received (Phelps v. Conant, 30 Vt. 277; Ulmer v. Ulmer, 2 N. & McC. [S. C.] 489; Glascock v. Lyons, 20 Ind. 1; King v. Patterson, etc., R. R. Co., 29 N. J. Law, 504; Catlin v. Birckard, 13 Mich. 110; Stockdon v. Bayless, 2 Bibb [Ky.], 62); and it is of no importance how the money came into his hands, if the plaintiff is legally entitled thereto. Thus, where a sheriff sells the property of the landlord upon an execution against a tenant (Thompson v. Merriman, 15 Ala. 166; Harris v. Miner, 28 Ill. 135); or where a person receives payment of a debt due him from an agent in the money of his principal (Rusk v. Newell, 25 id. 226); or where an agent receives money for his principal, that he neglects to pay over (Campbell v. Boggs, 48 Penn. St. 524; English v. Devarro, 5 Blackf. [Ind.] 588); or where one receives money from the sale of property belonging to another (Thompson v. Merriman, 15 Ala. 166; Stanwood v. Sage, 22 Cal. 516); or where one wrongfully receives money belonging to another (Platt v. Stout, 14 Abb. Pr. [N. Y.] 178); or where money is placed in the hands of a person to be paid to another in discharge of a debt against him, which the depository neglects to pay (Stoudt v. Hine, 45 Penu. St. 30; Lemon v. Grosskopf, 22 Wis. 447; Lewis v. Sawyer, 44 Me. 332; Draughan v. Bunting, 9 Ired. [N. C.] 10); and, generally, where one receives money that, ex æquo et bono, belongs to another, the law implies a promise on the part of the person receiving it to pay it over to the true owner (Norway v. Clear Lake, 11 Iowa, 506; Robbins v. Alton Ins. Co., 12 Mo. 380; Stockdon v. Bayless, 2 Bibb [Ky.], 62); and in all cases where money is held by a person, whether it came into his hands rightfully or wrongfully, that in fact belongs to another, the true owner may maintain an action against him for its recovery. Jacobs v. Pollard, 10 Cush. (Mass.) 287. Thus, where the acceptor of a bill, payable out of a particular fund, receives the fund but refuses to apply it in payment of the bill, the payee may recover the same of him in an action for money had and received. Grammer v. Carroll, 4 Cr. (C. C.) 400. So, where an attorney has discharged a debt due to his principal, he is liable to him for the full amount of the debt discharged, whether he in fact received the money thereon or not. Beardsley v. Root, 11 Johns. 464. So, where money belonging to the husband was appropriated by his widow upon his decease, the administrator was permitted to recover it in an action for money had and received. Ferrell v. Underwood, 2 Dev. (N. C.) L. 111. So, where a person took up cattle damage feasant, and C., a field driver, at his request, sold them, but the proceedings were irregular, and C. refused to pay over the money to him, it was held that an action for money had and received could be maintained by him against C., notwithstanding such irregularity. Jacobs

v. Pollard, 10 Cush. (Mass.) 287. So, where a drover took cattle to market for A and sold them and paid over the proceeds to him, it was held that he was liable in this form of action to B for the money received for the cattle, B having a chattel mortgage upon them. Knapp v. Hobbs, 50 N. H. 476. Thus, from the illustrations given, it will be seen that, whenever a person has money in his hands that belongs to another, no matter how he came into the possession of it, and upon which he has no legal or equitable claim, as against the true owner, and which he has no right to hold as against him, it may be recovered by the true owner, in this form of action. Id.; Wyly v. Burnett, 43 Ga. 438; Emerson v. Baylies, 19 Pick. 55; Alderson v. Ennor, 45 Ill. 128; Gilman v. Cunningham, 42 Me. 98; Giddings v. Dudley, 47 id. 51; Heimbach v. Weimberg, 18 Mich. 48.

§ 31. By or against assignees, grantees, etc. The question as to whether the assignee or grantee of a chose in action can maintain an action thereon, particularly so far as relates to actions for money had and received, depends entirely upon the fact whether the statute confers such right. At common law, the assignee can only sue in the name of the assignor, and the same rule prevails as to grantees, as to any matters occurring prior to the grant (Smith v. Gray, 1 Dev. & B. [N. C.] L. 42); but where an instrument, negotiable in its terms, is assigned, of course the assignee can sue thereon (Ellis v. Essex, etc., Bridge, 2 Pick. 243; Rose v. O'Brien, 50 Me. 188); or if the person against whom the claim exists has assented to the substitution of creditors. Kent v. Watson, 46 N. H. 148.

§ 32. Payment over to principal, etc. It is well settled that a person who acts as the agent of another is not liable personally upon any debt or obligation contracted by him in the name of his principal and on his behalf, consequently where money is paid to an agent on account of his principal, which he has actually paid over to his principal, the person paying it cannot maintain an action against him therefor, even though its payment was induced by the false and fraudulent representation of the agent (Butler v. Livermore, 52 Barb. 570; Holland v. Russell, 4 B. & S. 14; Shand v. Grant, 15 C. B. [N. S.] 324); but so long as the money remains in the agent's hands, an action lies against him for its recovery (Law v. Nunn, 3 Ga. 90; Bartholomew v. Warner, 32 Conn. 98; Johnson v. Rutherford, 10 Penn. St. 455; Cox v. Prentice, 3 M. & S. 344); and the same rule prevails as to sheriffs receiving money upon executions (Bartholomew v. Warner, 32 Conn. 98); tax collectors (Law v. Nunn, 3 Ga. 90); or any public officer (Johnson v. Rutherford, 10 Penn. St. 455); but does not apply to executors or administrators, or other persons who occupy the position

of quasi principals. Heasley v. Dunn, 5 B. Monr. (Ky.) 145; Wilson v. Sergeant, 12 Ala. 778.

§ 33. Stakeholders, bailees, etc. An action for money had and received will lie in favor of any person entitled thereto, for money in the hands of a stakeholder or bailee, even though it was deposited under an illegal agreement, provided the action is brought before the illegal act is consummated. White v. Franklin Bank, 22 Pick. 181; Atlas Bank v. Nahant Bank, 3 Metc. 581. Thus, a person who enters into a wager with another and deposits the money in the hands of a stakeholder may recover it back at any time before the result of it is ascertained, or (in the absence of any statute prohibiting it) before the money has actually been paid over to the other party. Martin v. Hewson, 10 Exch. 737; Davenport v. Davies, 1 M. & W. 570; Hale v. Sherwood, 40 Conn. 332; S. C., 16 Am. Rep. 37. Where, however, a person is a bailee of money in a lawful transaction, and it is deposited with him for a specific purpose, and to be paid over to one or the other of two or more parties upon the happening of a certain contingency, it cannot be recovered back by the depositors, after such contingency has happened (Bumford v. Shuttleworth, 11 Ad. & El. 926); nor can it be recovered by the person entitled thereto, until all the conditions precedent to its payment have been fully complied with, and the transaction is complete. Case v. Roberts, Holt, 500; Wilkinson v. Godefroy, 9 Ad. & El. 536; Edwards v. Bates, 7 M. & G. 590; Bartlett v. Dimond, 14 M. & W. 49. Thus, where a note or bill of exchange has been left with a person for a specific purpose, and he wrongfully deposits it in bank and receives credit upon the joint security of that and other securities, an action for money had and received cannot be maintained against him, until the note or bill becomes due. Atkins v. Owen, 2 Ad. & El. 35; 6 N. & M. 309. But, if a note or bill is given to one to get it discounted, and he does so, but appropriates the money to a purpose different from that directed, he is liable in this form of action, although the note or bill is not due (Palmer v. Jarmain, 2 M. & W. 282); and, generally, in all cases, where a person receives money, or property that is converted by him into money, for a specific purpose, and he applies it wholly or in part to a different purpose, he is liable for it in this form of action. Palmer v. Jarmain, 2 M. & W. 282; Parry v. Roberts, 3 Ad. & El. 118. But, if, as has been previously stated, there are any conditions precedent to its payment by him to be performed, the action will not lie unless performance thereof is established. Atlee v. Backhouse, 3 M. & W. 633; McCarthy v. Colvin, 9 Ad. & El. 607.

§ 34. Demand, tender, etc., before action. Where a person has money in his possession that rightfully belongs to another, the law implies a promise on his part to pay it over to such person, and that, too, without any previous demand or request. Hawley v. Sage, 15 Conn. 52; Utica Bank v. Van Gieson, 18 Johns. 485; Calais v. Whidden, 64 Me. 249; Spence v. Thompson, 11 Ala. 746; Rutherford v. McIvor, 21 id. 750. In some of the States, however, a distinction is made between money that has rightfully come into the hands of a person, and that which he holds wrongfully, and a demand is held necessary in the former instance, but not in the latter. Hinsdill v. White, 34 Vt. 558; Brannin v. Voorhees, 14 N. J. Law, 590; Boyd v. Logan, Cooke (Tenn.), 394; Stocks v. City of Sheboygan, 42 Wis. 315. But where the money is held by the defendant to be applied to a specific purpose, within a specific time, an action cannot be maintained against him therefor until after such time has elapsed, unless a request to make such application is shown, and a refusal on his part. Sawyer v. Tappan, 14 N. H. 352. Where one has received counterfeit money from a person in payment of a debt, or as money, an action can be maintained against him for its amount without a previous demand, or without tendering back the counterfeit bill or coin (Kent v. Bornstein, 12 Allen, 342; Watson v. Cresap, 1 B. Monr. [Ky.] 195); but, contra, and holding that a tender and demand within a reasonable time must be made, see Raymond v. Baar, 13 S. & R. (Penn.) 318; Salem Bank v. Gloucester Bank, 17 Mass. 1. In all cases where money has been paid to one through either fraud or mistake, in order to recover it back, the party paying it must put the other party in statu quo. That is, where it is paid in pursuance of a contract obligatory upon the other party, but which the payor for any cause has a right to rescind, or where it is paid for property that was represented to be of a certain quality or kind, and which proves not to be of such quality or kind, the contract must be rescinded, or the property returned, before a right to recover back the money attaches. Boas v. Updegrove, 5 Penn. St. 516; Reed v. McGrew, 5 Ohio, 375; Martin v. McCormick, 4 Sandf. (N. Y.) 366; Evans v. Gale, 21 N. H. 240; Meyer v. Shoemaker, 5 Barb. 319; Colville v. Besly, 2 Den. 139. But where money is paid for an article which proves to be of a less weight than that contracted for, the contract need not be rescinded, but the excess may be recovered back, as an over payment. Cushing v. Rice, 46 Me. 303.

§ 35. Jurisdiction of equity. A court of equity has no jurisdiction to aid a party to recover back money paid to another upon a contract that has been rescinded, or that is alleged to be fraudulent, because the party has a full and complete remedy at law. Sadler v. Robinson,

2 Stew. (Ala.) 520; Rogers v. Ingham, 3 L. R. Ch. Div. 351; 46 L. J. Ch. Div. 322; 26 W. R. 338; Kilgour v. Parker, 3 J. J. Marsh. (Ky.) 577; Adair v. Winchester, 7 G. & J. (Md.) 114. There may be cases, however, where a discovery is necessary, or for other special reasons, where equity would interfere (Adair v. Winchester, 7 Gill & J. [Md.] 114. Ante, p. 469), although, generally, a court of equity has no jurisdiction.

§ 36. Amount of recovery. The recovery in actions of this class is limited to the sum justly due to the plaintiff, which is the amount of money in the hands of the defendant belonging to the plaintiff, with interest thereon from the time when it ought to have been paid to him Frothingham v. Morse, 45 N. H. 545; Lawton v. Howe, 14 Wis. 241; Robinson v. Corn Exch. Ins. Co., 1 Robt. (N. Y.) 14; Owing v. Owing, 10 G. & J. (Md.) 267; Rawlings v. Poindexter, 22 Miss. 66; Corbin v. Davenport, 9 Iowa, 239.

ARTICLE II.

MATTERS OF DEFENSE.

Section 1. In an action for money had and received, it is competent for the defendant to show any facts that entitle him to retain the money, either upon legal or equitable grounds. Meredith v. Richardson, 10 Ala. 828; Gehr v. Hagerman, 26 Ill. 438. To attempt to enumerate the special defenses in actions of this class, would be superfluous and impossible, and they will readily suggest themselves in a given case. The main principles by which to test the matter is whether in equity and good conscience, in view of the special facts of a case, the defendant is entitled to retain the money as against the plaintiff. Not necessarily whether he has an absolute title to the money as against any person, but whether his right thereto is equal to the plaintiff's right. It need not necessarily be better. It is enough if he has an equal right thereto. Irvine v. Hanlin, 10 S. & R. (Penn.) 219; Buel v. Boughton, 2 Denio, 91; Lockwood v. Kelsea, 41 N. H. 185; Eagle Bank v. Smith, 5 Conn. 71.