
    Weston against Barker.
    Where a. £nties tpa£ in trust, to disposé of part of be6 "received taine0snp’ecifed toZTdt¡ieaba lance, subject to the order of A. which trust B. accepts ; and A. then directs B. to pay the balance to C. and B. afterwards receives the money due on the securities; & may maintain an action for money had arid received, agaihst B. to,recover such bar-lance : the acceptance of the trust by B. being equivalent to an express promise to thé person to whoni A. should direct the money, when received, to be paid.,
    And in such action, B. candot set-off a demand which he may have against A¡
    THIS was an action of assumpsit,’tried before his honour the late Chief Justice, at the sittings in New-York, the 12th of Rfovem- , 1.010 ' Oer, 18 Id. ■
    
      Bowen Sr Robins, partners in trade, in' New-York, for the PurP0Se of. securing certain debts,, on the 4th of March, 1811, a£si£ned to the defendant two policies of insurance, d.ated on. the 1 st of. September, 1810, made by the New-York Insurance • 
      Company, on vessel and cargo. At the time of the assignment, they addressed a letter to the defendant, as follows: “ Sir, we have, together with Mr. E. M. Stillwell, (who was jointly interested with them in the vessel anft' cargo,) subscribed a certain assignment to you of two policies of insurance on the brig Salem and cargo, on which is claimed from the New-York Insurance Company about 5,200 dollars“ One half of which is for our account, which you will please to understand to be held in trust to discharge the following obligations of ours, viz:
    An acceptance in favour of John Ward, • $594 03
    A note endorsed by E. M. Stillwell, at 6 months, 11th of August, • • • . • * 937 50
    A note endorsed by E. M. Stillwell, at 6 months, 22d of August, * "• * • • 82 25
    $1,613 83
    “ After which.-yoü will hold the balance, which may be received, subject to our order.”
    
    On the back of a copy of this letter, the defendant, at the same time, made and subscribed the following endorsement. “ I acknowledge to have received from Bowen 8c Robins, the original letter, of which the within is a copy, the conditions named in which I engage to comply with. New-York, March 4, 1811.”
    
      Bowen 8c Robins being indebted to the plaintiff in a larger sum than the amount of the fund in the hands of the defendant, which remained unappropriated, (after drawing on him for about 91 dollars, in favour of a third person,) endorsed on the above mentioned copy of a letter, an order, in favour of the plaintiff, on the defendant, as follows: “New-York, March 15, 1811. Sir, For value received, we hereby request you will aeeóunt with Abijah Weston, of this city, for the amount recovered of the New-York Insurance Company, on policies assigned you for our account, first providing for assumptions made by us to amount of 1,705 dollars, as per account annexedwhich he delivered, with the endorsement of the defendant, above stated, to the plaintiff, and of which order or assignment .to the plaintiff, the defendant, at the same time, or within a day or two thereafter, had notice.
    
      The defendant, on the 16th of> April, 2811, received, on the policies of assurance so assigned to him, the sum of 1,700 dotlors; on the 27th of the same month, the further Sum of 2,298 dollars and 50 cents, including the premium notes' of 272 dollars and 50 cents; and bn the 15th of May following, the further sum of 978 dollars and 76 cents, making in the whole, exclusive "of the premium notes, 4,704 dollars and 76 cents, the one half of which, belonging- to Bowen 8c Babins, Was - 2,352 dollars and 38 cents • of which sum, after deducting the amount specially appropriated by the order of Bowen 8c Robins, previous to their "assignment to the plaintiff,, there remained a ba»x lance of 647 dollars and 38 cents in the hands of the defendant, which, with the interest thereon, was the amount claimed by the plaintiff in this action. "
    The defendant offered in evidence, by way of set-off, a note drawn by Bowen 8c Robins, in favour of Mason and Wilcox^ for 2,300' dollars, dated January 8, 1811, payable four months after date, and. which was received by the defendant frotó Bowen 8c Robins, for goods sold to them by the plaintiff; which note was protested for non-payment on the 11th of May, 1811. • , .
    A verdict was found for the plaintiff for 800 dollars, subject to the opinion of the court; and the amount to be. liquidated accordingly.
    The case was argued by Warner and P. W. Radcliff, for the plaintiff, and by Wells, for the defendant;
    but the points and authorities are so fully considered in the opinion of, the court, that it is • deemed unnecessary to state the arguments of the .counsel. x
   Thompson, Ch, J.,

delivered the opinion of the court. The principal question in this casé, is, whether an action for money: had and received,; can be sustained by the present plaintiff. It was not denied on the argument by the defendant’s counsel, but that the action would be supported, if ati express promise to pay proved; and, indeed, this principle is too well settled- to be questioned. It has been repeatedly recognised in this court. [7 Johns. Rep. 103. 8 Johns. Rep. 149.] It appears to me that the : proof in this cáse, establishes such a promise,' according to the good sense, and sound interpretation of the rule. That the defendant has actually received the money, is admitted, and the plaintiff’s claim to it is supported by the strongest principles of justice and equity, as will appear from a bare statement of the case.

Bowen <§* Robins, on the 4th of March, 1811, assigned to the defendant two policies of insurance, in trust, to discharge certain specified debts, and the balance to be held subject, to their order. The defendant, on the same day, signified, in-writing, his acceptance of the trust; and expressly engaged to comply with the conditions mentioned in the letter, which declared the trust; viz. to pay the specified debts, and hold the balance, subject to the order of Bowen 8r Robins. On the 15th of the same month, Bowen 8c Robins being indebted1 to the plain-tiff, gave him an order on the defendant for such balance, of which notice was about the same time given to the defendant. The defendant, afterwards, received the amount due on the policies, and after paying the demands specified in the declaration of trust, held in his hands a balance of 647 dollars, 38 cents, which is the sum, together with the interest, for which this suit is brought.

This brief statement of facts, would seem sufficient to show the plaintiff’s right to recover. The money has, in fact, been received by the defendant; and, according to the very terms of his engagement, was received as the money of the plaintiff, and not of Bowen S' Robins, they having previously directed the same to be paid to the plaintiff. If A. deliver money to B., to be paid over to C., the latter may recover it of B., in an action for money had and received. (1 Bos. & Pul. 296.) It is immaterial, in the case before us, whether the money was actually paid by Bowen <§• Robins to the defendant, or whether it came into his hands from any other quarter, by their order. When it was received, it was received as the money of the plaintiff; and so, in the most strict and literal sense, it was money received to the plaintiff’s use. It was considered on the argument, that had the plaintiff been named in the declaration of trust, as one of the persons to be paid out of the monies received on,the policies, he could maintain this action. And where, in good sense and sound principle, can be the difference, whether he was originally named, or afterwards designated, according to the terms of the defendant’s undertaking? His express promise was to hold the balance, subject to the order of Bowen 8c Robins.. As soon as sack order Was given, this promise attached1 and enured to' benefit of the person named iti such order. It is undoubtedly a Well-settled role of the common law, that dioses in action aré' nbt assignable ; and, therefore, when a perSoff entitled to money due from another, assigns over hiS interest in it to a third person, thé mere act 'of assignment does not" entitle "the assignee to maintain an action for it: btit if there be an assent or promise on the part Of the debtor of holder of the money, the for money had and received has been hotden to lie.

What Will5 amount to such assent or promise, so as to make the holder of the money liable, will be better Seen by a refer-to some of the adjudged cases on this subject. In Ward v. Evans, (2 Ld. Raym. 928.) one Fellows, having money inuii* hands of the defendant, gave a verbal order to pay a certain sum to the plaintiff, and to endorse it upon a note, which he, Fclloivs, held against the defendant, and this endorsement was accordingly made; this was held sufficient to maintain the action, for money had and1 received to the use. of Ward, the plaintiff. Holt, Gh. J., said,, when the money was endorsed on Fellows' bill, and Fellows directing that sum to be paid to the plaintiffs and the defendant having the money in his hands, it amounted to a receipt of so much money by the defendant to the plaintiff’s use. So,- also, ini Israel v. Douglass and another, (1 H. Bl. Rep. 239.) The defendants being indebted to one Delvalle, he dreW an order on them, in favour of the plaintiff) who had* advanced money to Delvalle; the defendants áccépted the order, and they were held responsible in an action for money had and received. Lord Loughborough, in answer to the argument, that the money was, in point of fact, owing by the defendants to Delvalle, and that their undertaking was to him, and- that no money was in reality had apd received by them to the use of the " plaintiff, says, the debt, with the consent of the parties, Was assigned to the plaintiff, of which the defendants had notice, and assented to it; by which asséñt they became liable to the plain-' tiff for money had and received. Had the defendant, in the' case before us, directly accepted the order drawn on him, if would fall precisely within the case last cited. But as I have' before observed, this could in principle make no difference, for1 the express promise of the defendant was, in substancé, to pay over the money to whomsoever Bowen 8r Robins should appoint' to receive it*. And this appointment was made certain by the. subsequent designation in the order. That this was sufficient is established by the case of Fenner v. Meares, (2 Black. Rep. 1269.) received, would lie by an assignee of a respondentia bond, where the obligor, by an endorsement thereon, promised to pay the same to such assignee as the obligor should duly appoint•. Here the promise was not made to any person in particular, but, generally, to whomsoever the obligee should appoint. It is true, that the authority of the two last cases has been questioned by later decisions in the English courts. (1 East, 104. 3 East, 171.) The reasons and principles,, however, upon which they were founded, have not been shaken, but, on the contrary, sanctioned by this court, as will be seen by the case of Neilson v. Blight, (1 Johns. Cas. 205.) which was an action of assumpsit, for money had and received. From an examination of the facts in that case, it appears that there was no express promise made by the defendant to the plaintiff. Radcliff, J. after stating the leading facts in the case, observes, that there was a trust created in Raddon, for the benefit of the plaintiff, which the plaintiff had a right to affirm and avail himself of, and that this trust was transferred to the defendant, who became equally responsible with Raddon, by receiving the wines bn the same terms; that there was an implied assumpsit in law, the fund, being in the defendants hands, and received by himfor the benefit of the plaintiff. He laid it down as a maxim, that where a trust is created for the benefit of a person, though without his. knowledge at the time, he may affirm the trust, and enforce its execution. And Kent, J., said, from these facts, the law will in* fer a promise by the defendant to pay the money, because, in justice and good faith, he was bound so to do. From that case, it is clear that no express promise is necessary, in order to make a party responsible in this form of action. But in the case before us, I think I have shown that there was what must be deemed equivalent to an express promise; and as soon as the money came into the defendant’s hands, he became bound to pay it over to the plaintiff, according to the principle which governed the decision in M'Menomy & Townsend v. Ferrers, (3 Johns. Rep. 82.) It was there held that indebitatus assumpsit for money had and

There is no ground upon which the set-off can be allowed; that is a claim against Bowen & Robins, with which the plaintiff has no concern. Nor can the .defendant complain of any hardship in the case; for he held this note against Bowen <§• Robins, when he accepted the trust, and engaged to pay the money now in question to their order. This shows, conclusively, that he did not look in any manner to this fund as security, but trusted to the personal responsibility of the drawers and endorsers for payment.

The opinion of the court accordingly is, that the plaintiff is entitled to judgment.

Spencer, J.,

dissenting. The facts in this case, in my judgment, do not entitle the plaintiff to a recovery. The simple question is, whether a person having money in his hands, belonging to another, is liable to a suit by a third person, to whom the person entitled to the money shall direct it to be paid, without any promise or agreement to pay the money to such third person. I have not been able to find a case, unless it be that of M‘Kim v. Smith, in the Baltimore county court, tried before Nicholson, Ch. J. (1 Hall's Law Journal, 486.) which will warrant a recovery in this, ease. In Crifford v. Berry, (11 Mod. 241.) wages being due to A. from the East-India Company, he ordered B. to receive ihe money and to pay it to C, to whom he was indebted; C, brought indebitatus assumpsit against B. Holt, Ch. J., held, that the action could not be maintained by C. This case is very briefly reported, but there can be no doubt that B. had received the money, and that when he was authorized to receive it, he received the direction to pay it to C. In Surtees and others v. Hubbard, (4 Esp. Rep. 203.) an action for money had and received was brought by the plaintiffs, as assignees of a ship, to recover the amount of freight; notice had been given of the assignment of the ship and freight to them; the objection was taken that it being a chose in action, the demand could not be assigned, so as to enable the assignee to bring a suit in his own name ; Lord Ellenborough nonsuited the plaintiff, saying, that where a party, entitled to money, assigns over his interest to another, the mere act of assignment does not entitle the assignee to maintain an action for it; the debtor-may refuse his assent; he may have an account against the assignor, and wish to have his set off; but if there be any thing like an assent on the part of the holder of the money, in that case, this,-which is an equitable action, is maintainable.

In Fenner v. Meares, (2 Black. Rep. 1268.) the defendant had e ^ , . J 1 borrowed money of Cox on respondentia, and by an endorse* ment on the bonds, stipulated, in the most, express terms, that if they were assigned, he held himself bound to pay the assignee, without any deduction or abatement, and on .the return of the ship, and application by the assignee,, the defendant desired time, and begged. the assignee would not sue him. Two of the judges, Ch. J. De Grey, and Nares, J., held, that the plaintiff was entitled to recover, without reference to the promise afterwards, on the ground, that these bonds were essentially necessary to carry on the India trade, and that it would clog them, and be productive of inconvenience, if they were obliged to remain in the hands of the first obligee ;. and that the contract was devised to operate on subsequent assignments, aná .amounted to a declaration, that the money which had been borrowed, should, on assignment, be no longer the money of A, but of B., his substitute. Blackstone, J., avoided giving any decisive opinion on that point, but put the case.on the subsequent promise.

This case may, at first view, be supposed to favour the plaintiff’s right to maintain this suit; but I think it very different from the present case. The stipulation to pay to any assignee wa,s as explicit as language could make it; and, besides, it related to a trade which policy required should be protected and encouraged ; but this case met with discountenance from Lord Kenyon, in Johnson v. Collings. (1 East, 104.) He declared he could not agree to that case, and he supposes that the result was, that the determination of the jury having been made according to equity and good conscience, the court would not disturb the verdict. All the court, however, held, that a promise by a debtor to his creditor to accept a bill and pay it, was not an acceptance of a bill not then in esse. The plaintiff in that case, was the endorser of the bill drawn on a promise by the debtor to accept it, and had added the money counts ; and, with respect-to those counts, Lord Kenyon added, “ If we were to suffer the plaintiff to recover on the general counts, we must say, that a chose in action is assignabje, a doctrine to which I never will subscribe.” Grose, L, declared it would be of most dangerous consequence to relax the rule of law, to the extent contended for, and that to permit the plaintiff to recover, would be making all choses in action assignable.

The case of Israel v. Douglass and another, (1 H. Bl. 239.) was decided oil the ground that the debt; with' thé CdnSehE of the parties, ivas assigned to: the plaintiff; and Gould, J., put on the true footing. He says, “ If I pay money to you for atiOther person, it is money had and received by you 'to hís usé ; 'but where is thé "real áhd 'substatitial difference; Whether f in fact pay money to you for, ¿ third person,-dr whether I give you an order to pay so itiubh tidoney, -to Which you expressly assent.”, ' - ; 1 ■' ■ ■ ■ .

Most of these cases carné under the consideration of this court, in M'Evers v. Mason, (10 Johns. Rep. 213.) Oh. J. Kent, in delivering the opinion of the court, states the base a& laid dpwtt by Beanies, with approbation ; that thé party mkldng a promise to accept a bill to be drawn, is answerable in daznages to the person to Whom the promise is made ; and he adds, ■"“ but such a promise is not assignable; and it seeitis á little difficult to Understand how the endorser of:a bill, subsequently drawn, can charge the drawer with acceptance, 'by virtue of such a preceding promise, which is'not of itsélf assignable, and iS, strictly, no part Of the negotiable cdfatfactand he adds, he “ had met with no adjudged cáse, except it be that óf M‘Kim & Smith, in which it had been decided#-that an endorser can avail himself of such a previous promise# as amounting to áñ ábeepE-nncé under the law merchant, of á bill not then drawn.” The case of M‘Kim & Smith is the tipimdn of á single j üdgé, pro*? hounbéd at the trial of the cause; and; pérhaps, the trick atteznpted to be pzuctised by the defendants cm the other creditors oí Brown, líád an insensible influence on the judge.

Great stress was laid upon the defendant’s, agreement to hold the" moneys he should receive on thé policies;, subject to the or; der of Bowen & Robins ; this amozznted to Uo znore than ati agreement to hold hiuiself responsible for what should be recéived; but, at all events, it was no moré than an agreement With Bowen & Robins, to accept and pay their order; an agreement with which the plaintiff has nó concern. In the present case, the plaintiff gave no new credit to Bowen & Robins in cbnséquence of the defendant’s agreement to hold thé balance that might be recovered on the policies, beyond the specific appropriations, subject to the order of Bowen & Robins, j I believe what was stated by Mr. Gorman, one of the special jury, oh the trial of Pierson v. Dunlop, (Cowp. 572.) is true, that it is k universal rule among merchants, that a mere engagement to the, drawer of a bill is no engagement to the holder of it.

The injustice of the principle contended for by the plaintiff is very manifest in this case, and it is one of the reasons assigned by Lord Ellenborough against such an action. The defend■ant holds Bowen & Robins's note, for two thousand three hundred dollars, for goods sold to them two months- before the assignment of the policies, and by stistaining this suit he will be deprived of his set-off.

On the ground, then, that the debt due from the defendant to Bomen & Robins for the balance is npt assignable, so as to enable the assignee to sue for it in his own name; that the plaintiff has not given to Bowen & Robins any new credit, on the faith of the defendant’s agreement with them, and that the defendant has had no Communication with, or made any promise to, the plaintiff I am decidedly of opinion, that the action is not sustainable, and that the defendant ought to have judgment.

Platt, J.,"not having heard the argument of the cause, gave no opinion.

Judgment for the plaintiff  