
    Lyman v. Edwards.
    In the Court below*
    Justin Lyman, and Elias Lyman, Plaintiffs ; Jonathan W. Edwards, Defendant.
    
    being ⅛ debted to B. ⅛⅛⅞ lateral secu-missoiynote agajnst C. _ pursuance of instructions from A. and! in his name, put in suit, by foreign attachment, leaving a copy with D. After judgment against C. on tills note, and execution returned non est, B. still acting as attorney to A. brought a scire-farias, in A.’s favour, against D. recovered judgment, took out execution, and collected the money. After the latter judgment, and before B. received the money, A. assigned that judgment to B. authorizing him to receive die money, without any further accountability, than to apply it in satisfaction of his debt against A. Afterwards, the judgment on the xcireffacias was reversed ; and A,, being a bankrupt, D. brought assumpsit against B, to recover back the money :—Held, that this action could not be sustained
    TP JL HIS was an action of assumpsit, in which, as the foun-elation of the promise, the following facts were stated : On 31st of March, 1798, Jacob Ogden assigned a promissory note, in his favour, against Tur ell Tufts, to the defendant, as collateral security for a debt due from Ogden to the defendant, by note. To enable the defendant to collect the note of Tufts, and apply the avails to his own use, Ogden indorsed Tufts’ note in blank. On the 14th of April, 1798, the defendant commenced a suit against Tufts, on his note, by foreign attachment, leaving copies with the plaintiffs ; and at the Hartford City Court, in June following, recovered judgment against Tufts, in Ogden’s name and favour ; on which execution issued, and a non est inventus was returned. On the 3d of October, 1798, a scire facias was sued out against the plaintiffs, returnable to the City Court; and in January, 1799, a judgment was rendered thereon, in favour of Ogden, against the plaintiffs. On the 16th of January, execution was taken out on that judgment; and on the same day, Ogden assigned to the defendant, the judgment and execution, in confirmation of the first mentioned assignment. The defendant immediately gave the execution to an officer for collection, informing him, that it was his (the defendant’s) property. Within the sixty days, the officer collected the money, and paid it over to the defendant : previous to which, the defendant gave notice to the plaintiffs, through their agents, that the execution was- his. At the time the judgment was rendered against the plaintiffs, they gave notice to the defendant, that the claim, on which it was founded, was illegal and unjust. They appealed to the Superior Court, but the appeal was void, because the clerk did not certify, that the duty had been paid. On the 29th of July, 1801, they brought a writ of error on the judgment of the City Court on the seire facias ; and thereupon that judgment was reversed, and damages allowed, to the amount of the execution against them, and interest. On the 11th of September, 1801, they took out execution on the judgment of reversal ; and on the 2d of October following, gave the defendant notice of the premises, and required of him to refund the money, which they had paid, tendering to him, at the same time, their execution against Ogden, and a power of attorney to collect the same. But the defendant refused to refund. During the ■whole time, from the 15th of May, 1798, until the commencement of this action, Ogden had been a bankrupt. The declaration concluded in the common form of assumfuit.
    
    
      There was then a special plea, stating Ogden’s indebtedness to the defendant, and the assignment of Tufts’ note as collateral security, substantially the same as alleged in the declaration. The plea then stated, that in the subsequent proceedings, the defendant acted as the attorney of Ogden, until the 29th of March, 1799, when Ogden, by his deed of assignment, made over his judgment and execution to the defendant covenanting that the defendant should receive the monies on said execution, without any other accounting, than by applying towards payment of Ogden’s note to the defendant, in such way, that if the defendant should receive, in satisfaction of said judgment and execution, the full sums of money contained in them, then the said note of said Ogden to the defendant should be void; by virtue of which assignment, the defendant, on the 13th of September, 1799, received the money on the execution against the plaintiffs, and applied the same in discharge of Ogden’s debt. The plea also stated, that Ogden had petitioned for, and obtained, an act of insolvency, without giving notice to the defendant as a creditor ; that the plaintiffs had brought a petition for a new trial on the scire facias, in which they averred, that they had paid the money to Ogden ; and that, by the judgment of the Superior Court, on their writ of error, they were restored to all that they had suffered.
    To this plea there was a replication, which, after oyer of Ogden’s note to the defendant, averred, that it was still in the defendant’s hands, not cancelled, indorsed, released, or discharged.
    A demurrer and joinder closed the pleadings.
    
      Daggett, and Perkins, (of Hartford,) for the plaintiffs.
    This is an action of indebitatus assumpsit. It is admitted, on the record, that the defendant received the money in question, by force of a judgment and execution against the plaintiffs, in favour of Jacob Ogden ; which judgment and execution were the property of the defandant by an assignment of the note, which was the foundation of them, and also of the aforesaid judgment and execution.—It also appears, that this judgment has been reversed by a regular process of law, and is thereby rendered null and void ; and that Ogden has, from the time of the assignment of the note, to this time, been a bankrupt. The question then is, can the defendant hold this money against the plaintiffs ?
    That the consideration, on which the plaintiffs paid the money, has totally failed, is not disputed. Why, then, shall they not recover it back ? The only answer deserving of notice is, that his equity is superior to that of the plaintiffs. A slight examination of this position, will be sufficient to shew that it is not true. The note in question -was not a negotiable note ;—the right of the defendant to it was merely equitable ; so much money as Ogden ought in justice to receive and retain of the plaintiffs, the defendant might receive and retain. Upon the facts conceded, Ogden ought not to retain a cent; because the judgment, on which it was paid, is reversed. What equity, then, has the defendant? TIis title to the money was no greater than Ogden’s, for Ogden coukl give no higher right than he had but Ogden’s title is gone ; of course, the defendant’s is gone. If indeed, the defendant can bring himself within the rules laid down respecting the pay ment of money over by an agent, it may be inequitable for the plaintiffs to make him repay it. Thus in Sadler v. Pvans, 
      Allen v. Dundas,  and Pond v, Underwood,  the principle is recognized, that a person who pays money over to one having authority to receive it, shall protect himself against a second payment.—That an agent, also, who pays money to his principal, shall not be compelled to refund, though the consideration, on which he received it, has failed, appears from the above, and other cases. But how can the defendant avail himself of these principles ? Has he paid the money to Ogden ? Is his situation with Og-, 
      
      den varied, in the least, since the receipt of the money by him. Is there any equitable circumstance now existing, which did not exist, when the plaintiffs paid the money The record furnishes an answer in the negative to all these questions. Where, then, is the (defendantV«//¡m'or equity? '
    A. drops a hundred dollars from his pocket; B. finds it; B. to an action brought by A. to recover it, defends himself on the ground of an antecedent indebtedness against A. to that amount.—B. recovers judgment against A. for 100 dollars, and with an execution collects the money_That judgment is reversed at the suit of A. Can B. defend himself against an action of indebitatus assumfisit, on the ground of a previous debt against A. of the same amount ? In these cases, and many others like them, there is a species of equity in the defendant; but can it be regarded in a court of law ?
    In Buller v. Harrison 
       the defendant had a much stronger equity than in the case now before the Court, or in any of the cases supposed. In that case, Buller, the plaintiff had paid 2,100/. as a loss on a policy of insurance, to Harrison, the defendant, as the agent of Ludlow & i/iaw, of New York. This money was paid on the 20th of April, and 6th of May ; and on the latter day, the whole amount was passed by the defendant to the credit of Ludlow & Shaw, in his account against them, against a debt which they owed him of 3000/. On the 17th of the same May, the plaintiff gave notice to the defendant that the loss on which the money was paid was foul, and then brought his action to recover it back. Lord Mansfield, and the judges who sat with him, deckled, that the plaintiff might well recover ;—at the same time, they admitted the principles to be as laid down in the cases above cited.—They took a distinction, which is clearly warranted by law, and by the principles of natural equity, viz. that where the defendant has received money as agent, and paid it over, he shall be protected ; but where in such case, he has not paid it over, or given any such credit, and there is no variation in his situation, he shall not retain it. The equity, then, spoken of, in this case, is ideal, unknown to our law books, and not founded on any principles.
    2. It appears by this record, that the defendant has expressly promised to repay this money ; and if so, surely there is consideration sufficient to support the promise.— But the defendant denies this position, and says that the promise alleged in the declaration is an implied one.
    Upon demurrer, and after verdict, every assumpsit laid in the declaration may be taken to be express ; and in writing too, if necessary to maintain the action. To say the contrary is to say that a promise in writing, or ah express promise, cannot be made in a particular form of words, which is certainly saying a great deal.
    , As this point is quite unexpectedly doubted, it may suffice to cite the cases of Atkins v. Hill, 
      
       anti Hawkes v. Saunders, 
       and the opinion of Chief Justice Marshall, 
       all directly in point, and all treating it as a question of neither doubt, nor difficulty. On the opinions of Lord Mansfield, Ashurst, Willes and Bxjller, with that of the Chief Justice of the United States, we may safely leave this question, though these opinions can be supported by a host of concurring authorities.
    
      Dana, and Dwight, for the defendant.
    1. Is the plea a good answer to the declaration l
    
    They charge the defendant with having received Ogden’s money from the Lymans, as Ogden’s agent; and therefore, as it is unconscientious in Ogden to keep it, the defendant, in whose hands it is, ought to refund it. We reply, that Og
      
      den owed the defendant, and gave him Tufts’note to collect, in order to pay himself; that the defendant acted as counsel, until he gained the execution from the City Court, and then took an assignment of it, in payment of his debt; that, by this assignment, he received the money, and thus had his debt paid. The indorsement of the note, they say, was the assignment; and the transfer of the execution in confirmation.
    
    By their own shewing, the indorsement was a mere power of attorney to collect, and apply money. But if it was intended as an assignment, it cannot be of any avail to the plaintiffs, as the contract was then in parol, but after-wards was reduced to writing in the transfer of the execution. On the written assignment, then, the question arises,—In what capacity did Edwards act, in collecting the money ? Ogden authorized Edwards to receive the avails of this execution ; he covenanted with Edwards, that he might apply them in payment of his debt ; and that Edwards should be liable to render no other account. He also inserted the clause, which Edwards agreed to, that “if “ Edwards should receive the. full sum of the execution, “ then Ogden's note to Edwards should be void.” Edwards, in virtue of the written assignment, received the money, and applied it in payment of the note. The character of Edwards, then, was that of assignee of the execution against the Lymans, the avails of which, if received, were to pay and discharge Ogden’s note to Edwards. There was but one condition, viz. If Edwards received the avails of the execution, without let, or hindrance from Ogden. Ogden did not hinder ;—Edwards did receive and apply the money ; and the note was discharged.
    One part of this contract of assignment was, that Edwards, if he received the money, and applied it in payment of the note, should not be otherwise accountable. Edwards’ accountability was to Ogden alone ;—Ogden alone could stipulate about it ;—he did stipulate ;—Edwards complied ;•— of course, he is within the terms-of the covenant. Ogden has assented to it. When he petitioned the assembly, he omitted this debt to Edwards, and Edwards had no notice. This was as plain an assent, as if Ogden had taken up his note ; and the note was, ifiso facto, discharged.
    Further, the assignment was to be a payment, provided Ogden did not interfere. This is apparant from the whole transaction ;—from the situation of the parties ;—and from the nature of the thing assigned.—It was a City Court execution, which would force the money from the Lymans, whatever became of the final judgment. There was no condition attached to the assignment, relating to the final judgment in the Superior Court. The terms of the assignment were—if he should receive the full sums of money contained ¿« the judgment and execution, then Ogden’s note should be void: they were not,—if the judgment in the Supeiior Court should go the same way, he should hold the money, otherwise he should refund it. On the contrary, he ivas never to account for it, otherwise than by applying it to the payment of his debt.
    2. Is the replication an answer to our plea ?
    In the plea, we have alleged, that by reason of the application of the money received on the execution in payment of the note, that note became, and is void. The replication is, that the note is still in our hands,—not can-celled,—nor indorsed,—nor by any instrument in writing, released, or discharged,—This is not an answer to our plea. We have alleged certain facts which took place, by the operation of which, the note is discharged. They reply nothing to tills, except that they say, certain other things have not taken place. Instead of this, they ought to have demurred ; because, if the facts alleged by us, do not amount to a legal discharge, the note is not discharged. Cannot a note be discharged in any mode, but by being can-celled, indorsed, or released in writing? Full Payment is ebnstantly pleaded in bar of suits on promissory notes* and the fact given in evidence* by parol. So also as to accord and satisfaction. There is no doubt that a. parol discharge would be available in our courts. Besides, Edwards can be compelled to deliver up the note, whenever Ogden shall call upen him. At least, an injunction will be granted against his making any use of it,
    3. The declaration is insufficient:
    The ground of this action is, that the defendant holds money in his hands, which ex equo et bono, he ought to pay to the plaintiffs. From whence arises this equity ? Because, say the plaintiffs, the judgment on which it was forced from us, is reversed, But the inference is not fair. The reversal of the judgment proves nothing, only that there was informality in the process. On the contrary, the judgment having been rendered after a trial on the merits, the presumption is the other way.
    Again, the judgment was not irt favour of the defendant, nor the reversal against him. The defendant did not, in legal contemplation, receive the money of the Lymans ; he received it of Ogden. Ogden was justly indebted to him ; Ogden had a legal right to collect the money of the Lymam. It was just in Ogden to pay to Edwards ;—it was just in Edwards to receive it.—Nothing, which has since occurred, between the Lymans and Ogderij can affect the affairs of Ogden and Edwards, It is, therefore, conscientious for Edwards to retain the money.
    The case of Buller v. Harrison, if attentively considered, will not help the plaintiffs. The Court, in that case, established the main point in favour of Buller—viz. That the money in Harrison’s hands had not been paid over to. the principals —^Ludlow ü* Co. Lord Mansfield says—*4 there was no 44 alteration in the situation which the defendant and his 44 principals stood in tov/ards each other-there was na 
      11 new credit, no acceptance of new bills, no fresh goeds “ bought, or money advanced,” But here the money was paid over, the moment Edwards received it ; because, on the receipt, Ogden’s note was discharged. Besides, it is obvious, that Lord Mansfifld' laid great stress upon the fact, of the principals’ being out of the country, and being strangers to the plaintiff.
    4. The Lymans have recovered judgment againstOgden for their whole debt. If there ever has existed any claim against Edwards, they have waived it. No man is at liberty to claim money first of a principal, and failing there, then of the agent. The ground of complaint in a writ of error is, that the plaintiff has been damnified by the erroneous judgment. The judgment oft a reversal is—that the plaintiff be restored to all that he had been damnified. The Lymans had been damnified to the amount of the sum paid, and interest. They recovered that sum. In the petition for a new trial, they considered it in the light of a payment to Ogden.
    
    
      5. The state of the pleadings will shew, that the cases of Elkins y. Hill, (Ac. do not apply. We have not demurred to their declaration, and by that demurrer admitted the promise ;—but the plaintiff has demurred to our rejoinder, which certainly cannot extort from the defendant an admission of the promise laid in the plaintiff’s declaration.
    
      
       4 Burr. 1985.
    
    
      
       3 Term Rep. 125.
    
    
      
       2 Ld. liaym. 12IQ.
    
    
      
      
        Cowfi. $65.
      
    
    
      
      
        Cowp. 284,
    
    
      
       Ibid. 289,
    
    
      
      
         1 Crunch 340,1.
    
   By the Court,

Hosmer, Asst, dissenting.

The judgment was affirmed.  