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Moses v. Macferlan [1760], 97 Eng. Rep. 676 (2 Burr. 1005)

Moses v. Macferlan [1760], 97 Eng. Rep. 676 (2 Burr. 1005)
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Moses versus Macferlan

Monday, 19th May, 1760


Lord Mansfield delivered the resolution of the Court in this case; which stood for their opinion, "whether the plaintiff could recover against the defendant, in the present form of action, (an action upon the case for money had and received to the plaintiff's use;) or whether he should be obliged to bring a special action upon the contract and agreement between them."

It was an action upon the case, brought in this Court by the now plaintiff, Moses, against the now defendant, Macferlan, (heretofore plaintiff in the Court of Conscience, a sinst the same Moses now plaintiff here,) for money had and received to the use of loses the now plaintiff in this Court.

The case, as it came out upon evidence and without dispute, at Nisi Prins before. Ld. Mansfield at Guildhall, was as follows.

It was clearly proved, that the now plaintiff, Moses, had indorsed to the now defendant Macferlan; four several promissory notes, made to Moses himself by one Chapman Jacob, for 30s. each, for value received, bearing date 7th November 1758; and that this was done, in order to enable the now defendant Macferlan to recover the money in his own name, against Chapman Jacob. But previous to the now plaintiff's indorsing these notes, Macferlan assured him "that such his indorsement should be of no prejudice to him:" and there was an agreement signed by Macferlan, whereby he (amongst other things) expressly agreed "that Moses should not be liable to the payment of the money or any part of it; and that he should not be prejudiced, or be put to any costs, or any way suffer, by reason of such his indorsement." Notwithstanding which express condition and agreement, and contrary thereto, the present defendant Macferlan summoned the present plaintiff Moses into the Court .of Conscience,1 upon each of these four notes, as the indorser thereof respectively, by four separate summonses: Whereupon Moses, (by one Smith who attended the Court of Conscience at their second Court, as solicitor for him and on his behalf,) tendered the said indemnity to the [1006] Court of Conscience, upon the first of the said four causes; and offered to give evidence of it, and of the said agreement, by war of defence for Moses in that Court. But the Court of Conscience rejected this defence, and refused to receive any evidence in proof of this agreement of -indemnity, thinking that they had no power to judge of it; and have judgment against Moses, upon the mere foot of his indorsement, (which he himself did not at all dispute,) without hearing his witnesses about the agreement "that he should not be liable:" for the commissioners held this agreement to be no sufficient bar to the suit in their Court; and consequently decreed for the plaintiff in that Court, upon the undisputed. indorsement made by Moses. This' decree was actually pronounced, in only one of the four causes there depending: but Moses's agent, (finding the opinion of 677the commissioners to be as above-mentioned,) paid the money into that Court, upon all the four notes; and it was. taken out of Court by the now defendant Maeferlan, (the then plaintiff, in that Court,) by order of the commissioners.

All this matter appearing upon evidence before Lord Mansfield at Nisi Prius at Guildhall, there was no doubt but that, upon the merits, the plaintiff was intitled to the money: and accordingly, a verdict was there found for Moses, the plaintiff in this Court, for 61. (the whole sum paid into the Court of Conscience;) but subject to the Opinion of the Court, upon this question, whether the money could be recovered in the present form of action, or whether it must be recovered by an action brought upon the special agreement only."

On Saturday the 26th April last,-

Mr. Morton, on behalf of the defendant Macferlan, moved to set aside this verdict found for the plaintiff; and to have leave to enter up judgment against the plaintiff, as for a nonsuit.

And in order to shew that the action was not maintainable in its present form, he laid down a position "that indebitatus assumpsit will not lie, but where debt will lie." It lies not upon a wager, nor upon a mutual assumpsit; nor against the acceptor of a bill of exchange; neither will it lie for money won at play: for it will never lie, but where the debt will lie; and can never be, upon mutual promises. 1 Salk. 23, Hard's case; and 6 Mod. 128, Smith v. Aiery, are expressly so, in terms.

And, to maintain debt, there must be either an express contract broken; or an implied contract broken. But there is no contract either express or implied, "that Moses would have this cause of action against Macferlan:" Chapman Jacob was only to pay Moses the money, when it should be recovered by Macferlan. An [1007] indorsement of a promissory note is a just cause of action: and Macferlan recovered this money, of Moses the indorser, by judgment of a Court of Justice.

But this action, "for money bad and received to his use," is not the proper way of setting right the judgment of a Court of Justice.

This agreement could not repel the action before the Court of Conscience: it was only the subject of an action to be brought upon itself. This appears from the case of Beston v. Robinson, in Cro. Jac. 218, where Beston was in execution upon a statute merchant at the suit of Robinson; and brought an audita querela, and produced articles between him and Robinson, as a discharge; which was holden not good, to discharge him of the execution; but that his remedy was to have an action of covenant upon them. So in 1 Bulstr. 152, Anon', by Williams and the rest of the Judges, "if the party be taken and imprisoned upon a judgment and execution, where he has paid the money, he shall not have a supersedeas quia erronice, nor no remedy, but only an audita querela: and upon promise of enlargement, and not performing it, an action on the case only lieth for this, and no other remedy.2

Mr. Norton contra for the plaintiff.

We have not misconceived our action: we were not confined to bring an action upon the special agreement; but were at liberty to bring this action, "for money had and received to our use," to recover this money unfairly received by the defendant.

I do not agree to the position, "that assumpsit will not lie, but where debt will lie."

In the case of Astley v. Reynolds,3 this principle was settled, viz. "that wherever a person has wrongfully paid money, he may have it back again, by this action for money bad and received to his use." And yet in that very case, there was another remedy. And there was the consent of the payer too.

So likewise, for money paid on a contract which is never performed.

So, on a wager (on a horse-race,) against the stake-bolder, after the thing is completed and over.

And no inconvenience can arise: everything is done and finished, in the present case; and no writ of error lies to the Court of Conscience: nor can its judgments be overhaled.

[1008] The Court, having heard the counsel on both sides, took time to advise.


Lord Mansfield now delivered their unanimous opinion, in favour of the present action.

There was no doubt at the trial, but that upon the merits the plaintiff was intitled to the money; and the jury accordingly found a verdict for the 61. subject to the opinion of the Court upon this question, "whether the money might be recovered by this form of action," or "must be by an action upon the special agreement only."

Many other objections, besides that which arose at the trial, have since been made to the propriety of this action in the present case.

The 1st objection is, "that an action of debt would not lie hero; and no assumpsit will lie, where an action of debt may not be brought:" some sayings at Nisi Prius, reported by note takers who did not understand the force of what was said, are quoted in support of that proposition. But there is no foundation for it.4

It is much more plausible to say, "that where debt lies, an action upon the case ought not to be brought." And that was the point relied upon in 5Slade's case: but the rule then settled and followed ever since is, "that an action of assumpsit will lie in many eases where debt lies, and in many where it does not lie."

A main inducement, originally, for encouraging actions of assumpsit was, "to take away the wager of law:" and that might give rise to loose expressions, as if the fiction was confined to cases only where that reason held.

2d objection."That no assumpsit lies, except upon an express or implied contract: but here it is impossible to presume any contract to refund money, which the defendant recovered by an adverse suit."

Answer. If the defendant be under an obligation, from the ties of natural justice; to refund; the law implies a debt, and gives this action, founded in the equity of the plaintiff's case, as it were upon a contract ("quasi ex contractu," as the Roman law expresses it).

This species of assumpait, ("for money had and received to the plaintiffs use,") lies in numberless instances, [1009] for money the defendant has received from a third person; which he claims title to, in opposition to the plaintiff's right; and which he had, by law, authority to receive from such third person.

3d objection. Where money has been recovered by the judgment of a Court having competent jurisdiction, the matter can never be brought over again by a new action.

Answer. It is most clear, "that the merits of a judgment can never be over-haled by an original suit, either at law or in equity." Till the judgment is set aside, or. reversed, it is conclusive, as to the subject matter of it, to all intents and purposes.

But the ground of this action is consistent6 with the judgment of the Court of Conscience: it admits the commissioners did right. They decreed upon the indorsement of the notes by the plaintiff: which indorsement is not now disputed. The ground upon which this action proceeds, was no defence against that sentence.

It is enough for us, that the commissioners adjudged "they had no cognizance of679such collateral matter." We can not correct an error in their proceedings; and ought to suppose what is done by a final jurisdiction, to be right. But we think, "the comissioners7 did right, in refusing to go into such collateral matter." Otherwise, by way of defence against a promissory note for 30s. they might go into agreements and transactions of a great value: and if they decreed payment of the note, their judgement might indirectly conclude the balance of a large account.

The ground of this action is not, "that the judgment was wrong:" but, "that (for a reason which the now plaintiff could not avail himself of against that judgment,) the defendant ought not in justice to keep the money." And at Guildhall, I declared very particularly, "that the merits of a question, determined by the commissioners, where they had jurisdiction, never could be brought over again, in any shape whatsoever."

Money may be recovered by a right and legal judgment; and yet the iniquity of keeping that money may be manifest, upon grounds which could not be used by way of defence against the judgment.

Suppose an indorsee of a promissory note, having received payment from the drawer (or maker) of it, sues and recovers the same money from the indorser who knew nothing of such payment.

Suppose a man recovers upon a policy for a ship presumed to be lost, which afterwards comes home;-or upon [1010] the life of a man presumed to be dead, who afterwards appears;-or upon a representation of a risque deemed to be fair, which comes out afterwards to be grossly fraudulent.

But there is no occasion to go further: for the admission "that unquestionably, an action might be brought upon the agreement," is a decisive answer to any objection from the judgment. For it is the same thing, as to the force and validity of the judgment, and it is just equally affected by the action, whether the plaintiff brings it upon the equity of his case arising out of the agreement, that the defendant may refund the money he received; or upon the agreement itself, that besides refunding the money, he may pay the coats and expences the plaintiff was put to.

This brings the whole to the question saved at Nisi Prius, "viz. whether the plaintiff may elect to sue by this form of action, for the money only; or must be turned round, to bring an action upon the agreement."

One great benefit, which arises to suitors from the nature of this action, is, that the plaintiff needs not state the special circumstances from which he concludes "that, I ex aequo & bono, the money received by the defendant, ought to be deemed as belonging to him: "he may declare generally, "that the money was received to his use;" and make out his case, at the trial.

This is equally beneficial to the defendant. It is the most favourable way in which he can be sued: he can be liable no further than the money he has received; and against that, may go into every equitable defence, upon the general issue; he may claim every equitable allowance; ho may prove a release without pleading it; in short, be may defend himself by everything which spews that the plaintiff, ex aequo & bono, is not intitled to the whole of his demand, or to any part of it.

If the plaintiff elects to proceed in this favourable way, it is a bar to his bringing another action upon the agreement; though he might recover more upon the agreement, than he can by this form of action. And therefore, if the question was open to680be argued upon principles at large, there seems to be no reason or utility in confining the plaintiff to an action upon the special agreement only.

But the point has been long settled; and there have been many precedents: I will mention to you one only; which was very solemnly considered. It was the case of Dutch v. Warren, M. 7 G. 1, C. B. An action upon the case, for money had and received to the plaintiff's use.

[1011] The case was as follows - Upon the 18th of August 1720, on payment of 262 l. 10s. by the plaintiff to the defendant, the defendant agreed to transfer him five shares in the Welsh copper mines, at the opening of the books; and for security of his so doing, gave him this note" 18th of August 1720. I do hereby acknowledge to have received of Philip Dutch, 2621. l0s. as a consideration for the purchase of five shares; which I do hereby promise to transfer to the said Philip Dutch as soon as the books are open; being five shares in the Welsh popper mines. Witness my hand Robert Warren." The books were opened on the 22d of the said month of August; when Dutch requested Warren to transfer to him the said five shares; which he refused to do: and told the plaintiff," he might take his remedy. "Whereupon the plaintiff brought this action, for the consideration money paid by him. And an objection was taken at the trial, "that this action upon the case, for money had and received to the plaintiffs use, would not lie; but that the action should have been brought for the non-performance of the contract." This objection was overruled by the8 Chief Justice; who notwithstanding left it to the consideration of the jury, whether they would not make the price of the said stock, as it was upon the 22d of August, when it should have been delivered the measure of the damages; which they did; and gave the plaintiff but 1751, damages.

And a case being made for the opinion of the Court of Common Pleas, the action was resolved to be well brought; and that the recovery was right, being not for the whole money paid, but for the damages, in not transferring the stock at the time; which was a loss to the plaintiff, and an advantage to the defendant, who was a receiver of the difference money to the plaintiff's use.

The Court said, that the extending those actions depends on the notion of fraud. If one man takes another's money to do a thing, and refuses to do it; it is a fraud: and it is at the election of the party injured, either to affirm the agreement, by bringing an action for the non-performance of it; or to disaffirm the agreement ab initio, by reason of the fraud, and bring an action for money had and received to his use.

The damages recovered in that case, shew the liberality with which this kind of action is considered: for though the defendant received from the plaintiff 2621. l0s. yet the difference money only, 1751. was retained by him against conscience: and9 therefore the plaintiff, ex aequo et bono, ought to recover no more; agreeable to the rule of the Roman law-"Quod condictio indebiti non datur ultra, quam locupletior factus est, qui aecepit."10

[1012] If the five shares had been of much more value, yet the plaintiff could only have recovered the 2621, l0s: by this form of action.

The notion of fraud holds much more strongly in the present case, than in that for here it is express. The indorsement, which enabled the defendant to recover, was got by fraud and falsehood, for one purpose, and abused to another.

This kind of equitable action, to recover back money, which ought not is justice to be kept, is very beneficial, and therefore much encouraged. It lies only for money which,11 ex asquo et bono, the defendant ought to refund: it does not lie for money paid by the plaintiff, which is claimed of him as payable in point of honor and honesty, although it could not have been recovered from him by any course of law; as in payment of a debt barred by the Statute of Limitations, or contracted during his681infancy, 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 kith, a safe conscience, though by positive law be 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.

In one word, the gist of this kind of action is, that the defendant, up on the circumstance of the case, is obliged by the ties of natural justice and equity to refund the money.

Therefore we are all of us of opinion that the plaintiff might elect to wave any demand upon the foot of the indemnity, for the costs he had been put to; and bring; this action, to recover the 61. which the defendant got and kept from him iniquitously.

Rule--That the postea be delivered to the plaintiff.

The end of Easter term 1760.

1[23 Geo. 2, c. 33.]
2The reason of these cases seems to be because there was no opportunity of pleading; but according to modern practice, the Court would discharge the party on motion if the fact was clear.
3M. 5 G. 2, B. R. (V. 2 Strange, 915.)
4Besides 1 Salk. 23, and 6 Mod. 128, before cited by Mr. Norton in Ld. Raym. 69, the position that indebitatus assumpsit will lie only in cases where debt will lie, is reported to be the ground on which a judgment was there given against a person in an action of indebitatus assumpsit. But this reporter is either mistaken, or else no proper distinction was taken, for the objection is put wrong; for there are two sorts of assumpsit, one a general indebitatus assumpsit, and the other a special assumpsit; and Burrow reports the objection to be, that no assumpsit will lie where debt will not; and some sayings at Nisi Prius were said by Lord Mansfield to have been quoted in support of it, whereas it is well known a special assumpsit will lie on a collateral undertaking; and in many other cases where debt will not lie, and there are no sayings at Nisi Prius to the contrary, for they relate only to a general indebitatus assumpsit; but there was a notion that indebitatua assumpsit would not lie, except where debt would lie, and not.there, if the debt was due by specialty; but even in that case a special assumpsit would lie. See Cro. Car. 343. 2 Mod. 263. 1 Vin. 141, pl. 9.
54 Co. 92.
6Qu. of this ? For how can it be legal for any Court of Law to give judgement for a plaintiff to recover a sum, which as soon as paid, the defendant hath a legal right to recover back again, and that on the very same facts as in the former suit.
7The commissioners supposing thin judgment right, clearly did wrong, for the reason above-mentioned; and also, because the plaintiff below could have no damages by non-payment of money, if he could not keep it. And vide 18 Vin. 312, pl. 5, and the notes: there several cases are cited, that are in effect contrary to the opinion of the Court, as here reported. But if the agreement had not been in writing, the commissioners would have done right in rejecting it. Buller, 269, 270. So if Macferlan had indorsed the note over, and the action had been brought by his indorsee, the above reasoning seems to be contradictory to itself, and is really in contradiction in terms: for it is saying, a man has a right, which the moment be has 4 received, the person paying it, has a right to recover back; which is a right and no right: even in real actions, if the demandant is bound to warrant; the tenant may to prevent circuity rebut him; yet one estate maybe more convenient to the demandant than another, but all money is alike.
8Sir Peter King was then Ld. Ch. J. of K. B. [And qu. if the law is not altered by 7 Geo. 2, c. 8, s. 5.]
9V. post, 2133, Dale v. Sollet, M. 8 G. 3, B. R. accord. [Yin. Inst. 720.]
10The rule is misapplied; for Warren who received the 2621, l0s. was certainly the richer by that sum; and therefore, if the jury had given the plaintiff that sum it would not have been, ultra quam locupletior factus est qui accepit. The reverse of this rule would apply to this case, condictio indebiti non datur ultra quam pauperior factus est qui solvit.
11V. post, 2133, Dale v. Sollet, M. 1767, B. R. accord.

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