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Page:United States Reports, Volume 2.djvu/160

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I5.} Cases ruled and adjudged in the . 1792. But, after fuch proceedings, what reafonable ground can be t/vs! alledged, why Barr fhould recover the money in queflion from Craig, to whom Bank.: was juftly indebted ? It is faid, that the arrangement permitted Barr to take no more than {goo out of the depolir in Fsrde’r hands: But, furely, the a£t of Barr cannot prejudice the right of Craig ; and Craig, by virtue of the foreign attachment, was entitled to all the property belong- ing to Bank in Fardfr hands, beyond what was neccifary to fatisfy the judgment for which Forde was bound, and his own bona fd: c aim. Craig had a lien upon the whole money: It was, in effect, his own. Since, therefore, Barr took the whole amount out of Fard¢’.r hands by virtue of his judgment, and fo J difcharged Forde from his obligation as gamifhee in Craig? Fo- reign attachment, it is combnant with every principle of law and equity, that the,receipt of Barr {hould avail Craig, as a full difeharge from the prcfent demand. Either Barr received all the money for himfelf, or he did not: In the former cafe, r this aélsion cannot befuppotted; and in the latter he has with- _ drawn, under colour of his judgment, a portion of Ci-ag': ` funds, for which he muft be anfwerable, in an independent feit ; or the amount may be fet off againlt the prefent demand. I impute no fraud to the plaintiff; but his fecret agreement with Barber, however honeit, cannot aiieét the defendant. It ap- pears, indeed, that four creditors were ltriving, with lcgal vigi- lance, to obtain a legal advantage; and the only queftiou is, who has fuccceded ? In the opinion of the Court, the plain- tif mud, on this occ.:lion,be conlidcred as having received the ‘ whole debt that was due to him from Bank: ; and the original conlideration of the debt, on account of which the order was

given, is cxtinguifhed in the judgment.

Bnanroan, jig/i.··r; If the plctintilf recovers, I think it mull; be upon the count for money had and received: And it ap- pears to mc, that the plaintiff had a good caufe of aéiion at the commencement of the fuir. He received this money under an engagement to apply it to the payment of the debt due to Barr. Hewas merely :1 trnltec ; and while the debt was unfatislied, the intereft continued. But, I conceive, that as foon as Barr’r deniand is extinguilhed the trnll ceafes : And in fuch cafe Barr, in his own name and for his own ufc, has no longer a demand on this money. This is an equitable a€l:ion_; the defendant un- ‘dtt the general iiiixe may go into all the equity ofthe cafe ; and unlefs it appears, that he cannot in confcience and equity retain the money, unlefs, ex rguaet bans, hc is°bound to refund it ; _ the verdict mul? he for him. Comitlcring that Bank.: is infolvent, and thuthe is intlcbrt-d to Craig, I cannot [ity that it would be .;n¢;onl`tionabie co retain this money after Burr': debt is fads- et . 4 . Now,