entitled to it, only from the stakeholder, and not from the other party who claimed the money (a).

It must, in general, appear that the defendant has received money or cash, and not merely money's worth (b); and therefore an action for money had and received will not lie to recover the value of bank or other public stock transferred to the defendant improperly, and still standing in his name (c); or foreign securities or money, unless it appear that the defendant has had an opportunity of converting the latter into British money (d). Where the property received by the defendant is saleable, or directly or readily convertible into money, a sale and receipt of money by him may sometimes be presumed, particularly after a great lapse of time, until the contrary be proved (e). And if a stakeholder receive country bank notes, as money, the amount may be recovered, under the count for money had and received (ƒ).

Where A., residing at X., employed B., residing at Y., to procure payment of a bill there, and to remit the produce direct to him at X., and B. received payment of the bill, but remitted the produce in bills payable to the defendant's order to a third person at Z., for A.'s use, whereby the whole got into the hands of A.'s creditors, Lord Ellenborough held, that A. could not maintain an action for money had and received against B., to recover the amount of the sum received in payment of the bill; observing that, as there was no special count for misconduct, the plaintiff must fail in limine (g).

It seems to be essential, in this action, that the plaintiff should establish a claim to some particular or specific sum of money as received to his use (h). If a judgment creditor, who has an elegit on the lands of the judgment debtor, sue a receiver of the rents of

(a) Ker v. Osborne, 9 East, 378; see post 486.

(b) Moore v. Pyrke, 11 East, 52; Maxwell v. Jamieson, 2 B. & Al. 51; Wharton v. Walker, 6 D. & R. 288; 4 B. & C. 163, S. C.

(c) Ante, 464. The Court will not, even though the parties consent to it, allow an action to be tried and decided in this form of action, if it be not applicable to the case; Ker v. Osborne, 9 East, 378, 381.

(d) M'Lachlan v. Evans, 1 Y. & J. 380.

(e) 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. R. 224; M'Lachlan v. Evans, 1 Y. & J. 380; see, however, Elbourn v. Upjohn, 1 Camp. 572.

(f) Pickard v. Bankes, 13 East, 20; Fox v. Cutworth, cited in Spratt v. Hobhouse, 12 Moor, 402, 403; 4 Bing. 173, S. C. In the latter case, a check was held to be money, it being treated as such, &c.

(g) Duncan v. Skipwith, 2 Camp. 68. (h) Harvey v. Archbold, 3 B. & C. 626; 5 D. & R. 500, S. C.

the estate, for rents received for his use, and there be prior liabilities or incumbrances, 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 (i).

Although it is necessary, in general, that the money should have been originally (k) received by the defendant for the use of the plaintiff; yet there are instances in which this shall be presumed, or shall be regarded as the effect of the arrangement between the parties. And the defendant's admission that he holds value in money, to which the plaintiff has become entitled, may render him liable in this form of action (). The defendant having, as administrator, received a sum of money, which it was agreed by all the persons entitled to it should be applied to the funeral of the testator's widow, which had been paid by the plaintiff, promised so to apply it, and it was held that he was liable personally for money had and received for the plaintiff's use (m).

There are cases in which a liability for money had and received may exist, although no money was ever received by the defendant. Thus where bankers employed to receive dividends in the funds, had in their own books credited their employers with the dividends as received, and had allowed them to draw, without having any other funds in their hands; it was held, that the bankers were bound by the entries so acted, though not communicated, and that they could not set up as a defence, that the entries had been fraudulently made by one of the partners, the money never having been received by the house (n). So where A., being agent for the grantor and the grantee of an annuity, delivered an account to the grantee, by which it appeared that the agent had received from the grantor certain sums on account of the annuity, it was held, that the agent having thus led the grantee to suppose that these moneys were received, was bound by the account delivered, and was liable for money had and received; unless he could shew he had given credit for those payments by mistake (0). But where A. being the agent of the grantor and the grantee of certain annuities, all payments on account of the annuities passed through

(i) See Braithwaite v. Watts, 2 C. & J. 318, 321, 322.

(k) See ante, 474, as to money paid for defendant's use.

(1) See Hennings v. Rothschild, 4 Bing. 315; 12 Moor, 559; Spratt v. Hobhouse, 4 Bing. 173; 12 Moore,

395, S. C.; and see instances, post, 482 to 485.

(m) Meert v. Moessard, 1 M. & P. 8. (n) Honne v. Bolland, R. & M. 371. (0) Shaw v. Picton, 7 D. & R. 201; 4 B. & C. 715; cited by Abbott, C. J., in Shaw v. Dartnall, 6 B. & C. 65.

his hands, and he charged the grantee a commission upon all such payments; and delivered to the grantee an account, and gave him credit for half a year's annuity, describing it "as money not yet received;" and debited him with commission upon the same; but in fact it had not been received by A.; and he afterwards became bankrupt; it was held that his assignees were entitled to be allowed that sum in account, by the grantee. And where in one account credit was given to the grantee for certain sums, as money actually received by A., and they had never been received; and in another account, subsequently delivered, the same sums were placed to the debit of the grantee with his assent; it was held, that the assignees of A. were entitled to credit for those sums (p).

In order to maintain the common count for money had and received, it is not always necessary that there should have been an express privity of contract between the plaintiff and defendant; and it is not material that in fact the defendant received the money for his own use, and with intent to appropriate it to his purposes, under the supposition that he had a right to do so; it legally and justly belonging to the plaintiff. There are many cases in which the plaintiff may waive the original tort committed by the defendant, and through the medium of which the defendant received the money, and sue as for money had and received (q). As where the defendant tortiously takes the plaintiff's goods, and sells them, and receives the produce (r), or extorts money by detaining them (s); or receives the fees of an office into which the defendant has intruded (t). It is also laid down, that money had and received lies, if a person go and receive my rents from my tenants (u). In Hasser v. Wallis (v), it appeared that the plaintiff, being a feme sole, married the defen

(p) Shaw v. Dartnall, 9 D. & R. 54; 6 B. & C. 56, S. C. In Shaw v. Woodcock, 7 B. & C. 73, it was held that the delivery of four successive accounts by the agent of the grantee of the annuity, charging himself with the annuity, though not received, and sometimes stated in the account not to be so, and the debiting the grantee with commission on the receipts, and the payment of the balances without any claim by the agent to allowance of the money, would evidence an agreement by the agent to guarantee the annuity. (q) See 1 Chitty Pl. 5th ed. 113.

385, 386.

(r) Id. Lamine v. Dorrell, 2 Lord Raym. 1216; Foster v. Stewart, 3 M. & Selw. 191; Young v. Marshall, 8 Bing. 43: aliter, if under a distress, Lindon v. Hooper, Cowp. 414. (s) Post, Division 11. (t) Post, Division 14.

(u) See, per Heath, J., Lightly v. Clousten, i Taunt. 114; this must mean where he receives them as my agent. See post, 479, and 480, n. (b). ↑

(v) 1 Salk, 28; 11 Mod. 146, S.C.; see Darnton v. Pigman, Peake's Addl. Cas, 111, post, 480, note (b).

dant Wallis, who was in truth married to another woman; Wallis made a lease of the wife's land, reserving rent, and receiving the rents from the tenants. Upon this, the plaintiff discovering the former marriage, brought an indebitatus assumpsit against Wallis for so much money received to her use. "And after verdict on non-assumpsit, it was objected that Wallis having no right to receive, the tenant was not discharged, and therefore an action lay against the tenant, who has his remedy over against Wallis. But the Court held Wallis was visibly a husband, and the tenant discharged; at least that the recovery against Wallis in this action would discharge the tenant, for this would be a satisfaction to the lessor."

Where, however, a person claiming title to land, but having no title, induces the tenants of the owner to pay him their rents, and receives and retains the same adversely, an action for money had and received is not the proper remedy against the party thus wrongfully obtaining the rents; his title cannot be tried in that form of action (x).

And the count for money had and received is not in general sustainable where all privity of contract between the plaintiff and defendant is expressly negatived by the facts, and the defendant received the money solely for and under the authority of another person.

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 authorised 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 assumpsit brought against him for money had and received, it was held that the action did not lie, for that the defendant received 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 was no privity of contract between the present plaintiff and defendant (y).

(x) Clarance v. Marshall, Hil. Term, 1834, K. B., 1 Chitty Pl. 5th ed. 386.

(y) Stephens v. Badcock, 3 B. & Ad,

354.

A., B., and others, were owners of a ship, in the service of the East India Company. B. was managing owner, and 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 one of the other owners, C. received, on account of the ship, 2000l. from the East India Company, and placed it to B.'s credit in his 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 (z).

2. Who may, in general, maintain the Action.-We have already slightly noticed the rule, that in order to maintain money had and received, the plaintiff must shew that the defendant has received some specific sum for his use (a). It is necessary that the money, or the goods, the proceeds whereof the plaintiff claims, should originally, or at the time of the action brought, have belonged to him (b). But where the defendant was a mere wrong-doer in taking goods, and he sells them, and receives the proceeds, the party from whose possession they were taken may maintain money had and received to recover the proceeds, 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 were received indirectly, and even if it were not the identical produce of the goods taken (c). And where the trustee of a bill of exchange sued thereon for the benefit of A., and the defendant in the action escaping, the trustee recovered

(z) Sims v. Brittain, 4 B. & Ad. 375.

(a) Ante, 480.

(b) Thurston v. Mills, 16 East, 274. A., being a bankrupt, continued in possession of his estate and granted an annuity out of certain premises to B. The tenant in possession paid the rent to B. to prevent a distress. Held that the assignees could not sue B. for money

had and received; that they should sue the tenant for the rent, and he should sue B. for the money wrongfully received. Darnton v. Pigman, Peake Add. C. 111. Sed vide per Heath, J., in Lightley v. Clouston, 1 Taunt. 114, 5; ante, 478, 479.

(c) Allanson v. Atkinson, 1 M. & Selw. 583; Glyn v. Hertel, 8 Taunt.

225.