the defen dant by means. by the defendant for the use of the plaintiff, without entering into the particulars of the contract under which it was received (a). The following are some examples of this contract being implied in law from circumstances independent of agree Money of Where the defendant has wrongfully taken the plaintiff's the plaintiff obtained by money or the plaintiff's goods which he has turned into money, or where the defendant has obtained the plaintiff's wrongful or money by means of a fraud, the plaintiff has a remedy by fraudulent action for the wrong done to him, as by an action of trespass for taking his goods or of trover for the recovery of them, or by an action on the case for the fraud committed. The plaintiff, however, is not always restricted to claiming redress in the form of an action for the specific wrong done, but he may in general, if he pleases, waive the wrong done, and claim the amount received by the defendant as a debt for money received for his use. The latter form of relief, while it may sometimes be more convenient for the plaintiff, is more favourable to the defendant, as it restricts his liability to the money actually received, and excludes the claim for unliquidated damages for the wrong committed by him; it also admits the defence of set off, which cannot be pleaded to a claim for unliquidated damages (b). If the plaintiff waives the wrongful character of the transaction by recovering the money received under it as a debt, he thereby precludes himself from taking advantage of it as a wrong. Thus, he cannot accept the proceeds of his goods which have been wrongfully taken and sold, as a debt, and likewise claim damages for the injury done in the wrongful taking and sale (c). Moreover, he cannot waive the wrong in part only, so that having accepted of the defendant part of the price of goods which had been wrongfully taken and sold by the latter, he is bound to treat the balance as a debt likewise (d). A mere claim to a debt in respect of the value of goods wrongfully obtained, if not acquiesced in by the (a) See ibid. (b) See Moses v. Macferlan, 2 Burr. 1005, 1010; Hambly v. Trott, 1 Cowp. 371, 376; Lindon v. Hooper, 1 Cowp. 414, 419; Leightly v. Clouston, 1 Taunt. 112. party who has wrongfully obtained them, does not preclude the owner from claiming the goods specifically (a). tiff. The defendant having without any right taken and car- Money wrongfully ried away the plaintiff's money, it was held that the plaintiff taken from might waive the wrong and recover the money as received the plainby the defendant for his use (b). So, money feloniously stolen creates a debt from the thief to the owner which may be thus recovered, though on grounds of public policy the felony must be prosecuted criminally before civil proceedings can be commenced (c). obtained pretences Where the defendant obtained money from the plaintiff Money by false pretences (7), and where the defendant obtained the by false plaintiff's money from a third party by false pretences (e), and fraud. the plaintiff was held entitled to recover it back as money received to his use. If a person pays money to another who demands it under a false pretence which the former knows at the time to be false, it is said to be doubtful whether he can recover it in a civil action (ƒ). In such case the party receiving it cannot be convicted of the crime of obtaining the money by a false pretence (g). The defendant having obtained payment of debts due to the plaintiff under a fraudulent misrepresentation made to the creditors that he had authority to collect them, the plaintiff was held entitled to recover the amount as money received to his use (h). Where the defendant has obtained money from the plaintiff under a fraudulent agreement, which the plaintiff is entitled to avoid on the ground of the fraud, the plaintiff upon avoidance of the agreement may recover the amount as money received for his use (i). As, where the defendant has obtained the plaintiff's money in payment for goods sold (a) Valpy v. Sanders, 5 C. B. 886. (b) Neate v. Harding, 6 Ex. 349. (c) See Chowner v. Baylis, 31 L. J. C. 757; Stone v. Marsh, 6 B. & C. 551; Marsh v. Keating, 1 Bing. N. C. 198. (d) Holt v. Ely, 1 E. & B. 795; and see Edmeads v. Newman, 1 B. & C. 418. (e) Litt v. Martindale, 18 C. B. 314. (f) Per Bramwell, B., R. v. Mills, 26 L. J. M. C. 79, 80. (g) R. v. Mills, supra. (h) Andrews v. Hawley, 26 L. J. (i) Thornett v. Haines, 15 M. & W. E Fees of plaintiff's office by means of a fraudulent warranty, and the plaintiff has avoided the sale on the ground of the fraud, he may recover the money from the defendant as received for his use (a). Where the defendant has wrongfully taken fees appertaining to the plaintiff's office, the plaintiff, actually holding the wrongfully office and being rightly entitled to the office and the fees, may received by the defend- recover the amount taken as money received to his use (b). ant. A mere claimant of the office who is not in possession can Money tained from a third fendant. not maintain an action to recover the fees and profits taken by the person actually in possession, in the form of money received for his use (c). Gratuities given to the person actually performing the office cannot be recovered (d). Where a third party has obtained the plaintiff's money wrongfully wrongfully and paid it to the defendant, the plaintiff may lently obrecover the amount from the defendant, unless he received plaintiff by the money from the third party bonâ fide and under a bindparty, and ing contract (e). The wife of the plaintiff deposited money paid to de- belonging to her husband with the defendant, a banker, in the name of her son who was then an infant; the plaintiff was held entitled to recover the amount from the banker as received for his use, because the wife had no authority so to dispose of the money and the contract with the bankers on behalf of the infant was not binding (f). A third party having taken the plaintiff's money paid a debt of his own with it; it was held that the plaintiff could not recover the amount from the creditor who had received it in discharge of the debt (g). Money derived from goods wrongfully and fraud Where the defendant has wrongfully obtained the plaintiff's goods and converted them into money, the plaintiff may waive the wrong and recover the proceeds of his goods ulently as money received for his use (h). Accordingly, stock in obtained. (a) Street v. Blay, 2 B. & Ad. 456; Gompertz v. Denton, 1 C. & M. 207. (b) Howard v. Wood, Sir T. Jones, 126; Arris v. Stukeley, 2 Mod. 260; Spry v. Emperor, 6 M. & W. 639; King v. Alston, 12 Q. B. 971; Pinder v. Barr, 4 E. & B. 105; Aulton v. Roberts, 2 H. & N. 432; 26 L. J. Ex. 380. (c) Powel v. Milbank, 1 T. R. 399 (d). (d) Boyter v. Dodsworth, 6 T. R. 681. (e) See Calland v. Loyd, 6 M. & W. 26; per Parke, B., Atlee v. Backhouse, 3 M. & W. 633, 640, 648; Symonds v. Atkinson, 1. H. & N. 146; 25 L. J. Ex. 313. (f) Calland v. Loyd, 6 M. & W. 26. (g) Foster v. Green, 7 H. & N. 881; 31 L. J. Ex. 159. (h) Lamine v. Dorrell, 2 L. Raym. the funds belonging to the plaintiff having been sold by a member of the defendant's firm under a forged power of attorney, and the price paid to the firm, the plaintiff recovered the amount as money received to his use (a). Where a person had wrongfully worked coal under the plaintiff's land and sold it, after his death his administrator was held liable for the money received by such sale (b). The plaintiff having delivered to the defendant a bill of exchange for the special purpose of presenting it when due and receiving the amount and remitting it to the plaintiff, the defendant contrary to that purpose discounted the bill before it was due, and applied the money to his own use; it was held that the plaintiff had the option of bringing an action of trover for the bill or suing for the amount as money received to his use (c). The plaintiff's broker having wrongfully sold out stock of the plaintiff, it was held that the plaintiff might sue the broker for wrongfully selling the stock contrary to orders, or might sue for the proceeds of the stock received by the broker, as a debt (d). A sheriff's officer having wrongfully seized the goods of the plaintiff under a fi. fa. against a third party, and having sold the goods and received the price, the plaintiff was held entitled to recover the amount as money received for his use (e). A sheriff took in execution goods of a bankrupt which had vested in the assignees by reason of a previous act of bankruptcy, and sold them after notice of the act of bankruptcy; the assignees were held entitled to recover the price as money received for their use (1). The value of the goods after the seizure, but before sale, could not be recovered as money received (g); but where the goods were taken by the judgment creditor under a bill of sale from 1216; Oughton v. Seppings, 1 B. & (a) Stone v. Marsh, 6 B. & C. 551; Marsh v. Keating, 1 Bing. N. C. 198. (b) Powell v. Rees, 7 A. & E. 426. (c) Parker v. Norton, 6 T. R. 695. (d) Parker v. Crole, 5 Bing. 63. Proceeds of goods a third party. the sheriff for a certain sum after an act of bankruptcy, the assignees were held entitled to recover that sum, though no money actually passed (a). The defendant fraudulently induced the plaintiff to sell goods to another who could not pay for them, for the purpose of reselling them and paying over the proceeds to the defendant; the defendant was held liable for the proceeds of the sale as money received for the plaintiff's use (b). Where a third party has wrongfully taken the plaintiff's wrongfully goods and transferred them to the defendant (such goods obtained by not being negotiable securities and being transferred otherwise than by a sale in market overt), and the defendant has converted them into money, the plaintiff may charge him with the amount as money received for his use (c). The plaintiff consigned goods to a broker for sale, who instead of selling them pledged them with the defendant, which he had no right to do, and the defendant sold them to realize his advances; it was held that the plaintiff might recover the proceeds of the goods from the defendant as money received (d). The plaintiff had lost a check on a banker, which was found by a third party and transferred to the defendant in payment of goods, who presented it to the bankers and received the amount, the check being five days overdue at the time when the defendant received it; it was held that he had no title to it, and that the plaintiff might recover from him the amount as money received for his use (e). Money ob tained from Where money has been obtained by the defendant from the plaintiff the plaintiff by violence or threats of violence, or by any by compul- kind of compulsion or oppression sufficient to render the payment involuntary, the plaintiff may recover the amount as a debt for money received for his use. sion. Money obtained from Money procured by the defendant from the plaintiff by the plaintiff duress to his person, as by imprisonment or threats, also money obtained by duress of goods or other property, that by duress (a) Reed v. James, 1 Stark. 134. (c) Glyn v. Baker, 13 East, 509; and see Symonds v. Atkinson, 1 H. & N. 146; 25 L. J. Ex. 313. (d) Graham v. Dyster, 6 M. & S. 1; Queiroz v. Trueman, 3 B. & C. 342. (e) Down v. Halling, 4 B. & C. 330. |