
    FOSTER & AL. vs. DUPRE.
    Interest cannot be allowed by the court on an unliquidated claim.
    Appeal from the court of the first district.
    The petition contained two counts: the first for money laid tut and expended by the plaintiffs for the use of the defendant, the other for money bad and received by the latter from the former~ Reference was had in the petition to an account annexed thereto, composed of several items, for lawyers, marshal, clerk and notary's fees, with the expenses of an. express to Washington, amounting together to $1599 75: to which was added the sum of $896, for eight years interest. The charges appeared to ha~e been incurred in defending the plaintiffs ship, in a suit brought by the tithed States, for the breach of an act of congress, by the defendant, in putting several negroes on board. The defendant pleaded the general issue.
    East'n District.
    June 1817.
    An action for money laid out and expended, or the money had & received, Cannot ic a. gainst a wrong. doer by the par-to injured, to recovcrlñs consequent disbursements, on an implied pro. mise of the defendant.
    The district court gave judgment in favor of the plaintiffs for 82193 73, the sum claimed, with interest from the date of the petition, being of opinion, that “ from the manner, time and place of putting the negroes on board, both the captain and shipper knew it to be contrary to law, and having combined in the transaction, they were both bound to make good the losses resulting from it.”
    The defendant appealed.
    The statement of facts is subscribed by the counsel of each of the parties, It relates, that 
      the plaintiff's, in the year 1809, were owners of the Ship Clara, which sailed from the port of New-York, on the 8th of January of that year, A. Tanal, master, bound for New-Orleans, on board of which the defendant was a passenger When the ship had proceeded as far down as Governor's island, or perhaps a little below, a boat came along side, from which two negro women, the property of the defendant, were received on board. The negro wrnnen were immediately put under the hatches, and there detained till the ship got to sea, when they were released and permitted to come upon deck. When the ship arrived at the mouth of the Mississippi, they were again put under the hatches until they were landed, At or after the arrival of the ship in New-Orleans, the consignees did not see the negro women on board. Information was lodged with the collector, that they bad been brought on board of the ship, and she was seized and libelled in the district court of the United States, and condemned as forfeited to the United States. The plaintiffs spent in defending the suit $1449 75, and $150 in sending an express to the city of Washington, to obtain a remission of the forfeiture, as stated in the account annexed to the petition. The captain received the freight of said negroes and the passenger of the defendant: and abourt the time the ship was seized, several others were so, for the same cause, having come to New-Orleans from Baltimore and Charleston.
    Clark for the plaintiffs.
    There cannot be any doubt of the plaintiffs' right of recovery on the merits. As to the form of the action, that of assumpsit has been resorted to, because it is, in its nature, always an equitable one. It is a general description of all the cases in which it lies, that the defendant is bound by ties of natural justice and equity, to reimburse monies which have been paid for his benefit. Indeed, it is considered in the books as a generic action, applying to almost every possible description of cases, resulting from the dealings and transactions of men, in this age of commerce; comprehensive in its mesning, efficacious in its remedy. It has its origin in contracts, either express or implied, for the purpose of affording a remedy, whenever an injury has been received, either through mistake, deceit misrepresentation, imposition or oppression. Courts of justice will lend a ready ear to the suggestion of an implied promise.
    Assumpsit lies to recover back money paid under a mistake, or throught the fraud of the party. Beze vs. Dickson, 1 T.R 281, Hassan vs. Wallis, 1 Salk. 28. To recover money of a consideration which happens to fail. 2 Burr 1012, 1 T.R. 732, 2 id, 365, Shelton vs. Rastal. To recover money paid to any person acting under a void authority, Robertson vs. Eaton, 1 T.R. 59, Jacob vs. Allen, 1 Salk. 26. Allen vs. Dundas, 3 T.R. 125, or money obtained by fraud, extortion, imposotion, oppression, or taking an undue advantage of the situation of another. 1 Burr. 1012, Artly vs. Reynolds, 2 Strange 915, Smith vs. Brownley, Douglas 671, Crockehst vs. Bennet & al. 2 T.R. 763-or money that has been embezzled, or which any person has been defrauded of by cheating, or otherwise. Whip vs. Thomas, Bullier's N.P. 130.
    Injuries received from any circumstance, originating in mala fide, the general current of authorities say may be reached by the action for money had received. Clark vs. Shee & al. Cowp. 197. Trelhane vs. Terry, Bull. N.P. 131, Moses vs. M'Farlane, 2 Burr. 1005. 2 Black. rep. 219, Jaques vs. Goulingsly, 2 Black. 1073 Jacques vs. Wethy, H. Bl. 65 Browning vs. Thomas, Cowp. 79.
    As a general rule, I may say that indebitatus, assumpsit will lie every case, when the law or the circumstances of the case give a claim to the plaintiff.
    
      Porter for the defendant.
    The plaintiffs must fail, for the evidence, which they have intro-ed, does not support the facts alleged in the petition. There is no evidence of any promise on the part of the defendant, who therefore has only to answer non fa hoec foedera veni.
    Besides, the plaintiffs cannot complain that the defendant put on board of their ship, slaves, which they, through the master of her, willingly received.
    Finally, the judgment must be reversed, at least for the interest which has been allowed before the beginning of the suit : for there was no demand, and the claim was unliquidated.
   MARTIN, J.

delivered the opinion of the court~ The judgment of the district court is certainly erroneous in the allowance of the sum of 896 dollars, for interest during eight years, preceding the inception of the suit. There is not any stipulation for conventional interest: the sum claimed is an unliquidated one. We are at a loss to see on what ground any interest was allowed for any Period antecedent to the suit: no other demand of the money claimed appearing to have been made. For this reason, the judgment must be, and is annulled, avoided and reversed.

Proceeding to inquire what judgment the district court ought to have given, we find the action brougHt on an illegal contract, and we seeK in vain for any agreement, to which the defendant gave any express or implied assent.

The facts are, that the defendant came out a passenger in the plaintiffs' ship from New-York -that in the narrows a boat approached the ship, and put aboard two slaves, the defendant's property, who were concealed under teh hatches, so long as the ship was within the reach of officers of the customs, both in New-York and in the Misissippi that the ship was seized on account of these slaves, and that the plaintiff's incurred the expenses, stated in their account, in order to procure her to be restored.

The case is that of a tort or injury, from which may result an obligation to pay damages: but, the plaintiffs have chosen to turn it into a promise to pay certain cost, which they have incurred, and which they allege were paid at the request of the defendant. If he promised to pay these costs, an action certainly lies on his promise. If they were paid. for him, and at his request, an action equally lies on the promise~ which the law raises. In neither case will be With success, contend that he committed no tortious act.

The plaintiffs' counsel has cited a number of authorities from English books, tending to shew The extension given to the action for money had and received. But they are all cases of money. received by the defendant. Neither in Great Britain, the United States, nor in any country in which the distinction between actions grounded on contracts is known, was it ever successfully alleged that the commission of a tortious act is evidence of a promise to repair the injury done, by yielding damages.

The plaintiffs, by the nature of their action, have alleged a promise as the basis of thier claim.

The defendant has put this promise in issue-there is not any evidence of an express promise, and the law does not warrant us in declaring that there is an implied one. it is true, a tort is set forth in evidence, but. as the nature of the pleadings did not authorise the defendant to defend himself against this charge-as the promise, if really wade, admitted it, or waved the right of offering any thing in opposition to the charge, we cannot consider the question how far the plaintiffs have a right to indemnification.

It is therefore ordered, adjudged and decreed, the judgment be entered for the defendant, with costs of suit in both courts, without any prejudice to the plaintiffs' claim for damages, if any they have.  