MANDE VILLE & AL. v. RIDDLE & AL. E. J. Lee. ift. The action of indebitatus affumpfit will not lay for the holder against a remote indorfer, because there is no privity of estate or privity of contract. It is an action at common law; and by the common law no action of indebitatus affumpfit for money had and received will lay except between privies. Kyd. 175. (113, 114) 2d. There being only one count in the declaration, and that being only for money had and received, the note ought not to have been given in evidence, because it muft have been a surprise to the defendants. In England it is ufual to give notice of the plaintiffs real ground of action either by a special count, or by a formal notice. The defendants could not come prepared to defend the action. The action for money had and received is said to be in the nature of a fuit in equity. But here the defendants were in a worse fituation, than if a bill in chancery had been filed against them; for in that case the bill must have stated the grounds of the claim and shown the equitable circumstances which entitled the plaintiffs to re cover. A remote indorfer is liable to the holder only upon the cuftom of merchants, and therefore there ought to have been a special count stating the custom. The English ftatute of Anne refpecting promiffory notes is not in force in Virginia; and the act of affembly which fupplies its place only allows an affignee to bring an action of debt in his own name against the maker of the note, but gives no remedy against the affignors. Hence it refults that the remedy of the affignee against the af fignors is either at common law or under the custom of merchants. By the common law the action of indebitatus affumpfit lies only between privies; and here is no privity. And if refort be had to the cuftom of merchants; that cuftom must be averred in the declaration. Simms, contra. Every indorfer is as the maker of a new note. 1 Strange, 479, Smallwood v. Vernon. Efp. N. p. 33. 2 Bur. 674, V. Heylin v. Adamfon. He undertakes to pay the fum menti MANDEoned in the note, if the original maker does not. As VILLE & AL foon as the original maker fails to comply with his engagement, that of the indorfer becomes abfolute. He then becomes the holder of fo much money as is expreffed in the note, to the use of his immediate indorfee, or of fuch perfon as he shall name. It is true the plaintiffs below have fought their remedy at common law; and by common law they are entitled to recover. Every man ought to be compelled to pay money which he has in his hands belonging to another, and which in equity and good confcience he has no right to retain. And the principle is now well established that at common law he may be compelled to pay it, by an action for money had and received. As to the evidence offered on this count, it was long doubted, before the ftatute of Anne, whether any other than an action of indebitatus affumpfit for money had and received, or for money lent, would lay upon a note. This was the ground of contention between lord Holt and the merchants of Lombard street; he ftrenuously contending that the action for money had and received, or for money lent, was the only proper remedy; and they endeavoring to bring into use the form of declaring upon a note as a fpecialty. Although a note may now, under the ftatute, be declared upon as a specialty, yet the ftatute has not taken away the common law remedy which exifted before. As to furprize, the objection made would go to almost every cafe where money had and received is the proper action, fuch as where the confideration happens to fail, or where money has been paid by mistake, &c. Indorsement is evidence that the indorfer has received money of the indorfee. And at and from the time of the indorsement, the indorfer is debtor to the indorfee, and the debt may be proved under a commiffion of bankruptcy against the indorfer before the note is payable. In this cafe however there could be no furprize, the defendants below had notice of the non-payment of the note and that they would be held liable; and it is imma RIDDLE & AL MANDE terial by what means notice is given. Doug. 138, LongILLE & AL. champ v. Kenny. له RIDDLE & AL. In the cafe of Grant v. Vaughan, 3. Bur. 1516, the cafes upon promiffory notes before the ftatute of Anne are taken up and confidered with great clearness and ability by the court. Every principle established in that cafe furnishes an argument for the original plaintiffs in this. The cafe there was, that Vaughan drew a check or order on his banker in these words (" pay ship Fortune or bearer £70.") and gave it to Bicknell, who loft it. It was found by fome perfon, and honeftly taken in payment for goods by the plaintiff, in his way of trade as a mercer. Payment of the check being stopped at the bankers, the plaintiff brought fuit against Vaughan the drawer, and declared upon an inland bill, and for money had and received to his ufe. It was held that these notes are, by law, negotiable and were Jo before the ftatute of Anne, and that the bearer of them might maintain an action as bearer, where he could entitle himself to them on a valuable confideration, and for this was cited Hinton's cafe, 2 Shower 235, in the reign of Charles 2d. Crawly v. Crowther, 2 Freeman 257, in the year 1702, before the ftatute of Anne. 1. Salk. 126 pl. 5. Anonymous, 10th Will. 3d. And Miller v. Race, 1. Bur. 452. 31 Geo. 2. That the only dispute before the statute of Anne was as to the mode of declaring: but that it never was difputed "that an action upon an indebitatus affumpfit generally for 66 money lent, might be brought upon a note payable to "one or order," and cites 2d lord Ray, 758, Clerke v. Martin. "That upon the fecond," lord Mansfield faid, "the "prefent cafe is quite clear, beyond all difpute. For un"doubtedly, an action for money had and received to the "plaintiff's use, may be brought by the bona fide bearer of "a note made payable to bearer. There is no case to the "contrary. It was certainly money received for the ufe "of the original advancer of it; and if so, it is for the use "of the perfon, who has the note as bearer.” And Wilmot, juftice, faid, that it was notorious, that fuch notes were in fact and practice negotiated. "Proba છું. RIDDLE & AL. ❝bly, the jury took upon themselves to confider, whether MANDE"fuch bills or notes as this is, were in their own nature VILLE & ALS "negotiable; but this is a point of law; and by law, they " are negotiable." And again he fays, " but this is a "negotiable note; and the action may be brought in the "name of the bearer. Bearer is defcriptio perfona; and "a perfon may take by that description, as well as by any "other. In the nature of the contract, there is no impro❝priety in his doing fo. It is a contract to pay the bearer, "or to the perfon to whom he fhall deliver it, (whether it be "a note or a bill of exchange ;) and it is repugnant to the "contract, that the drawer fhould object that the bearer "has no right to demand payment from him. The rea"fons given in the cafes that are oppofite to this are alto"gether unfatisfactory." Even before the ftatute of 3 and 4 Anne, lord chief justice Holt himself thought, that an "indebitatus affumpfit for money lent, or for money had and "received, might be maintained upon such a note." 66 bad And Yates, juftice, faid " Nothing can be more peculi"arly negotiable than a draught or bill payable to bearer; "which is, in its nature, payable from hand to hand, toties "quoties." It had been doubted, it is true, whether that "fpecies of action, where the plaintiff declares upon the "note itself as upon a specialty, was proper; but here is a "count upon a general indebitatus affumpfit, for money "and received to the plaintiff's ufe. The question, whether "he can maintain this action, depends upon its be"ing affignable, or not. The original advancer of the "money manifeftly appears to have had the money in the "hands of the drawer, and therefore he was certainly "entitled to bring this action. And if he transfers his "property to another person, that other perfon may also "maintain the like action. Whoever has money in the ❝hands of another may bring such an action against him. "This appears from the determination in the cafe of Ward "v. Evans, reported in 2 lord Ray, 930; where not a "fbilling of money had paffed between the plaintiff and defen"dant; and yet Holt and Powell both held that an inde "bitatus affumpfit for monies received to the plaintiff's <ufe, properly lay.” This cafe clearly fhews, that actions upon promiffory notes payable to bearer, or order, might have been main MANDE tained before the ftatute of Anne; and that fuch actions VILLE & AL. did not depend upon the privity of contract. There cer v. RIDDLE & AL. tainly is not more privity of contract between the drawer of a note, and the bearer, (especially after that note has been loft by the lawful owner, and comes to the hands of the plaintiff through the finder) than between the maker of a note payable to order, and the indorfee. It alfo fhows, that there are certain inftruments, which are negotiable in their own nature by force of the contract itself, independent of statute law; and that a promifee may as well be described by being the bearer of a certain paper, as by being named with his chriftian and furname. And if he may be defignated by the fact of being the bearer of a paper, there is no reason why he may not equally be defcribed by the fact of his being the nominee of a certain other perfon, and the holder of a certain note. There is no doubt that before the statute of Anne notes were paffed from one to another, and actions for money had and received were, on common law principles, maintained by the bearers and indorfees. The indorsement was confidered as conveying or affigning the money of the payee in the hands of the maker; and the original contract of the maker was, to hold the money to the use of the payee or of such person as he should appoint. Privity of contract is not the ground of the action for money had and received. And among the many cafes of that kind, there will be scarcely found one in which fuch a privity has exifted. If I lofe money, I may have this action against the finder. If A. delivers money to B. to be paid over to C. the latter may maintain this action against B. If a man, under pretence of authority from me, receive money due to me, I may recover it of him in this form of action. So if I pay money to another by mistake. So if a man obtains money from me by fraud and deceit. So if the confideration of a bargain fail. So if one pretending to a right to an office receive fees, the rightful officer may, by an action for money had and received, recover of him the amount of fees fo received. The indorfer is a new drawer as to all the fubfequent parties. He has received money from his indorfee which he engages to hold to his use, or to the use of fuch perfon as he shall appoint, in case the maker does not pay |