against the sheriff, it was held that A., the cestui que trust, might maintain money had and received against the trustee to recover the sum obtained from the sheriff, allowing the trustee his costs and expenses (d).

3rdly. Against whom it lies, in general (e).—This action is not in general maintainable against a mere bearer of money from one person to another (ƒ). It should in general be brought against the principal and not against a mere receiver or collector (g); or an agent or other party who has paid over the money to another, according to the directions of the party who deposited it with him (h); or against a clerk, or an attorney, who, without paying it over, received it expressly under the authority, and for and in the name, of his employer (i). So this action cannot be maintained against a churchwarden to recover back dues which, previous to the commencement of the action, had been paid over by him to the trustees of a chapel, for whom it was received (k). And where an arbitrator received money in dispute as a deposit, until the question could be decided, and paid it over according to his award, to the person whom he considered entitled to it, it was held, that although the person who deposited the money had previously committed an act of bankruptcy, the assignees could not sue the arbitrator for money had and received, he being a mere gratuitous holder or carrier of the money, and having paid it over bona fide without knowledge of the act of bankruptcy (1). But if money be paid by mistake to an agent, and placed by him to the account of his principal, but not paid over, money had and received lies against the agent, at the suit of the payer. And the mere passing such money in account, or making rests, without any

(d) Randollv. Bell, 1 M. & Selw.714. (e) As to suing a trustee for money had and received; see ante, 226, 227; an executor, ante, 220; or official or other assignee of a bankrupt, ante, 212 and note (). Liability of auctioneer, ante, 246; and post, 487, 488; stakeholders, post, 486; government agents, ante, 224, 225. The trustees, &c. of a benefit society cannot be sued; the only remedy is by arbitration under the statute. Crisp v. Bunbury, 8 Bing. 394; 1 Moo. & S. 646.

(f) Coles v. Wright, 4 Taunt. 198; recognised in Tope v. Hockin, 7 B. & C. 110, per Lord Tenterden, C. J. The general rule is, that the true owner of

property misapplied by an agent may follow it; an exception exists in the case of the ordinary currency of the country; see ante, 304, 305; Lang v. Smyth, 7 Bing. 292, 284; 5 M. & P. 82; per Tindal, C. J.

(g) Sadler v. Evans, 4 Burr. 1985; Greenway v. Hurd, 4 T. R. 553, 554, 555, notes.

(h) Buller v. Harrison, Cowp. 566; Whitehead v. Evans, 5 Moore, 105, 115. (i) Ante, 479; Baron v. Husband, 4 B. & Ad. 611.

(k) Horsfall v. Handlay, 8 Taunt. 136; 2 Moore, 5.

(1) Tope v. Hockin, 7 B. & C. 101; 9 D. & R. 881, S. C.

new credit given, fresh bills accepted, or further sums advanced for the principal in consequence of it, is not equivalent to a payment of it over (m). And if the money be paid over by the agent, it must be an innocent and bona fide payment, without knowledge of the plaintiff's claim. An attorney, who was also an auctioneer, received a deposit on property which he had sold by auction, and after queries raised on the title, and before they were cleared, paid over the deposit to his principal. On demand of the deposit by the buyer, he answered that his principal would not consent to return it, and would enforce the contract. It was held that the buyer might recover the deposit from the auctioneer as money had and received to the plaintiff's use; 1st, because the defendant, as attorney, had notice that the title was not completed before he paid over the money; 2ndly, because he misled the plaintiff to sue himself, by not saying he had paid it over (n).

4thly. When it lies to recover a debt transferred by a creditor's order on his debtor to pay the plaintiff.—In Tatlock v. Harris (0), Buller, J., put this case: "Suppose A. owes B. 100%., and B. owes C. 100l., and the three meet, and it is agreed between them that A. shall pay C. the 1007., B.'s debt is extinguished, and C. may recover that sum against A." And this doctrine, (which affords an exception to the general rule that a debt cannot be assigned at law so as to enable the assignee to sue in his own name (p)), has been recognised in subsequent cases. In such case, however, it seems necessary, in order to enable the plaintiff (C.) to sue A. as for money had and received, that the debt originally due to him, the plaintiff, from the third person (B.) should be extinguished by the new arrangement (g). The debt due to the plaintiff, from B., is not extinguished, unless there be a communication between all parties, and an express agreement by the plaintiff to accept the defendant only, as his debtor (r).

(m) Buller v. Harrison, Cowp. 565; Cox v. Prentice, 3 M. & Selw. 344; Peto v. Blades, 5 Taunt. 657; Edwards v. Hodding, id., 815.

(n) Edwards v. Hodding, 5 Taunt. 815, cited Horsfall v. Handley, 8 Taunt. 136, 2 Moo. 5, and approved of by Lord Tenterden in Gray v. Gutteridge, 3 C. & P. 40, 41.

(0) 3 T. R. 180; Wilson v. Coupland, 5 B. & Al. 228.

(p) Fairlie v. Denton, 8 B. & C. 395. (q) Cuxon v. Chadley, 3 B. & C.

591; 5 D. & R. 417, S. C.; Wharton v. Walker, 4 B. & C. 163; 6 Dowl. & R. 288. See Ward v. Erans, Ld. Raym. 928.

(r) Wilson v. Coupland, Cuxon v. Chadley, ubi supra. See particularly Wharton v. Walker, 4 B. &. C. 166. 6 Dowl. & R. 288. What is not such an extinguishment of a debt due to two partners dissolving partnership as will render the remaining partner only the creditor; Biggs v. Fellows, 8 B. & C. 402; 2 Man. & Ryl. 450. These

In Fairlie v. Denton (s), it was held that if there be a defined and ascertained debt due from A. to B., and a debt to the same or a larger amount be due from C. to A., and the three agree that C. shall be B.'s debtor instead of A., and C. promise to pay B., the latter may sue C.; but that in such action the plaintiff (B.) must shew that at the time when the defendant (C.) promised to pay him (B.) there was an ascertained debt due from A. (the third party) to him, the plaintiff B. But, according to a recent case (t), if S. be indebted to I., and G., being indebted to S., S. request G. to pay I. whatever might be due from G. to S., and G. promise to do so when the amount is ascertained; and after the amount has been ascertained, and before it be paid, S. become bankrupt; I. may, notwithstanding the bankruptcy of S., claim from G. the amount of the debt to I. The Court considered that there was an equitable assignment of the debt due from G. to S., which bound the assignees of the latter.

Whether the common count for money had and received is the proper form of remedy in the first mentioned instance, if the defendant were not originally indebted to the third party, (B), for money had and received, or whether the action should not be in special assumpsit upon the defendant's promise, may, however, be doubtful. The case of Israel v. Douglas (u), is an authority in favour of the common count. And Lord Ellenborough is reported (x) to have said, that, with respect to Israel v. Douglas," he did not feel a difficulty, because it was an accepted transfer: it was money had and received by the operation of the agreement." It is, however, observable that Wilson, J., differed from the other judges in Israel v. Douglas; and Mr. J. Lawrence observed, in Taylor v. Higgins (y), that it had since been mentioned in the King's Bench, and was not approved of upon that point (z). If not

promises to pay the plaintiff, instead of the original creditor, need not be in writing; Hodgson v. Anderson, 3 B. & C. 842; 5 D. & R. 735, S. C.; Crowfoot v. Gurney, 2 M. & Scott, 473; 9 Bing. 372, S. C.

(s) 8 B. & C. 395.

(4) Crowfoot v. Gurney, 2 M. & Scott, 473; 9 Bing. 372, S. C.

(u) 1 Hen. Bla. 239. A. being indebted to B., for brokerage, and B. indebted to C., for money lent, B. gives an order to A. to pay C. the sum due

from A. to B. as a security, on which C. lends B. a further sum; and the order is accepted by A. On the refusal of A. to comply with the order, C. may maintain an action for money had and received against him. Id.

(x) Williams v. Everett, 14 East, 587, note (a).

(y) 3 East, 171.

(z) See Wharton v. Walker, supra that the declaration should be special, if the original debt due from defendant were not for money had and received. See

necessary, it would certainly, therefore, be safer to declare specially.

A person cannot revoke an authority to his debtor to pay the debt to a third party, the creditor of the former, after the debtor has given a pledge to such third party that he will pay the money according to the authority (a).

5. Or Money which a Principal orders his Agent to pay the Plaintiff. A direction to a banker, or other agent, to hold the money of the principal at the disposal of T.S., is revocable until actual appropriation or payment, according to the order (b). Where bankers received bills from their foreign correspondent, with directions to pay the amount to the plaintiff, but on being applied to by him, refused so to do, and declined to act upon the orders given, although they afterwards received the amount of the bills; it was held, that an action for money had and received was not sustainable against the bankers, on the ground that there was no privity between the plaintiff and them, they having, on the contrary, repudiated the same (c). And Lord Ellenborough observed (d), “it is entire to the remitter to give and countermand his own directions respecting the bill, as often as he pleases; and the persons to whom the bill is remitted may still hold the same till received, and the amount, when received, for the use of the remitter himself, until by some engagement entered into by themselves with the person who is the object of the remittance, they have precluded themselves from so doing, and have appropriated the remittance to the use of such person." This doctrine was recognised and acted upon in Wedlake v. Hurley (e). It

Fairlie v. Denton, 8 B. & C. 398; Hennings v. Rothschild, 12 Moor, 576; 4 Bing. 315, S. C.

(a) Hodgson v. Anderson, 3 B. & C. 842; 5 D. & R. 735, S. C.; Robertson v. Fauntleroy, 8 Moor, 10; Gibson v. Minet, R. & M. 71. Effect of transfer in banker's books, Gibson v. Minet, R. & M. 68; S. C. in 1 C. & P. 247; 2 Bing. 7, and 9 Moor, 31. See also Buller v. Harrison, Cowp. 565. A. being indebted to B., in order to discharge the debt, executed to B. a power of attorney authorising him to sell certain lands of A.: held, that this being an authority, coupled with an interest, could not be revoked; Gaussen v. Morton, 10 B. & C. 731.

(b) Gibson v. Minet, suprà; Carey v. Adkins, 4 Camp. 93; Hankey v. Hunter, Peake, Add. C. 107. See Scott v. Porcher, 3 Meriv. 652.

(c) Williams v. Everett, 14 East, 582; Stewart v. Fry, 7 Taunt. 339; Gibson v. Minet, suprà. Government officer when not liable, though he has funds in hand, &c.; Gibley v. Lord Palmerston, 3 B. & B. 275; 7 Moore, 91, S. C.; ante, 224, 225.

(d) Williams v. Everett, 14 East, 597. See Gibson v. Minet, suprà; Hodgson v. Anderson, 3 B. & C. 842; 5 Dowl. & R. 735.

(e) 1 C. & J. 83. Attorney when not liable, Baron v. Husband, 4 B. & Ad. 611.

there appeared that A. remitted to B. a bank bill, indorsed, "pay to the order of B., under provision for my note in favour of C., payable at the house of B., on 1st January, 1830;" B. received the proceeds of the bill, and refused to pay them over to C. In an action for money had and received by C., it was held, that B. was not liable to C., because B. had never assented to hold the bill or money to the use of C. And a banker who receives a sum of money, the property of several persons, from their agent, who is charged to divide it amongst them in distinct proportions, known to the banker, is not, after part of the money has been drawn out and distributed by the agent, liable to any proprietor in an action for his share (f). But the principal cannot, even as against his agent, rescind the order, if a third person be induced to make advances on the faith thereof, and the money be in fact appropriated and set apart, by the terms of the order, as a security to the third party (g).

If goods are consigned by the owner to W., with directions to pay over the net proceeds to B., and W. employ a broker to sell them, who receives the money, B. can recover from the broker the proceeds only, subject to the same deductions and allowances as W. was entitled to make, in account with the consignor (h).

The agent of a regiment, appointed by the colonel under the usual power of attorney, is the agent of the latter, and bound to account to him for money received from government, although such money was eventually payable, not only to the colonel, but to other officers and persons in the regiment (i).

6. Between Principal and Agent (k).-The common count for money had and received lies by a principal against his agent to recover the amount of moneys collected and received by the latter for his use; or the proceeds of goods sold by the agent for his principal, and which proceeds the agent has received. In these cases, the agent is entitled to a deduction for his commission and expenses, and an account, &c. should be demanded (1) before an action be brought. The action should be in special assumpsit, for

(f)Pinto v.Santos, 5 Taunt. R. 447. (g) Fisher v. Miller, 1 Bing. 150; 7 Moor, 527, S. C.; Robertson v. Fauntleroy, 8 Moore, 10. See Hare v. Richards, 5 M. & P. 35; ante, 484.

(h)Blackburn v. Kymer,5 Taunt. 584.

(i) Knowles v. Maitland, 4 B. & C 173; 6 D. & R. 312, S. C.

(h) See ante, 170.

(1) See Topham v. Braddick, 1 Taunt.

572.