Kenyon considered that the creditor having so consented to take the note, it was as payment of the money due by the principal; and the surety's action for money paid to the use of the principal, was maintained. Barclay &c. v. Gooch, 2 Esp. 571. In the United States there have been decisions on the same principle. Thacher &c. v. Dinsmore, 5 Mass. 302; Witherby v. Mann, 11 Johns. 578; Whitcomb v. Williams &c. 4 Pick. 231; Cornwall v. Gould, 4 Pick. 447, 19 Pick. 57.

Since the decision at nisi prius in Barclay v. Gooch, it has been decided by the court of king's bench, that a security consisting of a bond and warrant of attorney, (though as between the parties to the bond it may be sufficient to discharge the simple contract debt because it is changing the security to one of a higher nature,) is yet not that actual payment of money which is required to sustain a count for money paid. Taylor v. Higgins, 3 East 172; Cumming &c. v. Hackley c. 8 Johns. 203; Morrison v. Berkey, 7 S. & R. 246.

In England, the decision in Barclay v. Gooch is regarded as conflicting with Taylor v. Higgins; and this last case is deemed higher authority than the other. It was so considered by the king's bench when both cases were under discussion in Maxwell v. Jameson, 2 Barn. & Ald. 51, where one of four parties who had given a promissory note took up the note by giving to the creditor his own bond for the amount, and without paying any money either on account of the bond or the note, brought an action against another promisor in the note, for money paid to his use: judgment was given for the defendant; Bayley, J. saying, "no money has yet come out of the plaintiff's pocket and non constat that any ever will"— "if hereafter he is compelled to pay the money due upon the bond, he may then have his remedy" for contribution.

A distinction was taken between the case of Exall v. Partridge &c. cited ante, p. 444, and a case in which the plaintiff's goods were distrained and sold; it being said that in the former case the money paid by the plaintiff was clearly his money, and that in the latter case the proceeds of the goods became immediately the landlord's property and never for an instant vested in the plaintiff as money. Moore v. Pyrke, 11 East 52. This is exceedingly technical; for the amount for which the plaintiff's goods were sold has gone to the defendant's use just as much as if it had been paid by the plaintiff to prevent a sale. It may be questioned whether the case can be sustained on principle; but it seems to have been cited without disapprobation in Yates v. Eastwood &c. 6 W. H. & G. 806.

In Massachusetts a party who discharged the debt of the defendants at their request, sustained an action for money paid, although the debt was not discharged by payment in money. Emerson v. Baylies, 19 Pick. 57. And in New York when the money debt of a surety has been discharged by his land being taken or received in satisfaction thereof, such payment though in land is sufficient to sustain the action for money paid. Bonney v. Seely, 2 Wend. 482; Ainslee v. Wilson, 7 Cow. 668. But a surety stands in such a relation to his principal that neither the surety nor his representative can be permitted to speculate upon the principal. Wynn v. Brooke &c. 5 Rawle 109. And as a surety discharging the principal's debt by paying half the amount cannot recover from the principal the whole debt, so if it appear that the land conveyed by the surety to the creditor in satisfaction of the debt was not of value equal to the amount of the debt, the surety may be entitled to recover the amount paid, not the amount extinguished by that payment. Bonney v. Seely.

CHAPTER XLI.

ACTION FOR MONEY RECEIVED BY DEFENDANT TO PLAINTIFF'S

USE.

1. General rules as to cases in which the action does or does

not lie. Of particular matters which will not be tried in this form of action; and of the privity required to sustain it.

It is a general rule that where one man has in his hands money, which, according to the rules of equity and good conscience belongs to and ought to be paid to another, an action will lie for such money, as money received by the defendant to the plaintiff's use. Wiseman &c. v. Lyman, 7 Mass. 288, 9. This kind of equitable action, Lord Mansfield thought very beneficial. It lies only for money which ex æquo et bono the defendant ought to refund. Moses v. Macfarlane, 2 Burr. 1012. If, said Lord Mansfield, the defendant be under an obligation, from the ties of natural justice, to refund, the law implies a debt and gives the action for money had and received to the plaintiff's use; an action founded in the equity of the plaintiff's case, as it were upon a contract (quasi ex VOL. II.-29

contractu) as the Roman law expresses it. S. C., 2 Burr. 1008; 2 W. Bl. 119. 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 advantage taken of the plaintiff's situation. 2 Burr. 1012; Goddard ads, Balow, 1 Nott & M. 54. When the owner of cattle distrained, doing damage, or of goods distrained for rent, has paid money to have his cattle or his goods returned to him, this action does not lie to recover back that money as received to his the owner's use. This is not deemed a proper action wherein to try whether the cattle were trespassing, or whether the rent was due. Lindon v. Hooper, Cowp. 414; Knibbs v. Hall, 1 Esp. 84; Colwell v. Peden, 3 Watts 328.

Nor can the title to land be tried in an action for money received. Cunningham v. Lawrents, 1 Bac. Abr. 260. But if it appear that the plaintiff had paid rent to the defendants; that it turned out they had no title to the premises for which it was paid; that he was ejected and compelled to pay the mesne profits for the time during which he held of them, an action will lie to recover back the rent which he so paid them; it not appearing that the defendants either at the time when the action was brought, or at the trial, claimed to have any title to the land. Newsome v. Graham &c. 10 Barn. & Cress. 234, 21 Eng. Com. Law Rep. 63.

This action does not lie where there is no privity between the plaintiff and defendant as to the subject of the demand. Williams v. Everett, 14 East 597. If bankers receive the plaintiff's money for a particular purpose, and by mistake give that money to a person who was not entitled to it, the plaintiff should claim against the bankers. Ante, p. 432. In Rogers v. Kelly, 2 Camp. 123, which was an action not against the bankers but against the person to whom they gave the plaintiff's money, Lord Ellenborough remarks, "there is no privity between the parties to this suit." His reasoning is approved in Burton's ex'or v. Burton's adm'r, 10 Leigh 600. It being there a question whether the executor of the pensioner or his widow was entitled to a pension which the government had paid to the widow, Tucker, P. said that "her claim being admitted and paid, she can never be compelled to refund. And if the government cannot compel her to refund by direct action, it seems to follow that she cannot be, indirectly, compelled to refund, by being forced to pay over the amount to another claimant with pretensions adverse to her own." If, however, an award was made nominally to one, when the interest was in another, that other would be entitled to the benefit

intended, and might maintain against the former an action for money received. Heard v. Bradford, 4 Mass. 329.

What Lord Ellenborough said in Rogers v. Kelly, must be taken in subordination to the principles which he laid down in Taylor &c. v. Plumer, 3 M. & S. 574; a case of which there will be particular mention in a future chapter, treating of the right of the owner to follow his chattels; and also in subordination to Clarke v. Shee &c. Cowp. 201, the authority of which Lord Ellenborough followed in Corking v. Jarrard, 1 Camp. 37. It appearing there, that a servant received money from her master, and applied it to the purposes of lottery insurance, Lord Ellenborough held on the authority of Clarke v. Shee, that the master might recover the money back from the lottery office keeper as money had and received. It is so stated by Park, J. in Abbotts &c. v. Barry, 2 Brod. & Bingh. 371, 6 Eng. Com. Law Rep. 158.

2. Of cases in which the money is received directly for the plaintiff's use, or upon a trust in which he is interested. Under what circumstances the action will lie against a

trustee.

Drawees while refusing to accept a bill, promise the endorsees to pay it as soon as the underwriters settle the loss on a policy effected for the drawers; the loss is settled, and the drawees receive on the policy £ 890 beyond charges and expenses. The £ 890 was recovered by the endorsees as money received to their use. Langston &c. v. Corney &c. 4 Camp.

170.

A bill is endorsed in these terms: "Pay to S. W. Esq. of London, or his order, for my use." This special endorsement restricted the negotiability of the bill. The object of the endorser was to prevent the money received in respect of the bill from being applied to the use of any person other than himself. S. W. having endorsed it to his bankers, though they paid him value for it, it was considered that by reason of the trust apparent on the face of the instrument, the money received by these bankers was received for the use of that party for whose use it was payable under the terms of the special endorsement; and he recovered the money from the bankers. Lloyd &c. v. Sigourney, 3 Younge & J. 220, 5 Bingh. 525; Wilson v. Holmes, 5 Mass. 543.

The action for money received lies against one who received money to be applied to a particular purpose, and failed so to apply it. Strong v. Bliss, 6 Metcalf 393. A defendant who has received money on a promise to put it into a savings

bank, or otherwise lend it out for the plaintiff, will, when the money has not been so applied, be liable for it in this form of action. Remon &c. v. Hayward, 2 Adol. & El. 666, 29 Eng. Com. Law Rep. 173; Guthrie v. Hyatt, 1 Harrington 446. The authority of the agent who has received money to be applied to a particular purpose, may, before it is so applied, be countermanded by his principal, and the money recovered back by the principal. Taylor v. Lendey, 9 East 49.

Where a note was put in the hands of an attorney for collection, and a sum of money was paid to him in part, this was considered to be on the trust that he would discharge the plaintiff pro tanto, either by endorsing the payment, or by crediting it when he entered judgment; the attorney being guilty of a breach of that trust, in taking judgment without deducting the sum paid, the party who paid it recovered back the same from the attorney, notwithstanding the defence set up that the money was received by him as agent, and paid over to his principal. Fowler v. Shearer, 7 Mass. 23; Rowe v. Smith, 16 Mass. 308.

Sometimes it may be objected that the plaintiff has no legal right to the money, but only an equitable interest. Co. Lit. 272, b.; Chudleigh's case, 1 Rep. 121, b.; Foorde v. Hoskins, 2 Bulstr. 336. Notwithstanding the dictum of Lord Eldon, in Doe v. Booth, 2 Bos. & Pul. 219, it will probably be found that to enable the mortgagee of tolls to maintain an action for money had and received, against the trustees, there must be shewn something more than the mere relation of mortgagor and mortgagee. 16 M. & W. 462. This form of action is not allowed in England, except where a known specific sum has been received by the defendant, to which the plaintiff is entitled. 7 Man. & Grang. 597, 49 Eng. Com. Law Rep. 597; 6 W. H. & G. 706. It is not to take the place of a bill in equity for an account. Where money is paid into the hands of a trustee, who is first to satisfy a specific purpose, the matter remains in account till that purpose is satisfied; till then the action for money received will not lie. Case v. Roberts,

1 Holt N. P. 500; 3 Eng. Com. Law Rep. 172.

In one case assignees of a bankrupt maintained this action. for dividends of stock which trustees in his marriage settlement had received after the bankruptcy. Allen v. Impett &c. 8 Taunt. 263, 4 Eng. Com. Law Rep. 97. But this case, Pollock, C. B., remarks, seems at least questionable. 14 M. & W. 56. If the trustee had stated an account, or in other words, had admitted that he held a specified sum in his hands, payable to the plaintiff absolutely, an action would be maintainable against him for that sum. Roper v. Holland, 4 Nev.