establish title to the property.1 This result was deduced from the well-established rule of law that possession is a sufficient basis for the action of trover or trespass. Thus, in Oughton v. Seppings, 2 a widow who sued for the proceeds of personal property sold by the defendant, was allowed to recover, although the defendant proved that the property was purchased in the lifetime of the plaintiff's husband; Lord Tenterden, C. J., saying,

"There was evidence here, though perhaps slight, that the plaintiff was in possession of the pony. If she was in possession at the time when it was seized, she might clearly have maintained trespass against a wrongdoer; and if she might maintain trespass, she may waive the tort and maintain this action."

Since one has a right to recover the proceeds of property wrongfully converted and sold, it necessarily follows that where the plaintiff's money has been tortiously obtained by the defendant, the tort may be waived and an action for money had and received be brought.3

It is of course no defence to such an action that the money was obtained, not from the plaintiff, but from one to whom the plaintiff intrusted it, and with whom defendant was engaged in an illegal transaction. For in such a case the plaintiff claims in his own right and not through his agent, and therefore the illegality of the transaction is immaterial. Thus, in Clarke v. Shee1 the plaintiff sued the defendant in a count for money had and received to recover money which had been received by the plaintiff's clerk in the course of the plaintiff's business, and used by the clerk in the purchase of lottery tickets from the defendant in violation of the Lottery Act. It was held that the plaintiff was entitled to recover. Lord Mansfield, delivering the opinion of the court, said,

"I think the plaintiff does not sue as standing in the place of Wood, his clerk, for the money and notes which Wood paid to the defendants are the identical notes and money of the plaintiff. Where money or notes are paid bona fide, and upon a valuable consideration, they never shall be

3 Clarke v. Shee, Cowp. 197; Catts v. Phalen; 2 How. 376; Burton v. Driggs, 20 Wall. 125; Jones v. Inness, 32 Kan. 177; Cory v. Freeholders, 47 N. J. L. 181; People v. Wood, 121 N. Y. 522; Webb v. Fulchire, 3 Ire. (Law) 485; Heindill v. White, 34 Vt. 558; Kiewest v. Rindkopf, 46 Wis. 481; Western Assurance Co. v. Towle, 65 Wis. 247.

4 Cowp. 197.

brought back by the true owner; but where they come mala fide into a person's hands, they are in the nature of specific property; and if their identity can be traced and ascertained, the party has a right to recover."

It has also been held to be no defence to an action brought to recover money fraudulently obtained, that the plaintiff supposed the payment of the money to be called for by an illegal contract which he had made with the defendant, if in fact the money was not payable under the contract, but was obtained by the defendant's fraud.1 In Catts v. Phalen,2 the plaintiff sued to recover money paid to the defendant in the belief that the latter was entitled to it under a lottery drawing. The defendant, who was employed to draw the tickets from the wheel, in fact obtained the money by concealing in his sleeve a ticket with a number corresponding to the number of the ticket held by him, and pretending to draw the ticket from the wheel. He pleaded the illegality of the lottery. The court, assuming the drawing to be illegal, decided for the plaintiff, Baldwin, J., saying,

"The transaction between the parties did not originate in the drawing of an illegal lottery; the money was not paid on a ticket which was entitled to or drew the prize, it was paid and received on the false assertion of that fact; the contract which the law raises between them is not founded on the drawing of the lottery, but on the obligation to refund the money which has been received by falsehood and fraud, by the assertion of a drawing which never took place."

As a condition of recovering money tortiously obtained, the plaintiff, if he has received anything of value from the defendant, must return the same. And since the plaintiff's claim rests upon the fact that the defendant cannot be allowed in good conscience to keep what he has obtained, the measure of the plaintiff's recovery is not the entire amount paid by the plaintiff, but the amount which it is against conscience for the defendant to keep.3 In the Western Assurance Co. v. Towle, the defendant by false and fraudulent overstatements as to the amount of a loss (which

1 Catts v. Phalen, 2 How. 376; Northwestern Ins. Co. v. Elliott, 7 Sawyer, 17; Webb v. Fulchire, 3 Ire. (Law) 485; Kiewest v. Rindkopf, 46 Wis. 481.

2 2 How. 376.

3 Lindon v. Hooper, Cowp. 414 (semble); The Western Assurance Co. v. Towle, 65 Wis. 247.

+ 65 Wis. 247.

had in part been suffered) got from the plaintiff the amount of the policy as for a total loss. There was a clause in the policy declaring forfeiture thereof in such an event. The plaintiff having recovered a verdict for the amount of the policy, it was set aside, the court holding that the recovery should have been limited to the money received over and above the actual loss suffered. Taylor, J., said, ·

66

. . . The action for money had and received is in some sense an equitable action, and the insurance company having voluntarily paid the money on an alleged loss claimed by the defendants, they can only recover back so much as in equity and good conscience they ought not to have paid. False swearing and false valuation in proof of loss might have been a good defence to a recovery upon the policy, had the plaintiff refused to pay the loss; but it cannot be made the basis of a right to recover back money already paid upon the policy. The plaintiff's right to recover depends upon proof establishing the fact that the company has paid more money than covered the loss sustained by the defendants, and that such payment was procured by the false and fraudulent acts of the defendants."

Since the right to recover money which has been stolen, fraudulently obtained, or wrongfully converted to another's use, rests on the equitable principle of unjust enrichment, the claim may be asserted, not only against the immediate tort feasor, but against any one into whose possession the money may be traced until it reaches the hands of a purchaser for value without notice.1 As the claim is, however, maintained on strict equitable principles, it cannot be asserted against a purchaser for value without notice.2 Of course payment to the tort feasor after notice of plaintiff's claim is no answer to the action.3

As the fees incident to an office belong equitably to the rightful claimant, and not to the usurper, the latter is liable for all such fees received. Since, however, the claimant's right to receive the fees for services actually rendered by another rests upon

1 Calland v. Lloyd, 6 M. & W. 26; Heilbut v. Nevill, L. R. 5 C. P. 478; Bayne v. United States, 93 U. S. 642; United States Bank v. State Bank, 96 U. S. 30; Atlantic Cotton Mills v. Indian Orchard Mills, 147 Mass. 268; Causidere v. Beers, 1 Abb. Ap. Dec. 333; Hindemarch v. Hoffman, 127 Pa. St. 284.

2 State Bank v. United States Bank, 114 U. S. 401; Bank of Charleston v. State Bank, 13 Rich. Cas. 291.

8 Hindemarch v. Hoffman, 127 Pa. St. 284.

4 Howard v. Wood, 2 Lev. 245; Arris v. Stukeley, 2 Mod. 260; Kessel v. Zeiser, 102 N. Y. 114.

his ownership of the office, it follows that he can only recover the fees necessarily incident to the office. Consequently mere gratuities received by the usurper cannot be recovered.1 In such a case the plaintiff cannot make out his right, since what was given to the defendant might not have been given to the plaintiff. It is true that but for the tort the defendant could not have received the gratuity, but non constat that the plaintiff, if the defendant had not committed the tort, would have received it.

Where the defendant entices away the plaintiff's apprentice and induces the latter to work for him, the plaintiff is entitled to recover the value of the services received by the defendant.2 The opinion of Mansfield, C. J., in Lightly v. Clouston, in which this proposition of law was first announced, was as follows:

"I should have thought it better for the law to have kept its course ; but it has now been long settled that in cases of sale, if the plaintiff chooses to sue for the produce of that sale, he may do it. In the present case the defendant wrongfully acquires the labor of the apprentice; and the master may bring his action for the seduction. But he may also waive his right to recover damages for the tort, and may say that he is entitled to the labor of his apprentice; that he is consequently entitled to an equivalent for that labor, which has been bestowed in the service of the defendant. It is not competent for the defendant to answer that he obtained that labor, not by contract with the master, but by wrong, and that therefore he will not pay for it. This case approaches as nearly as possible to the case where goods are sold and the money has found its way into the pocket of the defendant."

If one is liable to the master for the benefit received from the services of an apprentice whom he has enticed from the service of the master, it would seem necessarily to follow that one who has wrongfully deprived another of his personal property and used it, should be liable in quasi-contract for the benefit derived from the use thereof. Lord Mansfield was clearly of this opinion, — the following illustration, used by him in Hambly v. Trott,3 being in point: "So if a man take a horse from another and bring him back again, an action of trespass will not lie against his executor,

1 Boyter v. Dodsworth, 6 T. R. 681.

2 Lightly v. Clouston, 1 Taunt. 112; Foster v. Stewart, 3 M. & S. 191; James v. Le Roy, 6 Johns. 274; Stockett v. Watkins' Adm'rs, 2 G. & J. 326. See, however, contra, Crow v. Boyd, 17 Ala. 51.

* 5 Cowp. 377.

though it would against him; but an action for the use and hire of the norse will lie against the executor.'

It has accordingly been held that the action will lie to recover the value of personal property wrongfully taken and used.1 The right has also been denied in at least two cases." The decision in Carson v. River Lumbering Co. is however much weakened by the quasi-admission of the court that if the tort feasor were dead, the action would be allowed against his executor or administrator. But if not against him, why against his representative, since the tort feasor, and not the representative, is the one who did the wrong and derived the benefit? If it be answered that the remedy in tort against the tort feasor is adequate, it may be replied that the whole doctrine of waiver of tort exists notwithstanding the existence of the remedy in tort. Likewise, the argument by which the plaintiff was defeated in Wynne v. Latham could be used to defeat every plaintiff proceeding on the theory of waiver of tort. In that case Ruffin, J., said: "Most actions will only lie on a contract express or implied, and the contract here is supposed to be one of the latter kind. But the law cannot imply a contract between these parties when it is clear from the facts stated that the defendants derived their possession and title from another person, under whom they claimed the slaves adversely to the plaintiff and all the world." This is of course treating a fiction as if it were a fact, and applying it, not to further the ends for which it was adopted, but to defeat them.

One who has been dispossessed of his land should logically be allowed to sue the wrongful occupant in a count for use and occupation, to recover its rental value; but it is not permitted. The failure to extend the doctrine to this class of cases is due to purely historical reasons. Where the tort was waived at common law, and an action brought to enforce the quasi-contractual obligation, the form of action used was the indebitatus assumpsit counts. But it was a cardinal principle of the common law that in bringing an action a

1 Fanson v. Linsley, 20 Kan. 235; Philadelphia Co. v. Park Brothers, 138 Pa. St. 346.

2 Carson River Lumbering Co. v. Bassett, 2 Nev. 249; Wynne v. Latham, 6 Jones L. 329. See Phillips v. Homfray, 24 Ch. Div. at p. 460.

3 Tew v. Jones, 13 M. & W. 12; Stringfellow v. Curry, 76 Ala. 394; Stockett v. Walker, 2 G. & J. 326; Central Mills Co. v. Hart, 124 Mass. 123; Lockwood v. Thunder Bay Co., 42 Mich. 536; Henderson v. Detroit, 61 Mich. 378; Crosby v. Horne Co., 45 Minn. 249; Aull Savings Bank v. Aull, 80 Mo. 199. Dixon v. Ahern, 19 Nev. 422; Preston v. Hawley, 101 N. Y. 586; Collyer v. Collyer, 113 N. Y. 442.