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contracts; and that he was entitled by A. for money had and received. to recover. Johnson v. Johnson. 3 For the prohibition and penalties of Bos. f Pull. 162.

the stat. 18 Eliz. c. 5. attach on 51. A. having sold certain leasehold ly on the “ inforiner or plaintiff, or

premises to B., assigned thein by other person suing out process in indenture, containing a proviso that the penal action, making composiB. should not assign over until the tion,” &c. contrary to the statute; whole of the purchase-money should and not upon the party paying the have been paid. The premises composition; and therefore the lathaving been taken in execution for ter does not stand, in this respect, a debt of B., who had not paid the in pari delicto, nor is particeps crimpurchase-money, were sold by the inis with such compounding informsheriff to D., who paid down a de. er or plaintiff. Williams v. Hedley. posit, and agreed to eomplete the 8 East, 378. purchase on having a good title: 55. And such recovery may be had, held that the non-payment of the although E.'s assignees had before purchase-money by B. was a suffi- recovered from B. the money so recient objection to the title, and that ceived by him, as money received D. might recover back his deposit to their use (the money paid by way in an action for money had and re- of composition being at the same ceived. Elliott v. Edwards. 3 Bos. time stated to be Er's money) there 8. Pull. 181.

being no evidence at the trial of this 52. A bill being presented by the in- cause to shew that A. the present

dorsee to the drawee for acceptance, plaintiff was privy to the suit. Ibid. the latter on accepting it said, that 56. If A. confiding, though improphe expected a remittance from the erly, in the mistaken affirmation of drawer in a few days, and that as B. pay him money: A, shall recov. he had a bill of the drawer in his er it back in an action for money hands which would be paid, he had and received. Union Bank v. would take all risks : held that this United States' Bank. 3 Mass. 74. conversation, together with the bill 57. Money paid pursuant to the award accepted by the drawee, did not a- of the commissioners under the mount to sufficient evidence to enti- treaty of 1794, between the United tle the indorsee to recover against States and Great-Britain, was to be the drawee the amount of the bill paid over according to the interests accepted on a count for money had of the concerned : and where a sum and received. Whitwell v. Bennett, was awarded nominally to one,

the 3 Bos. f Pull. 559.

interest of which was in another, 33. Where money in litigation be- that other is entitled to the benefit

tween two parties has by mutual intended, and may recover the moconsent been paid over to a trustee ney in an action for money had and in trust for the party entitled, it can received. Heard, Assignee v. Bradonly be sued for and recovered from ford. 4 Mass. 326. the stake-holder by the party enti: 58. Where one, in payment of a protled to it, and not from the original missory note made payable in forparty who was indebted; though eigu bills, paid the amount in such he agreed to waive all objections to bills, and took up the vote ; and it

form. Ker v. Osborne. 9 East, 378. was afterwards discovered that one 54. Money paid by J. to B. in order of the bills paid was counterfeit, it

to compromise a qui tam action of was held that the payee might reusury brought by B. against A. on cover the amount of such counterthe ground of an usurious transac- feit bill in an action for money bad jion between the latter and one E., and received against the payer. may be recovered back in an action Young v. Adams. 6 Nass. 182.

B. paid

54. Where an attorney had a promis- ou the stock or shares, by the sory note committed to him for col

company, which amounted to 525 lection, and receiving a partial pay- dollars. The company held three ment from the debtor, paid it over notes of A., given for premiums of to the creditor without indorsing it insurance, one of which, dated the on the note, and afterwards obtain- 3d June, 1796, was for 1,000 dollars, ed judgment on the note, he was and became due in December, 1796 ; held liable to the debtor for the a- and the others, dated in September, mount of such partial payment, in 1796, became due in March followan action for money had and receiv- ing; and they applied the 525 dol.

ed. Fowler v. Shearer. 7 Mass. 14. lars, due for the dividends, towards 60. When money is paid in consider- the payment of A.'s notes, after de

ation of a contract, which contract ducting which sum, and the sum is void for a want of power in one of for the return of premiums, there the parties, or for any cause other remained due to the company, on than fraud, or illegallity in the con- the notes of A., 465 dollars; and tract, the money so paid may be re- when B., on the 20th January, covered back in an action for money 1798, paid the last instalment, and had and received. Shearer v. Fou- demanded a transfer of the shares ler. 7 Mass. 31.

to him; the company refused to 61. After a warranty of a horse as make the transfer, until the balance

sound, the vendor in a subsequent due from A. (who was then insolconversation said, that if the horse vent) was paid to them. was unsound, (which he denied) he the 465 dollars to the company, would take it again and return the who thereupon made the transfer to money. This is no abandonment of him. In an action for money had the original contract, which still and received, &c. brought by B. aremains open; and though the horse gainst the company, to recover be unsound the vendee must sue up- back the 465 dollars, and also the on the warranty, and cannot main- dividends after the 20th January, tain assumpsit for money had and 1797 ; it was held that the action received to recover back the price would lie, and that the plaintiff was after a tender of the horse, Payne entitled to recover back the 465 v. Whale. 7 East, 274.

dollars paid by him, but not the 62. A. subscribed fifty shares in the dividends received by the defend

Newyork Insurance Company, at fif- ants prior to the 20th January, ty dollars each, the amount to be 1798, as the defendants had an epaid in five instalments of 10 dol- quitable lien on that money in their lars on each share; and by the ar- hands, to pay the note of A., which tieles of association, no transfer of was actually due them, before they any share could be made, until all had notice of the assignment to B. the instalments were paid in. A. Bates v. The Newyork Insurance after paying the two first instal. Company. 3 Johns. Cas. 238. ments, on the 22d July, 1796, as. 63. Where a person receives money signed the shares, and all his in- belonging to another, and applies it terest therein, to B., who punctually to his own use, an action of assumppaid the three remaining instal- sit will lie against hiin, by the perments to the company, at the times son to whom the money ought to at which they were respectively have been paid. Dumond v. Carpayable. The company knew of penter. 3 Johns. Rep. 183. the assignment to B., on the 20th 64. Au action for money had and reJanuary, 1797, and between that ceived, will not lie to recover back time and the 20th January, 1798, part of the consideration money three dividends had been declared

paid, and expressed in a deed on


A. took pos

the ground of a deficiency in the 68. In an action for money had and number of acres, in the tract of received, &c. the plaintiff so far land, which the grantee had previ- confirms the defendant's act, as ously agreed to purchase at a cer- that he cannot gainsay the right to tain sum per acre.

Howes y. Bark- receive the money, and can recover 3 Johns. Rep. 506.

no more than was actually receiv65. Where A. agreed to buy the land ed. 1 Dallas, 222.

of B. which was to be sold on execu- 69. Assumpsit for money had and retion, and reconvey it to him, on pay- ceived, &c. will lie to recover back ment of the money advanced, and the consideration money given for a reasonable compensation for his the purchase of lands; and deeds, trouble; and A. having bought the or other writings, which are not the land, refused to reconvey it, unless immediate foundation of the suit, B. paid him 300 dollars, in addition but only tending to it may be given to the principal and interest of the in evidence. i Dallas, 429. sum advanced by A. and B. in or-. 70. An action for money had and reder to obtain his land, paid A. the ceived to the use of the plaintiff, 300 dollars ; it was held, B. will not lie, where there is no privcould not recover back the mon- ity between him and the defendant, ey, in an action for money had nor any contract, express or impliand received to his use. Hall ed. 2 Dallas, 54, 5.

v. Schultz. 4 Johns. Rep. 240. 71. The distinction is established be66. J. entered into a parol agreement, tween an action of Trover, Detinue,

in 1803, with B. for the purchase or Replevin, for specific property of 100 acres of land.

(which the true owner may recover session of the land, and paid from any person, who is in possespart of the purchase money, clear- sion of it) and money, the medium of ed part of the lands and made im- commerce, which can never be the provements, and died in 1807. The subject of controversy, whether it administrator of 1. tendered the really belongs to the person who residue of the purchase money to B.

pays it, or another.

2 Dallas and demanded a deed, which B. re

54, 5. fused, but took possession of the 72. Action for money had and receivland.

The administrator then ed, where it will lie. 2 Dallas, brought an action of assumpsit a- 151. gainst B. to recover back the mon- 73. An action for money had and reey paid by the intestate, and also ceived, &r. cannot be maintained, for work and labour performed by without proof that the defendant the intestate, and the improvements had actually received money to the made by him while in possession of plamtiff's use before the action was the land. It was held, that the con- brought. 2 Dallas, 212. tract was rescinded, and that the 74. A surviving partner cannot mainplaintiff was entitled to recover tain an action on the case, for inovback the money paid by the intes- ey had and received, against the taie with interest;

administrators of the deceased partdamages for the labour he had be- ner, unless their partnership acstowel, or the improvements on the counts had been setiled. 4 Dallas, land. Gillet, administrator of Cle- 434.

mens v. Maynard. 5 Johns. Rep. 85. 73. Assumpsit, for money had and re67. An action for money had and re- ceived, will not lie by the folder a

ceived, &c. is a liberal action, and gainst a remote endorser of a promwill lie in all cases where, by the issory note, in Virginia Vandeties of natural justice and equity, iille v. Ridille. 1 Cranch, 290. the defendant ought to refund. 1 76. Quere? Bunlop v. Silver. Ibid. Dallas, 213.


but not any

77. Is privity necessary to support in. 3. Goods attached by an officer on

debitatus assumpsit for money had mesne process cannot be attached at and received = "1 Cranch, appendix, the suit of a second creditor, but 439.

upon a writ executed by the same 78. An action for money had and re- officer. Watson et al. v. Todd et al.

ceived will not lie for the United 5 Mass. 271. States against the assignees of a 4. Deputy sheriffs are servants of the bankrupt, for the price of a ship sheriff'; and the possession of any sold by them as the property of the deputy, by virtue of an attachment, bankrupt, who had taken a false is the possession of the sheriff. Ib. oath to obtain a register; the ship 5. The 6 sec. of the statute of 1804, not having been seized by the Unit- C. 83, relates only to different ated States for the forfeiture before tachments made by the same officer, the sale and transfer. United States at the suit of several creditors. v. Grundy & Thornburgh. 3 Cranch. Ibid. 337.

6. Implements of husbandry, used in 79. Quere, whether an action for mon- tilling, are not within the statute of ey had and received, will lie to es

1805, c. 100, exempting the tools of tablish a forfeiture for an act com- a debtor from attachment and exemitted by a third person. Ib.

cution. Daily v. May. 5 Mass. 80. An action for money had and re- 313.

ceived, will not lie against an over- 7. An attachment of the goods of a seer of the bigh-way, to recover partnership, by a creditor of one of back money collected by him under the partners is not valid against an an assessment by the commission- after attachment of the same goods ers of high-ways, pursuant to the by a partnership creditor. Pierce statate. Potter v. Bennise. 1 Johns. v. Jackson. 6 Mass. 242. Rep. 515.

8. Where judgment is rendered by

consent in one county, as of a pri

or term in another county, property ATTACHMENT.

attached in the suit is holden oply

for thirty days from such prior I. Of the Body, Goods, Chattels, or term. Davis v. Blunt. 6 Mass. Estate of a Debtor.

487. II. Against a Sheriff:

9. Goods, which cannot be returned III. Against privileged Persons. in the same plight, as hides in vats IV. Against others for Contempt. for tanning, are not liable to attachV. Interrogatories on.

ment. Bond v. Ward. hy Mass. VI. When refused, fc.


10. A vessel belonging to a person on I. Of the Body, Goods, Chattels or Es- board, being loaded by his agent tate of a Debtor.

here, and afterwards attached; the

agent is not liable to the freighter 1. The sheriff cannot retain goods, for damages. 2 Dallas, 223,

attached by him on mesne process, 11. The marshal of the district of Coafter judgment is rendered for the lumbia is bound to serve a subpoena defendant, although the plaintiff're- in chancery as soon as he reasonaviews the action. Clap v. Bell. 4 bly can; and the service of such Mass. 99.

subpoena, in case of a chancery at2. To constitute an attachment of tachment in Virginia, will make

personal chattels, the officer must the garnishee liable if he pays away have the actual possession and cus- the money after notice of the subpotody of them. Lane et al. y. Jackson. ena. Kennedy v. Brent. 6 Cranch, 5 Mass. 157.


II. Against a Sheriff

though tested in term time, réquir

ing a sheriff to return a writ, is ir-1. The court refused to grant an at- regular; and an attachment against

tachment against a sheriff for not him for disobeying it will be taking a replevin bond on his grant- set aside by the court on motion. ing the replevin. Twells v. Col- R. v. Cornwall Sheriff. 1 Term Rep. ville. Willes, 375.

502. But they will graut an attachment a- 9. A rule to bring in the body tested

gainst him for refusing to pay a on the day of the sheriff's return of year's rent to the landlord accord- cepi corpus, though issuing aftering to statute 8 Ann. c. 14, when he wards in the vacation, is irregular. has taken the goods of a tenant in R. London Sheriff. 2 East, 241. execution. 16. 376.

10. A sheriff is not liable to an at2. Not to be moved against the sher- tachment for not returning a writ,

iff for not bringing in the body till if not called upon by a rule of court bail have been accepted to. Anon. within six months after the expiraLofft, 304.

tion of his office, notwithstanding he And rule to be served on the sheriff in was requested by the party to return

order to entitle to an attachment, it before the six months were expirand that not on his servautat his pri- ed. R. v. Jones. 2 Term Rep. 1. vate house, but by personal service 11. A sheriff ought not to be ruled to at the office. Anon. Loft, 301. bring in the body until the day after

(And see tit. Sheriff IV.) the expiration of the rule to return 3. Where a sheritf has been guilty of the writ; and if he be, and be at

a contempt in the course of a civil tached for not obeying it, the court suit, and the defendant afterwards will set aside the attachment for irdies, an attachment may still issue regularity. Hutchins v. Hird. 5 against the sheriff for the prior con- Term Rep. 479. tempt. R. v. The Sheriff of Middle- 12. Where the rule to bring in the boSer. 3 Term Rep. 133.

dy was served on the last day of a 4. A sheriff who is ruled on the last term, the court of K. B. held, that

day of a term to bring in the body, the bail have the whole of the first but goes out of office before the day of the next term to justify; and ne:tt term, is liable to an attach- that if the defendant surrender in ment for not bringing in the body. discharge of his bail on any part of Meakins v. Smith. 1 H. Black. that day, the sheriff cannot be at629.

tached for not bringing in the body. 5. Where any sheriff, before his go- R. v. Middlesex Sheriff, in Brown

ing out of office, shall arrest any v. Culver. 8 Term Rep. 464. defendant, and a cepi corpus be re- 13. The sheriff having returned cepi turned, he may, within the legal corpus in Hilary Term 1797, upon time allowed, be called upon to which the plaintiff proceeded no bring in the body, though he may further until Michælmas Term folbe out of office before such rule be lowing, the court of K. B. thought granted. Reg. Gen.

4 Term Rep. it unreasonable that the sheriff 379.

should be called upon to bring in 6. The court refused to grant an at- the body after such delay, and set

tachment against the sheriff for neg. aside an attachment which had islecting to take a replevin bond. Ř. sued against him for not doing it. v. Lewis. 2 Term Rep. 617.

R. v. Surrey Sheriff. Terin Rep. 7. The party injured has his action 452.

against the sheriff. 2 Term Rep. 14. A rule for an attachment against 617.

the sherift for not bringing in the 8. A rule issued in the vacation body, having been obtained on the

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