8. Of Contracts of Warranty. 9. Of the Bailment of Goods to Carriers, Wharfingers, Warehousemen, and others. 10. Of Agreements to deliver up Securities, &c. 11. Of Contracts for Neceffaries. 12. Of Services and Works. 13. Of Contracts to Marry, or to Pay Money in Confideration of Marriage. 14. Of Agreements to Pay Money, &c. in Confideration of Forbearance, or of Discharging a Precedent Debt, &c. 15. Of Agreements for the Relinquishment or Sale, &c. of Offices. 16. Of Agreements in Reftraint of Trade. 17. Of Agreements not to take Advantage of a Communication of the Particulars of a New Invention, &c. 18. Of Wagers. 1 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 Compofition in lieu of Tithes. CHAPTER CHAPTER I. Of Money Had and Received. a perfon has had and received money, or fomething which has been converted into money, belonging to another, without any valuable confideration given on the receiver's part, the law conftrues this to be money had and received for the ufe of the owner only, and implies that the perfon fo receiving promifed and undertook to account for it to the true proprietor. And if he unjustly detains it, an action of indebitatus affumpfit lies against him, for the breach of fuch implied promife and undertaking; and he will be made to repair the owner in damages, equivalent to what he has detained, in violation of fuch his promife. Mr. Justice Blackflone obferves (a)" that this action is a very extenfive and beneficial remedy, applicable to almost every cafe where a perfon has received money which ex æquo bono he ought to refund." Great benefit also arifes from this fpecies of action because the charge and defence are both governed by the true equity and confcience of the cafe (b). And in this form of action the plaintiff is not obliged to fet forth in pleading the special circumftances from which he conconcludes, "that, es aquo et bono, the money received by the defendant, ought to be deemed as belonging to him: he may declare generally, "that the money was received to his ufe" 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 fued: he can be liable no further than the money he has received (d); and against 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 fhort he may defend himself by every thing which shows that the plaintiff, ex aquo (a) 3 Bl. Com. 163. (b) Doug. 138. 2 Bur. 1010. (d) 4 Bur. 2134. and Bof. & Pul. 306. and 2 Bof. & Pul. 472, where it was held that the net fum only, without intereft, can be recovered. But Ju 2 Bl. 1078. & Poft. 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 fpecial 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 otherwife produce inconvenience upon principles of legal policy (e). The cafes on this fubject are fo very numerous and various, that I have found it neceffary to clafs them in the following order: 1. Of Money had and received for a particular Purpose; and of Money owing to one Perfon, but directed by him, and affented to by the Debtor, to be paid to a third Perfon. 2. Of Money had and received upon or in respect of Bills of Exchange, Promifery Notes, &c. 3. Of Money had and received upon Goods, &c. which have been converted into Money. 4. Of Money had and received by or from Agents; and of Money depofited with Stake-holders, Sc. 5. Of Money had and received by Revenue Officers, either by Miflake or malâ fide. 6. Of Money had and received by Sheriffs, Gaolers, and their respective Officers, &c. 7. Of Money paid or received by Miftake, or Deceit, between private 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 performed, &c. 11. Of Premiums received upon Marine Infurances. 12. Of Money had and received upon illegal Contracts and Agreements, &c. 13. In what Cafes this Form of Action lies to try the Right to an Office, or to Fees in respect thereof; and alfo for Prize Money, Sc. 2 Bur. 1010. (e) Corp. 414. 818. 4 Bur. 1984; & vide pot. 1. Of Money had and received for a particular Purpose: and of Money owing to one Perfin and directed by him, and affented to by the Debtor, to be paid to a third Perfon. The general rule is said (ƒ) 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 horfe or any other thing, if he do not lay out the money accordingly, an action of debt, or an action on the cafe, will lie for fo much money, had and received to A's use (g). So in the cafe of Poulter v. Cornwall (b) it was held that if a man receive money for a special purpose, and neglect or refuse to apply it to the ufes for which he received it, an action on the casewill lie as for money had and received. And it is obferved, (i) that though a bill in equity may be proper in feveral of these cafes, yet an action at law will lie likewife; as if I pay money to another to lay out in the purchase of a particular eftate 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 fo much money had and received for my use." had 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 and received for the ufe of C (). where It is a general rule of law that chofes in action are not affignable. And therefore a perfon, entitled to money due from another, affigns over his intereft in it to a third perfon, the mere act of aflignment does not entitle the affignce to maintain an action for it. The debtor may refufe his affent: he may have an account against the affignor, and wifh to have his fet-off. (f) Per Willes, Ch. J. (b) 1. Salk. 9. (k) 1. Rol. Abr. 7. pl. 2. Ventr. 153. 1 Bof. & Pul. Willes Rep 404• I But if there be (g) Orven, 86. Willes Rep. 405. pl. 5.1. 10. 32. pl.13. an affent or promife on the part of the debtor or holder of the money, in that cafe it has been holden (1), that the action of indebitatus affumpfit for money had and received, is maintain able. to So, in the cafe 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 cafh with the defendant Sir Stephen Evans, a goldfmith, in Lombard Street, was indebted to the plaintiff in 60%. 10s. the plaintiff fent his fervant. to receive the money of Fellows, who ordered his fervant to pay Ward's man the money at Sir Stephen Evans's. Accordingly both the fervants went to Sir Stephens Evans's fhop, and there Fellows's fervant directed the defendant's fervant, pay Ward's fervant the 6ol. 1os. and to indorfe it on a note of 100l. from the defendant to Fellows, in part of payment of the 100l. The defendant's fervant accordingly indorfes 6ol. 1cs. as paid on the faid note of 100l. and then paid 10s. to Ward's fervant, and gave him a note fubfcribed by one Wallis a goldsmith, for 60l. payable to one Freeman, or bearer, which the plaintiff's fervant accepted. This tranfaction was about noon, and at that time Wallis was a folvent perfon, and continued paying his bills till night. Next morning the plaintiff's fervant coming with the note to receive the 6:1. of Wallis, found that Wallis had stopped payment, and was become infolvent. Whereupon the plaintiff brought this action against the defendant for the 60l. note: it did not appear upon the evidence, that the plaintiff was conufant of, or privy to this tranfaction of his fervant, or had given him any authority to receive a note inftead of money, or approved of it afterwards. Holt, Ch. J, faid: "I am of opinion that an indebitatus affumpfit for monies received to the plaintiff's ufe lies properly in this cafe, and that this evidence is fufficient to maintain the plaintiff's declaration. For when the 6ol. was indorfed on Fellows's bill, as fo much actually paid by Sir Stephen Evans to Fellows, Fellows directing that fum to be paid to the plaintiff, and the defendant (1) Per Lord Ellenborough. (m) a Ld. Raym. 928. $. C. 4 Efp. Rep. 204. 6 Mod. 36. 1 Salk. 443. Holt, 120, |