1851. CHEESMAN V. EXALL. sion of it, merely for the purpose of avoiding an execution. The defendant, therefore, held it without any title; and the real owners, May and Biggenden, had a right to demand it from him, in the same way as they might have demanded it from the plaintiff; and it would have been a good answer to an action by the plaintiff against the defendant, that the latter had delivered it up to the true owners. With respect to the contract of pledge, I do not concur in thinking that there is no case except that of land in which the jus tertii may not arise. There are numerous cases in connection with wharfs and docks, in which, if the party intrusted with the possession of property were not estopped from denying the title of the person from whom he received it, it would be difficult to transact commercial business. Rule refused. April 24. The plaintiff's wife was de visee of certain freehold property. The testatrix had delivered the title-deeds of this property to H., and had expressed an in tention to make a will in H.'s favour, and H. had, in conse quence, paid for medical attend ance upon, and the funeral expenses of, the OATES v. HUDSON. ASSUMPSIT for money had and received.—Plea, non assumpsit. At the trial, before Cresswell, J., at the last York Spring Assizes, it appeared, that a Mrs. Dungworth, being possessed of certain freehold property, devised the same to the plaintiff's wife, then a minor. Mrs. Dungworth resided with a Mrs. Hudson, the aunt of the defendant; and after she had made the will in favour of the plaintiff's wife, she delivered to Mrs. Hudson the title deeds of her property, telling her to keep them, as she should destroy her will, and leave all her property to her. In consequence of this testatrix. It was eventually found that the only will in existence was that by which the property was devised to the plaintiff's wife; and on the plaintiff applying to H. for the title deeds, she at first refused to give any information, unless paid the above expenses, and ultimately referred the plaintiff to the defendant, her solicitor. The defendant also refused to give up the deeds unless the expenses were paid; and the plaintiff, in order to obtain the deeds, paid the amount claimed:-Held, that this was not a voluntary payment to the defendant in his character of agent, and therefore he was liable in an action for money had and received, notwithstanding he had paid over the amount to H. assurance, Mrs. Hudson had allowed Mrs. Dungworth to reside with her until her death in 1835, and had paid the expenses of medical attendance and of the funeral. It was then discovered, that the will in favour of the plaintiff's wife was the only one in existence. The executors of Mrs. Dungworth received the rents of the land during the minority of the devisee, but the deeds were retained by the defendant, to whom Mrs. Hudson had delivered them as her attorney, and the expenses of the funeral, &c., had not been repaid to her. The plaintiff, having married the devisee under Mrs. Duckworth's will, made inquiries of Mrs. Hudson respecting the deeds, when she said that she would give no information unless she was paid what she had expended; and she ultimately referred the plaintiff to the defendant as her legal adviser. The plaintiff afterwards called on the defendant, and asked him to give up the deeds, when he refused to do so, except upon payment of 631., the amount of the expenses incurred by Mrs. Hudson on account of Mrs. Dungworth. The plaintiff at first objected to pay this sum; but he subsequently paid it, and obtained the deeds, at the same time saying to the defendant, "You shall hear of this again." The defendant afterwards paid over the amount to Mrs. Hudson. It was objected on the part of the defendant, that the plaintiff was not entitled to recover, on the grounds, first, that the defendant acted merely as the attorney of Mrs. Hudson; secondly, that, the defendant having no right to retain the deeds, this was a voluntary payment by the plaintiff in his own wrong. The learned Judge overruled the objections, and a verdict was found for the plaintiff. - Watson now moved for a new trial, on the ground of misdirection. He argued, first, that the action was improperly brought against the defendant, who had merely acted as the attorney and agent of Mrs. Hudson; secondly, that the defendant having no right whatever to retain 1851. OATES v. HUDSON. 1851. OATES v. HUDSON. the deeds, the money was paid by the plaintiff voluntarily and in his own wrong. PARKE, B.-There ought to be no rule. If the money had been paid to Mrs. Hudson, or to the defendant for her, voluntarily, and in order to satisfy the funeral and other expenses, it could not have been recovered back; in fact, however, it was not so paid, but only for the purpose of getting possession of the deeds. In Atlee v. Backhouse (a), it is correctly laid down, that, in order to avoid a contract by reason of duress, it must be duress of a man's person, not of his goods; but that where a sum of money is paid simply to obtain possession of goods which are wrongfully detained, that may be recovered back, for it is not a voluntary payment. Pratt v. Vizard (b) is an authority to the same effect. Here the money was not paid to the defendant in his character of agent, so as to prevent the plaintiff from having a remedy against him. Snowden v. Davis (c) decided, that, in order to enable an agent to set up the defence that he has paid over the money, it is necessary that the money should have been paid to the agent expressly for the use of the person to whom he has so paid it over. There Mansfield, C. J., points out the distinction between such a case and where a person pays money under compulsion to redeem his goods, and not with intent that the money should be paid over to any one in particular. So that the present case does not fall within the rule as to payment to an agent, but it is a payment under a species of duress, and the person who received the money is bound to pay it back. POLLOCK, C. B., PLATT, B., and MARTIN, B., concurred. Rule refused. (a) 3 M. & W. 633. (b) 5 B. & Ad. 808. (c) 1 Taunt. 359. 1851. NEATE v. HARDING and BowNs. April 24. ASSUMPSIT SSUMPSIT for money had and received. Plea, non The plaintiff's assumpsit. At the trial, before Martin, B., at the Wiltshire Spring Assizes, the following facts appeared:-The plaintiff's mother had for some time received parochial relief, but there being strong ground for suspecting that her poverty was feigned, and that she was in reality possessed of a considerable sum of money, the defendant Harding, who was assistant overseer of the Carne Union, and the defendant Bowns, one of the Wiltshire county constabulary, went together to her house for the purpose of searching for the money. Bowns remained outside, while Harding entered the house, and having found in a cupboard 1637, he took it away with him. The money was afterwards taken to a bank by both the defendants, and paid in to their joint account. It was proved that the money belonged to the plaintiff. On the part of the defendants, it was objected, that under these circumstances the action for money had and received would not lie; and also that there was no evidence of a joint taking by Bowns. The learned Judge overruled the objections, and directed a verdict for the plaintiff, reserving leave for the defendants to move to enter a nonsuit. mother had for some time re ceived parochial relief; but there being ground to suspect that constable, went to her house for the purpose of searching for overseer alone entered, and board a sum of money, away, and it found in a cup which he took was subsequent ly paid into a defendants to their joint ac bank by both count. The money was proved to belong to the Held, that the plaintiff:plaintiff might waive the tres pass, and recover the amount in an action against both defendants for money had his use. Kinglake, Serjt., now moved accordingly.-Where a tor- and received to tious act is attended with other circumstances, which raise an inference of a contract, the party injured may waive the tort, and sue in assumpsit; but that doctrine does not apply where the act complained of is solely a trespass. Thus, if a man takes goods to which he has no right, and sells them, the owner may waive the tort, and recover the price for which they were sold in an action for money had and VOL. VI. A A EXCH. 1851. NEATE v. HARDING. received: Lamine v. Dorrell (a). There, however, the transaction consisted not only of the wrongful taking, but also of the dealing with the proceeds of the sale. So where an apprentice was seduced from his master's service to work for another person, it was held that the master might waive the tort, and recover for his labour in an action of assumpsit: Lightly v. Clouston (b). The principle of that decision was, that the master might waive his right to damages for the tort, and sue as on a contract, since it was not competent for the wrongdoer to say that he obtained that labour by wrong and not under a contract. Hunter v. Prinsep (c) was decided on a similar principle, viz. that the owner might waive the tortious act by which goods were converted into money and sue for the proceeds. But where the transaction is simply an act of trespass, if the party injured waive the trespass, he waives his whole ground of complaint. In Turner v. Cameron's Coalbrook Steam Coal Company (d), this Court expressed a doubt, whether a person in possession of land, and wrongfully turned out by a trespasser, who occupies that land to his exclusion, can waive the trespass and sue for use and occupation. Besides, there was no evidence of a joint taking by both defendants. POLLOCK, C. B.,-We all agree that there ought to be no rule. The owner of property wrongfully taken has a right to follow it, and, subject to a change by sale in market overt, treat it as his own, and adopt any act done to it. That doctrine was carried to a great extent in Taylor v. Plumer (e), and is fully explained by Lord Ellenborough in delivering the judgment of the Court. In this case the money taken belonged to the plaintiff; and it did not cease to be his money because it was in the defendants' (a) 2 Ld. Raym. 1216. (b) 1 Taunt. 112. (c) 10 East, 378. (d) 5 Exch. 932. |