execution creditor without proving that the money was received by him or applied to his use. Isom v. Johns, 2 Munf.

272.

There is no case in which responsibility to pay money has been held a sufficient ground to sustain an action for money received. Parker &c. v. U. S. 1 Peters's C. C. R. 266. This action will generally not lie where no money was received. Nightingal &c. v. Devisme, 5 Burr. 2592; Jones v. Brinley, 1 East 1; Wilson, J., in Israel v. Douglas, 1 H. Bl. 243.

As already stated, (ante, p. 457,) an assignment of a note or bond furnishes a presumption that its amount was paid by the assignee to the assignor. This presumption is, however, liable to be rebutted by other evidence shewing that the consideration for the assignment consisted of property or other thing which cannot be regarded as money. Maxey &c. v. Fore, 3 B. Monroe 476, 7. In such case, though there may (as stated ante, p. 271,) be liability arising out of the actual consideration, that liability is not to be enforced in the action for money received. S. Č.

C.

Whether or no a particular transaction shall be construed as a case of money received, is sometimes a difficult question. Israel v. Douglas, 1 H. Bl. 242, 3; 3 East 171; Hemenway v. Hemenway, 5 Pick. 389.

In Longchamp v. Kenny, Dougl. 137, a ticket was delivered for the purpose of being carried to market, and the presumption was that it was sold, as the defendant would give no account of it. A contrary presumption arose in Leery v. Goodson, 4 T. R. 687, where the action was for the value of some pictures which had been delivered to the defendant to avoid being sold. In Longchamp v. Kenny, there was evidence out of the defendant's own mouth that he had received the price of the ticket, till he proved the contrary; on this ground it was distinguished from Whitwell v. Bennett, 3 Bos. & Pul. 563.

In some cases stated ante, p. 448, 9, the giving and receiving a note in satisfaction of a debt, has been held equivalent to paying that debt in money; but the mere giving a note cannot, as between maker and payee, be considered payment by the former to the latter of the very money for which the note is given, so as to justify a recovery of it by the maker against the payee in the action for money received. Van-Ostrand v. Reed, 1 Wend. 430. When however the note is negotiable, and has been transferred for money to an innocent endorsee, that money has, after a rescission of the contract between the maker and payee, been treated as money of the maker received by the payee upon a consideration which has failed.

Chapman v. Shaw, 5 Greenl. 59; Colville v. Besly &c. 2 Denio 139.

In England provincial notes are certainly not money, but when a stakeholder received them as so much money and all parties agreed to treat them as such at the time, he was not allowed to turn round and say they were only paper and not money. Pinckard v. Bankes, 10 East 20.

Underwriters having adjusted a loss on a policy with the plaintiff's broker or agent, though no money was actually paid by them to the broker, but the amount only allowed between them and him on account, the plaintiff nevertheless recovered against the broker as for money received. Andrew v. Robinson &c. 3 Camp. 198. He recovered notwithstanding the underwriter became bankrupt before paying a bill which he had accepted in favour of a broker for the general balance due from the underwriter in account with the broker. Wilkinson &c. v. Clay &c. 6 Taunt. 110, 1 Eng. Com. Law Rep. 328.

And generally where an attorney or agent discharges a debt due to his principal and applies that debt to the payment and satisfaction of his own debt, he will, for the amount so applied, be held liable to the principal in this form of action. Oughton v. West, 2 Stark. 321, 3 Eng. Com. Law Rep. 364; Beardsley v. Root, 11 Johns. 468. In this case the attorney purchased land at a sale under his client's execution. "If," said Vanness, J., "the sheriff had demanded and received the money, for which the land was sold, from the defendant, on the execution of the deed to him, there is no question he would have been perfectly justifiable in immediately paying it back again to him; and in that case it is not disputed that this suit might have been supported. The sheriff, however, instead of going through the useless ceremony of first receiving the money from the defendant with one hand and paying it back with the other, at once accomplished the same thing by taking from him a receipt in full satisfaction of the execution. This negotiation was the same as money to the defendant. He paid his own debt with his client's judgment, and he cannot be allowed to say that no money came into his hands."

Al

If a sheriff, under execution, sell and deliver goods he is answerable for the amount they sold for whether he actually receive it or not. Denton v. Livingston, 9 Johns. 99. though no money in fact pass, yet if the sheriff and the execution creditor are in the same situation as if the sheriff had sold to him and received the money, and paid it over to him, the objection that no money was paid by the sheriff to the

creditor will not prevent the action for money received being maintained in such a case as is mentioned ante, p. 478. Standish v. Ross, 3 W. H. & G. 527.

Where on a note transferred as collateral security for a debt the transferree obtains a judgment under which land is taken in satisfaction, that is considered as a payment of the debt in money, (by what is taken at money's worth,) and so much as is thus got by the transferree beyond the amount of the debt originally due him may be recovered from him in an action by the transferrer for money had and received. Randall v. Rich, 11 Mass. 498.

So where the plaintiff consented to a sale of wood for money and the defendant made it for money, it was considered no objection to this form of action that the price of some of the wood was received by the defendant in real estate; it was as if he had purchased real estate with the money for which he sold the wood. Miller &c. v. Miller, 7 Pick. 136.

Whether what the defendant received, was received in money or in a chattel at an estimated price, for so much money, can make no difference. Arms v. Ashley, 4 Pick. 74; Balto. & Susqu. R. R. Co. v. Faunce &c. 6 Gill 81. If the consideration upon which he was paid has failed, though he was paid by accepting in payment the note of a third person, the consideration may nevertheless be recovered back under a count for money received. Rew v. Barber, 3 Cow. 260.

CHAPTER XLII.

ACTION ON A PROMISE TO ACCOUNT; OR ON ACCOUNT STATED.

1. On a promise to account.

Where goods are delivered to a factor, to be sold for his principal, the law implies a promise on the factor's part to render an account of them whenever called on by the principal; and if he refuses to account he is liable to an action of assumpsit for the breach of his implied promise. Clark v. Moody &c. 17 Mass. 148; 7 Metcalf 45. A demand is not, in all cases, necessary to enable the principal to maintain his action. (See ante, 1 Rob. Prac. 486-489.) Actions have been sustained against factors in foreign countries, without

any previous demand upon them to render an account. Mass. 149.

2. On an account stated.

17

An account stated is an agreement by both parties that all the articles are true. Trueman v. Hurst, 1 T. R. 42. Whereupon, although there may be no actual promise, the law implies a promise that the party against whom the balance appears, has engaged to pay it to the other. 10 Barr 325. The stating of the account is the consideration of that promise. Buller, J., 1 T. R. 42. The plaintiff is not obliged to give evidence of the several items constituting the account; but it is sufficient if he prove the account stated. Bartlett v. Emery, 1 T. R. 42, note. This was formerly conclusive; but in modern times a greater latitude has prevailed, to remedy errors which may have crept into the account. Such errors

may be shewn and corrected. 1 T. R. 42; Holmes &c. v. D'Camp, 1 Johns. 36.

It was said by Lord Ellenborough that an acknowledgment by the defendant of a debt due upon any account was sufficient to enable the plaintiff to recover upon the account for an account stated. Knowles &c. v. Michell &c. 13 East 249. On this ground the plaintiff recovered in Highmore v. Primrose, 5 M. & S. 65. In each of these cases there was an admission of a subsisting debt, and that was evidence of an account stated. It is not enough that the defendant merely admitted that at a certain time he received a sum of money, Tucker &c. v. Barrow, 7 Barn. & Cress. 623, 14 Eng. Com. Law Rep. 103; nor that the defendant made a special promise when there is no admission of a subsisting debt. Lubbock c. v. Tribe, 3 M. & W. 607.

TITLE IV.

RIGHT OF ACTION BY OWNER OF GOODS OR CHATTELS

AGAINST AN ADVERSE CLAIMANT; OR AGAINST A BAILEE.

CHAP. 43. Action by or against a donee; or by a legatee or distribu

tee.

44. Action for goods claimed under owner's sale or consign

ment.

45. Action for goods (or the proceeds of goods) disposed of by one not authorized to make such disposition.

46. Action for goods conveyed by a mortgage or deed of trust. 47. Of a simple bailment; how loss by fire falls on bailor. Who is a gratuitous bailee and how far he is liable. Liability

of a bailee of slaves.

48. Of the general lien of a factor, attorney, banker, wharfinger, or warehouse-man; and of the particular lien of mechanics and others by whose skill or labour, additional value is imparted to the goods.

49. Of the carrier's lien; and the action against him for goods committed to his care.

50. Of the inn-keeper's lien; and the action against him for property of his guest.

CHAPTER XLIII.

ACTION BY OR AGAINST A DONEE; OR BY A LEGATEE OR DISTRIBUTEE.

1. When the claim is by virtue of a gift inter vivos.

Lord Coke is reported to have said that by the civil law a gift of goods is not good without delivery; but that in the English law it is otherwise. Wortes v. Clifton, 1 Roll. 61; Shep. Touch. 27. This is a very inaccurate dictum: the difference between the two systems is exactly the reverse. Kent, C. J., 2 Johns. 55. It is well established that by the law of England in order to transfer property by gift there must either be a deed or instrument of gift, or there must be an actual deli