
    Dey against Murray.
    
      ALBANY
    
    
      August, 1812
    
    A. remitted ™ pay a bill for the same sum. drawn by his bÍ”pursuant men "between them. The bill having been presentment"1 before ^ hands of B., ed protested. „other wfifor’ 112?. 10s., drawn also by C. as attorney of A. in favour of D., was presented to H, who accepted aud paid it, out of the 500?. which had, in the mean time, come to his hands.
    It was held, that though the 500?. was placed in the hands of B. for a specific purpose, yet C. had no right of action againstD. to recover back the money paid to him, but must look to the other parties, to rectify the mistake, if any was made.
    THIS was an action of assumpsit. The cause was tried before the Chief Justice, at the New-York sittings, in December, 1810.
    e The plaintiff read in evidence the following writing: jSíewYork, 10th December, 1807, Anthony Dey having drawn in favour of George W. Murray, four bills of exchange, as the attorney for Richard S. Hacklew, at one hundred and twenty days alter sight, tor one hundred and twelve pounds ten shillings sterling, on Thomas Mullet 8c Co. of London. It is understood and agreed, that if all or either of the said bills should not be accepted or paid, he is not to be responsible for the payment of the same, or any damages, interest, costs or charges, that may arise or acerne thereon; the same bills having been drawn to facilitate the payment of five hundred dollars, which George W. Murray? as foaii for Richard S. Hackley, has paid for him in a suit brought by John Knox against the said Hackley, and which has been compromised, and to which compromise I have given my assent, as the best arrangement, under all circumstances, that could be made, G. W. Murrayalso a certificate, signed by George W. Murray, dated the 12th December, 1801, as follows : “ On the 10th day of December, 1807, Anthony Dey, as the attorney of Richard S. Hackley, drew a set of exchange payable to the undersigned George W. Murray, on Thomas Mullet <§■ Co. of London, at one hundred and twenty days after sight, for 112Z. 10s. sterling, which was for one half of the compromise that was made of John Knox’s claim against the said Richard 8. Hackley, and for which amount the said Richard S. Hackley was to provide payment, by remitting the same with a similar amount to the said Mullet 8r Co. And which said set of exchange I acknowledge was duly paid and carried to the credit of my account with the said Thomas Mullet 8r Co. on the 31st day of March last, out of a sum of 500i sterling, which Richard S. Hackley had previously remitted to the said Thomas Mullet 8r Co. to pay Anthony Dey, as will more fully appear from an extract of Thomas Mullet 8r Co.’s letter to me, dated London, 7th September, 1808, as follows: “We do not see that we ever- mentioned to you, that we had accepted the 1121. 10s. you remitted as drawn by Mr. Dey. We did so on the 31st of March, having then determined to accept another bill for the same sum which with yours had been suspended. The fact is, Mr. Dey drew 500Z., 112Z. 10s. and 112Z. 10s. The first bill went back for want of funds from Hackley or Meade. After it was returned, a remittance of 500Z. came. We tried to stop the bill but it was too late to do so, and we then considered it was our duty to accept the two others, which we accordingly did. MrDey is very angry with us, and accuses us of a collusion with you, in this business, which is very singular, as we only treated you as we did the holder of the other bill, (a perfect stranger,) and if we had done worse for you, than for a stranger, it would have been singular indeed. We mention this at large, that you may know what to reply, should Mr. Dey speak to you on the subject.”
    It appeared that, in a conversation between the plaintiff and defendant, the plaintiff said to the defendant, “You are perfectly «satisfied that you have been paid 500 dollars on account of Knox’s business, out of my money, that was not remitted for that purpose, but which belonged to me, and that it has not been refunded;” to which the defendant replied, that he knew he had been paid out of the defendant’s money, but the defendant must look to Mullet & Co. and settle the matter with them.
    On this evidence, the Chief Justice nonsuited the plaintiff; and a motion was, afterwards, made to set aside the nonsuit.
    
      Wells, for the plaintiff contended, that on principles of natural justice, the case was strongly in favour of the plaintiff.
    The moment the 500Z. was placed, by Hackley, in the hands of Mullet <§ Co., to meet the bill drawn by Dey, it ceased to be the money of Hackley, and he had no control over it. It was subject to the order of Dey alone, as much as if it had been placed in a bank, payable to his order. On receiving the money, Mullet 8c Co. became the agents or bailees of Dey. If an agent wrongfully, or through mistake, pays the money of his principal, the latter may recover it back from'the person to whom it has been paid. It was no answer to say that the plaintiff might resort to Mullet 8c Co.; for he still had a right to consider Mullet 8c Co. as the agents of the plaintiff and as having paid the money wrongfully.-
    
      Colden, contra, insisted, that the argument on the part of the plaintiff amounted to no more than that Mullet & Co. had paid the money out of the wrong heap.
    But no matter from what fund the money has been paid, if the defendant had a right to receive it. The general principle laid down in the books cited, is not denied; but it must be taken with the fact, that the person who received the money had no right to it. This cannot be pretended in regard to the defendant.
    
      
      
        Cowp. 806. Doug. 637. Bull. N. P 35.
    
   Per Curiam.

The bills of exchange drawn in favour of the defendant being paid by Mullet & Co. on whom they were drawn, and paid too out of moneys transmitted to them by Hackley, the drawer of the bills, the defendant is not bound to refund the money to the plaintiff It cannot be maintained that the money so paid was the plaintiff’s money, merely because Hackley had previously remitted money to Mullet & Co. to pay the plaintiff The specific money had no earmark. The mistake, if any. must be rectified between Hackley, the plaintiff, and Mullet & Co. There was no privity between 'the defendant and those parties in that negotiation. The plaintiff must look to Mullet & Co. or Hackley, and not to the defendant. This case is analogous, in principle, to that of Rogers v. Kelly, (2 Campb. N. P. 123.)

Motion to set aside the nonsuit denied.  