during his infancy, or to the extent of principal and legal interest upon an usurious contract, or for money fairly lost at play; because in all these cases the defendant may retain it with a safe conscience, though by positive law he was barred from recovering. But 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, contrary to laws made for the protection of persons under those circumstances (b)."

It does not lie to recover back a sum of money paid as a deposit on the purchase of an estate, when the instrument under which the deposit was made is under seal and contains a clause providing for its return (c).

The form of the count is, that the defendant was indebted to the plaintiff in a certain sum, "for money had and received by the defendant for the use of the plaintiff." To support this, it is, as a general rule, necessary to show a privity of contract (d) between the plaintiff and defendant either in law or fact, and to prove that the defendant himself, or his agent (e), actually received money for the use of the plaintiff; though there seldom is in this form of action a direct consideration moving from the plaintiff to the defendant (ƒ).

(b) Per Lord Mansfield, C. J., in delivering the judgment of the Court in Moses v. Macfarlane, 2 Burr. R. 1012; and see Longchamp v. Kenny, 1 Dougl. 138; Straton v. Rastell, 2 T. R. 370; Boyter v. Dodsworth, 6 T. R. 681; 1 Chitty Pl., 6th ed. 351; see 2 Pothier by Evans, 369, 378, 379. In Johnson v. Johnson, 3 B. & P. 169, Lord Alvanley, C. J., observed, "that in the case of Moses v. Macfarlane, some principles were laid down, which are certainly too large, and which he did not mean to rely on; such, as that wherever one man has money which another ought to have, an action for money had and received may be maintained."

(c) English v. Blundell, 8 C. & P. 332, per Lord Denman, C. J.

(d) Baron v. Husband, 4 B. & Ad. 612; 1 Nev. & M. 728; 2 Nev. &

M. 381; Howell v. Batt, 5 B. & Ad. 506; post, 613; Sims v. Britten, 4 B. & Ad. 375. Evidence of admission of account, containing items of money had and received, sufficient to support the count; Lorymer v. Stephens, 1 C., M. & R. 62; 4 Tyr. 869, S. C.

(e) Agent's receipt when a receipt by principal; Coates v. Bainbridge, 5 Bing. 58; 2 M & P. 142, S. C.; ante, 215,223. Various sums, received at different times, upon distinct transactions, may be recovered under one count for money had and received; 2 Saund. 118, note (2). When non assumpsit should be pleaded, and what special plea amounts to the general issue; Solly v. Neish, 2 C., M. & R. 255; 1 Gale, 227; 5 Tyr. 625, S. C.; Chit. jun. Plead. 204, s.

(f) Lilly v.

ante, 55.

Hays, 5 Ad. & E. 550;

Therefore, if money in litigation between two parties has, by mutual consent, been paid over to a trustee or stakeholder, in trust for the party entitled, it can be recovered by the party entitled to it only from the stakeholder, and not from the other party who claimed the money (g).

And where it appeared that premises in which the business of a wine and spirit merchant was carried on were assigned, together with the licence, to the plaintiff by way of mortgage, and the occupier having forfeited the licence the plaintiff's mortgage was paid off; but afterwards the assignee of the mortgagor procured a new licence, which he sold to a new occupier of the premises; it was held that the plaintiff could not sue him for the amount obtained on the sale of such licence, the licence sold not being the licence conveyed to the plaintiff (h).

It must, in general, appear that the defendant has received. money or cash, and not merely money's worth (i); and therefore the count 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 (k); or foreign securities or money, unless it appear that the defendant has had an opportunity of converting the latter into British money (l). 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 (m). And if a stakeholder receive country bank notes as money, the amount may be recovered under the count for money had and received (n). Where the plaintiff residing at X., employed the defendant

(g) Ker v. Osborne, 9 East, 378; see post, 621.

(h) Manifold v. Morris, 5 Bing. N. C. 420.

(i) 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.

(k) Ante, 588. 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.

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

380.

(m) 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.

(n) Pickard v. Bankes, 13 East, 20; For v. Cutworth, cited in Spratt v. Hobhouse, 12 Moore, 402, 403; 4 Bing. 173, S. C. In the latter case, a check was held to be money, it being treated as such, &c.; see also Wilkinson v. Godefroy, 9 Ad. & E. 536.

residing at Y., to procure payment of a bill there, and to remit the produce direct to him at X., and the defendant received payment of the bill, but remitted the produce in bills payable to the defendant's order to a third person at Z., for the plaintiff's use, whereby the whole got into the hands of his, the plaintiff's, creditors, Lord Ellenborough held, that the plaintiff could not maintain an action for money had and received against the defendant, 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 (o). And where the defendant, the captain of the plaintiff's ship, drew a bill on the plaintiff's agent for disbursements, which was paid, this was held no evidence of money had and received by the defendant for the plaintiff's use (p). So where the defendant, being intrusted with a bank bill to get indorsed for the plaintiff, procured such indorsement and then paid it into his own bankers, who placed it to his credit in the usual way, and the defendant then drew on them, but not specifically on account of the bill, and the plaintiff before the bill became due sued the defendant for money had and received, it was held, that such action was improperly and prematurely brought, and that the plaintiff should have sued in trover (q).

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 (r). If a judgment creditor, who has an elegit on the lands of the judgment debtor, sue a receiver of the rents of 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 (s).

Although it is necessary, in general, that the money should have been originally (t) 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,'

68.

(0) Duncan v. Skipwith, 2 Camp.

(p) Scott v. Miller, 3 Bing. N. C. 811; 5 Scott, 11, S. C.

(q) Atkins v. Owen, 4 Ad. & E. 819; 6 Nev. & Man. 309.

(r) Harvey v. Archbold, 3 B. & C. 626; 5 D. & R. 500, S. C.

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

(t) See ante, 593, as to money paid for defendant's use.

may render him liable in this form of action (u). 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 (x). So if a trustee state an account with the cestui que trust, and admit that a balance belonging to the latter is in his hands, such balance may be recovered from him in an action for money had and received (y). But a husband cannot maintain an action for money had and received to recover a sum of money from the defendant, a trustee, in whose hands he has joined his wife in placing certain funded property, to which she was entitled under a former marriage settlement, for the purpose of his selling it, and after paying off a mortgage, securing the interest of the residue to the wife, &c., though the defendant had converted the property into money and paid over to the plaintiff a portion of the proceeds of the sale (z).

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 the purchaser of an estate agreed with the vendor that if the latter would pay the whole expense of another transaction, he, the vendor, should not pay any part of the expenses of the conveyance, which were equally payable by the vendor and vendee; it was held, that the money thus set off between the vendor and vendee might be recovered by the attorney who prepared the conveyance as money had and received by the vendee to his use (a). 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 (b). But

(u) See Hennings v. Rothschild, 4 Bing. 315; 12 Moore, 559; Spratt v. Hobhouse, 4 Bing. 173; 12 Moore, 395, S. C.; and see instances, post, 616 to 619; and Parry v. Roberts, 3 Ad. & E. 118.

(x) Meert v. Moessard, 1 M. & P. 8.

(y) Ante, 282.

(2) Mileham v. Eicke, 3 M. & W. 407.

(a) Noy v. Reynolds, 1 Ad. & E. 159; 4 Nev. & Man. 483.

(b) Shaw v. Picton, 7 D. & R. 201; 4 B. & C. 715; cited by Abbott, C.J.,

where A. being the agent of the grantor and the grantee of certain annuities, all payments on account of the annuities passed through his hands, and he charged the grantee a commmission 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 (c).

Where bankers were employed to receive the dividends on certain stock, and had in their own books credited their employers with the dividends as received when in fact they had not been received, a partner in the firm having sold the stock by means of a forged power of attorney, and continued to make entries in the books of the firm, as though the dividends were received by him; it was held, that the other partners were not bound by the entries so made so as to be sued for money had and received, the Bank of England continuing liable to the employers, and their situation not being altered materially (d).

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.

in Shaw v. Dartnall, 6 B. & C. 65, and observed upon by Bayley, B. in Hume v. Bolland, 1 C. & M. 134.

(c) Shaw v. Dartnall, 9 D. & R. 54; 6 B. & C. 56, S. C., observed upon by Bailey, B. in Hume v. Bolland, 1 C. & M. 134. 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.

(d) Hume v. Bolland, 1 C. & M. 130; ante, 252.