case attorneygeneral vers very enter in scacc pasch geo rot money receive for  the drawback of good and merchandise not fair export accord to the statute be  liable to the king demand though in the hand of a three person not sharing in  sin this be a information by the attorneygeneral for S d halfpenny due to his  majesty for so much money receive by the defendant for his late majesty use  between April the saint and the saint of September follow the defendant plead  that he be not indebt for the say sum comens upon a trial by a jury of  Middlesex they find special to the effect follow videlicet that on the that of  September the defendant import into the port of London pound weight of  Virginia tobacco and pay custom for the same videlicet S d halfpenny for the  old subsidy and give security by bind to pay S d halfpenny for the additional  duty due to his late majesty on importation of the say tobacco that in may the  defendant sell the say tobacco to Richard Corbet for exportation to Cadiz in  Spain and ship off the same in the port of London in the ship call the Francis  and mary Isaac Cocart master for Cadiz that on the that of July Richard Corbet  make oath before the proper officer that he have the direction of the say  voyage and that all the say tobacco so ship be export real and true for part  beyond the sea on commission and that none of the say tobacco have be since  land or be intend to be reland in great Britain or Ireland that John Walkley  the defendant servant make the usual oath that the duty of the say tobacco be  pay or secure and that the defendant have sell it fir exportation that on the  that of June a declaration of the content of the comens er p load of the say  ship be make in these word a content in the Francis and mary Isaac Cocart for  Cadiz tun man gun Micha very c that on the same day Isaac Cocart make oath  under the say content before the proper officer that the say content contain a  just and true account of all the good c on board his ship for the present  voyage and that he will take no more good on board without first pay custom  and have a warrant from the king officer and that if he shall take on board  any certificate good or good that receive a drawback bounty or premium on  exportation that he will not reland they or suffer they to be unship in order  to be reland without the presence of the king officer that the say tobacco be  so put on board the ship and certify by the proper officer of the custom two  debenture comens be make out one for the drawback of S d halfpenny the other  for the drawback or discharge of the S d halfpenny secure by the defendant  upon which the defendant on the that of August receive back the S d halfpenny  and on the that of August have his bind for the S d halfpenny deliver up to he  that this tobacco after it be put on board be land in Ireland on the that of  July but without the defendant privity nor have he the property in it from the  time it be put on board nor the direction of the voyage but it be sell by the  defendant for S d for exportation to the say Richard Corbet whereof S d  halfpenny be pay in money and the debenture be take for the remainder of the  price and if by any accident the debenture become void the say Richard Corbet  be to answer the amount in money to the defendant that Richard Corbet have be  absent five year but the king officer have no notice of the tobacco be land in  Ireland till June et si above totan c it be argue by the solicitor general  that the money which the defendant receive by the debenture for the drawback  be money original due to the king and that nothing I have be do which shall  divest the king right to it and consequent that the defendant have receive the  king money must be indebt to he by the statute car c and the statute which  give the additional duty the money give be due to the king and though by the  book of rate a drawback be allow on exportation that must be a real  exportation for by the statute car c S par if good ship out by certificate be  reland c no allowance shall be demand or make for those good and by the  statute W m c S no person shall be allow to swear to a debenture for any duty  to be draw back upon reexportation but be who be the true exporter as be  interest in the property comens and hazard of the good or as be employ by  commission be concern in the direction of the voyage so as to be able to judge  that the good be real and good fide export and not land or intend to be reland  c and the debenture for the duty on tobacco by the stat W c S be to be on  parchment and the duty print on it in haec word and sign and swear by the  exporter by the stat annae c S recite that by law every person import tobacco  or other foreign good be entitle to a drawback of the duty pay or secure c if  tobacco c for which a drawback or debenture for it be to be make be reland the  exporter forfeit double the value of the drawback c by the stat Geo c S if any  tobacco export be land in Ireland the same and double the drawback of it shall  be forfeit and every debenture for the drawback shall become void as if the  tobacco be reland in great Britain since therefore the defendant receive from  the king officer the sum of S d halfpenny and his bind for S d halfpenny under  colour of two debenture which be in themselves void by reason of the land of  the tobacco in Ireland before the receipt of the money for the verdict find  that the tobacco be land in Ireland on the that of July and the S d halfpenny  receive back on the that of August and the bind deliver up on the that of  August follow this be money receive from the king officer without any proper  authority and consequent be money receive to the king use and the defendant be  Chargeable for it on that account it be insist on the other side by Mr strange  and afterward argue by Mr comens er p attorneygeneral for the crown and Mr  Bootle for the defendant in Michaelmas term ensue and by Mr Bootle it be also  insist first that this be a case of great hardship on the defendant who be a  innocent person guilty of no fraud for the jury find that he have sell his  good for exportation and all be do which the law require shall be do to secure  against the tobacco be reland they be enter with the customhouse officer for  Cadiz in Spain they be ship for Cadiz the declaration of the content of the  load comens be for Cadiz Corbet make oath that he have the direction of the  voyage that the tobacco be real and good fide export for part beyond the sea  and the defendant servant make oath that they be sell for exportation and the  jury express find that the land in Ireland be without the defendant privity  and if after all this the defendant shall be answerable for the default of the  buyer no merchant can be safe that the case be hard still in the information  against the defendant and other as executor for as no one time to run up king  the executor may be charge after all asset dispose and yet the king ought to  be prefer it be argue that the exporter be the person only liable and Corbet  be the exporter by the stat W m c sect it appear who be the exporter namely he  who be interest in the property and hazard of the good or he who be employ to  act by commission be concern in the direction of the voyage and no other be to  take the oath which entitle to the drawback now the jury find that Corbet have  the property of the good and not the defendant that Corbet take the oath and  as be only entitle himself to the drawback he only be answerable for it if the  good be afterward reland he forfeit the double value by the stat Ann c sec and  by the stat Geo c see but as the defendant be find not to have the property of  the good not to be concern in the voyage and consequent can not run any hazard  in it as he do not take the oath and be not entitle to the drawback he ought  not to suffer by any default of Corbet who be the owner that the defendant in  this case do not receive the money to the use of the king but to the use of  Corbet and as servant or agent to he the verdict find it be receive for the  satisfaction of corbet debt and then it must be to his use suppose Corbet have  receive the money himself and pay it to the defendant and afterward reland the  tobacco shall the defendant have be charge why then when he take the debenture  and receive it to pay himself in the case of Tomkins Lord Mansfield in the  case of smith v Bromley report in Douglas express himself in the follow manner  as to the case of Tomkins v barrett it have be often mention and I have often  have occasion to look into it but it be so lose report and stuff with such  strange argument that it be difficult to make any thing of it one book say it  be determine by Lord holt another by Lord Treby certain it be it be only a  nisi prius case I think the judgement may have be right but the reporter  Salkeld not proper acquaint with the fact have recourse to false reason in  support of it the case must have be as I take it a action to recover back what  have be pay in part of principal and legal interest upon a usurious contract  and therefore the action will not lie for so far as principal and legal  interest go the debtor be oblige in natural justice to pay therefore he can  not recover it back but for all above legal interest equity will assist the  debtor to retain if not pay or a action will lie to recover back the surplus  if the whole have be pay the reporter not see this distinction have give the  absurd reason that willing non fit in an unjust manner and therefore the man  who from mere necessity pay more than the other can in justice demand and who  be call in some book the slave of the lender shall be say to pay it Willing  and have no right to recover it back and the lender shall retain though it be  in order to prevent this oppression and advantage take of the necessity of  other that the law have make it penal for he to take p and barrett salk skin  SC infra p a where comens three be bind in a bind upon a usurious contract and  one pay part of the money and afterward the obligee sue another obligor who  plead the statute of usury whereby the plaintiff be bar and the bind avoid  then the obligor who have pay part of the money on this bind bring assumpsit  for it as for money receive to his use but it be hold by chief justice Treby  that it do not lie in the case of I Str a caryi and Webster mich Geo caryi  year pay to Webster then a clerk to the SouthSea company which be pay over to  the company in reality though omit to be enter as pay it be hold by chief  justice Pratt at nisi prius that the money be receive by the defendant as  servant to the company and pay over the company only be Chargeable for the  receipt of the money and not the defendant but if he have not pay it over then  indeed the plaintiff may have sue he or the company at his election to which  Mr Bootle add that all action of this nature must arise ex shrinking or ex  quasi shrinking and in both case privity be necessary but here be no privity  between the king and the defendant the deal be with Corbet he be entitle to  the drawback and have the debenture for it and consequent must be responsible  for it to the king the king can follow his debtor to the second or three  degree as this will be inconvenient such measure shall be take as may avoid it  as may encourage commerce which will be impracticable if the vendor shall be  answerable for the default of the buyer Mr solicitor general in reply and Mr  attorneygeneral more large in his argument to Mr Bootle insist that they do  not charge the defendant in this case with any fraud in relanding the tobacco  or obtain the debenture or repayment of the money or bind since by this  information the defendant be not charge for any comens er p forfeiture nor yet  for any fraud or for any duty due from he to the crown but mere for the king  money by he receive in the same manner as any other person may be charge who  shall receive the money of the king or any subject comens and therefore he  will admit what have be so much insist on that the defendant be a innocent  person that he be not the exporter that he receive the money towards the  satisfaction of his debt from Corbet and that it be a hard case that Corbet  shall defeat the debenture give he in payment but it must be admit for it be  express find that the defendant receive the money from the officer of the  crown and that he receive it by colour of those debenture on the that that of  August whereas the tobacco for the drawback of which these debenture be give  be land in Ireland on the that day of July before now the drawback to be allow  by the book of rate which be confirm by the statute car be upon exportation if  export by a foreign merchant in twelve month by a home merchant in eighteen  month and by subsequent act the time have be extend to three year so then if  the good be not export no drawback be to be pay and if any debenture be give  for it it be null and void but this appear more express by the statute car c  sec where it be say that if good ship out on which the drawback be Allowable  to be reland no allowance shall be demand or make sure the debenture must be  void if nothing can be demand or pay upon it so by the statute Geo c sec which  more direct relate to the present case it be say if tobacco to be export be  land in Ireland the debenture for the drawback shall be void it be say by one  of the defendant counsel that the Act do not make it absolute void but say it  shall become void as if reland in great Britain but can it be imagine that  these word import that it shall not be void that the penalty for land in  Ireland shall make the debenture for the drawback good for so it must be if it  be not become void this will be a strange construction but sure no word can  more plain denote that the debenture for the drawback before be void if the  good ship for exportation comens be reland in great Britain and so it shall be  for the future if they be land in Ireland now this be the case that the  debenture be void by the land in Ireland the defendant can not be entitle to  receive any money upon it and he that receive the money of the crown without  any title to it ought to pay it back again nothing can be a plain and more  evident position than this that if a person demand money from a officer of the  crown who pay it upon supposition that it be due but it afterward appear not  to be due to he it be money receive to the use of the king and ought to be  restore and this be not a demand which the king make by virtue of any  particular prerogative peculiar to the crown but the case will be the same in  regard to any common person so that this information be not otherwise to be  consider than as a action on the case by a subject who in case any one shall  demand or receive money from he without any title or authority for do so shall  recover it back in such a action as money receive to his use the case cite  godb roll Abr above p a sal may be good law although it be only by a judge at  nisi prius where matter may not be mature consider because when a person be  party to a usurious contract and have actual execute the contract he make it  may not be reasonable to allow he to unravel his own act after he have free  carry it into a complete executionLord Mansfield in the case of Browning v  morris report by Cowper declare that the rule be in acquire fault drinking be  condition to ward off and there be several other maxim of the same kind where  the contract be execute and the money pay in acquire fault this rule certain  hold and the party who have pay it can recover it back for instance in bribery  if a man pay a sum of money by way of bribe be can never recover it in a  action because both plaintiff and defendant be equal criminal p the case of  Wilkinson v kitchen report in ld Raymond p seem however to oppose this  doctrine as lie down by Lord Mansfield buller in his law of nisi prius say in  such case melior be condition to ward off not because the defendant be more  favour but because the plaintiff must draw his justice from pure fountain p  but in the same case it be agree that whore a man pay money on a mistake  account or under or by a mere deceit he may recover his money back again so a  case be there cite that where one bind in a policy of assurance pay his money  believe the ship be lose when it be not it be hold a action of assumpsit lie  to recover it back the case of Jacob and Allen salk be much strong there h  have letter of administration to one who be suppose to die intestate make a  letter of attorney to the defendant to get in debt due to the intestate who  collect several sum and pay they to the administrator afterward a will be  discover the administration recall and a action of assumpsit bring by the  executor against the defendant for money receive to his use and hold the  action lie for the administration be void and so the defendant act without  authority and then comens er p comens there be nothing to hinder the raise a  imply contract and the charge the defendant in a indebitatus assumpsit  although it be urge that the money be receive by a special authority and for a  particular purpose and afterward pay over to the administrator the action  ought to have be bring against the administrator and not against the defendant  who act as his servant and have pay the money to he at least a special action  on the case shall have be bring and not a indebitatus assumpsit and the case  Carey and Webster be not like this for there the plaintiff pay his own money  to the servant for his master and he pay it over accord but it be object that  the drawback be pay to the defendant as corbet agent and for his use but how  can he receive that for the use of Corbet which be the price of his own  tobacco and receive for his own use it be likewise say that Corbet be liable  to this demand it be true he be liable for the forfeiture for the double value  for the fraud but how be be liable for the money which he do not receive and  which the defendant receive for himself and not for he beside if Corbet be  liable may not a person who have two remedy take either or if he bath a remedy  against several may he not come against which he please as for the  inconvenience allege though they be no great than in the case of any subject  yet in case the law be against the defendant they may be argument for a  alteration to the legislature but this court must determine accord to what the  law now be after Mr attorneygeneral have finish his reply Mr alderman very the  defendant desire that he may speak for himself which be allow and he represent  the hardship of the case against he the fairness of his deal the danger of his  ruin if after so many year acquiescence he shall be call to a account for all  money receive by he and his father on debenture in case it shall be discover  comens that these debenture be void but not desire any further argument but  refer himself to the judgement of the court the court take time to consider  the matter till next term and on full consideration of the case Reynolds Ch  bar carter and fortescue baron against Thomson baron be of opinion first that  the debenture for the drawback give by Corbet to the defendant by land the  tobacco in Ireland become void for no drawback ought to be make unless the  good be export the word of the statute car c be express No allowance shall be  make or demand if the good be reland c and so by the statute Geo c if land in  Ireland the debenture for the drawback shall be void that the payment of the  money to the defendant by the king officer upon this void debenture render the  defendant answerable to the king for the money by he receive for whoever  receive the king money without warrant or lawful authority be Accountable to  the king for it this be express resolve by two chief justice and the chief  baron   the earl of Devonshire case who be master of the ordnance and by privy  seal James recite that munition utter decay and unserviceable have be claim as  fee and vail to the master of the ordnance by reason of his say office belong  and give he authority to dispose of such of they as be set down in a book c he  have dispose of several piece of iron ordnance shoot and munition in the say  book set down for those thing be receive and dispose by he by colour of a  privy seal which be void because find on a false suggestion for it suggest  that these be fee or vail claim as belong to the say office which must mean  lawful claim and lawful belong which be not true for this be a new office  erect h the earl be Accountable for they as much as if he have take they  without any privy seal so in sir Walter godb roll Abr a mildmay case cite two    and report cro Elizabeth more who be chancellor of the exchequer receive a  year for thirty year together by comens warrant from the Lord treasurer as a  augmentation of his fee since the court of ware be annex to the exchequer  whereby his labour be much increase but because such warrant be void it be  resolve that he shall answer for the money which he have receive comens er p  and this be not from any peculiar prerogative the crown have above a subject  for the case will be the same with regard to a common person whenever a man  receive money belong to another without any reason authority or consideration  a action lie against the receiver as for money receive to the other use and  this as well where the money be receive through mistake under colour and upon  a apprehension though a mistake apprehension of have a good authority to  receive it as where it be receive by imposition fraud or deceit in the  receiver for there be always a imposition and deceit upon he that pay where it  be pay by colour of a void warrant or authority although the receiver be  innocent of it case may be cite to warrant every part of this rule but as the  defendant appear to be a innocent person whole ignorant of the fraud of Corbet  in land the tobacco in Ireland and one who think he have of good debenture and  be lawful entitle to receive the drawback it be necessary to instance only  case where the party receive think a t the time of his receipt that he have a  good authority to do so but afterward discover that he have not as where a man  have a grant a office or conveyance of land and think himself well entitle  receive the rend and profit it be well know that if it afterward appear that  the grant or title be not good the receiver be Chargeable by the rightful  officer or owner of the land for so much money receive to his use Mod Jon  Freem show S c a lev lev Mod show Carth comb S c b the case cite by Mr  attorneygeneral be strong to the same purpose a man insure a ship on a rumour  that the ship be lose pay the insurance and it afterward appear that the ship  be not lose the insure shall pay back the money comens salk and Jacob and  Allen salk Ann the authority of this case be much shake by that of pond v  Underwood which be report in Lord raym p in which the circumstance be similar  and the decision direct contrary to the present and by Lord mansfield express  in the case of sadler v Evans report in burr p a dissent to the case of Jacob  v Allen in salk p and his approbation of pond v Underwood in Lord raym which  be contrary to it it be lie down by Lord Mansfield in the case of Stevenson v  Mortimer report in Cowper in conformity to the principle on which pond v  Underwood proceed that if money be pay to a know agent and a action bring  against he for it it be a answer to such action that he have pay it over to  his principal p by Trevor chief justice if a administrator authorize a to  collect the debt and effect of his intestate which he receive and pay over and  then a will be discover the rightful executor may bring assumpsit against a  for what he have receive as money receive to his use it be there insist that a  be only agent for the administrator receive the money for his use and have pay  it to he yet hold that the administration be void the administrator can give  no authority and consequent a receive without authority and then nothing  hinder the raise a imply contract and charge the defendant in a indebitatus  assumpsit so in the case of Martin and sitwell holt S c a I show where  Barkedale have make a policy of insurance for premium in the plaintiff name  and pay the money to the defendant and it afterward appear that the defendant  have no good on board upon which Martin bring assumpsit for the premium and it  be insist that this be money receive from b and to his use but as Martin be  trustee for b the payment by b must be take as agent for he whereby it be  plain that there be no force in that objection that the defendant act as agent  for Corbet and receive the drawback by his authority and for his use but it be  further object that Corbet be the person who commit the fraud who be the  exporter and entitle to the drawback the crown ought to pursue their remedy  against he and not against the defendant who be innocent and take this money  only in his own behalf and for satisfaction of a debt owe to he from Corbet it  be certain that for any penalty forfeit by the land in Ireland Corbet and not  the defendant ought to be prosecute but when   bet obtain a debenture which he  himself make void and ineffectual and deliver this debenture as payment for  the tobacco he buy of the defendant what need be there to resort far than to  he who have the money from the crown hasser and Wallis h Ann king bench salk a  man marry a woman seize of land comens and take the rend and profit but  afterward it appear that he have a former wife then live upon which she bring  assumpsit against the husband for money receive to her use and though it be  object that the payment to he who have no authority to take the rend be  absolute void and that the tenant may be sue for the money still lie in their  hand and they may sue Wallis yet the court hold that the action be  maintainable against Wallis who receive the rend and that arecovery against he  will be a discharge to the tenant as to the case of Tomkins and barrett salk  upon a usurious contract the comens er p case appear to be good law the same  case be report in skin p but there be a mistake in one of the report for  Salkeld say that it be in the common plea and come to trial before chief  justice Treby Skinner that it be in the king bench and come to trial before  chief justice holt unless it can be suppose that the same which in both report  be say to be h W m shall after a nonsuit in one court be bring on to trial in  the other court for this be a exception to the general rule that where a man  receive money for a unlawful purpose or upon a illegal contract he who be  party to the unlawful act shall not exempt himself and defeat what himself  have do by fall on his accomplice who be not more criminal than himself as in  the case there put if a man give money to a to bribe the customhouse officer  who pay it accord heshall not afterward charge a for this money as receive to  his use so if a man give a bind upon a usurious contract and pay part of the  money and afterward a action be bring on the bind to which the statute be  plead ail the bind thereby avoid he who pay part shall not maintain a action  against the receiver as for so much receive to his use for he be party to this  usurious agreement and though a Act of parliament make the bind void yet it be  only to he who claim the benefit of the statute and plead it for if he plead  non be factum or to loosen ad diem the plaintiff will recover comens if then  be pay the money he wave the advantage of the statute and a party equal faulty  who pay his money pursuant to a faulty agreement ought not to have it back  again so that the reason give by Treby that the plaintiff in such case be  sharing in sin willing non fit in an unjust manner seem not altogether so  improper the objection make that in this case no privity be between the king  and the defendant be likewise make in the earl of Devonshire case   and in sir  Walter mildmay case there cite but it be there answer that in the case of the  crown the law will raise and create a privity so as to render he Accountable  who receive any of the king money and in case the defendant be Chargeable the  executor will be so likewise they be resolve so to be in both these case all  the baron agree that the deliver up the bind can not be consider as money  receive to the king use and therefore it be adjudge by the court that his  majesty do recover against the say Micajah very the sum of S d halfpenny be so  much by he unjust receive in money of the officer of the custom for the duty  inward call the old subsidy but as to the residue of the say S d halfpenny in  the say information mention that the say Micajah very do go without a day as  to such residue save his majesty right if he shall think fit hereafter to  prosecute he for it comens er p