B "that if he is willing to carry 20 quarts of wine of my Master Prisot to G, he shall have 40 shillings," no one in the time of Henry VI or to-day would contend that the title to any specific 40 shillings was ever in B. The situation is not different where A gives B 40 shillings to give to C. B is C's debtor, but C does not have the title to any specific 40 shillings. Of course, A can say to B, give C this bag of coins or these particular crowns, and then no title passes to B, for the title, so far as B is concerned, is always either in A or C, according to the nature of the transaction between them. B is then not a debtor but a bailee, and is bailee to C in an action of detinue.

Thus in 1339 detinue was brought for 20 pounds “in a bag sealed up, etc., etc." The defendant objected to the writ on the ground "that he demands money, which naturally sounds in an action of debt or account." The plaintiff replied, "We did not count of a loan which sounds in debt,

every particular except the transfer of title, it is a loan; that the title is transferred for the purpose of making the loan effective as such, and because it is immaterial to the lender whether he receives back the identical thing lent or something else just like it. Moreover, the difference between a loan of money, for example, and a loan of a specific article, is not commonly present to the minds of the parties; the lender of money thinks the money lent still belongs to him, and that the borrower has acquired only the right to use it temporarily; he is aware that the borrower is entitled to transfer to other persons the identical coins lent, and that he has the option of returning to him, the lender, either the identical coins borrowed or others like them; but he is not aware that these rights in the borrower are inconsistent with his retaining the title to the money lent. In other words, he supposes (and, in every view except the strict legal view, he is right in supposing) that he may own a given sum of money without owning any specified coins; and that the only substantial difference between money in his own coffer and money due to him is, that in the former case he has the possession, while in the latter he has not.

A debt, therefore, according to the popular conception of the term, is a sum of money belonging to one person (the creditor), but in the possession of another (the debtor). There is also much reason to believe that this popular conception of a debt was adopted by the early English law, at least for certain purposes. Thus, the action of debt (which was established for the sole and exclusive purpose of recovering debts of every description) was in the nature of an action in rem, and did not differ in substance from the action of detinue; the chief differences between them being that the latter was for the recovery of specified things belonging to the plaintiff, the former, of things not specified." Langdell's Summary of Contracts, Sections 99, 100.

Year Book, 37 Hen. VI, pl. page 8; see ante, pages 775, 776.

nor of a receipt of money for profit, which would give an action of account, but of money delivered in keeping under seal, etc., which could not be changed." The defendant was required to answer over.

But where money in an unsealed bag was delivered, “one penny cannot be known from another in a bag, we are of opinion that detinue does not lie and therefore reverse the judgment."

"When the defendant receives money belonging to the plaintiff but receives it under such circumstances that he has a right to appropriate it to his own use, making himself a debtor to the plaintiff to the same amount, and the defendant exercises such right, the receipt of the money will create a debt." 5

In the action of debt, the relation of the debtor to both the beneficiary and the quid pro quo is plainly distinguishable from the relation of the modern trustee to the cestui que trust, and to the "trust property." This distinction is demanded, because the tests which determine a modern trust are not those which determine a mediæval debt.

The practical consequence of confounding debts with trusts is to erroneously limit the right of action of the beneficiary at common law to only those cases which fulfil the requisites of a modern trust.

The modern trust, with its conception of a double title to the trust property,-i.e., of a distinct "equitable ownership" apart from the legal title,-was a conception which developed in the Court of Chancery many years after the right of the beneficiary in debt had been established at law. The cestui que trust in later times recovers, because as to certain specific property he has a title recognized by Chancery. The two conceptions of liability are radically distinct. The

'Year Book, 12 and 13 Edw. III, 244; Ames, Cases on Trusts, vol. i, page 52.

Banks v. Whetston, I Dyer, 22 b, note 137: "The chattel might be delivered to the bailee to be delivered to a third person, in which case the third person was allowed to maintain detinue against the bailee." Ames: "Parol Contracts Prior to Assumpsit," vi Harvard Law Review, at page 258.

'Langdell: A Brief Survey of Equity Jurisdiction,” ii Harvard Law Review at page 245 (1889).

quid pro quo, if a chattel, becomes, as above stated, the absolute property of the debtor. His receipt of it gives rise to an obligation to pay the beneficiary; but no one ever supposes that the beneficiary's right to recover is based on any equitable ownership" of the chattel, or of the sum of money recovered.

The right of action of the beneficiary in account must next be considered. Historically, this remedy of the beneficiary antedates his action of debt, doubtless because in account there was never required to be a "contract" between the plaintiff and the defendant.

"A receiver is one who receives money belonging to another for the sole purpose of keeping it safely and paying it over to its owner.'

In account, "here again the writ was modelled upon the proprietary writs. The defendant must 'justly and without delay render to the plaintiff' something, namely, an account for the time during which he was the plaintiff's bailiff and receiver of the plaintiff's money. Even in the modern theory of our law 'the obligation to render an account is not founded upon contract, but is created by law independently of contract.' The earliest instance of this action known to us dates from 1232; the writ seems to come upon the register late in Henry III's reign, and much of its efficacy in later times was due to the statutes of 1267 and 1285. These statutes sanctioned a procedure against accountants which was in that age a procedure of exceptional rigor. We gather that the accountants in question were for the most part 'bailiffs' in the somewhat narrow sense that this word commonly bore, manorial bailiffs. In Edward I's day the action was being used in a few other cases; it had been given by statute against the guardian in socage and we find it can be used among traders who have joined in a commercial adventure; the trade of the Italian bankers was being carried on by large 'societies' and Englishmen were beginning to learn a little about partnership. Throughout the fourteenth and fifteenth

'Langdell: "A Brief Survey of Equity Jurisdiction," ii Harvard Law Review, page 244 (1889).

centuries the action was frequent enough, as the Year Books and Abridgements show.""

It was never necessary, in order to constitute a man your receiver and therefore to render him accountable to you, that he should have received the money from you.

"If money be delivered by A to B in order that it may be delivered by B to C, or if it be delivered by A to B to the use of C, it has often been held that B will be accountable to C." &

It was firmly settled that it was not necessary for the receiver to have actually received the money from the plaintiff. If, in the course of his dealing with another person, the defendant became the receiver of money due the plaintiff, though the plaintiff was not privy to the obligation or even aware of it, he could enforce it.

In a case of account by a legatee against executors the objection was made: "How can the daughter who never bails the money to the executors have account?” To which Lord Brooke answered: "I command you to receive my rents and deliver them to Lord Dyer, he shall have account against you: yet he did not bail the money."

"If a man deliver money to you to pay to me, I shall have account against you, although he may be but a messenger.10 "A man shall have a writ of account against one as bailiff or receiver where he was not his bailiff or receiver; for if a man receive money for my use, I shall have an account against him as receiver; or if a man do deliver money unto another to deliver over unto me, I shall have an account against him as my receiver." 11

No one could be your receiver unless he had received money. The :eceipt of chattels when the obligation was to sell them and convert them into money constituted the defendant not a receiver, but a bailee, who was also liable in account.12

'Pollock and Maitland's History of English Law, vol. ii, page 219 (1895).

'Langdell's "A Brief Survey of Equity Jurisdiction," ii Harvard Law Review, page 249.

10

Paschall v. Keterich, Dyer, 152, note.

1 Roll. Abr. Accompt (A), pl. 6.

"F. N. B. 116 Q.

" Langdell:

"

A Brief Survey of Equity Jurisdiction," ii Harvard

Law Review, page 244 (1889). See 46 E 3f3, pl. 6.

A distinction was made as early as 1367 between debt and account, when Cavendish said: "If I deliver certain money to you to deliver to John, he shall have a writ of account because the property is in him straightway upon your receipt by my hand; and he cannot have an action of debt." 18

In 18 Edward IV (1479) the dicta of two judges illustrate the controversy which was so long waged as to whether debt or account would lie in favor of a third person. Catesby, J.: "If I deliver 20 pounds to Catesby to deliver to Piggott, he can choose to have a writ of account against Catesby, or writ of debt." But Brian, J., thought otherwise: "and to this that is said that I shall have an action of debt or account, I say that he shall have an action of account and not action of debt, for upon what thing shall his action of debt be founded? Upon a contract, not upon purchases, nor upon borrowing he cannot declare." 14

"If a man deliver money to you to pay to me," said the court in 6 Henry IV, “I shall have a writ of account against you and not a writ of debt because there is no contract between you." 15 "The obligation to render an account is not founded upon contract, but is created by law independently of contract." 16

In the earlier cases the argument is constantly advanced that the beneficiary's only remedy is account, but this contention is always met by the counter argument that he can sue either in account or debt. Thus in 1405 this colloquy

occurs:

Hank." For if a man delivers certain monies to you to pay to me, I shall have a writ of account against you and not writ of debt, because there is no contract between you."

Tillesley." I think I can elect to have a writ of account or writ of debt."

Thirning." If a man takes rent from your tenants, shall you have a writ of debt?"

"Year Book, 41 Edward III, folio 10, pl. 5. See ante, page 770. "Year Book, 18 Edward IV, folio 23, pl. 5.

"Year Book, 6 Hen. IV, folio 7, pl. 33. See ante, page 771.

"A Brief Survey of Equity Jurisdiction," by C. C. Langdell, in ii Harvard Law Review, at page 243 (1889).