§ 109. In regard to the privity necessary to be established between the parties, it is in general true, that an entire stranger to the consideration, namely, one who has taken no trouble or charge upon himself, and has conferred no benefit upon the promisor, cannot maintain the action in his own name. But it has been said, and after some conflict of opinion it seems now to be settled, that, in cases of simple contract, if one person makes a promise to another, for the benefit of a third, the latter may maintain an action upon it, though the consideration did not move from him.1

Drinkwater, 5 Greenl. 323. The propriety of its application against the administrator of the wrongdoer, was first established in Hambly v. Trott, Cowp. 372; and has since been admitted without hesitation. Cravath v. Plympton, 13 Mass. 454. It has in several cases been said to apply only to the case of money actually received on sale of the property wrongfully converted. But in others it has been farther applied so as to entitle the plaintiff to recover for the beneficial use of the thing taken; Chauncey v. Yeaton, 1 N. Hamp. R. 451; 5 Greenl. 323; and for the services of his apprentice, seduced by the defendant; Lightly v. Clouston, 1 Taunt. 112; Foster v. Stewart, 3 M. & S. 191; and to the case where the defendant had received, not money, but a promissory note, for the price of the goods sold. Miller v. Miller, 7 Pick. 133. And in other cases, the owner has been permitted to recover in this form of action, where the goods had not been sold by the defendant, but had been actually applied and converted by him to his own beneficial use. Hitchin v. Campbell, 2 W. Bl. 827; 2 Pick. 285, note. Johnson v. Spiller, 1 Doug. 167, note. Smith v. Hodson, 4 T. R. 211; Hill v. Davis, 3 N. Hamp. R. 384. In Jones v. Hoar, 5 Pick. 285, where assumpsit was held not to lie for the value of timber trees cut down upon the plaintiff's land, and carried away, it does not appear that the defendant had either sold the trees, or in any manner applied them to his own benefit. In Appleton v. Bancroft, 10 Met. 231, the officer was held liable, in assumpsit for money had and received, where he had sold the goods, but had received nothing in payment ; it being his duty to sell for ready money.

1 1 Com. Dig. 205, Action upon the Case upon Assumpsit, E; 1 Vin. Abr. 333, pl. 5; Id. 334, 335, pl. 8; Dutton v. Poole, 1 Vent. 318, 332; 2 Lev. 210, S. C.; T. Raym. 302, S. C., cited and approved by Lord Mansfield, Cowp. 443; 3 B. & P. 149, note (a); Marchington v. Vernon, 1 B. & P. 101, note (c); Rippon v. Norton, Yelv. 1; Whorewood v. Shaw, Yelv. 25, and note (1) by Metcalf; Carnegie v. Waugh, 2 D. & R. 277; Garrett v. Handley, 4 B. & C. 664; Hall & Marston, 17 Mass. 575, 579; Id. 404, per Parker, C. J.; Cabot v. Haskins, 3 Pick. 83, 92. See also 8 Johns. 58; 13 Johns. 497; 22 Amer. Jurist, p. 16-19; 11 Mass. 152, note (a), by Rand; Bull. N. P. 133; Chitty on Contr. p. 45-48.

It seems, also, that the action may be maintained by either party.1

§ 110. Where there are several plaintiffs, it must be shown that the contract was made with them all; for if all the promisees do not join, it is a ground of nonsuit. So, if too many should join. And where the plaintiff sues in a particular capacity, as assignee of a bankrupt, or surviving partner,1 he must, under the general issue, prove his title to sue in that capacity. But the plaintiff need not, under the general issue, be prepared to prove that the contract was made with all the defendants; as the non-joinder of defendants can ordinarily be taken advantage of only by a plea in abatement.5

§ 111. It must also appear, on the part of the plaintiff, that the contract was not unlawful. For if it appears to have for its object any thing forbidden by the laws of God; or, contrary to good morals; or, if it appears to be a contract to do or omit, or to be in consideration of the doing or omission of any act, where such doing or omission is punishable by criminal process; or, if it appears to be contrary to sound public policy; or, if it appears to be in contravention of the provisions of any statute; in any of these cases, the plaintiff cannot recover, but upon his own showing, may be nonsuited. For the law never lends its aid to carry such agreements into effect, but leaves the parties, as it finds them, in pari delicto. But though the principal contract were illegal, yet if money has been advanced under it by one of the parties, and the contract still remains wholly executory, and not carried into effect, he may recover the money back upon the common

1 Bell v. Chaplain, Hardr. 321; 1 Chitty on Plead. p. 5; 22 Am. Jurist, p. 19; Hammond on Parties, p. 8, 9; Skinner v. Stocks, 4 B. & Ald. 437. See also Story on Agency, § 393, 394.

2 1 Chitty on Plead. 6 – 8, 15; Brand v. Boulcott, 2 B. & P. 235.

3 1 Saund. on Plead. & Evid. 250 - 289.

4 Wilson v. Hodges, 2 East, 312.

5 1 Chitty on Plead. 31 – 33, 52.

6 See Chitty on Contracts, p. 513-561; 22 Am. Jurist, p. 249-277;

money counts; for the policy of the law, in both cases, is to prevent the execution of illegal contracts; in the one case, by refusing to enforce them, and in the other, by encouraging the parties to repent and recede from the iniquitous enterprise.1 And the same rule is applied to cases, where, though the contract is executed, the parties are not in pari delicto; the money having been obtained from the plaintiff by some undue advantage taken of him, or other wrong practised by the defendant.2

§ 112. In proof of the count for money lent, it is not sufficient merely to show that the plaintiff delivered money, or a bank check, to the defendant; for this, prima facie, is only evidence of the payment by the plaintiff of his own debt, antecedently due to the defendant.3 He must prove that the transaction was essentially a loan of money. If it was a loan of stock, this evidence it seems, would not support the count.1 But money deposited with a banker, by a customer, in the usual way, has been held to be money lent.5 A promissory

23 Am. Jurist, p. 1-23; Story on Contracts, ch. v. vi.; Greenwood v. Curtis, 6 Mass. 381; Pearson v. Lord, Id. 84; Worcester v. Eaton, 11 Mass. 368; Merwin v. Huntington, 2 Conn. 209; Babcock v. Thompson, 3 Pick. 446; Burt v. Place, Cow. 431; Best v. Strong, 2 Wend. 319; Gregg v. Wyman, 4 Law Rep. 361, N. S., where the cases are collected. Niver v. Best, Id.

183.

1 Chitty on Contracts, p. 498, 499; Tappenden v. Randall, 2 B. & P. 467; Aubert v. Walsh, 3 Taunt. 277; Perkins v. Savage, 15 Wend. 412; White v. Franklin Bank, 22 Pick. 181, 189.

2 Ibid.; Worcester v. Eaton, 11 Mass. 376; Walker v. Ham, 2 N. Hamp. 241; Amesbury Man. Co. v. Amesbury, 17 Mass. 461; Preston v. Boston, 12 Pick. 7; Atwater v. Woodbridge, 6 Conn. 223; Chase v. Dwinel, 7 Greenl. 134; Richardson v. Duncan, 3 N. Hamp. 508; Clinton v. Strong, 9 Johns. 370; Mathers v. Pearson, 13 S. & R. 258.

3 Welsh v. Seaborn, 1 Stark. R. 474; Cary v. Gerish, 4 Esp. 9; Cushing v. Gore, 15 Mass. 74. If the money was delivered by a parent to a child, it will be presumed an advancement, or gift. Per Bayley, J., in Hick v. Keats, 4 B. & C. 71.

4 Nightingal v. Devisme, 5 Burr. 2589; Jones v. Brinley, 1 East, 1.

5 Pott v. Clegg, 11 Jur. 289; Pollock, C. B., dubitante. But see 11 Jur. 157, 158.

note is sufficient evidence of a loan, between the original parties; even though it be payable on condition, if the condition has been performed; or be payable in specific articles, if the special promise is broken.1 Indeed a bill of exchange or promissory note, seems now to be considered as prima facie proof of the money counts, in any action between the immediate parties, whether they were original parties, or subsequent, as indorsees or bearers, claiming against the original drawers or makers.2 So, if the plaintiff has become the assignee of a debt, with the assent of the debtor, this is equivalent to a loan of the money. So, if A. owes a sum definite and certain to B., and B. owes the same amount to C., and the parties agree that A. shall be debtor to C. in B.'s stead, this is equivalent to a loan by C. to A.4 This is an exception to the general rule of law, that a debt cannot be assigned; and is permitted only where the sum is ascertained and defined beyond dispute.5

1 Payson v. Whitmarsh, 15 Pick. 212; Smith v. Smith, 2 Johns. 235; Crandall v. Bradley, 7 Wend. 311.

2 Bayley on Bills, p. 390-393, and notes, by Phillips and Sewall; Young v. Adams, 6 Mass. 189; Pierce v. Crafts, 12 Johns. 90; Denn v. Flack, 3 G. & J. 369; Wilde v. Fisher, 4 Pick. 421; Ramsdell v. Soule, 12 Pick. 126; Olcott v. Rathbone, 5 Wend. 490; Ellsworth v. Brewer, 11 Pick. 316; Edgerton v. Brackett, 11 N. Hamp. 218; Fairbanks v. Stanley, 6 Shepl. 296; Goodwin v. Morse, 9 Metc. 278; Moore v. Moore, Id. 417. But not if the note is not negotiable, and expresses no value received. Saxton v. Johnson, 10 Johns. 418. The defendant may make any defence to the note, when offered under the money counts, which would be open to him, under any other count. Austin v. Rodman, 1 Hawks, 195. But he can have no other defence than would be open to him under a special count upon the note. Hart v. Ayers, 9 Ohio R. 5. It has been held that an I. O. U., though evidence of account stated, is not evidence of money lent. Fessenmayer v. Adcock, 16 M. & W. 449.

3 1 Steph. N. P. 316; 2 Stark. Ev. 61. See Mowry v. Todd, 12 Mass. 281. If the contract assigned is a specialty, the rule is the same. Compton v. Jones, 4 Cow. 13. But it has been questioned, whether assumpsit lies, in such case, without an express promise to the assignee. Dubois v. Doubleday, 9 Wend. 317. In this case there was not sufficient evidence to raise even an implied promise.

4 Wade v. Wilson, 1 East, 795; Wilson v. Coupland, 5 B. & Ald. 228. 5 Fairlee v. Denton, 8 B. & C. 395.

§ 113. To sustain the count for money paid, the plaintiff must prove the actual payment, and the defendant's prior request so to do, or his subsequent assent and approval of the act, to be shown in the manner and by the methods already stated.1 And if the money has been paid by the defendant's request, with an undertaking express or implied, on his part, to repay the amount, it is immaterial whether the defendant has been relieved from liability or otherwise profited by the payment, or not. Whether the plaintiff can recover under this count, without proof of the actual payment of money, and by only showing that he had become liable, at all events, to pay money for the defendant, is a point upon which there has been some apparent conflict of decisions. It has been held in England, that where the plaintiff had given his own negotiable promissory note, which the creditor accepted as a substitute for the debt due by the defendant, he was entitled to recover the amount under this count, though the note still. remained unpaid. And it has also been held, that, where he had become liable for the debt by giving his bond, though he thereby procured the defendant's discharge, he could not recover the amount from the defendant, until he had actually paid the money due by the bond. The latter rule has been adopted and followed by the American Courts, on the ground, that the bond is not negotiable, nor treated as money, in the ordinary transactions of business;5 but they also hold, that the giving of a bill of exchange or negotiable note, by the plaintiff, which has been accepted by the creditor in satisfaction of the defendant's debt, is sufficient to support the count

1 Supra, § 107, 108.

2 Britain v. Lloyd, 14 M. & W. 762.

3 Barclay v. Gouch, 2 Esp. 571.

4 Taylor v. Higgins, 3 East, 169; Maxwell v. Jameson, 2 B. & Ald. 51; Power v. Butcher, 10 B. & C. 329, 346, per Parke, J.

5 Cumming v. Hackley, 8 Johns. 202; 4 Pick. 447, per Wilde, J. And see Gardner v. Cleaveland, 9 Pick. 334. The entry of judgment on the bond, and issuing of execution, does not vary the case. Morrison v. Berkey, 7 S. & R. 238. Whether being taken in execution would, quære; and see Parker v. The United States, 1 Peters, C. C. R. 266.