general, such a privity between the client and the agent, as will CH. III. s. 3. entitle the former to recover such proceeds in an action against the agent for money had and received (p). Implied Contracts (Money Had and Received). between defendant contd. In like manner it was held, that where a party sued one of the members of the provisional committee of a defunct joint-stock Privity company, to recover back his deposit, he must show that the plaintiff and defendant was the person, or one of the persons, to whom such deposit was paid (q). And the fact of the plaintiff having paid his money into a bank, which was named in a prospectus which had been circulated with the defendant's sanction—his name appearing thereon as one of the provisional committee, and as chairman of the committee of management,-was held not to be sufficient to fix the defendant in this action; provided it appeared that he took no active part in the allotment of the shares, or in the management of the concern (r). does not lie Thirdly, the mere existence between two parties of the relation- This action ship of trustee and cestui que trust, will not entitle the latter to in general sue the former for money had and received to his use (s). If, by cestui que trust against therefore, money be received by A. upon trust to make payments trustee. of an unascertained amount, and to pay the surplus to B., the latter cannot, while this trust remains open, sue the former for money had and received (t). And when money is entrusted to a factor ad merchandizandum, no debt arises until the character of factor is put an end to (u). Money paid by A. to B. upon a condition which has not been complied with, cannot be recovered as money had and received to A.'s use (x); but where money is due in equity, and the trustee When it does states an account concerning it with the cestui que trust, it may be recovered at law in this action, or in an action on an account stated (y). lie in such cases. Fourthly, there are also many cases in which the plaintiff may When plainwaive a tort committed by the defendant, and through the medium tiff may waive a tort, and sue of which he has received money belonging to the plaintiff, and sue in this action. for money had and received (2), as where the defendant tortiously (p) Robbins v. Fennell (1847), 11 Q. B. 248. See, also, Sims v. Brittain (1832), 4 B. & Ad. 375. (q) Watson v. Earl of Charlemont (1848), 12 Q. B. 856; Burnside v. Layrell (1848), 3 Exch. 224. (r) Burnside v. Dayrell (1848), 3 Exch. 224. (8) Bartlett v. Dimond (1845), 14 M. W. 49; Pardoe v. Price (1847), 16 M. W. 451; Bond v. Nurse (1847), 10 Q. B. 244. And see per Cur., Edwards v. Lendes (1852), 1 E. & B. 81, 89; Brien v. Lord Kenyon (1851), 6 Exch. 382; Mileham v. Eicke (1838), 3 M. & (t) Edwards v. Bates (1844), 7 M. & (u) See per Parke, B., Miller v. Atlee (1849), 13 Jur. 431. (x) Hardingham v. Allen (1848), 5 C. B. 793. (y) Per Crompton, J., Howard v. Brownhill (1853), 23 L. J., Q. B. 23, 24; Roper v. Holland (1835), 3 A. & E. 99. (2) See Hambly v. Trott (1776), Cowp. 371; Clark v. Gilbert (1835), 2 CH. III. s. 3. takes and retains the plaintiff's money (a); or takes his goods, and sells them, and receives the proceeds (b). Implied Contracts (Money Had and Received). Receipt of rent by per It is also laid down, that money had and received lies, if a person, assuming to act as my agent, go and receive my rents from my tenants (c). And in Hasser v. Wallis (d),-where it son assuming appeared that the plaintiff, being a feme sole, married the defendant to be agent. Wallis, who was then married to another woman, and that Wallis made a lease of the wife's land, reserving rent, and received the rents from the tenants; and that the plaintiff, having discovered the former marriage, thereupon brought indebitatus assumpsit against Wallis for so much money received to her use, it was objected that the action would not lie, because Wallis having no right to receive, the tenant was not discharged, and therefore an action lay against the tenant, who had his remedy over against Wallis; but the Court held, "that the recovery against Wallis in this action would discharge the tenant, for this would be a satisfaction to the lessor;" and gave judgment for the plaintiff accordingly. Title to land cannot be tried in this action. But the title to land, or to an incorporeal hereditament, cannot be tried in this action. And accordingly, where rents are received under an adverse holding or possession; or by a person claiming title to land, but having no title; an action for money had and received, is not the proper remedy against the party thus wrongfully obtaining such rents (e). So this action will not lie by one tenant in common against his co-tenant, whom he alleges to have received more than his share of the profits (f). But where a tenant, having paid rent to A., was ejected at the suit of a third person, who afterwards recovered mesne profits from him, for the period in respect of which he had paid rent to A.: it was held that the tenant might recover back such rent from A., in Scott, 520; Pratt v. Vizard (1833), 5 B. (a) Neate v. Harding (1851), 6 Exch. (b) Id.; Lamine v. Dorvell (1706), 2 Ld. Raym. 1216; Foster v. Stewart (1814), 3 M. & S. 191. (c) See Clarence v. Marshall (1834), 2 C. & M. 495, 502; and per Heath, J., Lightly v. Clouston (1808), 1 Taunt. 112, 115; 9 R. R. 713. (d) Hasser v. Wallis, 1 Salk. 28 (1708); and see Darnton v. Pigman (1791), Peake, Add. Ca. 111. In that case A., being bankrupt, continued in possession of his estate, and granted an annuity of certain premises to B. The tenant in possession paid the rent to B., to prevent a distress; and Lord Kenyon held, that the assignees could not sue B. for money had and received; on the ground that the tenant, having paid the money to a person who had no title to receive it, could not avail himself of that payment as against the assignees. (e) Lindon v. Hooper (1776), Cowp. 414; Clarence v. Marshall (1834), 2 Č. & M. 495. 28. (f) Thomas v. Thomas (1850), 5 Exch. an action for money had and received, he not having set up any CH. III. s. 3. title to the premises at the trial (g). Implied Contracts (Money Had and Received). (b) Who may sue. action. We have already slightly noticed the rule, that, in order to Who may, in general, maintain the action for money had and received, the plaintiff must maintain the in general show that the defendant has received some specific sum for his use (h). And we now observe, further, that it is necessary that the money which, or the goods the proceeds whereof the plaintiff claims, should either originally or at the time of action brought, have belonged to him (i). Therefore a mere bailiff or agent cannot maintain this action (k). And where an action was brought in the name of A., against B., on a bill of exchange; but it appeared that C., the drawer of the bill, was the real plaintiff, and that A. had only lent his name, because C. was unwilling that his should appear: it was held that A. could not recover from the attorney in the action, a sum of money paid to him by B. on the settlement thereof, as money had and received to his use (1). So, if an agent be employed by several persons, jointly, to sell goods, or a specific chattel, such as a ship, and he do so and receive the proceeds, one of them cannot sue the agent alone, to recover his proportion of such proceeds (m). And where, under a written authority from two of three executors (who alone had proved the will), the defendant received certain rents, due from the tenants of lands in which the testator had a term of years, and gave a receipt for such rents in the name and on account of the two; it was held that the three executors could not sue the defendant, jointly for the money, unless it were found by the jury, that the two had contracted with him on account of themselves and the other executor, or generally on account of the estate (n). But where the defendant was a mere wrong-doer in taking the goods, and he afterwards sells them and receives the proceeds, the party from whose possession they were taken may recover the proceeds in this action, without proving any title to the goods beyond mere possession. And if the plaintiff be entitled to the money, the action lies, though the money received by the defendant was not the (g) Newsome v. Graham (1829), 10 B. &C. 234; and see Barber v. Brown (1856), 1 C. B., N. S. 121;_Cripps v. Berde (1796), 6 T. R. 606; 3 R. R. 273. (h) See Atkins v. Owen (1836), 4 A. & E. 819, and ante, 61. (i) See Vaughan v. Matthews (1849), 13 Q. B. 187; Standish v. Ross (1849), 3 Exch. 527, 532; Thurston v. Mills C.C. (1812), 16 East, 254, 274. (k) Harding v. Hall (1842), 10 M. & W. 42. (1) Clark v. Dignam (1838), 3 M. & W. 478. (m) Hatsall v. Griffith (1834), 2 C. & M. 679. (n) Heath v. Chilton (1844), 12 M. & W. 632. F CH. III. s. 3. identical money produced by the sale of the goods (o). So where Implied the trustee of a bill of exchange, sued thereon for the benefit of A.; Contracts (Money Had and, the defendant in the action having escaped, the trustees and Received). recovered against the sheriff; it was held that A., the cestui que Who may sue trust, might maintain an action for money had and received against -contd. Against whom it lies in general. the trustee, to recover the sum obtained from the sheriff, allowing the trustee his costs and expenses (p). So where the defendant, as administrator of the estate of an intestate, received a sum of money which, by agreement with all the parties interested, he was to apply in repaying to the plaintiff, certain expenses which had been incurred by him in burying the widow of the intestate; and the defendant afterwards told the plaintiff that he would retain the money on his, the plaintiff's, account, until he saw that the charges were correct, and would then pay it over it was held that the plaintiff could recover this money from the defendant, in an action for money had and received (7). And this action will lie by an administrator against a stranger, for debts due to the intestate, which have been received by the latter between the time of the death of the intestate, and the grant of administration; as well as for money which such stranger may have received from the sale of the intestate's goods (r). So, this action will lie at the suit of the trustee of a bankrupt, for money received by the defendant after the bankruptcy, or before the bankruptcy by way of fraudulent preference (s). And where A. and B. were partners, and B. fraudulently indorsed to C., in payment of a private debt, certain bills belonging to the partnership, C. being aware of the fraud: it was held that,-B. having afterwards become bankrupt, his assignees might disaffirm the transaction as a fraudulent preference, and join with A. in an action for money had and received against C., to recover the proceeds of such bills (t). (c) Who may be sued. This action is not in general maintainable against a mere bearer of money from one person to another (u). Thus, it should be brought against the principal (x); and not against a mere receiver or collector (y), or against an agent or other party who has paid (0) Allanson v. Atkinson (1813), 1 M. & S. 583. (p) Randoll v. Bell (1813), 1 M. & S. 714. (9) Meert v. Moessard (1827), 1 M. & P. 8. (r) Welchman v. Sturgis (1849), 13 Q. B. 552. (s) Per Parke, B., Pennell v. Aston (1845), 14 M. & W. 415. (t) Heilbut v. Nevill (1870), L. R. 5 C. P. 478, Ex. Ch. (u) Coles v. Wright (1811), 4 Taunt. 198. (x) See Goodall v. Lowndes (1844), 6 Q. B. 464. (y) Sadler v. Evans (1766), 4 Burr 1985; Greenway v. Hurd (1792), 4 T R. 553, 555, n. (b). Contracts sued. over the money to another, with the assent (2), or according to the CH. III. s. 3, directions of the party who deposited it with him (a); or against a Implied clerk who, although he has not paid the money over, received it (Money Had expressly under the authority, and for and in the name, of his and Received) employer (b). Thus, the solicitor of the vendor of property is the Who may be agent of the vendor to receive the deposit, and if the sale goes off through the default of the vendor after the payment by the purchaser of the deposit, so as to entitle the purchaser to the return of the deposit, it is the vendor whom he must sue, and not the solicitor (c). So, where the plaintiff agreed with K. & Co., that certain dividends should be received by them on his account from his broker, and that the broker should pay such dividends to them through the bank of D. & Co.; it was held that, so soon as the money was paid to D. & Co., it was paid to K. & Co.; and that, the latter firm having stopped payment,-the plaintiff could not recover the same from D. & Co. in this action (d). claim. Nor can this action be maintained against a churchwarden to Money paid recover back dues which previous to the commencement of the by defendant to third party, action, he had paid over without notice of the plaintiff's claim, to without notice of plaintiff's the trustees of a chapel for whom they were received (e). So, where goods belonging to the plaintiff were seized by an officer of excise; and the plaintiff, by direction of the commissioners, paid a sum of money to the defendant, a receiver of the excise, in order to redeem them: it was held that, even if the seizure proved to have been invalid, the plaintiff could not recover, in this action, the money so paid to the defendant; inasmuch as it appeared, that he had paid the same over to the commissioners, before receiving notice of the intention of the plaintiff to dispute the validity of the seizure (ƒ). And where a person who has committed an act of bankruptcy, on which he was afterwards made bankrupt, deposited money with an arbitrator, who was to decide to whom it belonged; and the arbitrator, without notice of the act of bankruptcy, paid the money over to the person whom he considered entitled to it: it was held that the assignees could not maintain this action against the arbitrator, he having been a mere gratuitous holder or carrier of the money, and having paid it over bonâ fide, under circumstances which did not lead him to suspect that, in so doing, he was affecting the rights of any third person (g). Hurleyv. Baker (1846), 16 M.& W.26. Baron v. Husband (1833), 4 B. & 44 611. e) Ellis v. Goulton, [1893] 1 Q. B. 350, C. A. (d) Williams v. Deacon (1849), 4 Exch. 397, Ex. Ch. (e) Horsfall v. Handley (1818), 8 Taunt. 136. (f) Atlee v. Backhouse (1838), 3 M. & W. 633, 648. (g) Tope v. Hockin (1827), 7 B. & C. 101, 111. |