In the case of England v. Marsden it was held by the English Court of Common Pleas, that a recovery would not be allowed where goods distrained and redeemed were upon the premises of the defendant for the benefit of the owner of the goods and without the request of the defendant:

England v. Marsden, 1866, L. R. 1 C. P. 529: Action to recover money paid to redeem household furniture and goods of the plaintiff distrained by the defendant's landlord for rent. The plaintiff had taken possession of the goods under a bill of sale or mortgage from the defendant, but had allowed the goods to remain upon the premises of the defendant. Erle, C.J. (p. 532): "The plaintiff having seized the goods under the bill of sale, they were his absolute property. He had a right to take them away; indeed it was his duty to take them away. He probably left them on the premises for his own purposes, in order that he might sell them to more advantage. At all events they were not left there at the request or for the benefit of the defendant. It is to my mind precisely the same as if he had placed the goods upon the defendant's premises without the defendant's leave, and the landlord had come in and distrained them."

1 Johnson v. Royal Mail Steam Packet Co., 1867, L. R. 3 C. P. 38; The Orchis, 1890, 15 P. D. 38; The Heather Bell, [1901] P. 143. And see Goodridge v. Lord, 1813, 10 Mass. 483.

2Murphey v. Davey, 1884, L. R. 14 Ir. 28, (payment of rent by sub-tenant of part of premises to prevent eviction); Walker v. Smith, 1856, 28 Ala. 569, (payment of jail fees by owner of slaves who had run away from hirer); Henderson v. Welch, 1846, 3 Gilm. (8 111.) 340, (payment of costs of litigation by one who was party of record but not in interest); Keith v. Congregational Parish, 1838, 21 Pick. (Mass.) 261, (payment of parish debt by parishioner); Nichols v. Bucknam, 1875, 117 Mass. 488, (payment of contractor's debt for labor by owner of building); Hoadley v. Dumois, 1895, 11 Misc. Rep. 52; 31 N. Y. Supp. 853, (payment of debt of charterer of vessel by consignee of cargo); Bailey v. Bishop, 1910, 152 N. C. 383; 67 S. E. 968 (payment by plaintiff for sidewalk he was compelled to lay, for which defendant had bound himself to pay). And see Volker v. Fisk, 1909, 75 N. J. Eq. 497; 72 Atl. 1011.

Two reasons for denying relief are here suggested: first, that in order to support an implied promise by the defendant it must appear that he requested that the goods be left on his premises, or at least that they were left there for his benefit; and second, that the plaintiff was in a position analogous to that of a wrongdoer or an officious volunteer, in that he had no right to leave the goods on the premises. Both arguments appear to be unsound. The first confuses quasi contractual obligation with the obligation of a genuine promise implied from a request or from other conduct of the parties. The second assumes that the goods were left on the premises without the consent of the defendant, a fact which certainly does not appear in the record. It is believed, therefore, that the limitation cannot be supported upon principle; and, as a matter of fact, it has failed to command the support of more recent authority:

Edmunds v. Wallingford, 1885, 14 Q. B. D. 811: Lindley, L.J., referring to England v. Marsden (p. 816). "This appears to us a very questionable decision. The evidence did not shew that the plaintiff's goods were left in the defendant's house against his consent; and although it is true that the plaintiff only had himself to blame for exposing his goods to seizure, we fail to see how he thereby prejudiced the defendant, or why, having paid the defendant's debt in order to redeem his own goods from unlawful seizure, the plaintiff was not entitled to be reimbursed by the defendant."

Sec. 250. Same : Must seizure of plaintiff's property be lawful ? - In the carefully considered case of Edmunds v. Wallingford,1 it was declared to be necessary to the plaintiff's right of action that the seizure of his goods shall have been lawful, i.e. it must appear " that as between the owner of the goods and the person seizing them, the latter shall have been entitled to take them." And in the Maryland case of Myers v. Smith,2 the plaintiff's failure to show the lawfulness of the seizure led to a denial of relief. The logic of this limitation is not apparent, since an unlawful seizure, especially if believed to be lawful, may be just as coercive as a lawful one. Its only justification is that in case of an unlawful seizure the owner of the goods may recover from the recipient money paid to release them. But there would seem to be no harm in allowing an alternative remedy against the obligor, and moreover, as Professor Keener points out,1 to allow such a remedy against the obligor would tend to prevent circuity of action, since a recovery by the owner of the property against the payee would lead to renewed proceedings for the enforcement of the obligation. It need hardly be added that the obligation of the defendant discharged by the plaintiff's payment must be a valid and subsisting one.

11885, 14 Q. B. D. 811,816.

21867, 27 Md. 91. And see Stevens v. Smith, 1907, 112 N. Y. Supp. 361.