MONEY PAID. ment for damages be recovered against them, and one be compelled to pay the whole, he has in general no claim for contribution against his co-defendants (t). But if one party, honestly and bona fide, in compliance with the directions of another, does an act not manifestly illegal in itself, and for such act, damages are recovered in an action ex delicto against the party who did it, the other is bound to indemnify him (u).2 And if a party recover damages against one of two joint coach proprietors, for an injury sustained by a passenger in consequence of the negligence of their servants, such proprietor may, it seems, sue his co-proprietor for contribution, on proof that he, the plaintiff, was not personally present when the accident occurred (x). But one proprietor cannot, in such a case, maintain an action against his co-proprietor [526] for money paid, if it appear that there was a partnership fund, out of which the expenses of the coach were first to be paid, and that then the residue was to be divided amongst the proprietors (y). IN GEN ERAL 1. The action for money had and received was called by Lord Mansfield (2), "a kind of equitable action." But it has been recently observed, that "the notion about the action for money had and received being an equitable action, is exploded in modern practice (a)." Notwithstanding this, however, it would appear that, at the pres ent day, the general scope of this action is regarded as being almost as extensive as it was in Lord Mansfield's time; it being still held, in conformity with the view expressed by him, that "where money is due ex æquo et bono it may be recovered in an action" for (t) Merryweather v. Nixan, 8 T. R. 186; Farebrother v. Ansley, 1' Camp. 343, 345; Wilson v. Milner, 2 Id. 452. (u) Betts v. Gibbins, 2 A. & E. 57; Adamson v. Jervis, 4 Bing. 66, 72. See also, Collins v. Evans, 5 Q. B. 820, 830. (x) Wooley v. Batte, 2 C. & P. 417. (y) Pearson v. Skelton, 1 M. & W. 504. (z) See Moses v. Macferlan, 2 Burr. 1005, 1012. (a) Per Pollock, C. B., and Parke, B., Miller v. Atlee, Exch. 13 Jur. 431. 1 Miller v. Fenton, 11 Paige, 18; Campbell v. Phelps, 1 Pick. 65; Vose v. Grant, 15 Mass. 521; Thweatt v. Jones, 1 Rand. 328; Dupuy v. Johnson, 1 Bibb, 562; Wilford v. Grant, Kirby, 116; Peck v. Ellis, 2 Johns. Ch. 131; No. 39 Amer. Jurist, 10, 11; Ante, 446. 2 Ante, 444 to 446. RECEIVED. money had and received (b).1 And accordingly it has been decided, MONEY that if A. assign to B. a debt due from C. to A., and C. afterwards HAD AND pays that debt to A., B. may recover the same from him in an action for money had and received, although the sale by A. to B. was merely that of a chose in action (c). This action, however, "does not lie for money paid by the plaintiff, which was claimed of him as payable in point of honor and honesty, although it could not have been recovered from him by any course of law; as in payment of a debt barred by the Statute of Limitations, or contracted during his infancy, or to the extent of principal and legal interest upon an usurious contract, or for money fairly lost at play; because in all these cases the defendant may retain it with a safe conscience, though by positive law he was barred from recovering. But it lies for money paid by mistake; or upon a consideration which happens to fail; or for money got through imposition, express or implied; or extortion, or oppression; or an undue [ 527 ] advantage taken of the plaintiff's situation, contrary to laws made for the protection of persons under those circumstances (d). ," count; and what nec The form of the count is, that the plaintiff sues the defendant Form of "for money received by the defendant for the use of the plaintiff(e):” and, to support this count, it is, as a general rule, necessary to prove essary to that the defendant himself, or his agent (f), actually received money support. for the benefit of the plaintiff, under such circumstances as to create a privity of contract between him and the plaintiff ( g ).3 (b) Per Tindal, C. J., Smith v. Jones, C. B., 6 Jur. 283, 284; per Lord Mansfield, Moses v. Macferlan, supra. (c) Smith v. Jones, supra. And see Tibbits v. George, 5 A. & E. 107, 116. (d) Per Lord Mansfield, C, J., Moses v. Macferlan, supra; and see Longchamp v. Kenny, 1 Dougl. 138; Stratton v. Rastall, 2 T. R. 370; Boyter v. Dodsworth, 6 T. R. 681; see 2 Pothier, by Evans, 369, 378, 379. In Johnson v. Johnson, 3 B. & P. 169, Lord Alvanley, C. J., observed, "that in the case of Moses v. Macferlan, some principles were laid down, which are certainly too large, and which he did not mean to rely on; such as, that wherever one man has money which another ought to have, an action for money had and re- (e) 15 & 16 Vict. c. 76, Sched. B. (f) Agent's receipt when a receipt by principal; Coates v. Bainbridge, 5 Bing. 58; S. C. 2 M. & P. 142; Russell on Factors, 96-100. Various sums, received at different times, upon distinct transactions, may be recovered under one count for money had and received; 2 Saund. 118, n. (2). (g) See Barlowe v. Browne, 16 M. & W. 128; Vaughan v. Matthews, 13 Q. B. 187, 189; Jones v. Carter, 8 Q. B. 134; Cobb v. Becke, 6 Q. B. 930; per Parke, J., Baron v. Husband, 4 B. & Ad. 611, 612. 1 Eddy v. Smith, 13 Wend. 588; Wright v. Butler, 6 Wend. 290; Irvine v. Hanlon, 10 Serg. & R. 219; Bogart v. Nevins, 6 Serg. & R. 369; Murphy v. Barron, 1 Har. & Gill, 258; Guthrie v. Hyatt, 1 Harring, 447; Tevis v. Brown, 3 J. J. Marsh. 175; Martzell v. Stauffer, 3 Pennsylv. 398; Allen v. M'Keen, 1 Sumner, 317; Glass v. Lobdell, Walker, (Miss.) 105; Hatten v. Robinson, 4 Blackf. 480; Rathbone v. Stocking, 2 Barbour, Sup. Court Rep. 135; Wilson v. Sergeant, 12 Alabama, 778; Buel v. Boughton, 2 Denio, 91. 2 This action lies against a mere intruder or trespasser, who has collected money which belonged to another; as where a party, having no right to wharfage, has, without authority, collected it, the true owner may sue him in assumpsit for it. O'Conley v. Natchez, 1 Smedes & Marsh, 31. 3 Bloomer v. Denman, 12 Illinois, 240; Hutchins v. Gilman, 9 N. Hamp. 359; Carnegie v. Morrison, 2 Met. 396. There need be no privity of contract, except that which results from one man's having another's money, which he has not a right conscientiously to retain, in order to support this action. Mason v. Waite, 17 Mass. 563; Hall v. Marston, 17 Mass. 579; Eagle Bank v. Smith, 5 Conn. 71; Dickson v. Cun MONEY HAD AND RECEIVED. Privity between plaintiff and defendant. Where, therefore, the purchaser of a ticket in a Derby lottery sold it to the plaintiff, and the horse named in such ticket proved to be the winner, whereby the holder thereof became entitled to a prize in money it was held, that the plaintiff could not maintain an action for money had and received, to recover the amount of the prize from the treasurer of the lottery; for, although he held the money for the benefit of the plaintiff, yet there was no privity between them (h). And so, if money in litigation between two parties, is paid over by mutual consent to a trustee or stakeholder, in trust for the party entitled; it can be recovered by the party entitled to it, from the stakeholder only, and not from the other party by whom it was claimed (i). J., an attorney, who was accustomed to receive certain dues for the plaintiff, his client, went from home, leaving B., his clerk, at the office. B., in the absence of his master, received money on account of the above dues for the client (which he was authorized to do), and gave a receipt, signed, " B., for Mr. J." J. was in bad circumstances when he left home, and he never returned; but it did not appear that his intention so to act was known, at the time of the payment, to B. B. afterwards refused to pay the money over to the client; and, in an action brought against him for money had and received, it was held that the action did not lie; for that the defendant re[ 528]ceived the money as "the agent of his master, and was accountable to him for it, the master, on the other hand, being answerable to the client for the sum received by his clerk, and there being no privity of contract between the present plaintiff and defendant (k). So where a country attorney, who is engaged in a cause, employs a London agent; and the proceeds of the cause are received by the latter in the ordinary course of his business; there is not, in general, such a privity between the client and the agent, as will entitle the former to recover such proceeds in an action against the agent for money had and received (7). And so it was held in the following case: A., B., and others, were owners of a ship, in the service of the East India Company. B. was managing owner, and he employed C. as his agent for general purposes, and, amongst others, to receive and pay monies on account of the ship; and C. kept a separate account in his books with B., as such managing owner. To obtain payment of a sum of money, due from the East India Company on account of the ship, it was necessary that the receipt should be signed by one or more of the owners, besides the managing owner; and upon a receipt signed by B. and (h) Jones v. Carter, suora. (i) Ker v. Osborne, 9 East, 378. • 354. (1) Robbins v. Fennell, 11 Q. B. 248. ningham, Mart. & Yerg. 221. An action for money had and received may be sustained by an attorney against the assignee of a judgment, who has collected the amount of it, to recover the amount of the attorney's lien upon such judgment. Heartt v. Chipman, 2 Aiken, 162. So if an attorney, having a demand in his hands for collection, assign it without authority to a third person, and the assignee receives the amount, assumpsit for money had and received lies in favor of the client against the assignee. Penniman v. Patchin, 5 Vermont, 346. RECEIVED. one of the other owners, C. received, on account of the ship, 20001. MONEY from the East India Company, and placed it to B.'s credit in his HAD AND books, as managing owner. The part-owners having brought money had and received, to recover the balance of that account, it was held that C. had received the money as the agent of B., and was accountable to him for it; that there was no privity between the other part owners and C.; and, consequently, that the action was not maintainable (m). And, in like manner, where a party sues one of the members of the provisional committee of a defunct joint-stock company, to recover back his deposit, he must show that the defendant is the person, or one of the persons, to whom such deposit was paid (n). And the fact of the plaintiff having paid his money into a bank, which was named in a prospectus which had been circulated by the defendant's sanction, his name appearing thereon as one of the provisional committee, and as chairman of the committee of management,-is not sufficient to fix the defendant in this action; provided it appear that he took no active part in the allotment of the shares, or in the management of the concern (0). Although, however, it is, in general, necessary that the money sued for in this action should have been originally received by the defendant for the use of the plaintiff; yet there are cases in which the action will lie, where the fact was otherwise. Thus where the [529] defendant, in the character of administrator, received a sum of money which, by the agreement of all parties entitled, was to be applied in repaying the funeral expenses of the intestate's widow,-which had been paid by the plaintiff,-and promised so to apply it, it was held that the plaintiff might recover against the defendant in an action for money had and received (p). But where the defendant, as the agent of an executor, wrote to a legatee, informing him of his legacy and its amount, and stating that he would remit it in any way the legatee might suggest; and he afterwards remitted the amount of the legacy to the legatee, minus a sum deducted for expenses; it was held, that the defendant was not liable to the legatee in an action for money had and received, for the sum so deducted, there being no privity between them (q). It must likewise appear, in general, that the defendant has received money or cash, and not merely money's worth (r).1 Thus, al (m) Sims v. Brittain, 4 B. & Ad. 375. (n) Watson v. Earl of Charlemont, 12 Q. B. 856; 18 L. J., Q. B. 65; Burnside v. Dayrell, 3 Exch. 224, 227. (0) Burnside v. Dayrell, supra. (q) Barlow v. Brown, 16 M. & W. 126. (r) Per Tindal, C. J., Scott v. Miller, 5 Scott, 11, 16; Moor v. Pyrke, 11 East, 52; Maxwell v. Jamieson, 2 B. & Ald. 51; Wharton v. Walker, 6 D. & R. 288; 4 B. & C. 163. 1 Beardsley v. Root 11 Johns. 464; Luckett v. Bohannon, 3 Bibb, 378; Madison v. Wallace, 7 J. J. Marsh. 100; Johnson v. Haggin, 6 J. J. Marsh. 531.. See Doebler v. Fisher, 14 Serg. & R. 179; Dearborn v. Parks, 5 Greenl. 81; Hantz v. Sealy, 5 Binn. 409; Ralston v. Bell, 2 Dall. 242; Morrison v. Berkley, 7 Serg. & R. 246; Kearney v. Tanner, 17 Serg. & R. 94. Bank notes, and any other property received as money, will support the action, the same as if money itself had been received. Mason v. Waite, 17 Mass. 560; Ainslie v. Wilson 7 Cowen, 562; Arms v. Ashley, 4 Pick. 74; Miller v. Miller, 7 Pick. 136; MONEY HAD AND though, as we shall see hereafter, this action will lie in certain cases to recover money paid by mistake, yet it has been held that it will not lie to recover money which has merely been allowed in account by mistake (8). So an action for money had and received will not lie, to recover the value of bank or other public stock, improperly transferred to the defendant and still standing in his name (t); or to recover the value of foreign securities, unless it appear that the defendant has had an opportunity of converting them into British money (u). So it has been held, that this action will not lie against a finder of banknotes, to recover their value (x). But it would appear that in these and other cases, where the property received by the defendant is saleable, or readily convertable into money, a sale and receipt of money by him will sometimes be presumed, particularly after a great lapse of time, until the contrary be proved (y).1 So the action will lie, although the money received was foreign, and not British money (2). And if a stakeholder receive country [530] *bank notes, as money, the amount may be recovered from him, under the count for money had and received (a). It seems, moreover, to be, in general, essential in this action, that the plaintiff should establish a claim to some particular or specifie sum of money, as having been received to his use (b). And if a judgment creditor who has an elegit on the lands of the judgment debtor, sue a receiver for rents received for his use, and there be prior incumbrances on the lands, it is necessary to prove that they have been satisfied, before the receiver can be liable as for money had and received in respect of the rents (c). (8) Lee v. Merrett, 8 Q. B. 820. But see as to this case per Pollock, L. C. B. and Parke, B., Gingell v. Purkins, 4 Exch. 720, 724, 726. (t) Nightingale v. Devisme, 5 Burr. 2589. (u) M'Lachlan v. Evans, 1 Y. & J. 380. (x) Noyes v. Price, H., 16 Geo. 3, Select Ca. 242. (y) Longchamp v. Kenny, 1 Dougl, 137; Leerey v. Goodson, 4 T. R. 687; Whitwell v. Bennett, 3 B. & P. 559; Hunter v. Welsh, 1 Stark. 224; M'Lachlan v. Evans, 1 Y. & J. 380; see however, Elbourn v. Upjohn, 1 Camp. 572. (2) Ehrensperger v. Anderson, 3 Exch. 148; S. C. 18 L. J., Exch. 132. (a) Pickard v. Bankes, 13 East, 20; Fox v. Cutworth, cited in Spratt e. Hobhouse, 12 Moore, 402, 403; S. C. Bing. 173. In the latter case, a cheque was held to be money, it being treated as such, &c. (b) Atkins v. Owen, 4 A. & E. 819; Scott v. Miller, 5 Scott, 11; Harvey e. Archbold, 3 B, & C. 626; S. C. 5 D. & R. 500. (c) See Braithwaite v. Watts, 2 C. & J. 318, 321, 322. Floyd v. Day, 3 Mass. 403; Morrill v. Brown, 15 Pick. 177; Payson v. Whitcomb, 15 Pick. 212, 216; Randall v. Rich, 11 Mass. 494, 498; Emerson v. Baylies, 19 Pick. 55, 57; Hemenway v. Hemenway, 5 Pick. 389; Shepard v. Palmer, 6 Conn. 95. Negotiable notes received by the defendant are often regarded as money, Beardsley r. Root, 11 Johns. 464; Floyd v. Day, 3 Mass. 405; Hemenway v. Bradford, 14 Mass. 122; Willie v. Green, 2 N. Hamp. 333. See Shepard v. Palmer, 6 Conn. 95; Clark v. Pinney, 6 Cowen, 297; Whitcomb v. Williams, 4 Pick. (2d ed.) 230, and cases in n. 1; Tuttle v. Mayo, 7 Johns. 132. Real estate may be so regarded for the purposes of this action. Miller v. Miller, 7 Pick. 136. See Randall v. Rich, 11 Mass. 494. 1 Where saleable property has been received and not accounted for, the receipt of money for its value may be presumed. Burnap v. Partridge, 3 Vermont, 144. See Hatten. Robinson, 4 Blackf. 480. |