Exch. of Pleas, 1840.

A. having received a sum

of money bequeathed by

CALLAND V. LOYD and Others.

ASSUMPSIT for money had and received, and on an

account stated. Plea, non assumpserunt.-At the trial will to his wife, before Maule, B., at the last Liverpool Assizes, the facts appeared to be as follows:

gave it to her

to take care of. The wife, without his know

ledge, deposited it in a bank, in

the name of her son by a former marriage, who was then an infant,

and took from the bankers an

accountable receipt in her son's name, bearing interest:-Held, that the bankers were liable to A. for the amount, in an action for money had and received.

The plaintiff was a warehouseman at Manchester, and had married, in June, 1836, the widow of one James Birch, by whom she had an only child, Robert Birch. In February, 1837, the father of the plaintiff's wife died, having made a will, under which the plaintiff became entitled to receive her share of his property, amounting to 3731., and which was paid to the plaintiff in August, 1837. He deposited 300l. of the money in the bank of Messrs. Heywood & Co. at Manchester, and gave the rest to his wife to take care of. On the 28th of August, the wife, without the plaintiff's knowledge, took a 50l. Bank of England note, part of this 737., and on the same day paid that amount into the bank of the defendants, Messrs. Jones, Loyd, & Co., in the name of her son; and the defendants gave her an accountable receipt in his name, bearing interest, which she kept. Robert Birch, the son, was at that time about twelve years old. The plaintiff, having discovered the deposit of the note with the defendants, demanded the money from them; and on their refusal to pay it, the present action was brought. It was contended for the defendants, that they having received the money upon a contract, whereby they were to be accountable for it to the infant, Robert Birch, the plaintiff could not recover it as money had and received to his use. The learned Judge overruled the objection, but gave the defendants leave to move to enter a nonsuit; and a verdict having been found for the plaintiff, Tomlinson, in Michaelmas Term, obtained a rule nisi, pursuant to the leave reserved; against which,

1840.

CALLAND

v.

LOYD.

Cresswell and Addison now shewed cause.-The plain- Exch. of Pleas, tiff is clearly entitled to recover in this action. The fact that this money was placed in the hands of the defendants by a person having no right to do so, and her taking the receipt in the name of another, cannot affect the plaintiff's title to sue for it. If this had been a specific chattel, and the wife, without the husband's authority, had delivered it to the defendants, and obtained from them an acknowledgment that it was held for a third party, would that be any answer to an action of trover at the suit of the plaintiff? The note deposited is admitted to be the plaintiff's property; he might have sued in trover, if he could identify it; if not, he has equally a right to sue for money had and received; and the promise of the defendants, to hold it for another person, cannot exonerate them from responsibility to the real owner. [Lord Abinger, C. B.-Suppose a man had money in his hands to pay to a particular person, and he paid his own debt with it; could the owner bring money had and received?] Perhaps not; but this is a different case: here the money is placed in the hands of parties having no title to it, they agreeing to hold it for the benefit of another party having no title; in such case the real owner may recover it. Down v. Halling (a), (the authority of which is unimpeached upon the point for which it is now cited), is expressly in point. There the owner of a cheque, who had lost it by accident, was held to be entitled to recover the amount of it back, as money had and received, from a shopkeeper to whom, five days after the loss, it had been paid by a third party in payment for goods sold, the jury having found negligence in the defendant. [Lord Abinger, C. B.-There the cheque remained the plaintiff's property when in the hands of the defendant, and might have been recovered in trover. Alderson, B.Is there any evidence here of the identity of the note? Is

(a) 4 B. & Cr. 330; 6 D. & R. 455.

Exch. of Pleas, there anything to shew that the wife might not have

1840.

CALLAND

v.

LOYD.

changed it and got money for it, and paid in the money?] Even assuming that she did, the defendants can have no right to retain it; she had no power to make any contract on behalf of her son; he could give her no authority to do so, and he alleges no title of his own to the money. The defendants not having any title in themselves, nor claiming to hold for another who has title, the law implies a contract to repay the money to the real owner. [Lord Abinger, C. B.-If the wife had paid in the money in her own name, the husband clearly could recover: if she paid it in as the agent of A. B., he could not; then, if she pay it in, assuming to be the agent of A. B., but not being so in fact, the question is, can the husband recover, the defendants having made a contract?] The fallacy is in supposing that there is any binding contract; in order to establish that, the defendants must shew that the party depositing was competent to contract with them. The plaintiff, the real owner, has never authorized the defendants to receive the money to Birch's use. Stephens v. Badcock (a), which may be cited on the other side, is clearly distinguishable, on the ground that there the defendant received the money as the servant and agent of his master, to whom alone he could be accountable for it. But Stead v. Thornton (b), there cited, is a distinct authority for the plaintiff. There it was held, that a party having money in his hands which he received on account of a bankrupt's estate, in the character of agent to a former assignee, who was insane when the money was received, must account for it as money had and received to the new assignee, since he could not derive any authority from a party who was incompetent in law to appoint any agent. Here the defendants could have no authority from the infant; they receive, therefore, merely as strangers.

(a) 3 B. & Adol. 355.

(b) 3 B. & Adol. 357, n.

1840.

CALLAND

v.

LOYD.

Sims v. Brittain (a) was a similar case in principle to Exch. of Pleas, Stephens v. Badcock, and was decided on the same ground. If the plaintiff here had assented to the defendants' entering into a contract to hold for Birch, that case would be applicable to the present. The plaintiff is not bound to shew that trover would lie, but if it would, he may waive the tort, and sue for money had and received; per Lord Tenterden, C. J., in Buchanan v. Findlay (b). In Clarke v. Shee (c), it was expressly held that an action for money had and received would lie by the true owner of money or notes, against a third person into whose hands they had come malâ fide, provided their identity could be traced and ascertained; in which case, therefore, trover would have lain also. The defendants, if called upon for payment by the infant, could have set up the plaintiff's title as a defence: Solomons v. Bank of England (d). In Hudson v. Robinson (e), Lord Ellenborough says, "An action for money had and received is maintainable wherever the money of one man has, without consideration, got into the pocket of another." That clearly includes the present case.They referred also to Collins v. Martin (f), and Littlewood v. Williams (g).

Tomlinson, contrà.—It is not necessary, on behalf of the defendants, to argue upon what would have been the case if this had been an action of trover. The plaintiff has elected to sue upon an implied contract for money had and received; if that implied contract have been superseded by an express contract with another person, he cannot recover. The cases of Down v. Halling, Gill v. Cubitt (h), and others, relating to the recovery of lost or stolen secu

(a) 4 B. & Adol. 375; 2 Nev. & M. 594.

(b) 9 B. & Cr. 747; 4 Man. & R. 593.

(c) Cowp. 199.

(d) 13 East, 135.

(e) 4 M. & Selw. 478.

(f) 1 Bos. & P. 648.

(g) 6 Taunt. 277.

(h) 3B. & Cr. 466; 5 D. & R. 324.

Exch. of Pleas, rities, have been much narrowed by later decisions; and

1840.

CALLAND

น.

LOYD.

the rule now is, that such gross negligence must be shewn
as is evidence of mala fides in the person receiving them:
Crook v. Jadis (a), Backhouse v. Harrison (b). Here, so far
as the defendants are concerned, all fraud is excluded; the
only fraud alleged is in the conduct of the wife. This
must undoubtedly be taken to have been the plaintiff's
money when paid in by her, although it may be observed,
that she was the meritorious cause of his becoming pos-
sessed of it, and would have been entitled to a settlement
in equity. But then the defendants have entered into a
contract with a third party, by which they are bound to
pay the money over to him, and that express contract
supersedes the implied contract on which the plaintiff re-
lies. [Lord Abinger, C. B.-That is the pinch of the case;
can you satisfy us that there is a binding contract to pay
it over to the infant?] They give an accountable receipt
in his name. A contract made by another for the benefit
of an infant is binding. Supposing him not to receive the
money until he comes of age, if he then adopt the contract,
the plaintiff may have a remedy against him; but would
the defendants have any defence to an action by him?
[Lord Abinger, C. B.-This is not a contract made for the
benefit of the infant, but a fraudulent gift made to him.]
Whosever money it is in fact, if a banker bonâ fide, on
the representation that it is the money of A. B., enter
into a contract to pay it to A. B., he is bound by that
contract. The true principles of law, as to the situation
of a banker, are laid down in Sims v. Brittain and Sims v.
Bond (c). In the former case, Parke, J., in delivering
the judgment of the Court, says " Although the concur-
rence of one of the plaintiffs was necessary to enable the
defendants to receive the money from the East India Com-

(a) 5 B. & Adol. 909; 3 Nev. & M. 257.

(b) 5 B. & Adol. 1098; 3 Nev. & M. 188.

(c) 5 B. & Adol. 389; 2 Nev. & M. 608.