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& Man. 668, 3 Adol. & El. 99, 30 Eng. Com. Law Rep. 37. But the action could not be maintained where the defendant received the money upon trust, to pay 1st, costs &c.; 2dly, £ 500 to a banking company; and 3dly, the surplus to the plaintiff. For there was complete uncertainty as to the amount of costs &c.; and without knowing what the defendant had received, and what he had to pay, it could not be known that there was any thing for the plaintiff. Edwards v. Bates, 7 Man. & Gr. 598; 49 Eug. Com. Law Rep. 599.

So the plaintiff failed in Pardoe v. Price, 13 M. & W. 283, where there. was no statement of account with the plaintiff or his testator, or their agents, nor any engagement to pay any certain sum of money to any of them.

In the judgment delivered in this case by Parke, B., it is conceded that if the trustees had appropriated some particular sum for the purpose of paying one creditor, and engaged with him to hold it on his account, they would be liable as upon an account stated, or for money had and received. 13 M. & W. 284. This may be considered sound doctrine, notwithstanding that in a subsequent case it is said by Pollock, C. B., that "so long as a trust continues a bill in equity is the only remedy." Bartlett v. Dimond &c. 14 M. & W. 56. There is, perhaps, no difference between the meaning of the one and the meaning of the other. In the judgment of the court of exchequer, afterwards delivered by Rolfe, B., and concurred. in, it may be inferred, by Pollock, C. B., and Parke, B., the principle is laid down, as follows: "that so long as no other relation subsists between two parties except that of trustee and cestui que trust, no action can be maintained by the latter against the former for any money in his hands. The trustee. is, in such case, the only person entitled at law to the money, and the remedy of the cestui que trust is exclusively in a court of equity. When indeed there is no trust to execute except that of paying over money to the cestui que trust, the trustee, by his conduct, as for instance by admission that he has money to be paid over, or by settling accounts, on that footing may and often does make himself liable to an action at law at the suit of the cestui que trust for money had and received, or for money due on account stated. Such was the case of Roper v. Holland, 3 Adol. & El. 99, and there are many others to the same effect. But so long as there is no liability except as trustee, the cestui que trust has no legal remedy. A contrary doctrine might often deprive the trustee of many grounds of defence which would be available to him in equity; equitable set-off, for instance, or other equitable claims against the cestui que trust, which in good conscience

ought to be available to him, and would be so in a court of equity, but which would afford no legal defence." Pardoe v. Price, 16 M. & W. 458. This well considered judgment has been approved by the court of queen's bench. Edwards v. Lowndes, 1 El. & Black. 89, 72 Eng. Com. Law Rep. 89.

The New York decision in Weston v. Barker, 12 Johns. 276, as explained in Dias v. Brunell's ex'or, 24 Wend. 1, is in accordance with the English doctrine. The action has been more expanded in states wherein there is no court of equity for example, in Pennsylvania, Fleming v. Alter, 7 S. & R. 295; Stoever v. Stoever, 9 Id. 454; and Massachusetts. Where the trust is simply the receipt of money for the use and benefit of one for whom land or other property yielding a profit is holden by another, under an obligation to pay over to the first the money so received, an action for money had and received is in Massachusetts the proper remedy. Arms v. Ashley, 4 Pick. 78.

3. Where the defendant has obtained money by a fraud on the plaintiff.

When the plaintiff has paid money on a fraudulent misrep resentation by the defendants, the money may be recovered back from them if it has come to their hands or under their control and disposition. Wontner v. Sharp, 4 Man. Gr. & Scott 442, 56 Eng. Com. Law Rep. 442; Watson v. Charle mont, 12 Adol. & El. N. S. 870, 64 Eng. Com. Law Rep. 870; Atkinson v. Pocock, 1 W. H. & G. 797; Man. & Mech. Bank v. Gore &c. 15 Mass. 78; Matthews v. Pearson, 13 S. & R. 258; Catts v. Phalen &c. 2 How. 381.

If a sale of the plaintiff's goods be brought about by fraud in which the defendant who was to reap the benefit of such sale was prime mover, such sale (effected by fraud) works no change of property. The property remaining in the original owner, the profits of the sale in the defendant's hands will be held to be so much money had and received by him to the use of the plaintiffs. Abbotts &c. v. Barry, 2 Brod. & Bingh. 369, 6 Eng. Com. Law Rep. 157.

One of several persons who were partners in interest proposed to a warrantor to procure a release of his warranty for $3000. By concealing from his partners this negotiation and falsely affirming to them that the warranty was worth nothing, he induced them to execute the release. The $3000 having been received, an action was brought against him. From the plaintiff's proportion of this money there was deducted what he had paid them for their release; and then the plaintiffs re

covered so much of the $3000 as the defendant against equity and good conscience detained from them. Bliss &c. v. Thompson, 4 Mass. 492.

4. Where defendant has got plaintiff's money without consideration.

The action for money had and received may generally be maintained where the money of one man has without consideration got into the pocket of another. 4 M. & S. 478; Rew v. Barber, 3 Cow. 280. If the debt of C to B be paid to him first by A and afterwards by C, what was due B having been thus twice paid him, he is to pay back one of the sums; but not to C, who has only paid what he owed. Justice is done. by allowing A to recover it in an action for money received. Heard v. Bradford, 4 Mass. 329.

The cases are numerous in which the plaintiff in an action for money received has recovered back money paid on a consideration which has failed. Wright v. Colls, 8 Man. Gr. & Scott 163; Deveaux v. Conolly, Id. 667, 65 Eng. Com. Law Rep. 164, 166; Wheeler &c. v. Board, 12 Johns. 363; Colville v. Besly &c. 2 Denio 139.

Since Fenn &c. v. Harrison &c. 3 T. R. 757, and Fydell v. Clark &c. 1 Esp. 447, it has been decided, that although in the case of a bill, note or other instrument of the like nature which passes by endorsement, if he who negotiates it does not endorse it, he does not subject himself to that responsibility which the endorsement would bring upon him, viz. to an action to be brought against him as endorser, yet notwithstanding his declining to endorse the bill a responsibility attaches on him, when he puts off as of a certain desscription a bill which turns out not to be such as he represents it. Jones &c. v. Ryde &c. 5 Taunt. 488, 1 Eng. Com. Law Rep. 466. A party passing bank notes sometimes promises if a note is not good to make it good. Then he is answerable for its payment. Hellings v. Hamilton, 4 W. & S. 462. In the absence of such express promise he is not answerable that the bank shall pay the notes; but he is answerable for the notes being such as they purport to be. 5 Taunt. 488. The law implying a promise from the party passing a bank note that it is genuine, if it be not, there may as stated ante, p. 357, 363, be an action for the breach of that promise; or if money or other bills which pass and are received as money be the consideration given for the counterfeit note, the same may be recovered back on a count for money had and received. This form of action proceeding on the ground of a disaffirmance of

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the contract and a restitution of the thing given in exchange, a tender back of the counterfeit note, before action brought, may be a prudent and proper step, though perhaps not indispensable. Watson &c. v. Cresap &c. 1 B. Monroe 195; Young v. Adams, 6 Mass. 182.

A stock-broker was employed by the defendant to sell for him four Guatemala bonds; the broker sold them and paid the defendant the proceeds. It turning out that the papers were unstamped and not a marketable commodity, the broker refunded to the purchaser what he had paid. It was considered that the money was delivered to the defendant on an understanding that the bonds he had received from the defendant were real Guatemala bonds such as were saleable on the stock exchange; that the consideration on which the plaintiff paid his money had failed as completely as if the defendant had contracted to sell foreign gold coin and had handed over counters instead; and that the money received by the defendant, was received to the use of the plaintiff. Young v. Cole, 3 Bingh. N. C. 724, 32 Eng. Com. Law Rep. 302.

A bill was sold, purporting to be drawn at Sierra Leone, and available against the parties to it, but so far from answering that description, it was not drawn at Sierra Leone, but in England, and being unstamped was unavailable. Although the vendor did not endorse the bill, and stipulated in effect that the sale should be without warranty, yet an action for money received was maintained against him on the ground that the article did not answer the description of that which was sold, to wit: a foreign bill, and not being a foreign bill was valueless. Gompertz v. Bartlett, 2 El. & Black. 849, 75 Eng. Com. Law Rep. 849.

The seller of the bill though not liable for the solvency of the parties, is liable for the genuineness of the instrument, and for its being what it purports to be. If instead of its having been drawn, accepted and endorsed as it purports to be, it turns out that that which purported to be an acceptance or endorsement, and upon which the vendee relied, was a forgery and the instrument of no value, the failure of consideration entitles the vendee to recover in an action for money received. Fuller &c. v. Smith &c. 1 C. & P. 197, 11 Eng. Com. Law Rep. 366; Gurney Sc. v. Womersley &c. 28 Eng. Law & Eq. 256; Baxter v. Duren, 29 Maine 434; Lyons v. Miller, 6 Grat. 440. Nor is it material whether the person making the transfer, receives the consideration for his own or another's use, unless he is acting as an agent and discloses not only his agency but the name of the principal for whom he is acting. S. C.

In Pennsylvania, when an instrument not negotiable is transferred by endorsement, if the endorsement use the words "pay without recourse," the position of the parties is the same with as without them; the endorser is not in either case liable as such. Still it may be a question on the evidence, whether the endorsee took the paper subject to the risk of the genuineness of the payee's signature as well as of the solvency of the parties. Charnley v. Dulles, 8 W. & S. 361, 2. Though the instrument be negotiable still such words only exempt the endorser from that liability on it in the case of its dishonour at maturity to which he would otherwise be subject by the law merchant. Frazer v. D'Invilliers, 2 Barr 200. They do not exempt him from such obligation as he would be under if he had made no endorsement.

The contract on the purchase of a bill of exchange drawn on a foreign country, being for money in that country, and not merely for the paper, bill or draft, should that be lost, the drawer ought to give other bills of the same tenor and date when the same is necessary to enable the purchaser to receive the money. If the drawer, by refusing to do this, prevent the purchaser from receiving the foreign money, it has been decided in Virginia that the purchaser may, in an action for money received, recover back his purchase money with interest, unless in case of the drawee's insolvency the drawer has sustained a loss by the purchaser's negligence in not presenting the bill, or giving notice of the protest, in due time. Murray & Co. v. Carret &c. 3 Call 376. See ante, p. 218, ch. 24.

If the endorsee of a note fail of recovering against the promiser upon the ground of an illegal consideration or some substantial defence against the contract which proved that the maker of the note was not liable upon it, when it was endorsed, he 'is then entitled to the money he had paid his endorser upon a bargain and consideration which had failed on his part; the note transferred not being what it purported to be, a good recoverable note against the promiser. Copp v. McDugall, 9 Mass. 6. The case of Frevall v. Fitch, 5 Whart. 331, goes yet farther; so much farther that it may be difficult to sustain it consistently with the distinction between an act done by mistake of fact and one done by mistake of law.

In Virginia and Kentucky an assignment is considered as furnishing presumptive evidence that the amount of the note or bond assigned was paid by the assignee to the assignor; and upon that presumption, if not disproved, the assignee may recover in assumpsit for money had and received on proving

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