Page:Harvard Law Review Volume 5.djvu/234

2l8 HARVARD LAW REVIEW. equity for him to retain the money so obtained; and that they can maintain an action at law against the defendant for money had and received to their use, because the money ex cequo et bono belongs to them. This argument rests on the assumption that courts of law will afford a remedy in damages for all wrongs done, which courts of equity, if seasonably applied to, will prevent ; but this is not true. Courts of equity recognize and enforce rights which courts of law do not recognize at all ; and it is often on this ground that defendants in equity are enjoined from prosecuting actions at law." The grounds of distinction thus suggested it is believed are untenable. If it was so inequitable for the defendant to proceed with his suits to judgment that a court of equity would enjoin him from so doing, his obtaining judgments and satisfying them would not better his position. He would hold the amount so collected as a constructive trustee. If it was inequitable to acquire the money it was inequitable to hold the money. Where parties have equal equities or are in pari delicto, the acquisition of the legal title de- termines their respective rights, but only in those cases. And as to the remedy being at law, where a plaintiff seeks to recover a liquidated amount from a constructive trustee, the count of money had and received is a proper remedy, 1 and the action of contract under the Massachusetts Practice Act includes this. There is, however, another ground suggested for the decision : " It is, to say the least, doubtful if the regularity of the proceedings in those actions in reference to the attachments and the conclu- siveness of the judgments charging the garnishees therein can be called in question in this suit. Green v. Van Buskirk, 5 Wall. 307, and 7 Wall. 139." In Green v. Van Buskirk, one Bates, who lived in New York, executed and delivered to Van Buskirk, who lived in the same State, a chattel mortgage of safes situated in Chicago. Later, Green, also a citizen of New York, in ignorance of the mortgage, attached the safes in Illinois as the property of Bates, and having obtained judgment, satisfied it from the proceeds of the safes. 1 Buttrick v. King, 7 Met. 20; Sewell v. Patch, 132 Mass. 326. In the former case, Shaw, C. J., thus expresses this principle : " But when it (the property sought to be recovered) remains wholly in money in the hands of the defend- ant ... an action for money had and received — which is in the nature of a bill in equity — when nothing remains to be done, but the payment of money, may be maintained.