Page images
PDF
EPUB

contracts; and that he was entitled to recover. Johnson v. Johnson. 3 Bos. & Pull. 162.

51. A. having sold certain leasehold premises to B., assigned them by indenture, containing a proviso that B. should not assign over until the whole of the purchase-money should have been paid. The premises having been taken in execution for a debt of B., who had not paid the purchase-money, were sold by the sheriff to D., who paid down a deposit, and agreed to complete the purchase on having a good title: held that the non-payment of the purchase-money by B. was a sufficient objection to the title, and that D. might recover back his deposit in an action for money had and received. Elliott v. Edwards. 3 Bos. & Pull. 181.

52. A bill being presented by the indorsee to the drawee for acceptance, the latter on accepting it said, that he expected a remittance from the drawer in a few days, and that as he had a bill of the drawer in his hands which would be paid, he would take all risks: held that this conversation, together with the bill accepted by the drawee, did not amount to sufficient evidence to entitle the indorsee to recover against the drawee the amount of the bill accepted on a count for money had and received. Whitwell v. Bennett.

3 Bos. & Pull. 559. $3. Where money in litigation between two parties has by mutual consent been paid over to a trustee in trust for the party entitled, it can only be sued for and recovered from the stake-holder by the party entitled to it, and not from the original party who was indebted; though he agreed to waive all objections to form. Ker v. Osborne. 9 East, 378. 54. Money paid by i. to B. in order to compromise a qui tam action of usury brought by B. against A. on the ground of an usurious transacjion between the latter and one E., may be recovered back in an action

by A. for money had and received. For the prohibition and penalties of the stat. 18 Eliz. c. 5. attach on ly on the "informer or plaintiff, or other person suing out process in the penal action, making composition," &c. contrary to the statute; and not upon the party paying the composition; and therefore the latter does not stand, in this respect, in pari delicto, nor is particeps criminis with such compounding informer or plaintiff. Williams v. Hedley. 8 East, 378.

55. And such recovery may be had, although E.'s assignees had before recovered from B. the money so received by him, as money received to their use (the money paid by way of composition being at the same time stated to be E.'s money) there being no evidence at the trial of this cause to shew that A. the present plaintiff was privy to the suit. Ibid. 56. If A. confiding, though improperly, in the mistaken affirmation of B. pay him money: : A. shall recov er it back in an action for money had and received. Union Bank v. United States' Bank. 3 Mass. 74. 57. Money paid pursuant to the award of the commissioners under the treaty of 1794, between the United States and Great-Britain, was to be paid over according to the interests of the concerned: and where a sum was awarded nominally to one, the interest of which was in another, that other is entitled to the benefit intended, and may recover the money in an action for money had and received. Heard, Assignee v. Bradford. 4 Mass. 326.

58. Where one, in payment of a promissory note made payable in foreign bills, paid the amount in such bills, and took up the note; and it was afterwards discovered that one of the bills paid was counterfeit, it was held that the payee might recover the amount of such counterfeit bill in an action for money had and received against the payer. Young v. Adams. 6 Mass. 182.

59. Where an attorney had a promissory note committed to him for collection, and receiving a partial payment from the debtor, paid it over to the creditor without indorsing it on the note, and afterwards obtained judgment on the note, he was held liable to the debtor for the amount of such partial payment, in an action for money had and received. Fowler v. Shearer. 7 Mass. 14. 60. When money is paid in consideration of a contract, which contract is void for a want of power in one of the parties, or for any cause other than fraud, or illegallity in the contract, the money so paid may be recovered back in an action for money had and received. Shearer v. Fowler. 7 Mass. 31.

61. After a warranty of a horse as

sound, the vendor in a subsequent conversation said, that if the horse was unsound, (which he denied) he would take it again and return the money. This is no abandonment of the original contract, which still remains open; and though the horse be unsound the vendee must sue upon the warranty, and cannot maintain assumpsit for money had and received to recover back the price after a tender of the horse, Payne v. Whale. 7 East, 274.

62. A. subscribed fifty shares in the Newyork Insurance Company, at fifty dollars each, the amount to be paid in five instalments of 10 dollars on each share; and by the artieles of association, no transfer of any share could be made, until all the instalments were paid in. A. after paying the two first instalments, on the 22d July, 1796, assigned the shares, and all his interest therein, to B., who punctually paid the three remaining instalments to the company, at the times at which they were respectively payable. The company knew of the assignment to B., on the 20th January, 1797, and between that time and the 20th January, 1798, three dividends had been declared

on the stock or shares, by the company, which amounted to 525 dollars. The company held three notes of A., given for premiums of insurance, one of which, dated the 3d June, 1796, was for 1,000 dollars, and became due in December, 1796; and the others, dated in September, 1796, became due in March following; and they applied the 525 dollars, due for the dividends, towards the payment of A.'s notes, after deducting which sum, and the sum for the return of premiums, there remained due to the company, on the notes of A., 465 dollars; and when B., on the 20th January, 1798, paid the last instalment, and demanded a transfer of the shares to him; the company refused to make the transfer, until the balance due from A. (who was then insolvent) was paid to them. B. paid the 465 dollars to the company, who thereupon made the transfer to him. In an action for money had and received, &c. brought by B. against the to recover company, back the 465 dollars, and also the dividends after the 20th January, 1797; it was held that the action would lie, and that the plaintiff was entitled to recover back the 465 dollars paid by him, but not the dividends received by the defendants prior to the 20th January, 1798, as the defendants had an equitable lien on that money in their hands, to pay the note of A., which was actually due them, before they had notice of the assignment to B. Bates v. The Newyork Insurance Company. 3 Johns. Cas. 238. 63. Where a person receives money belonging to another, and applies it to his own use, an action of assumpsit will lie against him, by the person to whom the money ought to have been paid. Dumond v. Carpenter. 3 Johns. Rep. 183. 64. Au action for money had and received, will not lie to recover back part of the consideration money paid, and expressed in a deed on

the ground of a deficiency in the number of acres, in the tract of land, which the grantee had previously agreed to purchase at a certain sum per acre. Howes v. Barker. 3 Johns. Rep. 506.

65. Where A. agreed to buy the land of B. which was to be sold on exeeution, and reconvey it to him, on payment of the money advanced, and a reasonable compensation for his trouble; and A. having bought the land, refused to reconvey it, unless B. paid him 300 dollars, in addition to the principal and interest of the

68. In an action for money had and received, &c. the plaintiff so far confirms the defendant's act, as that he cannot gainsay the right to receive the money, and can recover no more than was actually received. 1 Dallas, 222.

69. Assumpsit for money had and received, &c. will lie to recover back the consideration money given for the purchase of lands; and deeds, or other writings, which are not the immediate foundation of the suit, but only tending to it may be given in evidence. 1 Dallas, 429.

sum advanced by A. and B. in or-. 70. An action for money had and re

der to obtain his land, paid A. the 300 dollars; it was held, B. could not recover back the money, in an action for money had and received to his use. Hall v. Schultz. 4 Johns. Rep. 240. 66. A. entered into a parol agreement, in 1803, with B. for the purchase of 100 acres of land. A. took possession of the land, and paid part of the purchase money, cleared part of the lands and made improvements, and died in 1807. The administrator of A. tendered the residue of the purchase money to B. and demanded a deed, which B. refused, but took possession of the land. The administrator then brought an action of assumpsit against B. to recover back the money paid by the intestate, and also for work and labour performed by the intestate, and the improvements made by him while in possession of the land. It was held, that the contract was rescinded, and that the plaintiff was entitled to recover back the money paid by the intestate with interest; but not any damages for the labour he had bestowed, or the improvements on the land. Gillet, administrator of Clemens v. Maynard. 5 Johns. Rep. 85. 67. An action for money had and received, &c. is a liberal action, and will lie in all cases where, by the ties of natural justice and equity, the defendant ought to refund. 1 Dallas, 245.

ceived to the use of the plaintiff, will not lie, where there is no privity between him and the defendant, nor any contract, express or implied. 2 Dallas, 54, 5.

71. The distinction is established between an action of Trover, Detinue, or Replevin, for specific property (which the true owner may recover from any person, who is in possession of it) and money, the medium of commerce, which can never be the subject of controversy, whether it really belongs to the person who pays it, or another. 2 Dallas,

54, 5.

72. Action for money had and received, where it will lie. 2 Dallas,

151.

73. An action for money had and received, &c. cannot be maintained, without proof that the defendant had actually received money to the plantiff's use before the action was brought. 2 Dallas, 242.

74. A surviving partner cannot main

tain an action on the case, for money had and received, against the administrators of the deceased partner, unless their partnership accounts had been settled. 4 Dallas,

434.

75. Assumpsit, for money had and re-
ceived, will not lie by the holder a-
gainst a remote endorser of a prom-
issory note. in Virginia. Mande-
ville v. Riddle. 1 Cranch, 290.
76. Quere? Dunlop v. Silver.

367.

Ibid.

77. Is privity necessary to support in 3. debitatus assumpsit for money had and received 1 Cranch, appendix,

[blocks in formation]

4.

5.

Goods attached by an officer on mesue process cannot be attached at the suit of a second creditor, but upon a writ executed by the same officer. Watson et al. v. Todd et al. 5 Mass. 271.

Deputy sheriffs are servants of the sheriff; and the possession of any deputy, by virtue of an attachment, is the possession of the sheriff. Ib. The 6 sec. of the statute of 1804, c. 83, relates only to different attachments made by the same officer, at the suit of several creditors. Ibid.

6. Implements of husbandry, used in tilling, are not within the statute of 1805, c. 100, exempting the tools of a debtor from attachment and execution. Daily v. May. 5 Mass.

79. Quere, whether an action for mon-
ey had and received, will lie to es-
tablish a forfeiture for an act com-
mitted by a third person. Ib.
80. An action for money had and re-
ceived, will not lie against an over- 7.
seer of the high-way, to recover
back money collected by him under
an assessment by the commission-
ers of high-ways, pursuant to the
statute. Potter v. Bennise. ↑ Johns.
Rep. 515.

ATTACHMENT.

I. Of the Body, Goods, Chattels, or
Estate of a Debtor.

II. Against a Sheriff.
III. Against privileged Persons.
IV. Against others for Contempt.
V. Interrogatories on.
VI. When refused, &c.

I. Of the Body, Goods, Chattels or Es-
tate of a Debtor.

1. The sheriff cannot retain goods, attached by him on mesne process, after judgment is rendered for the defendant, although the plaintiff reviews the action. Clap v. Bell. 4 Mass. 99.

2. To constitute an attachment of personal chattels, the officer must have the actual possession and custody of them. Lane et al. v. Jackson. 5 Mass. 157.

8.

313.

An attachment of the goods of a partnership, by a creditor of one of the partners is not valid against an after attachment of the same goods by a partnership creditor. Pierce v. Jackson. 6 Mass. 242.

Where judgment is rendered by consent in one county, as of a prior term in another county, property attached in the suit is holden only for thirty days from such prior term. Davis v. Blunt. 6 Mass. 487.

9. Goods, which cannot be returned
in the same plight, as hides in vats
for tanning, are not liable to attach-
ment. Bond v. Ward. 7 Mass.
123.

10. A vessel belonging to a person on
board, being loaded by his agent
here, and afterwards attached; the
agent is not liable to the freighter
for damages. 2 Dallas, 223.
11. The marshal of the district of Co-
lumbia is bound to serve a subpoena
in chancery as soon as he reasona-
bly can; and the service of such
subpoena, in case of a chancery at-
tachment in Virginia, will make
the garnishee liable if he pays away
the money after notice of the subpo-
ena. Kennedy v. Brent. 6 Cranch,

187.

II. Against a Sheriff.

1. The court refused to grant an attachment against a sheriff for not taking a replevin bond on his granting the replevin. Twells v. Colville. Willes, 375.

But they will grant an attachment against him for refusing to pay a year's rent to the landlord according to statute 8 Ann. c. 14, when he has taken the goods of a tenant in execution. Ib. 376.

2. Not to be moved against the sheriff for not bringing in the body till bail have been accepted to. Anon. Lofft, 304.

And rule to be served on the sheriff in order to entitle to au attachment, and that not on his servant at his private house, but by personal service at the office. Anon. Lofft, 301.

(And see tit. SHERIFF IV.) 3. Where a sheriff has been guilty of a contempt in the course of a civil suit, and the defendant afterwards dies, an attachment may still issue against the sheriff for the prior contempt. R. v. The Sheriff of Middlesex. 3 Term Rep. 133.

4. A sheriff who is ruled on the last day of a term to bring in the body, but goes out of office before the next term, is liable to an attachment for not bringing in the body. Meakins v. Smith. 1 H. Black. 629.

5. Where any sheriff, before his going out of office, shall arrest any defendant, and a cepi corpus be returned, he may, within the legal time allowed, be called upon to bring in the body, though he may be out of office before such rule be

granted. Reg. Gen. 4 Term Rep.

379.

[blocks in formation]

9.

though tested in term time, rèquiring a sheriff to return a writ, is ir regular; and an attachment against him for disobeying it will be set aside by the court on motion. R. v. Cornwall Sheriff. 1 Term Rep.

552.

A rule to bring in the body tested on the day of the sheriff's return of cepi corpus, though issuing afterwards in the vacation, is irregular. R. London Sheriff. 2 East, 241. 10. A sheriff is not liable to an attachment for not returning a writ, if not called upon by a rule of court within six months after the expiration of his office, notwithstanding he was requested by the party to return it before the six months were expired. R. v. Jones. 2 Term Rep. 1. 11. A sheriff ought not to be ruled to bring in the body until the day after the expiration of the rule to return the writ; and if he be, and be attached for not obeying it, the court will set aside the attachment for irregularity. Hutchins v. Hird. Term Rep. 479.

5

12. Where the rule to bring in the body was served on the last day of a term, the court of K. B. held, that the bail have the whole of the first day of the next term to justify; and that if the defendant surrender in discharge of his bail on any part of that day, the sheriff cannot be attached for not bringing in the body. R. v. Middlesex Sheriff, in Brown v. Culver. 8 Term Rep. 464. 13. The sheriff having returned cepi corpus in Hilary Term 1797, upon which the plaintiff proceeded no further until Michaelmas Term following, the court of K. B. thought it unreasonable that the sheriff should be called upon to bring in the body after such delay, and set aside an attachment which had issued against him for not doing it. R. v. Surrey Sheriff. 7 Term Rep.

452.

14. A rule for an attachment against the sheriff for not bringing in the body, having been obtained on the

« PreviousContinue »