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8. Of Contracts of Warranty. 9. Of the Bailment of Goods to Carriers, Wharf

ingers, Warehousemen, and others. 10. Of Agreements to deliver up Securities, &c. 11. Of Contracts for Necessaries. 12. Of Services ani://orks. 13. Of Contraiisi- 40 Marry, or to Pay Money in

Confideration of Marriage. 14. Of: Agreements to Pay Money, &c. in Consider.

stion of Forbearance, or of Discharging a

Precedent Debt, &C. 5. Of Agreements for the Relinquishment or Sale,

&c. of Offices. 16. Of Agreements in Restraint of Trade. 17. Of Agreements not to take Advantage of a

Communication of the Particulars of a New

Invention, & C. 18. Of Wagers. 19. Of Bonds made in Scotland, not under Seal. 20. Of Contracts for Use and Occupation of Houses,

&c. 21. Of Contracts to Take and to Repair Houses, &c. 22. Of Tithes bargained and fold; and of Agreements

for a Composition in lieu of Tithes.

CHAPTER

1 1

CHAPTER I.

Of Money Had and Received.

1
Fa person has had and received money, or something which

has been converted into money, belonging to another, without any valuable con Gideration given on the receiver's part, the law construes this to be money liad and received for the use of the owner only, and implies that the person so receiving promised and undertook to account for it to the true proprietor. And if he unjustly detains it, an action of indebitatus assumpsit lies against him, for the breach of such implied promise and undertaking; and he will be made to repair the owner in damages, equivalent to what he has detained, in violation of such his promise. Mr. Justice Blackstone obferves (a) “ that this action is a very extensive and beneficial remedy, applicable to almost every case where 'a person has received money which ex æquo et bono he ought to refund." Great benefit also arises from this species of action because the charge and defence are both goyerned by the true equity and conscience of the case (6). And in this fo:m of action the plaintiff is not obliged to set forth in pleading the special circumstances from which he conconcludes, “that, ex aquo et bono, the money received by the dea fendant, ought to be deemed as belonging to him : he may dee clare generally, “that the money was received to his use," and make out his case at the trial (c). This is equally beneficial to the defendant. It is the most favourable way in which he can be sued: he can be liable no further than the money he has received (d); and agaiuft that, may go into every equitable defence, upon the general iffue : he may claim every equitable allowance ; he may prove a release without pleading it: in short he may defend himself by every thing which shows that the plaintiff, ex aqua

(a) 3 Bl. Com. 163. (6) Doug. 138.
(c) Per Lord Mansfield.

2 Bur. 1010.
(d) 4 Bur. 2134. and i Bof. & Pul. 306. and 2 Bof. & Pul. 472,
where it was held that the net fum only, with nut interefi, can be recovered. But
fuo 2 Bl. 1078. & Poft.

B 2

& bono,

& bono, is not entitled to the whole, or any part of his demand *. The courts, however, take care that this general mode of pleading do not turn to the prejudice of the defendant. And, therefore, this form of action will not lie, where it would throw the burthen of special pleading from the plaintiff upon the defendant, or where it would subject him to uncertainty as to the point to which he should direct his defence; or where it would trench upon established forms, or otherwise produce inconvenience upon principles of legal policy (e).

The cases on this subject are so very numerous and various, that I have found it necessary to class them in the following order:

1. Of Money had and received for a particular Purpose ; and of No

ney owing to one Person, but directed by him, and alented to by the

Debtor, to be paid to a third Person. 2. Of Money had and received upon or in respect of Bills of Exchange,

Promifiry Nites, &c. 3. Of Aloney had and received upon Goods, &c. which have been

conderted into Money. 4. Of Money had and received by or from Agents; and of Money

deposited with Stake-holders, &c. 5. Of Money had and received by Revenue Officers, either by Mifuke

or malâ fide. 6. Of Money had and received by Sheriffs, Gaolers, and their respective

Oficers, &c. 7. Of Money paid or received by Mifake, or Deceit, between pri

vate Individuals ; and of voluntary Payments, &c. 8. Of Money had and received under legal Process, &c. 9. Of Money had and received under a void Authority, whether

judicial or otherwise. 10. Of Money had and received upon a Confideration which has failed,

or upon a Contract which has been refcinded, or not performei, Gia 11. Of Premiums received upon Marine Insurances. 12. Of Money had and received upon illegal Contracts and Agreements,

*c. 13. In what Cases this Form of Action lies to try the Right to an Office, or to Fees in respect thereof; and also for Prize Aloney, Gr. 2 Bur. 2010. (e) Cowp. 414. 818. 4 Bur. 1984; & vide pof.

1. Of Money had and received for a particular Purpose : and

of Money owing to one Pers:n and directed by bini, and assented to by the Debtor, to be paid to a third Perfon.

The general rule is said (f ) to be that if a man receive money which ought to be paid to another or be applied to a particular purpose, but to which he does not apply it, this action will lie as for money had and received. Thus, if money be delivered by A. to B. to buy a horse or any other thing, if he do not lay out the money accordingly, an action of debt, or an action on the case, will lie for so much money, had and received to A's use (s).

So in the case of Poulter v. Cornwall (h) it was held that if a man receive money for a special purpose, and neglect or refuse to apply it to the uses for which he received it, an action on the case. will lie as for money had and received. And it is observed, (i) that

though a bill in equity may be proper in several of these cases, yet an action at law will lie likewise; as if I pay money to another to lay out in the purchase of a particular estate or any other thing, I may either bring a bill against him confidering him as a trustee, and praying that he may lay out the money in that specific thing, or I may bring an action against him as for so much money had and received for my use.”

So, if A. delivers money to B. to be paid over to C. the latter may recover it of B. by action of indebitatus affumpfit for money had and received for the use of C (&).

It is a general rule of law that choses in action are not assignable. And thereforemre a person), entitled to money due from another, alligns over his interest in it to a third person, the mere act of allignment does not entitle the assignee to maintain an action for it. The debtor may refuse his aflent: he may have an account against the allignor, and wilh to have his fet-off. But if there be

(f) Per Willes, Ch. 3. Willes Rep 404. (3) Orven, 86.
(b) 1. Salk. y. (i) Per Willes, Ch. 3. !!!es Rep. 405.

(k) 1. Rol. Abr. 7. pl. 2. See also i Rol. abr.27. p. 51. 16. 32. pl.13. i Venir. 153. i Bor & Pul. 296.

an affent or promise on the part of the debtor or holder of the money, in that case it has been holden (I), that the action of indebitatus asumpfit for money had and received, is maintain, able.

So, in the case of Ward v. Evans (m), which was an action of indebitatus affumpfit for 6ol. received by the defendant to the use of the plaintiff. The facts were as follow : one Fellows, a merchant, who kept his cash with the defendant Sir Stephen Evans, a goldsmith, in Lombard Street, was indebted to the plaintiff in bol. 1os. the plaintiff sent his servant to receive the money of Fellows, who ordered his servant to pay Ward's man the money at Sir Stephen Evans's. Accordingly both the servants went to Sir Stephens Evans's shop, and there Fellows's servant directed the defendant's servant, to pay

Ward's servant the 601. jos, and to indorse it on a note of 100l, from the defendant to Fellows, in part of payment of the sool. The defendant's servant accordingly indorses 6ol. 105. as paid on the said note of 100l. and then paid 10s. to Ward's fera yant, and gave him a note subscribed by one Wallis a goldsmith, for bol. payable to one Freeman, or bearer, which the plaintiff's servant accepted. This transaction was about uoon, and at that time Wallis was a solvent person, and continued paying his bills till night. Next morning the plaintiff's servant coming with the note to receive the 6:1. of Wallis, found that Wallis had stopped payment, and was become insolvent. Whereupon the plaintiff brought this action against the defendant for the 60l. note: it did not appear upon the evidence, that the plaintiff was conusant of, or privy to this transaction of his servant, or had given him any authority to receive a note instead of money, or approved of it afterwards,

Holt, Ch. Ju faid: “I am of opinion that an indebitatus affumpfit for monies received to the plaintiff's use lies properly in this case, and that this evidence is sufficient to maintain the plaintiff's declaration. For when the 6ol. was indorsed on Fellows's bill, as so much actually paid by Sir Stephen Evans to Fellows, Fellows directing that sum to be paid to the plaintiff, and the defendant

.

(1) Per Lord Ellenborough. 4 Efp. Rep. 204. (m) : Ld. Raym. 9:8.

Salk. 442. & Holt, 120, S.C.

6 Mod. 36.

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