For executing mesne process, a sheriff can, under the statute 23 H. 6, c. 19, take only twenty-pence for himself; and fourpence only upon a warrant issued by him on such process (k). But a bailiff, employed by an attorney to make arrests on mesne process, and, it seems, to execute other writs issued at the suit of the attorney's clients, may sue the attorney, (not the clients), for the fees usually paid on such occasions and allowed in the taxation of costs (l).

The sheriff is entitled to his poundage on a fieri facias, though the parties settle before a sale (m); and on a capias ad satisfaciendum, though the defendant go to prison without paying the debt (n). Nor is the claim defeated by the judgment and execution being subsequently set aside (o). For, in such case, the sheriff has equally experienced the trouble, and incurred the risk and responsibility, of executing the process directed to him.

The poundage given to the sheriff by the legislature was intended as a complete satisfaction for his trouble; no other charge can therefore be legally made by him for executing a writ: and he cannot maintain an action for the expense incurred in seizing and keeping possession (p) of goods under a fieri facias at the request of the plaintiff; although they are not sold, in consequence of his refusing to give an indemnity against the claims of third persons (q). And where a sheriff, in executing an elegit, besides his poundage, charged five per cent. for an auctioneer to sell malt, the charge was disallowed (r).

A sheriff' may maintain an action for his poundage (s); or may retain it out of the sum levied. If he take more (t) than he ought, the excess may be recovered in an action for money had

(k) Dew v. Parsons, 2 B. & Ald. 562; 1 Chitty R. 295, S. C.; Tidd, 9th ed. 233.

(1) Townshend v. Carpenter, Ry. & M. 314; 2 C. & P. 118, S. C.; Foster v. Blakelock, 5 B. & C. 328; 8 D. & R. 48, S. C.; see Ormerod v. Foskell, Peake's Add. C. 77; see Tidd, 9th ed. 233.

(m) Alchin v. Wells, 5 T. R. 470. (n) Lake v. Turner, 4 Burr. 1981; Imp. Sher. 145.

(o) Bulken v. Ansley, 6 Esp. R. 111; Rawstorne v. Wilkinson, 4 M. & Selw. 256.

(p) See the 43 G. 3, c. 46, s. 5,

which entitles a plaintiff, under a fieri facias, to levy the poundage, fees, and expenses of the execution, over and above the sum recovered; see Tidd, 9th ed. 997, 1039; Rumsey v. Tufnell, 2 Bing. 255; 9 Moore, 425, S. Č.

(q) Bilke v. Havelock, 3 Camp. 374; Graham v. Grill, 2 M. & Selw. 294.

(r) The King v. Crackenthorp, 2 Anstr. 412; see further, Rex v. Freeday, 4 Price, 131.

(s) Tyson v. Paske, 2 Lord Raym.

1212.

(t) See Buckle v. Bewes, 3 B. & C. 688; 5 D. & R. 495, S. C.; George v. Perring, 4 Esp. 63.

and received (u); or may form a ground of set-off to an action brought by him (x); or an action for treble damages, on 29 Eliz. c. 4, may be maintained against him, though the extortion were the act of his bailiff (y).

A commissioner to examine witnesses may maintain an action for his fees (2).

14thly. SURVEYORS.

A surveyor is bound to use due care, and exercise a reasonable degree of skill, in executing the business intrusted to him. If he be employed by a committee for erecting a bridge and forming a road to it, to make an estimate of the expense of the works, he is bound to ascertain for himself, by experiments, the nature of the soil; although a person previously employed by such committee, having made experiments, gives him, by their desire, information of the result. And if an engineer or surveyor so employed make a low estimate, and thereby induce persons to subscribe for the execution of the work who would otherwise have declined it, and it turn out afterwards that such an estimate is grossly incorrect, either from negligence or want of skill, and that the work cannot be done but at a much greater expense, he is not entitled to recover any thing for his trouble in making such estimate or connected therewith (a).

In Upsdell v. Stewart (b), which was an action for work and labour done as a surveyor, the plaintiff demanded 51. per cent. on all money charged and allowed by him, as surveyor, to the different tradesmen. Evidence was offered that it was the uniform practice of surveyors to charge 57. per cent, on all money allowed to the workmen. But Lord Kenyon considered such demand exorbitant; and observed "that the plaintiff was entitled to a reasonable compensation for his labour, but was not to estimate that by the money laid out by the defendant in finishing his

(u) Stevens v. Rothwell, 3 B. & B. 145; 6 Moore, 338, S. C.; Rumsey v. Tufnell, 2 Bing. 255; 9 Moore, 425, S. C.; Longdill v. Jones, 1 Stark, 345. (x) Dew v. Parsons, 2 B. & Ald.

562.

(y) Woodgate v. Knatchbull, 2 T. R. 148. See the precedents, &c., 2 Chitty Pl. 5th ed. 504.

(z) Stokeld v. Collingson, Carth. 208; Comb. 186, S. C.

(a) Moneypenny v. Hartland, 1 C. & P. 382; 2 id., 378, S. C.; on a second trial. See the rule as to agents, attorneys, and medical men, guilty of negligence, &c., ante, 434, 439, 443. (b) Peake's R. 193. As to auctioneers' allowance; Maltby v. Christie, 1 Esp. R. 340.

building." In a subsequent case, where a surveyor claimed 57. per cent., on the money laid out by the defendant in altering certain buildings; the plaintiff having, as a surveyor, superintended such alterations; Lord Ellenborough left it to the jury to say, "whether this mode of charging was vicious or unreasonable, and if they thought it was, to deduct accordingly (c)."

The effect of an agreement to pay a surveyor a per centage on the sum which may be obtained as the value of the premises sold, &c. by him has been already noticed (d).

15thly. WITNESSES.

Where a person living within the bills of mortality, is subpœnaed to give evidence within the same, the practice seems to be to leave a nominal sum (1s.) with the subpoena; but in other cases a person subpoenaed to give evidence upon the trial of a cause is not obliged to attend, nor, if he attend, is he obliged to give evidence, unless his reasonable expenses are paid, or tendered him, not only for going to, but also returning from, the trial; and where less is offered, the witness is not obliged to trust to the court allowing him more when he comes to be sworn; for perhaps the party may not call him, and then it may be difficult for him to get home again (e). And a person who is subpoenaed, and attends, but refuses to give evidence unless his expenses are paid, may yet maintain an action of assumpsit for his necessary expenses of attendance, against the party who subpoenaed him (ƒ).

The law does not give a witness any right to a compensation for his loss of time; and consequently a promise to pay such compensation is not binding (g); and no action can be maintained thereon, although the witness were an attorney (h).

(c) Chapman v. De Tastet, 2 Stark. R. 294. The jury found for the plaintiff for his whole demand.

(d) Ante, 431, 432.

(e) Chapman v. Pointon, 2 Stra. 1150; Hallett v. Mears, 13 East, 15, 16 a, S. C.; Bowles v. Johnson, 1 Bla. R. 36; Fuller v. Prentice, 1 H. Bla. 49; Ashton v. Haigh, 2 Chitty R. 201; Tidd, 8th ed. 856, 9th ed. 806. a witness subpoenaed by a defendant indicted for a conspiracy, is bound to give evidence, although the defendant refuse to pay his expenses. Rex v.

But

James, 1 C. & P. 322. If the attorney of the defendant be subpoenaed by the plaintiff to produce books, he is not entitled to be paid as a witness; Pritchard v. Walker, 3 C. & P. 212.

(f) Hallett v. Mears, 13 East, 15; see Edmonds v. Pearson, 3 C. & P. 113.

(g) Willis v. Peckham, 1 B. & B. 515; Moor v. Adam, 5 M. & Sel. 156; ante, 44, 45.

(h) Collins v. Godefroy, 1 B. & Ad. 950; see Bayley v. Beaumont, 11 Moor, 497, as to compensation to scientific men for making models, &c.

SECTION V.

Respecting Moneys (i).

1. Money lent.

2. Money paid.

3. Money had and received.

4. Interest.

5. Account stated.

1. MONEY LENT.

THE Common count for money lent is not sustainable, if the loan were effected by a transfer to the defendant of bank stock; for stock is not money (k). Nor does it lie if the money were not lent to the defendant, and upon his sole credit, but was lent and actually delivered to another person, who was to become primarily liable to the plaintiff'; so that the defendant's undertaking was merely collateral and conditional, that is, to pay, if the party receiving the money did not (2). And, on this ground, a count that the defendant is indebted to the plaintiff, "for money lent by him to E. F.," (a third person,) "at the defendant's request," is bad (m).

But if the defendant only were trusted, and he were, in fact, the borrower, although the money were delivered by the plaintiff to another person, at the defendant's request, the common count for money lent may be sustained (n). And it has been decided that a declaration against a husband, "for money lent to his wife, at his request," is maintainable; for, in such case, in point of law, the defendant only could be liable (o).

And where the defendant gave a memorandum whereby he

(i) See, in general, as to the money counts, 1 Chitty Pl. 383 to 392; 2 id., 87, 88, 5th ed.

(k) Nightingale v. Devisme, 5 Burr. 2589; 2 Bla. R. 684, S. C.; Jones v. Brinley, 1 East, 1.

(1) Marriott v. Lister, 2 Wils. 141; Butcher v. Andrews, Carth. 446; 1 Salk. 23, S. C.; Forth v. Stanton, 1 Saund. 211, a, b. The remedy is by special action of assumpsit on the gua

acknowledged the receipt from the plaintiff of a sum of money "on the behalf of E. F.," (an infant,) and whereby the defendant promised to be accountable for such sum on demand, it was held that the memorandum was evidence to support a count for money lent, against the defendant (p).

In James v. Cotton (q), it appeared that the plaintiff agreed to let the defendant land on building leases, and to lend him 40007. to assist him in the erection of twenty houses, the money to be repaid by June, 1828. The defendant agreed to build the houses, to convey them as a security for the loan, and repay the money. When six houses were built, and 11687. had been advanced, the plaintiff requested the defendant not to go on with the other fourteen houses, and the defendant desisted. It was held that, after June, 1828, the plaintiff might recover the 11687. on a count for money lent; and that it was not necessary to sue upon the agreement, as it had been rescinded by mutual consent: besides which, there was no condition rendering the advance of the whole sum essential to the recovery of the part advanced.

Where money is generally lent upon, or secured by, a deposit of goods, this will not deprive the lender of his remedy by action against the borrower, without returning the goods; and, to discharge the person of the borrower, there must be a special agreement to stand to the pledge only (r). And, in the case of a mortgage, it has been held that as every mortgage implies a debt, the mortgagor's personal estate will be liable, although there be neither a bond nor a covenant for payment of the mortgage money advanced (s).

Where money is advanced by a parent to a child, it appears that the presumption is, that such advance was by way of gift, not as a loan (t).

Money lent to, and applied by, the borrower, for the express purpose of settling losses on illegal stock-jobbing transactions between the borrower and third persons, to which the lender was no party, cannot be recovered back by the lender; he having full

(p) Harris v. Huntback, 1 Burr.

373.

(q) 5 M. & P. 26; 7 Bing. 266.

(r) The South Sea Company v. Duncomb, Stra. 919; The Bank of England v. Glover, Lord Raym. 753 ; Lawton v. Newland, 2 Stark. R. 73; Emes v. Widdowson, 4 C. & P. 151. Money

lent on the pledge of goods, of which the pawner was only tenant for life; Houre v. Parker, 2 T. R. 376, cited Boyson v. Coles, 6 M. & Sel. 24, per Bayley, J.

(s) King v. King, 3 P. Wms. 361.

(t) Hick v. Keats, 4 B. & C. 71; 6 Dowl. & R. 68, S. C., per Bayley, J.

H H