Morris, 3 D. F. & J. 45; 30 L. J., Ch. 360; Davidson v. Wood, 1 D. J. & S. 465; 32 L. J., Ch. 400.

In ordinary trading partnerships, one partner is presumed to have authority to bind the rest, by borrowing money for partnership purposes, and the other partners will be liable to pay. Fisher v. Tayler, 2 Hare, 218; Rothwell v. Humphreys, 1 Esp. 406; Story on Partnership, s. 102. But, if one partner open a banking account on behalf of the firm in his own name, this presumption will not extend so as to bind the other partners. Alliance Bank v. Kearsley, L. R., 6 C. P. 433. In the case of a mining concern, carried on by a company, no such authority to borrow is to be presumed; the power must be given by the original settlement, or by the consent of every shareholder. Ricketts v. Bennett, 4 C. B. 686; Brown v. Byers, 16 M. & W. 252; Burmester v. Norris, 6 Exch. 796; 21 L. J., Ex. 43. If, however, mining be carried on as a trade by an ordinary private partnership, under a deed of partnership, the ordinary authority to bind each other exists. Brown v. Kidger, 3 H. & N. 853; 28 L. J., Ex. 66. As to authority of agent to borrow, see Montaignac v. Shitta, 15 Ap. Ca. 357, P. C.

A loan of money secured by a mortgage is recoverable as money lent, if there be no covenant to pay the amount. Yates v. Aston, 4 Q. B. 182. But where a simple loan of money is secured by a covenant to repay the money, the creditor's only remedy is on the covenant. Edwards v. Bates, 7 M. & Gr. 590; Baber v. Harris, 9 Ad. & E. 532; Mathew v. Blackmore, 1 H. & N. 762; 26 L. J., Ex. 150. And a mere acknowledgment, in a deed, of a debt being due will amount to a covenant to pay it, if such an intention to enter into a covenant appear on the deed; Courtney v. Taylor, 6 M. & Gr. 851; Saunders v. Milsome, L. R., 9 Eq. 573; but this is not the case where the acknowledgment is made for a collateral purpose. Courtney v. Taylor, supra; Marryat v. Marryat, 28 Beav. 224; 29 L. J., Ch. 665. It is a defence that a simple contract has been subsequently merged by a security of a higher nature. Vide Merger, post, p. 660. In each of the above cases an amendment would now, no doubt, be readily allowed, vide ante, p. 286, and these decisions are, therefore, of much less importance than they formerly were. The defendant authorized S., his solicitor, to borrow 1001. on mortgage, giving him the title-deeds for the purpose. S. borrowed 4007. of the plaintiff, forging the defendant's signature to a mortgage deed for that amount, and appropriated the money to his own use, but afterwards advanced 1907. to the defendant, taking from him a mortgage to a third person; and it was held that the plaintiff had no cause of action against the defendant, even to the extent of 1007. Painter v. Abel, 2 H. & C. 113; 33 L. J., Ex. 60. The common law right of a pawnbroker to recover the balance due to him after the sale of a pledge, is not affected by a special pawn-ticket given under the Pawnbrokers Act, 1872 (35 & 36 Vict. c. 93), s. 24. Jones v. Marshall, 24 Q. B. D. 269.

Money of a customer at a banker's on an ordinary banking account, is money lent, and if left for six years without acknowledgment the right to recover it may be barred. Pott v. Clegg, 16 M. & W. 321; see Pollard v. Ogden, 2 E. & B. 459; 22 L. J., Q. B. 439. As to a deposit account, see Atkinson v. Bradford, &c. Building Soc., cited post, p. 649. If notes be left by the customer, and the banker give a receipt for the amount as cash, and the notes turn out to be worthless, the customer cannot claim credit for the amount as money lent, or had and received, unless the banker has bought the notes or committed laches. Timmins v. Gibbins, 18 Q. B. 722; 21 L. J., Q. B. 403. But where C., the agent of a banker, B., to whom B. sent the bills of his customer, A., for collection, received the amount, but failed before he remitted the proceeds to B., B. was held liable for the amount to A. Mackersy v. Ramsays, 9 Cl. & F. 818.

ACTION FOR MONEY HAD AND RECEIVED.

In an action for money had and received, the plaintiff may be compelled by a proper defence to prove the receipt of the money by the defendant, and his own title to recover it as received for him.

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This action has always been regarded as an equitable action, and was formerly held to lie whenever the defendant was obliged by the ties of natural justice and equity to refund the money." Moses v. Macferlan, 2 Burr. 1012, per Ld. Mansfield; see Rogers v. Ingham, 3 Ch. D. 351. This definition was, however, found too vague, and the following cases will show the conditions necessary to sustain a claim for money had and received.

Receipt of money.] The plaintiff must prove that money has been received; and therefore an action for money had and received will not lie to recover stock. Nightingal v. Devisme, 5 Burr. 2589. See ante, p. 567. And it has been held that it will not lie against a finder of bank-notes to recover their value; Noyes v. Price, MS. Select Ca. 242; Chitty on Bills, 9th ed. 524; unless it can be shown that they have been cashed, or circumstances justify the presumption. Chitty, ubi sup., citing Longchamp v. Kenny, 1 Doug. 138. And the value even of provincial notes, if received as money, may be recovered in this action. Pickard v. Bankes, 13 East, 20; Fox v. Cutworth, cited 4 Bing. 179. The principle of the cases is, that if a thing be received as money it may be treated and recovered as such. Per Best, C. J., Spratt v. Hobhouse, 4 Bing. 179. So the action is maintainable where the defendant has received foreign money for the plaintiff's use. See Ehrensperger v. Anderson, 3 Exch. 148, 156. Where a sheriff seized goods in execution at the suit and by order of A., who took by bill of sale for 2567., and the debtor's assignees afterwards recovered their value from the sheriff, it was held that though no money passed as between the sheriff and A., the sheriff might recover from A. 2561. as money had and received, and that the return of fieri feci was no estoppel against setting up the right of the assignees. Standish v. Ross, 3 Exch. 527. And money allowed in account, under circumstances which would have entitled the party allowing it to recover it back if he had actually paid it, may be treated as paid, and may be recovered in this form of action. Gingell v. Purkins, 4 Exch. 720. The last two cases, however, seem to be at variance with Lee v. Merrett, 8 Q. B. 820. vendee of an estate agreed with the yendor, after conveyance, to give up his claim to a moiety of the expenses in consideration of the vendor paying some other charges. Held, that the vendee's attorney, who had agreed to charge the vendee nothing if the vendor refused to pay his share, might recover the amount set off, as money had and received by the vendee to his use. Noy v. Reynolds, 1 Ad. & E. 159. If an agent refuse to account for goods delivered to him for sale, it shall be presumed, after a reasonable time, that he has sold them and received the proceeds in money. Hunter v. Welsh, 1 Stark. 224. Where goods are given to an agent for a particular purpose, as to sell them, there is an implied promise to account for the proceeds, in respect of which this action lies. Wilkin

The

v. Wilkin, 1 Salk. 9. Where a banker, A., at whose bank a bill of exchange is accepted payable, by mistake cancels the acceptance, this does not give the holder a right to sue A. for the amount of the bill as money had and received. Warwick v. Rogers, 5 M. & Gr. 340; Prince v. Oriental Bank Corporation, 3 Ap. Ca. 325, P. C.

It seems that the plaintiff must give evidence of some particular sum, otherwise he will be non-suited. Harvey v. Archbold, 3 B. & C. 626; Bernasconi v. Anderson, M. & M. 183; see Baxendale v. G. W. Rail. Co., 14 C. B., N. S. 1, 42, 44; 32 L. J., C. P. 225, 239.

Receipt by the defendant for the plaintiff.] The plaintiff must prove that it was his money which the defendant received. Scarfe v. Hallifax, 7 M. & W. 288. Or that the money has been received to his (the plaintiff's) use by the defendant. Kelly v. Curzon, 4 Ad. & E. 622. The mere bearer of money from one person to another cannot be sued. Coles v. Wright, 4 Taunt. 198. And a mere agent who has paid money over, pursuant to the directions of the party depositing it with him, and without notice of the plaintiff's title, cannot be sued; Horsfall v. Handley, 8 Taunt. 136; but merely passing it in account, without new credit given, is not such a payment; Buller v. Harrison, Cowp. 565; and until there has been a change of circumstances by his having paid over the money to his principal, or done something equivalent to it, he remains liable to the true owner. Cox v. Prentice, 3 M. & S. 344. So if he pay it over after notice that the right to it is disputed. Edwards v. Hodding, 5 Taunt. 815. An auctioneer is the agent of both parties, and a deposit on a sale that goes off may be recovered from him personally. But if the deposit money be paid to the vendor's solicitor, who receives it as such, the action by vendee should be brought against the vendor, and not the solicitor; Bamford v. Shuttleworth, 11 Ad. & E. 926; if the vendor demand the money of the solicitor before the question as to the title is settled, the solicitor is bound to hand it over; and if he do not, interest may be recovered from the demand. Edgell v. Day, L. R., 1 C. P. 80. Where money in litigation between two parties has by consent been paid over to a stakeholder, in trust for the party entitled, it can only be recovered from the stakeholder, and not from the original debtor. Ker v. Osborne, 9 East, 378. And where money has been paid to a stakeholder, A., to abide the decision of B. as to a certain event, the amount is not recoverable until the decision of B. has been communicated to A. Wilkinson v. Godefroy, 9 Ad. & E. 536. The decision of the umpire of a race, as to the winner, is conclusive. Parr v. Winteringham, 1 E. & E. 394; 28 L. J., Q. B. 123; see Dines v. Wolfe, L. R., 2 P. C. 280. But the jurisdiction of the umpire does not arise until the race has been run. Carr v. Martinson, 1 E. & E. 456; 28 L. J., Q. B. 126; Sadler v. Smith, L. R., 4 Q. B. 214; Ex. Ch., L. R., 5 Q. B. 40. A mere contract between A. and B., to which C. is not a party, that B. shall pay C. a sum of money, does not enable C. to sue B. therefor. In re Empress Engineering Co., 16 Ch. D. 125, C. A.

In general, an agent must account to his principal, and cannot set up the jus tertii to an action brought by the principal. Nicholson v. Knowles, 5 Mad. 47; Crosskey v. Mills, 1 Č. M. & R. 298; White v. Bartlett, 9 Bing. 378. Thus, if the master of a ship employ B. to sell a ship on an occasion that justifies the sale (as in case of irreparable damage on a voyage), the owner of the ship cannot sue B. for the proceeds after he has paid them over to the master; nor even, ut semble, before such payment over. Ireland v. Thomson, 4 C. B. 149, 171. All profits, commissions or bonuses made by an agent, A., in the course of his employment, when received by him, belong absolutely to his principal, P., who may maintain this action against A. for their recovery; Morison v. Thompson, L. R., 9 Q. B. 480; De Bussche v. Alt, 8 Ch. D. 286, C. A.; with interest from the time of their receipt by A.; Boston Deep Sea, &c. Co. v. Ansell, 39 Ch. D. 339, C. A.; and P. may recover, although he was not entitled to recover the bonuses from the person who paid A. S. C. See also

Whaley Bridge Calico Printing Co. v. Green, 5 Q. B. D. 109, ante, p. 564; and Salford, Mayor, &c. of v. Lever, 25 Q. B. D. 363, cited post, p. 854. So the promoter of a company is liable to the company for all profits made by him in the formation of the company, which he did not disclose to the company. New Sombrero Phosphate Co. v. Erlanger, 5 Ch. D. 73, C. A.; 3 Ap. Ca. 1218, D. P.; Bagnall v. Charlton, 6 Ch. D. 371, C. A.; Emma Silver Mining Co. v. Grant, 11 Ch. D. 918; Id. v. Lewis, 4 C. P. D. 396; Lydney, &c. Iron Ore Co. v. Bird, 33 Ch. D. 85, C. A. And a director is liable to the company for any consideration he received from the promoter to induce him to become a director; Nant-y-glo, &c. Ironworks Co. v. Grave, 12 Ch. D. 738; or received subsequently, if any question be then open between the promoter and the company. Eden v. Ridsdale's Ry. Lamp, &c. Co., 23 Q. B. D. 368, C. A. But the liability is one of debtor and creditor, and the principal cannot follow the money. Lister v. Stubbs, 45 Ch. D. 1, C. A. A director is not liable for profit made by the sale by him of his property to the company. Ladywell Mining Co. v. Brookes, 34 Ch. D. 398; 35 Ch. D. 400, C. A., following In re Cape Breton Co., 29 Ch. D. 795, C. A., which was affirmed in D. P. sub nom. Cavendish Bentinck v. Fenn, 12 Ap. Ca. 652, on the ground of insufficient evidence.

An agent is in general estopped from denying the accuracy of accounts rendered by him to his principal, except in the case of an error arising by mistake. Skyring v. Greenwood, 4 B. & C. 281; Shore v. Picton, Id. 715; Cave v. Mills, 7 H. & N. 913; 31 L. J., Ex. 265. Where an agent receives money to pay over to a third person, although he assent to hold it for that purpose, he continues to be accountable to his principal alone, until he has entered into some binding engagement with that third person to hold the money to his use; and not until then will he be liable to the third person in an action for money had and received. Baron v. Husband, 4 B. & Ad. 611; Williams v. Everett, 14 East, 582; Wedlake v. Hurley, 1 C. & J. 83; Scott v. Porcher, 3 Mer. 652; Brind v. Hampshire, 1 M. & W. 365. Where money is bona fide received from an agent under a binding contract, it cannot in general be recovered by the principal. Foster v. Green, 7 H. & N. 881; 31 L. J., Ex. 158. But if A., the clerk of B., without B.'s authority, pay money into the bank of C., having previously made an arrangement with D., the clerk of C., for some application of that money which neither A. nor D. had authority from their masters to make, C. must refund to B. British and American Telegraph Co. v. Albion Bank, L. R., 7 Ex. 119, 122. Where money, paid by A. to an agent, B., to be remitted to C., is by mistake remitted to D., it may, if D. have not in the meantime changed his position, be recovered by B. from D. Colonial Bank v. Exchange Bank of Yarmouth, Nova Scotia, 11 Ap. Ca. 84, P. C.

The holder of a bill cannot sue the acceptor's banker for money had and received, though the acceptor has put funds into his hands for payment on the bill. Moore v. Bushell, 27 L. J., Ex. 3; Hill v. Royds, L. R., 8 Eq. 290. But if A. send money to B. to discharge a debt owing from A. to C., and B. assent to hold the money for that purpose, and allows C. to be told this, C. can maintain an action against B. for money had and received. Lilly v. Hays, 5 Ad. & E. 548. See Noble v. National Discount Co., 5 H. & N. 225; 29 L. J., Ex. 210.

A receipt signed by an agent for his principal, is not per se evidence to support an action for money had and received against the agent. Edden v. Read, 3 Camp. 339. So, where an attorney's clerk, B., in the absence of his master, J., received money due to the plaintiff, one of his master's clients, and gave a receipt, "B. for J.," and his master never returning,

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the clerk refused to pay over the money to the plaintiff, it was held that no action lay against the clerk, there being no privity between him and the plaintiff, and the money being rightfully received on behalf of J., who was accountable to the plaintiff for it. Stephens v. Badcock, 3 B. & Ad. 354. But where the defendant is a wrongdoer, as where he took money of the plaintiff found in the house of a deceased person, by direction of the executor, to whom he paid it over, he is liable, and such payment is no defence. Tugman v. Hopkins, 4 M. & Gr. 389. So, where the defendants bona fide received money from the plaintiff's wife, but without his assent, to keep for her infant child, the plaintiff can recover it. Calland v. Loyd, 6 M. & W. 26. In Stead v. Thornton, 3 B. & Ad. 357, n., the defendant received money on behalf of the assignee of a bankrupt, who was, however, insane at the time, and on his being afterwards removed, and the plaintiff appointed assignee in his stead, it was held that the plaintiff could maintain money had and received against the defendant, for he was a mere stranger, as he could not be the agent of an insane person. See further, Ex parte Edwards, 13 Q. B. D. 747, C. A.; and Sharland v. Mildon, 5 Hare, 469, cited post, Part III., Actions against Executors. The directors of a company stand in the relation of agents to the company, but there is no such relation between them and persons contracting with the company. Wilson v. Ld. Bury, 5 Q. B. D. 518, C. A. As to the liability of a firm of solicitors for the money of a client received by one of the partners, vide ante, p. 491.

Money received by a sub-agent for an agent is not in general received for the use of the principal. See Prince v. Oriental Bank Cor., 3 Ap. Ca. 325, 334, following Mackersy v. Ramsays, 9 Cl. & F. 818, cited ante, p. 574. Thus, there is no such privity between the client of a country solicitor and his London agent, as will support an action by the client for money had and received against the agent, for the proceeds of a judgment recovered in the ordinary course of business. Robbins v. Fennell, 11 Q. B. 248; Robbins v. Heath, Id. 257, n.; Cobb v. Becke, 6 Q. B. 930. See also Peatfield v. Barlow, L. R., 8 Eq. 61. But the circumstances of the agency may be such, that it involves an authority to the agent to appoint a subagent or substitute, who shall be in direct privity with the principal. De Bussche v. Alt, 8 Ch. D. 286, C. A. Thus where B. the agent for sale of A. has employed, in his own name, a broker, C., to sell A.'s goods, and after C. had sold the goods for B. and before delivery or payment B. died, and after the sale, but before receiving the proceeds, C. had notice that A. claimed the proceeds, it was held that A. might recover them from C., either on the ground of priority of contract, or of property. Kaltenbach v. Lewis, 10 Ap. Ca. 617, D. P., explaining New Zealand Land Co. v. Watson, 7 Q. B. D. 374, C. A., cited post, p. 675. So where B. as agent for A. consigned goods to C., and by B.'s direction, C. insured them, after notice that B. had an undisclosed principal, and received the policy moneys after a claim therefor by A.; A. was held entitled to recover the moneys from B. by reason of his property in the goods, less the cost of insurance only. Maspons v. Mildred, 8 Ap. Ca. 874, D. P. As to the right to follow moneys that have been received by an agent, see Knatchbull v. Hallett, 13 Ch. D. 697, C. A., and specially the judgment of Thesiger, L. J., Id. pp. 723, 724; and Kirkham v. Peel, 43 L. T. 171, T. S. 1880, M. R.: affirmed in C. A., W. N. 1880, p. 168, M. S. Where one of two tenants in common receives the whole rents of the property, the co-tenant must sue for his moiety in account, and cannot maintain money had and received. Thomas v. Thomas, 5 Exch. 28.

A strict trustee, who receives rents, &c., which he is bound by the trust deed to pay over to his cestui que trust, could not formerly be sued in this form of action by the latter for non-payment over, the plaintiff's remedy