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doubt essential to support this count: Sergeant v. Stryker, 32 Am. Dec. 404. But no further privity is required than is implied by law from the fact that the defendant has in his hands money of the plaintiff which he has no equi. table right to retain: Thompson v. Merriam, 15 Ala. 168; Harper v. Claxton, 62 Id. 46; Concord v. Delaney, 58 Me. 316; Mason v. Waite, 17 Mass. 553; Pierce v. Crafts, 12 Johns. 90; Ela v. American elc. Co., 29 Wis. 611. It is not necessary that the defendant should have received the money from the plaintiff, or that it should be the proceeds of property received directly from the plaintiff, although that is commonly the case. Thus where money is placed in the defendant's hands by a third person to be paid over to the plaintiff, and the defendant expressly or impliedly promises to pay it over, the plaintiff may assent thereto, and sue the defendant for money had and received to his use: 2 Greenl. Ev., sec. 119; Lewis v. Sawyer, 44 Me. 332; Donkersley v. Levy, 38 Mich. 54; Warren v. Batchelder, 16 N. H. 580; Draughan v. Bunting, 9 Ired. 10; Stoudt v. Hine, 45 Pa. St. 30; Phelps v. Conant, 30 Vt. 277. So where it is the legal duty of the depositary to pay, for a promise to pay will then be implied, as in case of money directed by law to be paid to a supervisor to be applied in payment of certain bond cred. itors: Ross v. Curtis, 30 Barb. 238. But there must be an express or implied promise by a depositary of funds placed in his hands by one person to be paid to another before the latter can sue for money had and received: Williams v. Everett, 14 East, 582; Grant v. Austen, 3 Price, 58. In Seaman v. Whitney, 35 Am. Dec. 618, it is laid down that a creditor can not maintain a count fer money had and received against a depositary with whom money is left by the debtor to pay the debt, without an express undertaking between the creditor and depositary, or an understanding between the debtor and cred. itor assented to by the depositary, or between the debtor and depositary known and assented to by the creditor. A debtor placing money in the hands of his servant to pay a debt may recall it before payment, and the servant will not be liable to the creditor for money had and received: Lewis v. Sawyer, 44 Me. 332. But where an agent, empowered to pay a debt, credits himself with the amount as paid in an accounting with his principal, when in fact it is not paid, the law implies a promise, and the creditor may sue him for money had and received: Putnam v. Field, 103 Mass. 556. A count for money hail and received will be supported also where it appears that the plaintiff's father assigned his property to a certain person in consid. eration that the latter would take care of his children, and that the assignee transferred the trust to the defendant, paying him certain moneys to be paid to the children, which he agreed to pay but did not pay: Ilosford v. Kanouse, 45 Mich. 620. A consignee of a money package transmitted by a common carrier may sue the carrier for money had and received where the money is lost, even though he has not received the bill of lading, after the consignor has released to him his claim: Ela v. American etc. Co., 29 Wis. 611.

But where a reward, to which the plaintiff claims to be entitled, is wrong. fully paid to the defendant, there is no such privity as will support an action for money had and received by the plaintiff against the defendant: Sergeant v. Stryker, 32 Am. Dec. 404. So where money to which the plaintiff is entitled under a will is, by mistake of the executor, paid to the defendant: Moore v. Moore, 127 Mass. 22. So where money to which the plaintiff claims to be entitled under a will is paid to the defendant under a decrea which the plaintiff claims that the court had no jurisdiction to render, though the defendant holds the money as agent for a third person: Rand v. Smallidge, 130 Id. 337. So where a broker employed by two persons to sell cattle for them paid to one of them more, and to the other less, then he was entitled to, it was held that the latter could not maintain a count for money had and received against the party receiving the overpayment, there being no privity between them: Hall v. Carpen, 27 Ill. 386; S. C., 29 Id. 512. So one in whose behalf money is borrowed without authority, it is held, is not liable to the lender for money had and received, though the money was actually appropriated to his use: Kelley v. Lindery, 7 Gray, 287.

ADMISSIBILITY OF NOTE, BILL, ETC., UNDER COUNT FOR MONEY HAD AND RECEIVED. - It is well settled that a promissory note is admissible in evidence under a count for money had and received in action by the payee against the maker: Tebbetts v. Pickering, 51 Am. Dec. 48; Pages Administrator v. Bank of Alexandria, 7 Wheat. 35; Lane v. Adams, 19 Ill. 167; Boyle v. Carter, 24 Id. 49; Coursey v. Baker, 7 Har. & J. 28; Hughes v. Wheeler, 8 Cow. 76; Por. ter v. Cummings, 7 Wend. 172. See also Mathews v. Fogg, 44 Am. Dec. 257. So where the note was made payable " to P.W. or R. B.:" Walrad v. Petrie, 4 Wend. 575. So where the note was in the following form: “ For value received of C. & M., or order, thirty dollars and eighty-three cents, on demand, and interest annually”—the promissory words being omitted by mistake: Cummings v. Gassett, 19 Vt. 308. So where the note was given on condition that the payee would assign the maker a certain mortgage, performance of the condition being proved: Payson v. Whitcomb, 15 Pick. 212. So an arbi. cration note, after the maker's liability has been fixed by an award in the payee's favor: Woodrow v. O'Conner, 28 Vt. 776. So where the note is for a certain sum payable in specific articles: Payne v. Couch, 1 G. Greene, 64; Crandal v. Brailley, 7 Wend. 311; Stever v. Lamoure, Hill & D. 352. Contra: Wilson v. George, 10 N. H. 445, where it was held that in order to be admis. sible under a count for money had and received, a note must express a promise to pay in money, and that the promise and not the consideration is the test. So in Carlisle v. Davis, 7 Ala. 42, it was held that a note payable " in the common currency of Alabama” was not payable in money, and therefore not admissible under a count for money had and received. Admitting it to be true that the promise and not the consideration of the promise determines whether a note is evidence of money had and received by the promisor belonging to the promisee, since the rule is that a note for a certain sum, pay. avle in chattels, becomes, upon default at maturity, a promise to pay in money: Roberts v. Beatty, 21 Am. Dec. 410; such a note ought, after maturity, to be as competent evidence under this count as if it were originally payablo in money. Where a note was made payable in land at a certain price per acre, and the maker, having been discharged under the bankrupt act, afterwards stated that he was unable to convey the land, but admitted that the note was just and promised to settle it, it was held admissible under the money counts: Smith v. Smith, 3 Id. 410. Certainly, where the promise is to pay in money, the fact that the consideration was something else than money does not prevent the admissibility of the note under a count for money had and received: Smith v. Van Loan, 16 Wend. 659; Ilughes v. Wheeler, 8 Cow. 76; Wilson v. George, 10 N. H. 446. So though the note shows on its face that the consid. eration is not money: Hassell v. Hoit, 17 Id. 39. In Ilughes v. Wheeler, supra, it is said that the note is conclusive evidence of a pecuniary consideration. At all events, the promise to pay in money is a sort of equitable con. version of the consideration into money, a binding election to treat it as money for the purposes of the contract.

It is also well settled that the indorsee or bearer, as the case may be, of a negotiable note, may give it in evidence under a count for money had and received against his immediate indorser or any prior party to it: Eagle v. Smith, 13 Am. Dec. 37; Dunsdale v. Lanchester, 4 Esp. 201; Brown v. Torver, Minor, 370; Indianapolis Ins. Co. v. Brown, 6 Blackf. 378; Penn v. Flack, 3 Gill & J. 369; State Bank v. Hurd, 12 Mass. 171; Wild v. Fisher, 4 Pick. 421; Ells. worth v. Brewer, 11 Id. 315; Dana v. Underwood, 19 Id. 99; Tenney v. Sanborn, 5 N. H. 556; Edgerton v. Brackett, 11 Id. 218; Pierce v. Crafts, 12 Johns. 90; Olcott v. Rathbone, 5 Wend. 490; Brown v. Noyes, 2 Woodb. & M. 75. So, though the note is not negotiable in form, where all notes are made negotiable by statute: King v. Wall, Morr. 187. So, though the note is payable in "currency:" St. Louis etc. Ins. Co. v. Soulard, 8 Mo. 665. It is presumed that money passes at every negotiation of the note: Ellsworth v. Brewer, 11 Pick. 315. And every indorsement operates as an assignment of the right to receive the money in the bands of the prior parties: Pierce v. Crafts, 12 Jolins. 90. The fact that the holder of a note is an indorsee for collection merely will not prevent his recovery under the money counts: Chase v. Burnham, 37 Am. Dec. 602. An indorser, having paid the note, is remitted to his right to recover against prior parties under the count for money had and received, giving the note in evidence: Ainslie v. Wilson, 17 Id. 532; Rawlings v. Poindexter, 14 Smed. & M. 66, post. But in the latter case it is said that he can recover only the amount actually paid.

A note is not evidence to support a count for money had and received against a mere surety who received no part of the consideration: Hatten v. Robinson, 4 Blackf. 479. It is prima facie evidence against an indorser; but if it be shown that he was, in effect, only a surety, the evidence is rebutted: Page's Adm'r v. Bank of Alexandria, 7 Wheat. 35. So if he was a mere agent for the person actually receiving the money: Jones v. Cannady, 4 Dev. 87. But in Cole v. Cushing, 8 Pick. 48, it is held that the maker of a noto for the payee's accommodation, receiving no money or other consideration for signing it, is liable to an indorsee under the count for money had and received.

A bill of exchange or cash draft is competent evidence to support a count for money had and received by the payee or indorsee against the acceptor: Farmers' etc. Bank v. Payne, 25 Conn. 444; Butler v. Amrrican Toy Co., 46 Id. 136; Knight v. Fox, Morr. 305; Purdy v. Vermilyea, 8 N. Y. 346. So, though payable on a contingency that may never happen, upon proof that it has happened: Ilenry v. Hazen, 5 Ark. 401. The acceptor of a draft not negotiable is liable under this count to an assignee thereof when he has promised to pay it to the assignee: l'eston v. Penniman, 1 Mason, 306. So the acceptor of a draft drawn on a particular fund, having received the fund and applied it on a subsequent draft by the same drawer, is liable to the holder of tirst draft for money had and received: Grammer v. Carroll, 4 Cranch C. C. 400. But a draft on a particular fund, being non-negotiable, is not evidence to sup. port a count for money had and received, without other proof: Raeganel v. Ayless, 16 Ark. 594. So held also as to an accepted order payable in axes: Burrall v. Jacot, Barb. 165. A bank check payable to order or bearer is competent evidence under this count in favor of the indorsee or holder against the drawer: Cruger 1. Armstrong, 2 Am. Dec. 126; Howes v. Austin, 35 Ill. 396; Carter v. llope, 10 Barb. 180; Blair v. Wilson, 28 Gratt. 165. But if it be proved that no money came to the defendant's hands, there can be no recovei y under this count: Blair v. Wilson, supra.

A certificate of deposit is competent evidence to support a count for money bad and received: Talladega Ins. Co. v. Landers, 43 Ala. 115; State Bank v

Corwith, 6 Wis. 551. So where payable" in currency:" Swift v. Whitney, 20 III. 144. So a coupon on a county bond in an action against the county: Johnson v. Stark Co., 24 Id. 75. So a due-bill payable to order is admissible in favor of an indorsee against the maker: Carver v. Ilayes, 47 Me. 257. So an account stated between the parties showing the balance due in money: Slowe v. Sewall, 3 Stew. & P. 67; Filer v. Peebles, S N. H. 226; Mathewson v. Eureka Powder Works, 44 Id. 289. So a memorandum of a “balance due for blacksmith. work:” Morse v. Allen, 44 Id. 33. So an award of arbitrators, where there are no arbitration bonds, the award being regarded as an account stated: Brady v. Mayor etc. of Brooklyn, 1 Barb. 5$4.

Money PAID ON ILLEGAL CONTRACT may, under certain circumstances, be recovered under the count for money had and received: 2 Greenl. Ev., sec. 121. Thus where the party paying is not in pari delicto with the party receiving the money, this count will lie: Gray v. Roberts, 12 Am. Dec. 383; Concord v. Delaney, 58 Me. 308; Adams v. Goodnow, 101 Mass. 81; as id case of money paid in excess of lawful interest on a usurious contract, the borrower not being deemed in pari delicto with the usurer: Wheaton v. Hib. barı, 11 Am. Dec. 284; Berry v. Makepeace, 3 Ind. 154; Willie v. Green, 2 N. H. 333; Cro88 v. Bell, 34 Id. 82; Scott v. Leary, 34 Md. 389; Bond v. Jones, 8 Smed. & M. 368; or where money is paid for liquors where such sales are illegal and declared by statute to be without consideration: Adams v. Goodnow, 101 Mass. 81. So where money is paid on a contract prohibited by statute, but not malum in se, where the contract remains executory, nothing except the paying of the money having been done under it: Congress Spring Co. v. Knowlton, 103 U. S. 49. So in Bone v. Ekless, 29 L. J. Exch, 438, it is held that one who has authorized the application of his money to an ille. gal purpose may recover it before it has been so applied. Wbere money was deposited by a husband with an attorney upon an illegal agreement by the latter to procure a divorce on behalf of the wife, and to apply the money in payment of alimony, no suit being brought, the money was held recorer. able as money had and received: Donville v. Merrick, 25 Wis. 688. So money contributed and paid to a depositary to aid a revolution in a country at peace with the United States, where it was not applied to that purpose: Bailey v. Belmont, 10 Abb. Pr., N. S., 270.

MONEY OBTAINED BY FRAUD OR OTHER TORT, OR BY DORESS OR MisTAKE.-Evidence that the defendant has obtained the plaintiff's money by fraud, deceit, or false representations will support a count for money had and received: 2 Greenl. Ev., secs. 120, 122; Crockford v. Winter, 1 Camp. 124; Burton v. Driggs, 20 Wall. 125; Gibson v. Stevens, 3 McLean, 551; Rey. nolds v. Rochester, 4 Ind. 43; Reybold v. Henry, 3 Houst. 279; Barnard v. Colwell, 39 Mich. 215; Magofin v. Muldrow, 12 Mo. 512. As where the de. fendant falsely represented that he had a certain claim against another, and assigned it to the plaintiff, though the assignment was under seal: Burton v. Drigg8, 20 Wall. 125. So where an overpayment was obtained from a pur. chaser of property by false representations as to the price paid by the vendor, he having agreed to sell it for the same price for which he bought it: Bar. naril v. Colwell, 39 Mich. 215. So where a certain privilege of a specified value was falsely represented to be annexed to the property: Reybold v. llenry, 3 Houst. 279. So where an insurance was obtained by false repre. sentations, and the insurers afterwards paid a loss on the policy: McConnel v. Delaware etc. Ins. Co., 18 Ill. 223. So where, though the policy was valid, the insurers were induced, by false and fraudulent representations as to the oxtent of the loss, to pay more than was due: Johnson v. Continental Life Ina

Sept. 1850.]


Co., 39 Mich. 33. So where the plaintiff was induced by fraud to enter into a contract of partnership and to pay money thereon: Magoffin v. Muldrow, 12 Mo. 512. So where a husband, acting as agent for his wife in the pur. chase of land, by collusion with the vendor paid double the actual price of it, and the vendor repaid the excess to the husband for his own use, the vendor was held liable to the wife for such excess, under a count for money had and received: Walker v. Coleman, 81 Ill. 390. So where the defendant draws a draft in favor of the plaintiff on a certain party, and after inducing him to delay presentment, draws all his funds out of the drawee's hands upon other drafts: North v. Campbell, 72 Id. 380. But where one by fraud and forgery obtains money of the plaintiff which he pays to a third person, who receives it in good faith in discharge of a debt, the latter is not liable to the plaintiff for money had and received: Stephens v. Board of Education, 79 N. Y. 183. Where property is fraudulently obtained of the plaintiff, without intending to pay for it, and is afterwards converted into money, the plaintiff may main. tain assumpsit for money had and received therefor, in accordance with prin. ciples already stated: llall v. Peckham, 8 R. I. 370. So where an agent frauclulently procures from his principal a deed to himself for land which he is empowered to sell, representing that he has sold it for a certain sum, part of which he pays over, and then sells for a larger sum, he is liable under this count for the difference: Noore v. Mandlebaum, 8 Mich. 433.

Money tortiously taken by force is recoverable under this count: McDonald v. Broun, 16 Ill. 32. And no demand is necessary where the money is illegally obtained: Babcock v. Granville, 44 Vt. 325; otherwise if rightfully obtained and wrongfully detained: Id. This count will lie also for tolls, and the like, belonging to the plaintiff, which are collected by mere intruders or trespassers: O'Conley v. Natchez, 40 Am. Dec. 87; Murphy v. City Council, 11 Ala. 586. So for earnings received from a vessel tortiously taken from the plaintiff: Richardson v. Kimball, 28 Me. 463. It has been held to lie also against one who wins from a clerk, by gambling, the money of his employer: Causidiere v. Deers, 1 Abb. App. Dec. 333. But a person dishonestly receiv. ing from a county treasurer funds in his charge is not liable, it seems, to the county for money had and received, the treasurer being regarded as owner of the funds and absolutely liable therefor as debtor to the county: Perley v. Muskegan Co., 32 Mich. 132.

Money exacted by duress is recoverable under this count: Grand Rapids v. Blakely, 40 Mich. 367; S. C., 29 Am. Rep. 539; Dewey v. Supervisors, 4 Thomp. & C. 606; Babcock v. Granville, 44 Vt. 325. See the note to Mayor of Balti. more v. Lefferman, 45 Am. Dec. 153, for an extended discussion of what is to be deemed a compulsory payment which can be recovered back. This action lies for money collected on a judgment which is afterwards reversed or vacated: Freeman on Judgments, sec. 482; Duncan v. Ware, 24 Am. Dec. 772; Raun v. Reynolds, 18 Cal. 275; Stevens v. Fitch, 11 Met. 248; Clark v. Pinney, 6 Cow. 297; Sturges v. Allis, 10 Wend. 355; Lott v. Swezey, 29 Barb. 87. But in Pennsylvania the action lies only where there is no order of restitution, such order when made being a judgment enforceable by writ of restitution, which can not be turned into a simple contract debt: Duncan v. Kirkpatrick, 13 Serg. & R. 292; Travellers' Ins. Co. v. Ileath, 95 Pa. St. 333. The action is held to lie also for the proceeds of goods of a stranger sold under an attachment or execution: 2 Greenl. Ev., sec. 121; Harris v. Miner, 28 Ill. 135.

Money paid under a mistake or ignorance as to a material fact, including a mistake of a foreign law, is recoverable under this count: Garland v. Salem Bank, 6 Am. Dec. 86; Waite v. Leggett, 18 Id. 441; Haven v. Foster, 19 Id.

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