same, which he is compelled to do, he cannot recover from a remote purchaser, though the incumbrance is recited in the deed under which the latter takes.3