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Page:United States Reports, Volume 2.djvu/60

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gg ` Cast! ruled and adjudged in the ugygo. him with the money received, as well from fone other perbns, vw`; asfrotntlxofewhogavetlrenotes, and_/inalIy_#riLe:¤b•lan¢ein fwmro Fairchild. If all thefe matters appeared to the court . at St. Quia, asprobably they did, it is notmuch robe won-- dered at, that they ihould determine that Smkb, as gamiiree in the attachment, had e§`e£ts of Fuirebildin his hands. In point of law the court entertained a confiderable doubt, 4 whether under the circurnliances of the cafe, an aétion for money had and received was at all fupportabie againft the defendant. Aa the counfel for the plaintillis appeared fanguine in the caufe, ` wedireébeda new argument upon this point, and it has accordingly been argued ably and ingenioutly ; but, on full conlideration, we mult retain ourformerfentiments,,tl¤atit cannot be fupported. If tht had been the cafe of a fpecilie article,the propert in which had bcenthe fubjeftof difpute betweendmuy andFair¢·lild,any deciii- — on with regardlotnat property, would certainly not have prevent- ed the plaintiffs, being third perfons, not parties to the fuit, from fupportin an aélion of trouer, if they could have {hewn better right. Ifut the contell in Sr. Erylatiur did not regard any {pe- ciiic proplclyity ; but was an attachment againll: the general edeétt of Fair: ` , and the aftion brought here is not an a&ion of rrowr, ddirure, or repleuiu, for any fpeciiic property, but an aftiori for money had and received to the ufe of the plaintiffs. The di{iin&ion between fpeciiic property and money is well diab- lilhed; in the one cafe the true owner will hou: a right to recover it from any perfon who is found in poifellion of it ;_ but in the cafe of money (the medium of commerce)to enable the party to recover, there muit be either fume privity between the owner and receiver, or there mult be a mln fder, an unjuft receipt of the money, orat leali a receipt of it without a valuable · conlideration. In thofe cafes, but in no other, the true owner ` by identifying the money, and tracing it into the hands of the- reeeiver, may fupport an aétion for money had and received, againit an utter ittanger ; and under fuch circumilances, money is conlidered in the nature of fpecilic property. This diliin&ion _ is fully explained by Lord Jl{an._¢`¢·Id in Camper': Reportr, p. 200.. In this cafe there was no privity between the plaintiE`s and the defendant ; there was no contraéi, either exprefs or implied, be- tween them; the money was not rec..rved as the money of the plaintiffs; the defendant wss a trcditor of I·Hr¢·bil¢l, who recovered and received his debt in a due ceurfe of law, by the judgment of a court having jurifdiélion of the caufe ;_ there was no raud or collulion, no malujidu, no want of coniideration ; an honeilc debt was due; and though a diliinéiion has been made between a pall confideration, as a rivet, and a prefent conlideration iven, no fuch difiinétion can hold in a cali: of this fort 5 as Sie main fda, which could alone make the de- ‘ fendant