
    Jacob Hall versus John M. Marston.
    
      A being the debtor of B, in the sum of 1300 dollars, and also of C, in the sum of 400 dollars, and being abroad, remitted to B a bill of exchange for 1000 dollars, with directions, when the amount should be received, to pay to C 300 dollars. ' B received payment of the bill at its maturity, but neglected to pay C as directed, and gave him no notice of the remittance. It was holden that B was liable to C for the 200 dollars, in an action for money had and received.
    Assumpsit for 200 dollars received under the following circumstances. In the autumn of 1819, one Ellis Bradford, of Kingston, in the county of Plymouth, sailed in a vessel, of which he was then master and owner. He then owed the defendant about 1300 dollars, for the cargo, or part of it, which he took with him; and he also owed the plaintiff about 400 dollars. He had agreed with the defendant, that if he did not return directly back to Boston from that voyage, he would remit money to him. He also promised the plaintiff that he would send him some money during his absence; but he did not communicate this fact to the defendant. He did not return directly to Boston, but was at Charleston, South Carolina, in March, 1820. About the 10th of that month, all Bradford’s property, excepting what he had with him, was attached by other creditors. * The defendant then [ * 576 ] wrote to him at Charleston, not mentioning the attachment, but requesting a remittance. On the 23d of March, Bradford remitted to the defendant a bill of exchange for 1000 dollars, at 30 days’ sight, in a letter containing these words: “ Please to do the needful with the bill, and when in cash, have the goodness to pay Mr. Jacob Hall, distiller, Boston, two hundred dollars, and take his receipt, and place the balance to my credit, and you will much oblige,” &c. The bill was duly accepted and paid; but the defendant did not pay any part of it to the plaintiff; and this action is brought for the said 200 dollars, mentioned in Bradford’s letter.
    It did not appear that the defendant had ever transacted any business as the agent of Bradford in Boston; but when the latter was about sailing on the said voyage, the defendant told him that he would attend to any business that he, Bradford, should request in his absence. Bradford had no general agent in Boston, nor any other business there, except to make insurance, which, as he said, he had requested the defendant to effect. Bradford’s vessel was lost on the voyage aforesaid, and he returned to Boston on the 25th of May, 1820. He then called on the defendant, and inquired if he had received the amount of the bill of exchange The defendant said that he had, and Bradford inquired whether he had paid Hall what he had requested him to pay. The defend ant said he had not; that he thought it his duty, considering what had happened, (meaning the attachment of Bradford’s property,) to keep the money himself, as Bradford owed him more than that amount. Bradford replied that he did not expect the defendant had paid it, or did not expect that he would have paid it. Bradford then returned to Kingston, and soon after sued the defendant fur not having effected insurance for him; and the defendant sued Bradford for the balance of his demand.
    In about a month after the preceding conversation, and whilst the said two actions were pending, Bradford returned to Boston, and informed the plaintiff of the said remittance, [ * 577 ] * and the order or request to pay him the 200 dollars; and this was the first knowledge that the plaintiff had of it. Bradford stated as his reason for not having given the plaintiff earlier information of this fact, that he was so mortified for Mr. Hall, not knowing whether he was by law entitled to the money or not, that he said nothing about it; but afterwards thinking that he was entitled to it, he thought it his duty to let him know. He also stated that he never approved of the defendant’s not paying over the money, nor ever expressed such approbation to the defendant.
    It did not appear that the plaintiff ever demanded the 200 dollars of the defendant, before the commencement of the present action ; or that any communication whatever took place between them before that time. Bradford’s action against the defendant was abandoned by him before it came to trial, and after the commencement of this suit.
    The facts above stated being disclosed in evidence at a trial commenced at the last November term, before Jackson, J., the parties agreed to take the cause from the jury, and submit it to the Court on the foregoing statement; and if the Court should be of opinion that the plaintiff was entitled to recover, the defendant was to be defaulted, and judgment be rendered for such sum as the Court should order; otherwise the plaintiff was to become nonsuit.
    
      Minot, for the plaintiff.
    No demand was necessary in this case, since the defendant has always claimed the whole money in his possession for his own use. A want of privity between these parties may be objected. But the doctrine in the books upon this subject has been very much narrowed of late, as will appear from the cases in the margin . The principle resulting from them will be found to be that whenever one has money in his hands, which, in equity and good conscience, belongs to another, the law will imply *a promise to pay it over. A con- [*578] signment of property, with orders to pay over the proceeds to A, Being accepted by the consignee, binds him to pay accordingly ; and A is entitled to his action for it .
    
      Bliss, for the defendant.
    The money demanded in this action was not received to the use of the plaintiff. It was never his money; and if the defendant has done wrong, he is liable to Bradford for that wrong, and not to the plaintiff. He never assented to the appropriation, and that assent is essential to the maintenance of the plaintiff’s action. His receiving the bill of exchange, and collecting the money upon it, was for the sake of the 800 dollars, appropriated to his use by Bradford; and it furnishes no inference that he acted in the business at all for the plaintiff . In the cases cited for the plaintiff, an assent was proved.
    But if the money was originally received by the defendant to the plaintiff’s use, the order was revoked in the conversation between Bradford and the defendant; and this before the plaintiff demanded the money, or had any knowledge of the remittance.
    At any rate, the plaintiff has no right of action, until, on his part, he has tendered a receipt. The language of the order is, “ pay Mr. Hall, and take his receipt” . In this case, there could be no trust for want of the plaintiff’s assent; so there was no breach of trust before action brought .
    
      
       1 Cranch, 439, 4th point, and the cases there cited.—Vin. Abr. Assumpsit. M. 5. —3 Johns. 184, Dumond’s Adm'rs. vs. Carpenter.—12 Johns. 276, Raymond vs. Bearnard, cites 4 B. & P. 354.—1 Johns. Ca. 205, Neilson vs. Blight.—10 Mass. Rep. 487, Goodridge & Al. vs. Lord.—5 Mass. Rep. 388, Denny vs. Lincoln, adm.—4 Mass. Rep 326, Heard vs. Bradford.—8 Mass. Rep. 340, Avvleton vs. Crowninshield.
      
    
    
      
       4 Johns. 115, Urquhart vs. M’lver.
      
    
    
      
      
        Yelv. 4 a.—14 East. 582. Williams vs. Everett.—3 Price’s Rep. 58.—1 Moore Rep. 74.—2 Campb. 426.
    
    
      
      
        Doug. 689.-2 Johns. 207.—7 D. & E. 130.
    
    
      
       See 7 Mass. Rep. 438.
    
   Parker, C. J.,

delivered the opinion of the Court.

The defendant, being a creditor of Bradford, received from him while abroad a bill of exchange, and a letter accompanying it, requesting him to receive the amount of the bill, pay the plaintiff 200 dollars, and pass the residue to the credit of Bradford. The defendant presented the bill of exchange, and received the amount when due; but refuses to pay over the 200 dollars to the plaintiff, according to his instructions from Bradford; contending that as the whole sum received by him was less than the amount of * Bradford’s debt to him, he had a right to apply it [*579 ] towards the payment of that debt.

The principal objection to the plaintiff’s right of action is, that the case does not show any privity between the plaintiff and the defendant, nor any promise to the defendant; so that, if any action can be maintained, it must be by Bradford against the defendant, for a violation of his implied undertaking to pay the 200 dollars, according to his instructions.

It seems to have been well settled heretofore that if A promises B, for a valuable consideration, to pay to C, the latter may maintain as sumpsit for the money. It is so laid down in many of the authori ties cited by the plaintiff’s counsel; and it is stated in Lord C. B Comyns’s Digest, Assumpsit E, that if money be given to A, to deliver to B, B may have the action ; and Roll. Air. and Hard. Rep. are cited in support of the position.

The principle of this doctrine is reasonable, and consistent with the character of the action of assumpsit for money had and received. There are many cases in which that action is supported without any privity between the parties other than what is created by law. Whenever one man has in his hands the money of another, which he ought to pay over, he is liable to this action, although he has never seen or heard of the party who has the right. When the fact is proved that he has the money, if he cannot show that he has legal or equitable ground for retaining it, the law creates the privity and the promise.

This doctrine appears not to have been disputed until the case of Williams vs. Everett, cited by the counsel for the defendant. That case differs materially from the one now before us, as will be seen by comparing the two together. In that case there was a positive refusal of the agent to act according to the orders of the person who remitted the money; except so far as to receive the contents of the bill. The difficulty was to establish an implied promise against an express denial. In the case at [ * 580 ] * bar there was no refusal; but the orders were received and acted upon in every thing but paying the plaintiff, and there was an apparent acquiescence in the orders of Bradford.

It has been urged that as the defendant was a creditor of Bradford to more than the amount of the bill; and as he had a right to attach his property, or summon his debtors as trustees, he would of course have a right to apply any of his money which came to his hands to the payment of his own debt. But he is to be con sidered as having accepted an agency, and as undertaking to per form what was requested of him in the letter covering the bill; and he could not have the right to follow his instructions so far as to receive the money, and to disobey them as to its application. If he had refused to act under the letter, he might have attached the debt in the hands of the drawee of the bill; or, if the money had come into his hands without any implied contract on his part to appropriate it to any particular use, he might have retained it without any breach of trust. But this bill came to him for the purpose of paying Hall out of the proceeds, in pursuance rf i promise of Bradford to remit to him; and his liability is the same as if Bradford had inclosed a bank note to him, requesting him to deliver it to Hall; which would be. considered as a payment by Bradford when he sent the note, if Hall chose so to consider it. It would, in that case, be Hall’s money, and he could maintain an action for it, if it were not paid over, without any promise on the part of the defendant to Hall.

If, upon his receipt of the letter and bill of exchange, the defendant had informed Hall, and at the same time declared his intention to keep all the money to himself, the case would look better for him; for then Hall might have taken other measures to obtain his debt. But the silence of the defendant, and his receiving the contents of the bill, must be construed to be an assent to pursue his instructions, and to receive the money for Hall as well as for himself, *so that when it was paid him, 200 dol- [ * 581 ] lors was legally Hall’s money, and was afterwards improperly converted by the defendant to his own use..

For these reasons, it is the opinion of the Court that, upon the facts in this case, the plaintiff is legally as well as equitably entitled to judgment . 
      
       [Vide Arnold & Al. vs. Lyman, ante 400.—Ed.]
     