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![handle is hein.slavery/ssactsengr0989 and id is 1 raw text is: ACTION SUR LE CASE, SUR ASSUMPSIT
recover back the surplus if the whole has been paid. The reporter, not seeing this
distinction, has given the absurd reason, that volenti non fit injuria; and therefore the
man who, from mere necessity, pays more than the other can in justice demand, and
who is called in some books the slave of the lender, shall be said to pay it willingly,
and the lender shall retain, though it is in order to prevent this oppression, and
advantage taken of the necessity of others, that the law has made it penal for him
to take. This kind of reasoning is equally applicable to the case of a bailiff who takes
gar.ni.qh-money from his prisoner. It is wrong for the bailiff to take it, and it is
therefore wrong for the other to tempt him, and volenti, &c. and therefore he shall not
recover it back; but this has been determined otherwise. The case of money given
to a solicitor to bribe a Custom-House officer, cited in Tomkins anl Bernet, is against his
own agent, and therefore he cannot recover. This case is likewise held of no authority,
and many instances are shewn of contrary determinations, 1 Bro. Ch. 547. Vide also
Str. 915. 2 Bur. 1005. 1 T. R. 286.
[23] 3. HARD'S CASE.
[Hill. 8 Will. 3, B. R.]
Indebitatus assumpsit will lie in no case but where debt lies. Hard. 485. 1 Mod. 285.
1 Lev. 298. 1 Roll. Abr. 597. 2 Keb. 713, 758.
Indebitatus assumpsit will lie in no case but where debt lies (a), therefore it lies not
upon a wager, nor upon a mutual assumpsit, nor against the acceptor of a bill of
exchange; for his acceptance is but a collateral engagement. But it lies against the
drawer himself, for he was really a debtor by the receipt of the money, and debt
would lie against him.
(a) In Bovey v. Castlemain, 1 Ld. Raym. 69, the general proposition in this case is
expressly laid down and agreed to by the Court; and although it may appear to be
weakened by the opinion of Lord Mansfield in Moses v. M'Ferlan, 2 Bur. 1005, that
an action of assumpsit will lie in many cases where debt does lie, and in many where
it does not, it is worthy of observation, that the learned Judge does not use the
expression indebitatus assumpsit; and the above doctrine in Hard's case seems to be
-confirmed in Walker v. Witter, Doug. Rep. 1, where debt was held to lie on a foreign
judgment, upon the ground that indebitatus assumysit would lie upon such a judgment;
and Ashhurst and Buller, Justices, are there reported to have said, wherever indebitatus
assumpsit can be maintained, debt will lie.
4. [HILL. 9 WILL. 3. AT Nisi PRIUS AT GUILDHALL, CORAm HOLT
CHIEF JUSTICE.]
No finding can discharge a man against a confession by nient dedire. 1 Saund. 230.
Cro. El. 701. Comb. 37. Vide record, page 732.
Indebitatus assumpsit versus A. and B. and judgment versus A. by default.
B. pleaded payment, and issue thereupon. Et per Holt. No finding upon this issue
can discharge A. for he has confessed the whole.
5. BUTCHER versus ANDREWS.
[Will. 3, B. R.]
Carth. 446. Assurmpsit in consideration that at his request he would lend the defen-
dant's son any sum, &e. not exceeding 51. Plaintiff avers that he lent a greater
sum. 1 Roll. Abr. 32. 1 Vent. 153. Indebitatus will not lie against B. for money
lent to A. at B.'s request, because the promise is collateral only. Raym. 67.
Cot. 1 Vent. 311, sed 2 Vent. 36, accord. Farsl. 12, 13. 2 Saund. 136.
2 Lev. 119. Post, 25. Cro. Jac. 500. Comb. 473, S. C. 3 Salk. 15. Holt 213.
Danv. Abr. 1, pt. 27.
Assumnsit, for that the defendant, in consideration that the plaintiff at his request
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