
    Patrick Murray & another vs. Terence McHugh. James Moore vs. The Same. Daniel Crowley vs. The Same. Patrick Carberry vs. The Same.
    The plaintiffs and defendant were members of a voluntary unincorporated asso* eiation, for raising money to aid the people of Ireland in their struggle for independence. The plaintiffs with others, contributed moneys for this object, which were handed to the defendant, as treasurer of the association, and by him placed with the general funds thereof. The final application of the contributions was to be made by a directory, chosen by the association ; but by a vote of the majority, the defendant temporarily invested the funds in stocks. The object of the association failed, and no money was applied for that purpose, but there were some incidental charges and expenses, and losses by bad investment. Held, that an action for money had and received would not lie to recover of the defendant the amount of any contribution.
    These were actions of assumpsit for money had and rev ceived. They were heard in the court of common pleas, before Bigelowi J., on the following agreed statement of facts, and, judgment having been ordered for the defendant in all of them, the plaintiffs appealed to this court.
    
      In the evening of August 16,1848, a general meeting of the friends of Ireland was held in Faneuil Hall, in Boston. The meeting was organized by the choice of a chairman and secretary, and the objects of it were announced to the meeting by the chairman to be the contribution and collection of funds, for the purpose of assisting the people of Ireland in the struggle for independence, which they were at that time making against the government of Great Britain, and to purchase arms, ammunition, and other sinews of war.
    At the close of the meeting, many persons contributed divers sums of money, and, among the number, the several plaintiffs in these actions, who subscribed and paid in manner following. The chairman called upon persons present to subscribe. Murray then handed one hundred dollars to the chairman, asking him to announce it as the subscription of P. & W. Murray, which was done, and the money paid to the defendant by the chairman. The same was done by the plaintiff Crowley, and the money paid to the defendant. The plaintiff Moore, at the same time, engaged to pay fifty dollars, which, the next day, he accordingly paid to the defendant. The plaintiff Carberry, who was present at the meeting, as well as the other plaintiffs, announced his subscription at the same time, and delivered, on the next day, the sum of one hundred dollars to a messenger, who, at his request, paid the same to the defendant.
    It was agreed that these sums were severally paid by the plaintiffs to the defendant, to be used for the objects and purposes stated by the chairman of the meeting, namely, to assist the people of Ireland in their struggle for independence. About a month after that meeting, news arrived at Boston, that the attempt of the people of Ireland to obtain their legislative or political independence of Great Britain had been defeated, and the moneys paid, as above stated, have never been applied to the above named purposes.
    On the 3d of November, 1849, each of the plaintiffs demanded of the defendant the sum paid to him by them respectively, and the defendant refused to pay, assigning no reason for his refusal; and the moneys had not been appropriated to the above purposes, or to any other, except so far as they may be liable for proportional contribution to incidental expenses.
    The defendant, in each of these actions, relied on the following facts in defence of the same, all of which were admitted by the plaintiffs, subject to exceptions as to competency.
    On the 15th of August, 1848, there existed in-Boston two unincorporated associations of individuals, occasionally holding separate meetings to raise charitable.contributions for the aid of the people of Ireland. One of these bodies bore the title of the “ Boston Association of the Friends of Ireland,” and the other that of the “ Boston League.” In the evening of the 15th of August, at a meeting of the “ Association of the Friends of Ireland,” twenty-four of its members were appointed to act in concert with twenty-four other members from the “ Boston League,” the whole to constitute a joint body of forty-eight members, under the title of the “ Boston Directory of the Friends of Ireland.”
    The plaintiffs, with the exception of Carberry, were members of the directory. In the forenoon of August 16, 1848, the directory met at Central Hall, in Boston, for the purpose of organizing their body, and “ also to consider measures expedient for the purpose of carrying into effect the efforts of the people of Ireland towards the freedom of that country.” The directory was organized by the choice of a chairman, secretary, and treasurer, the defendant being elected to the last named office. The directory then elected nine of their members to represent them, under the title of the “ Executive Committee,” who were authorized to meet daily, if required, to discharge the general functions of the directory. The officers of the directory above named were chosen members of the “ executive committee,” and acted as chairman, secretary, and treasurer, respectively, of both bodies.
    The meeting held at Faneuil Hall, in the evening of August 16, 1848, had been previously called by the “ Boston League,” before the union of the two bodies under th'e government of the directory, which took no part, officially, in that meeting.
    
      On the 17th of August, the executive committee met, and directed their chairman to prepare and report, on behalf of the directory, an “ Address to the Friends of Ireland in New England,” in relation to the interests of Ireland and the particular objects of the directory. On the following day, the subjoined address was reported and adopted on behalf of the directory, and signed by the executive committee, published in the newspapers of the 18th of August, and distributed in the form of a circular.
    “TO THE FRIENDS OF IRELAND IN NEW ENGLAND.
    “ The destiny of the Irish people may depend upon the result of your exertions within the brief space, perhaps, of but a few days.
    “ England has rendered the doctrine of pacific agitation obsolete in Ireland, and has silenced its most eloquent teachers. She has proscribed the Irish leaders, as she once proscribed yours. She has driven the people of Ireland, as she once drove Americans, ‘ to fight with cheerfulness the battle of Israel.'
    “ That people are about being crushed, under this new confederacy of war with pestilence and famine. In the first agony of the struggle, they turn to their kin dred in the flesh, to their brethren in humanity, who are looking on, in comfort and safety, from this land of freedom, and supplicate for assistance. Money yields the swiftest and mightiest aid. Every dollar contributed by you will be speedily converted by trusty agents into the most effective means of relief.
    “New York intrusts its imperial resources to the management of a directory composed of eminent friends of Ireland; of Robert Emmet, Charles O'Connor, John MeKeon, Horace Greeley, and their philanthropic associates.
    “ The friends of Ireland in Boston have united in establishing a corresponding body, to act in the impending crisis. That body is entitled ‘ The Boston Directory for Ireland.’ It is composed of forty-eight members, but, to insure frequent sessions and prompt action, they have selected nine of their number, to be an exec-cutive committee, who sit daily, in Boston, to discharge the general functions of the directory.
    “ This executive committee for Ireland is composed of the undersigned members ; of whom John W. James is chairman, Edward Young is secretary, and Terence McHugh treasurer. John Kelly, Patrick Mooney, and P. Higgins, are the committee on accounts. The action of the executive committee, in relation to its funds and its delegates, will be governed by the following regulations.
    “ 1st. The committee sit daily, to appoint delegates to agitate for Ireland in Massachusetts, and, if required, for the New England states generally. All letters and communications on this subject must be forwarded to Boston, addressed to ‘ John W. James, Chairman of the Executive Committee for Ireland,’ or to ‘ Edward Young, Secretary' of the committee. Requisitions for speakers, or for aid in calling meetings in any part of New England, will be promptly answered by the officers of the committee.
    “ 2d. The executive committee have been authorized by the directory, to exercise a constant control over all the collections made under their superintendence. All sums collected at public meetings, or by private contributions, will be publicly announced at the meetings and through the press, and the money so collected must be transmitted by the chairman of each meeting in sealed letters, directed to the treasurer, or to the chairman of the executive committee.
    “ No part of the sums thus collected and forwarded is to he appropriated to the expenses of delegates from the committee, but by an order from the committee on accounts, drawn on the treasurer. The committee on accounts will allow only the necessary and unavoidable expenses of the delegates.
    “ 3d. The executive committee have appointed from their own body a confiden.tial agent, to confer with a similar organ of the New York Directory; and, upon the report of their agent, the committee will determine whether the funds collected under their superintendence shall be appropriated to their destined purpose by the Boston or the New York Directory, the committee having solely in view, in such decision, the most speedy help and the best interests of the people of Ireland.
    “ Editors friendly to the cause of Ireland are respectfully requested to publish the above notice in their respective papers.”
    Under the conditions thus announced, all the funds received by the executive committee were transferred to the defendant, their treasurer. The executive committee, for several weeks, continued their sittings, for the purpose of appointing meetings and delegates to attend the same, and receiving remittances from various meetings in the commonwealth and other parts of the country, contributed by many hundred persons ; it being understood, that all the expenses attending the proceedings of the directory and executive committee should be, from time to time, deducted from the funds collected.
    On the 27th of November, 1848, the executive committee, by a notice served on each member, called a meeting of the directory, to determine what disposition should be made of the funds already collected. It was then and there voted, “ to invest the net amount in the treasury, for six months from the time of the investment.”
    Twenty-nine members were present at that meeting; eighteen voted in the affirmative, and ten in the negative, upon the proposition to invest. Among the votes in the negative were those of the plaintiffs Murray and Moore. The plaintiff Crowley was present, but did not vote either way. The plaintiff Carberry was notified, but was not present. After the vote, John Kelly and the plaintiff Moore were appointed a committee to assist the treasurer in maldng such an invest ment as to them should seem most safe and productive.
    
      On the 2d of December following, Kelly and Moore recommended, in writing, to the treasurer, to purchase twenty-five shares of the Old Colony railroad stock, and, out of the balance remaining, to pay all bills against the directory, and, adding the remainder to dividends to be received in the January following, to invest again, as the committee might direct; with which direction the treasurer complied, the cost of the shares averaging eighty-seven dollars and twenty-two cents each, but they have since greatly depreciated in value.
    On the 19th of February, 1849, Kelly and Moore recommended the treasurer to buy three shares in the stock of the Western railroad with the balance, which was accordingly done. On the 1st of March, 1849, the plaintiff Moore borrowed the balance remaining in the treasurer’s hands, namely, sixty dollars, for which Moore gave his note, which remains due and unpaid. The stocks purchased stand in the name of the defendant, and have always so stood.
    On the 2d of July, 1849, there was another meeting of the directory, to consider what further order should be taken in relation to the funds; when it was voted, that the funds of the directory be held for the original purposes, and that they be increased by additional subscriptions; and William A. Wilson, the secretary, and Patrick Murray, one of the plaintiffs, were appointed a committee to solicit subscriptions generally for the funds of the directory, and to call upoh the old subscribers, who were delinquent, to pay up their subscriptions. No money was ever collected under this vote.
    The money sought to be recovered by each plaintiff in these actions was mixed with the other funds contributed and invested, as above set forth. Each of the plaintiffs, except Carberry, is a member of the directory, and has been so from its foundation.
    It is agreed, that the court may make such inferences from the foregoing facts as it would be competent for a jury to make, and, if the plaintiffs are not entitled to recover, they snail severally become nonsuit. Otherwise, the defendant shall be defaulted, and judgment rendered for such damages as the court shall deem proper.
    
      
      I J. Austin, for the plaintiffs.
    
      H H Fuller, for the defendant,
    cited Collyer on Part. §§ 197 1078,1079; 3 Kent’s Com. 45; Howson v. Hancock, 8 T. R. 575; Story on Agency, § 300; Williams v. Henshaw, 11 Pick. 79; Crease v. Babcock, 10 Met. 525; Chitty on Cont. 231, and note, 639; Rev. Sts. c. 81, § 8, and c. 118, § 43.
   Shaw, C. J.

These are actions for money had and received, and the grounds taken by the plaintiffs are correct to this extent, that no other privity is necessary to enable one to maintain an action for money had and received against another, than an equitable duty,to pay it over, according to the trust on which he has received it. So, when one has deposited money with another, with authority to apply it to a special use, for objects on account of which the depositor owes no debt or duty, if the authority is revoked before the accomplishment of the purpose, and before the depositary has disposed of the money pursuant to the trust, the depositor may demand it back, and from that time it will be deemed to be money held to the use of the depositor, which he may recover in this action.

Nor does it appear to be material to this position, whether the object to be accomplished be legal or illegal. If it be legal, but the purpose fails, the consideration on which it was deposited fails, and then the defendant can no longer conscientiously retain it; he is bound to pay it back, and this raises an implied promise to do so. If the purpose be illegal, if the depositary has paid the money for the accomplishment of such purpose, the depositor is in pari delicto, and cannot invoke the aid of the law to recover it. Howson v. Hancock, 8 T. R. 575. But if not paid over, he may revoke the authority of the depositary, and thus prohibit him from promoting the illegal object, and recover back his money. Bell v. Gilbert, 12 Met. 397.

But these rules have very little application to the present case; the facts disclosed do not bring the case within them.

In the first place, the money can hardly be said, in any proper sense, to be paid by the plaintiffs to the defendant. It was money in fact paid in, or promised to be paid in, at a public meeting of the friends of Ireland, organized as mere voluntary unincorporated associations are usually organized, for raising money to assist the people of Ireland in their struggle for independence with the British government. At this meeting, the chairman or presiding officer called upon the persons present to contribute money for the object contemplated, and, towards the close of the meeting, many per sons did contribute. Murray, the plaintiff, handed $100 tc the chairman, and requested him to announce it as the contribution of himself and ~W. Murray. And this was done by many others. The money was handed to the chairman, in the first instance, and by him to the defendant. It appears that, prior to the meeting and immediately preceding it, two different associations of the friends of Ireland had united, for the better promotion of their common object, and had chosen a body of forty-eight persons, denominated “ The Boston Directory of the Eriends of Ireland; ” that this body had met and chosen a chairman, secretary, and treasurer, and the defendant was thus appointed treasurer.

Then the question recurs, to whom was the money paid, by whom was it received, and who were to accomplish and carry into effect the purpose of the contributors, by the application of the money raised ? It seems manifest that such application of the money was to be made by the body of forty-eight, appointed as an administrative body for the purpose, and that the chairman was the agent of the contributors, in the first instance, to receive the money, and the treasurer to take and keep it, subject to the disposal of the directory. In legal effect, therefore, it would seem that the money was received by the directory. This was a numerous body of trustees, certainly, and not very regularly constituted; but they were such as the contributors, having the power of disposal over their own money, chose to select. The general purposes to be accomplished by the directory, in the application of this money, are shadowed forth in the address, which is made part of the case.

The defendant did not receive the money on any trust or condition, to account with the plaintiffs ; because, with their consent and by their appointment, he is to pay it out, under the order and direction of the directory, and to be accountable to them for it.

Again; the whole proceeding looked to associated and continued action. One object seems to have been, to assist the Irish people with arms. But how? The defendant was intrusted with no power to lay out the money in arms, or to send them to any body. The parties proposed to act in concert with other parties, having the same common object in view.- The contributors looked to the aggregate body, to direct the application of their donations. By their order and direction, the defendant did invest the money in stocks, and thereby parted with the possession of the money. When a committee of the directory was chosen to act, and there was no by-law or other provision to regulate the exercise of their authority, the vote of a majority must be deemed the act of the body. Then, the money having been invested pursuant to such vote, before any revocation of the authority given by the defendant, if, as maintained by the plaintiffs, he had any power of revocation, the defendant had no money of the plaintiffs when they made their demands and brought their actions.

The vote of the plaintiffs, or some of them, in the negative, cannot avoid this result; by voting at all, they tacitly submitted to the jurisdiction of the committee, and admitted their authority to decide, in a case where the act of the majority was the act of the body.

But there is another view of the subject, which seems to us to be entirely decisive. It is quite clear, that these plaintiffs, with many other persons, put in their respective sums as contributions to a common fund for a designated purpose. The terms import this; they subscribed,” “ they contributed ; ” all implying that the donations of each were parts, the whole of which were to form a common fund. In fact, these sums were mixed and blended together, and invested in a common fund. Then they were necessarily liable to some incidental charges, contemplated by the establishment of the directory ; expenses of delegates to other places, for the general purpose of agitating.

Such being the character of the fund, the right of each individual to any portion of it, after the failure of the purpose for which it was raised, if any surplus should remain, was a right to a proportional part of such surplus, after deducting all charges and expenses, and all losses sustained by bad investment, or otherwise. It would require an account to be taken amongst all the contributors, having equal rights to such surplus, to ascertain the proportion to which each of these plaintiffs would be entitled; and such an account cannot be taken in an action at law for money had and received.

It seems obvious to the court, therefore, that the contribution of each of these plaintiffs was not a simple deposit with the defendant, to hold on any condition or contingency, to be judged of or determined by him; or, to hold and apply upon the simple happening of a future event, which event has not happened; or, upon any trust or confidence reposed in the defendant, which he has failed to perform; and, therefore, it is not within the principle, that, when money has been received of another, for a purpose or on a consideration which has failed, on which the authority on which it was deposited may be revoked, and, after demand and refusal of repayment, it may be recovered back in an action for money had and received. Judgment for the defendant, in each case  