
    
      N. N. Spalding vs. D. Lesley.
    
    1. On the 27th July, 1827, R. M. O. placed in the hands of T. G., an attorney, the note of J. C. M,, payable to W. or bearer, for collection, and the attorney placed it in the hands of M., an attorney where the maker resided, T. being his assistant counsel. Suit was brought by M., and compromised by the taking of a new note, payable to J. C. C. or bearer, for $500, 25th September, 1828 ; which note also passed into the hands of T. G., Who put it into the hands of defendant, L., for collection, 3d February, 1830. L. brought suit in T. G’s. name, and received the money prior to June, 1830. November 11th, 1829, R. M. O. who had placed the original note in T. G’s. hands, wrote to T., expressing his satisfaction that the matter had been brought to a close, adding that S. (the plaintiff) had advanced him the money for the demand, and wished it settled immediately; also signing a blank, to be filled up as an order, which was done, directing T. to pay to S. the amount that might be received in the case in which he was employed, deducting one hundred dollars as a fee. In this letter he also enclosed the receipt for the note he received from T. G, and his receipt for the $900 note. May 30th, 1830, T. G. paid to R. M. C. $400, in full of the note for $500, given by J. C. M. to J. C. C., retaining fees. On receipting for the money, R. M. C. certified that T. G’s. original receipt was in the possession of S., which was to be obtained and delivered up. June 19th, 1830, T. G. wrote to T., saying he had understood (after the note was put m L’s. hands for collection,) that his receipt had been transferred to S., as collateral security for $200. On 21st June, 1830, T. and S. gave notice to L. of their claim to the money then in his hands; and in February, 1832, S. brought suit against L.. T. testified that soon after he received R. M. C’s. letter, he saw and conferred with plaintiff and J. C. C., payee of last note, and learned from both, in presence of each other, that the claim was transferred to plaintiff
    2. H&ld, that the action could not be maintained, there being no legal assignment to plaintiff
    3. Also, because, at most, the letter and order to T. was revocable, and was actually revoked, by the principal subsequently receiving the money himself.
    4 Also, regarding the order as drawn directly upon defendant L., or T; G., or that it was a regular assignment of the Claim upon J. C. M., when collected, or in defendant’s hands for collection, that On general principles plaintiff could not support his action for money had and received. The general rule which governs this action is, that the money should have been originally received to the Use of the plaintiff
    
      Before Earle, J. Abbeville, Spring Term, 1834.
    
      Report and Opinion of the Presiding Judge¡
    
    Assumpsit for money had and received.
    On the 27th July, 1827, Robert M. Garter placed in thd hands of Thomas Glascock, Esq., a lawyer of Augusta, Ga., a note of John C. Martin, payable to Montfort Wells, or bearer, for $900, for collection. Mr. Glascock placed the note in the hands of Mr. McCraven, an attorney, of Abbeville, where Martin resided, who brought suit, be* ing attorney of record; W. Thompson, Esq., assistant counsel. This suit was compromised, and Martin gave a new note for $500, payable to J. G. Carter, or bearer, da* ted 25th Sept. 1828. This note also passed into the hands of Mr. Glascock, who placed it, on 3d February, 1830, in the hands of defendant, for collection, who brought suit in the name of Thomas Glascock, as plaintiff, and received the money from Martin, previous to June, 1830.
    On the 11th November, 1829, Robert M. Carter, who placed the original note of $900 in the hands of Glascock, for collection, wrote to Mr. Thompson, expressing his satisfaction that he had brought the affair to a conclusion, and adds, “Mr. Spalding, (plaintiff,) is about starting for Columbia, and has advanced me the money for the demand, which he wishes settled immediately. You will please pay him the amount, retaining the fee of $100, as you mention. As I don’t know the exact form of the order you wish, I have signed a blank, and enclosed a receipt for the note which I received from Mr. Glascock;” and enclosed G’s. receipt for the $900 note. The blank order was filled up thus: “W. Thompson, Esq., pay to Mr. Spalding the amount which may be received in the case which you were employed in on my behalf against John C. Martin, after deducting your fee of one hundred dollars, (signed,) íiobcrt M Cárter ^
    On the 30th May, 1830, Mr. Glascock paid to Robert M. Carter $400, in full of the note for $500, given by Martin to John C. Carter, placed in the hands of David Lesley for collection; the said G. retaining fees due himself and McCraven, for settling the original case ; see receipt of Robert M. Carter, and also a certificate of the same date, that the original receipt of Glascock was not in his possession, but in that of Spalding, which he, Carter, was to obtain and deliver up.
    On the 19th June, 1830, Mr. Glascock writes to Mr. Thompson, in which he says: “I understood” (after the note was placed in Lesley’s hands) “that my receipt had been transferred to one Spalding, as collateral security for $200,” &c.
    On the 21st June, 1830, W. Thompson, Jr., and N. N. Spalding, the plaintiff, gave notice to the defendant of their claim to this money, the same being then in his hands; and in Februáry, 1832, the'plaintiff brought this action. Some other papers were in evidence, which are not deemed important. Mr. Thompson proved that soon after he received R. Carter’s letter in Columbia, he saw and conferred with the plaintiff and John C. Carter, the payee of the last note, and he learned from both, in presence of each other, that the claim was transferred to the plaintiff.
    On the foregoing facts, I was of opinion that the plaintiff could not recover, and ordered a non-suit. The principles on which the case is to be decided against the plaintiff’s right to maintain this action are, I think, obvious and well established.
    In the first place, the letter of Carter to Mr. Thompson, and his order on the latter, in favor of the plaintiff, do not constitute an assignment; it was not a transfer of the note which was then in the hands of Glascock, or of McCraven, a sub-agent appointed by him. It was an order to pay “the amount which may be received.” It was not binding on Mr. Thompson without acceptance, and of this there was no proof; and if he had accepted, it could only have been to pay when he received. He had not the funds —he had not the note — he does not appear to have had authority to receive the funds, or to demand the note. The agency of Glascock, and that of defendant, were not repealed; and Mr. Thompson could not, before or after the order, compel either of them to pay him the funds. But it was no more, at the utmost, than an order to an agent to pay money to another, which was revocable, and was revoked, by the principal subsequently receiving it himself. I would, however, take a broader view of this case, and instead of deciding it upon technical objections to the form of the order, let it be supposed that it was drawn directly upon Lesley, or upon Glascock; or that it was a regular assignment of the claim upon Martin, when collected, or in the hands of Lesley for collection. I think it clear, that on general principles, the plaintiff cannot support this action for money had and received. The general rule which governs this action is, that the money should have been originally received to the use of the plaintiff. He must be entitled to it at the time of its actual receipt, or he must establish the liability of the defendant, by proof of some subsequent arrangement, agreement, or special undertaking, on the part of the latter, by which he consented to become the debtor of the plaintiff, and either promised to pay him the money, or to hold it for his use, by assenting to the assignment. A chose in action, in general, is not assignable; and I know no exception to the rule, that a man cannot be made a debtor without his consent, so as to subject him to an action ex contractu. 1 Ea. 103; 3 B. & P. 559; 3 Term, 180. Why else is an acceptance necessary to charge the drawee of a bill of exchange, which is only an assignment of a chose in action, sanctioned by the law merchant %
    
    An undertaking, as agent, to sell goods or to collect money, gives rise to the obligation to account. Monies thus received are to the use of the employer, and he may maintain an action for money had and received. Before collection of the money, or sale of the goods, he may transfer the right of property to another, in the paper to be collected, or the goods to be sold ; and the assignee may withdraw them from the possession of the agent, whose agency is thus revoked. But if the principal merely direct an application of the proceeds when received, or draw a bill or order in favor of another, it does not operate as an assignment, so as to subject the agent to an action at the suit of the third person. Even an agreement to accept a bill, will not sustain a count for money had and received. 1 East, 103. In the case of Williams vs. Everett, 14 Ea. 581, this point was fully discussed. And supposing the letter to Mr. Thompson to have been directed to the defendant, and the note on Martin to have been a bill previously remitted by Carter to the defendant for collection, it would be precisely the case before the court. And Lord Ellenborough says, in that case, in relation to the order of the principal, who remitted the bill to the defendant, to pay the proceeds, when received, to the plaintiffs, “it is entire to the remitter, to give and countermand his own directions respecting the bill, as often as he pleases; and the persons to whom the bill is remitted, may still hold the bill till received, and the amount, when received, for the use of the remitter himself, until, by some engagement entered into by themselves, with the person who is the object of the remittance, they have precluded themselves from so doing, and have appropriated the remittance to the use of such person.” Has the defendant entered into any such engagement with the plaintiff7 or has Glascock, supposing the defendant to stand in his shoes % The latter never received notice, at least there is no proof that he did, even of the plaintiff’s claim. He admits in his letter, that he had heard of his receipt for Martin’s note being transferred to plaintiff, as collateral security for $200. But instead of assenting to this arrangemnt, and agreeing to hold the funds to the use of the plaintiff, he disavowed it by paying Carter ; and the defendant received the notice of the plaintiff’s claim after Glascock had settled with Carter, but before he had paid over to Glascock the money received from Martin. So far as I can perceive, the defendant has come under no engagement which makes him liable to the plaintiff in this action.
    The plaintiff appealed, and moved to set aside the non-suit, for error of the circuit Judge, on the following grounds:
    1. That there was no legal assignment by Carter to the plaintiff.
    2. That if the letter and order to Thompson were a legal power to receive, that power was revoked subsequently by Carter.
    3. Because, regarding Lesley and Glascock as one, the money was not received to plaintiff’s use, and therefore this action does not lie, inasmuch as a party receiving money cannot be made liable, unless the money be received to his use by consent of the defendant.
    
      A. Burt, for the motion. Wardlaw & Perrin, contra.
   Per Curiam.

We think Mr. Justice Earle has put this case upon the true ground, and concur with him in opinion. Motion dismissed.  