sale, paid over the *balance, amounting to 37. 14s., by his check to Stevens, which check Stevens immediately paid to the defendant on account of his costs, and the lien which he claimed on the deeds.

[*345

By indenture bearing date the 8th of June, 1830, made between Stevens as assignee of the first part, the bankrupt of the second part, and the said G. Pound of the third part, reciting (inter alia) the mortgage to Abraham Scrivener, and also that, in consideration thereof, it had been agreed between Stevens and Pound, that Pound should take the premises subject thereto, and should pay Stevens 350%. and no more, Stevens and the bankrupt assigned the lease before mentioned and the premises thereby demised, to Pound for that sum, subject to the before mentioned mortgage, and also subject to certain under leases which had been granted. The deed of assignment to Pound was prepared by his attorney, and was approved of on Stevens's behalf by the defendant, and executed in his office.

At the time of the execution of the said indenture of assignment, viz. June, 1830, the residue of the consideration money, after allowing the 507. paid by way of deposit to the auctioneer, being 3007., was paid by the attorney of Pound to Stevens the assignee, and by him to the defendant, by whom it was received generally, the defendant having a claim for such lien as aforesaid, and Stevens being indebted to him for costs.

In the course of the year 1830 the defendant, by Stevens's authority as assignee, received three further sums of money, viz. 10., a debt due to the bankrupt from the owner of a house adjoining the said premises of the bankrupt in Ratcliffe Highway, for contribution towards the expense of erecting a party-wall between the house of such owner and the said premises of the bankrupt, such sum of 10% being the share of the expense of erecting such party-wall to be borne by the *said owner according to an agreement to that effect made between such owner and the bankrupt before his bankruptcy; and 67. 10s. and 117. 18s. for rent in respect of the demised premises.

[*346

At the time of the receipt by the defendant of the said sums of 37. 14s., 300%, 107., 67. 10s., and 117. 18s., he had also a claim against Stevens for his profes sional bill for business, in suing out and prosecuting the said commission of bankrupt, which claim, together with the said sum due from Scrivener at the time of his bankruptcy, considerably exceeded the amount of the sums so received.

The said lease remained in the possession of the defendant after the execution of the mortgage, and from thence until after receipt by the defendant of the said sums of 37. 14s., 3007., 107., 67. 10s., and 117. 18s.

By indenture bearing date the 5th of August, 1831, between Abraham Serivener, the bankrupt's father and mortgagee, of the one part, and Pound of the other part; the draft of which indenture was settled and approved of by the defendant on behalf of Pound,-[reciting the said lease, mortgage, and assign ment; and also reciting that the bankrupt had built upon the said piece or parcel of land several messuages or tenements, and dwelling houses and carcasses, and other erections; that the said A. Scrivener had, in the month of April, 1830, undertaken on account of the bankrupt, to pay out of his said mortgage money unto the defendant, several sums of money amounting to 2347.; that the said A. Scrivener had, on the 8th of June, 1830, become liable to pay out of his said mortgage money unto the defendant, on account of the bankrupt, the further sum of 507.; that for the purpose of paying unto the said A. Scrivener his said mortgage money or sum of 6007., G. Pound had then lately offered for sale by public auction the said leasehold premises in diver's lots, *but that the [*347 greater part thereof had been bought in for want of adequate prices for the same; that A. Scrivener being then far advanced in life, and much debili tated in his constitution, and very desirous of having his mortgage money paid, and of adjusting his several liabilities on account of the bankrupt, and of satis fying a further debt due from the bankrupt to the defendant, had applied to G. Pound to pay to him his mortgage money or sum of 6007.; but that G. Pound

not being provided with money to pay the same, had prevailed upon the defendant to release the said A. Scrivener and the bankrupt from all claims and demands whatsoever, and to take his security for the due performance of all such liabilities and payments as aforesaid; that such arrangement had been approved of by the said A. Scrivener; that, as some loss might be sustained by G. Pound on account of the reduced value of the leasehold premises, the said A. Scrivener had consented to receive the further sum of 2407. in full and complete satisfaction of his said mortgage debt or sum of 6007.; that G. Pound had secured, to the satisfaction of the defendant, the money so due and owing to him from A. Scrivener and the bankrupt; that in consequence thereof the defendant had, by deed poll under his hand and seal, bearing even date with the indenture now in recital, released A. Scrivener from all liabilities in respect of the bankrupt, and from all other claims and demands whatsoever; and that the defendant had, in like manner, released the bankrupt from the said debt.]-It was witnessed, that in pursuance of the said agreement, and for the considerations therein mentioned, and in consideration of the sum of 2407. in hand paid by Pound to A. Scrivener (and which A. Scrivener did thereby admit and acknowledge to be in full payment and satisfaction of his said mortgage debt or *sum of 6007., *348] and thereof, and from the same, did, by the said indenture, for ever acquit, release, and discharge Pound, his executors, administrators, and assigns, and every of them), the said A. Scrivener did thereby grant, bargain, sell, assign, surrender and yield up unto Pound the premises comprised in the indenture of mortgage, and also the indenture of lease and mortgage, and all other deeds or documents whatsoever of or relating to the mortgaged premises; to have and to hold the same unto Pound for all the remainder of the said mortgage term, so as that the said term might merge and fall into the reversionary and other estates and term of Pound in the said premises, and form part thereof.

That deed of 5th August, 1811, was approved of by the defendant on behalf of Pound, and was executed in the defendant's office, and in his presence. On the 16th of January, 1832, the commission of bankrupt was superseded, in pursuance of an order made by the Vice Chancellor upon the petition of the said Augustus White.

On the 14th of March, 1832, a fiat in bankruptcy was awarded against Scrivener, upon the petition of T. F. Sibley, under which he was duly declared a bankrupt, upon an act of bankruptcy committed on the 21st of December,

1829.

The plaintiffs were afterwards duly appointed assignees under such fiat, and the estate and effects of the bankrupt became and were thereby vested in the plaintiffs pursuant to the statutes of bankruptcy.

At the trial, the plaintiffs put in evidence the following documents, viz., the first commission bearing date the 30th December, 1829; the petition to supersede the same dated 26th March, 1830; the supersedeas, dated 16th January, 1832; the fiat, dated 14th March, 1832, and enrolled 6th March, 1833; the appointment of the plaintiff, Clark, as official assignee, dated 24th March, 1832; *349] *and the appointment of the plaintiff White, as assignee, dated 10th April, 1832. Stevens was called, who stated (inter alia) that he was indebted to the defendant between 3007. and 4007. in respect of the first commission and subsequent proceedings; that the bankrupt, prior to his bankruptcy, told him that the lease and title deeds were deposited with the defendant, to whom he owed between 2007. and 3007.; that the defendant had a lien thereon, and that he, Stevens, had paid the 37. 14s. and 3007. to the defendant, and allowed him to receive the other sums. Stevens also identified an account which had been signed, sworn to, and exhibited by him as assignee, in November, 1830, before the commissioners under the first commission.

The defendant, after the plaintiffs' case was closed, put in that account, which, however, the plaintiff objected to, as not admissible in evidence against them,

but the learned judge received the account, subject to the question of admissi bility, which was reserved for the opinion of the Court.

The plaintiffs then put in and read copies of two examinations of the defend ant before the commissioners under the second fiat, dated respectively the 28th of April, and the 17th of May, 1832.

The questions for the opinion of the Court were, first, whether the above mentioned account was admissible in evidence on behalf of the defendant; and secondly, whether upon the state of facts, as they would stand after the decision of the first question, the plaintiffs were entitled to recover any, and if any, which of the said sums of 37. 14s., 3007., 107., 67. 10s., and 117. 88.

If the Court should be of opinion that the plaintiffs were entitled to recover, a verdict was to be entered for such amount as the court should direct. If the Court should be of a contrary opinion a nonsuit was to be entered.

*Manning, for the plaintiffs. The defendant, with knowledge of an act of bankruptcy committed by Scrivener, has received from Stevens the proceeds of Scrivener's estate; when, therefore, the commission under which Stevens was assignee is superseded, the defendant must refund the amount to the assignees under a valid commission. For although, as against the defendant's lien, the plaintiffs could not recover in trover the deeds deposited with the defendant, yet if he improperly disposes of the deeds, they may recover in an action for money had and received, money which has been traced as the proceeds of the conversion: Walker v. Laing, 7 Taunt. 568. As for the deed of August, 1831, it was a mere juggle between Stevens and the defendant to elude the effect of the receipt of the money, by making it appear that Pound was to be responsible for pay ment of the defendant's demand. It cannot alter the fact of the previous receipt by the defendant of 3037. 14s. out of the bankrupt's estate. And the defend ant's lien on Scrivener's lease could not authorise him to retain the 101. received for the party-wall, or the 117. 18s. for rent. Under an equitable mortgage he might have been entitled to receive those sums; but a mere lien; whether gene ral or particular, gives him no such power.

It will be contended for the defendant, that there is no privity between him and the plaintiffs; that he received the money in question as agent of Stevens, and that the plaintiffs ought to have sued Stevens. But the defendant received the money on his own account,-in discharge of his own claim, and not as agent of Stevens: he is therefore in the same position as any stranger who has received the bankrupt's money; and the principle of Stead v. Thornton, 3 B. & Adsl 357, applies. There, the defendant was sued by a second assignee for money *which he had received on account of the estate while a former assignee [351 was insane; and it was held that such receiver was liable at all events; for he could not be the agent of an insane person, and, therefore, held the property as a mere stranger.

Busby, for the defendant. As to the alleged juggle between Stevens and the defendant, the Court will not presume fraud; and there is no finding of fraud upon this case, as there was, in effect, in Clarke v. Shee, Cowp. 197. But the defendant having received this money as the lawful agent of Stevens, there is no privity between the plaintiffs and the defendant; and the action ought to have been brought against Stevens. Stead v. Thornton, therefore, is an authority in favour of the defendant; for in that case, the first assignee being insane, could not impart authority to an agent: but Parke, J., said," If the receipt of this money had taken place under such circumstances that the former assignee could havo been charged with it, as he might if he had received it by his agent, should have thought this action not maintainable. But here the receipt was that of the defendant alone, who stood in the situation of a mere stranger, and held the money subject to the claim of the assignees who might be afterwards ap pointed."

It cannot be questioned that Stevens might have been charged with the receips of this money. The defendant, therefore, must have received it from Stevens,

ither as his agent, or as a creditor. If he received it as agent, Stephens v. Badcock, 3 B. & Adol. 354, is an authority that the action does not lie. There, in attorney, who was accustomed to receive certain dues for the plaintiff, his client, went from home, leaving his clerk at the office. The clerk, in the absence *352] of his master, received money on account of the above dues for the client (which he was authorised to do), and gave a receipt, signed by the clerk for his master. The master was in bad circumstances when he left home, and he never returned; but it did not appear that his intention so to act was known at the time of the payment to the clerk. The clerk, afterwards refused to pay the money over to the client; and on assumpsit brought against him for money had and received, it was held, that the action did not lie; for that the defendant received the money as the agent of his master, and was accountable to him for it, the master, on the other hand, being answerable to the client for the sum received by his clerk; and there was no privity of contract between the plaintiff and defendant. So in Baron v. Husband, 4 B. & Adol. 611, the solicitor to the assignees of a bankrupt received from them a sum of money, to be applied in payment of the costs of the petitioning creditor up to the time of the choice of assignees. The solicitor offered to pay the money on condition that the bill shonld undergo a subsequent taxation; but to that the petitioning creditor would not assent. It was held, that, for want of privity, the latter could not maintain money had and received thereupon against the solicitor.

If the defendant received the money as a creditor, he cannot be called on to refund, having received it from one who at the time was legally assignee. [TINDAL, C. J. He was assignee de facto; not legally, for there was no petitioning creditor's debt.] That circumstance, perhaps, would enable the second assignee to sue in trover for any property of the bankrupt that could be traced by earmark, Gould v. Shoyer, 6 Bing. 738, but money which cannot be followed by ear-mark may be retained by one who has received it bonâ fide from an owner de facto. Miller v. Race, 1 Burr. 452. In Rogers v. Kelly, 2 Campb. 123, *353] the plaintiff having *indorsed a bill drawn by one L. S. for 1307., payable at Messrs. Austin's and Co., and finding that it would not be honoured by the acceptor, paid in that sum of money to the bankers for the purpose of retiring the bill. The defendant held another bill of exchange for the same sum, accepted by the same person, due the same day, and payable at the same place. The latter bill being presented for payment first, and no funds being provided to pay it, the banker's clerk, by mistake, gave the defendant the 1301. paid in by the plaintiff to satisfy the bill to which he had put his name. Garrow for the plaintiff, contended, that as the money had been paid in for a specific purpose, and as the very money paid in had been given by mistake to the defendant, it was to be considered as ear-marked, and might be followed by person to whom it really belonged. But Lord Ellenborough said, "There is no privity between the parties to this suit. The plaintiff's claim is on the bankers, and they must seek their remedy against the defendant the best way they can. The plaintiff's money must still be considered as in the hands of the bankers. His account with them is the same as if this mistake had not been committed."

the

Great inconvenience would ensue, if under circumstances like the present a creditor could be called upon to refund; if the defendant is liable, all who receive portions of the money from him and pay it over may be called on successively in an endless series.

At all events, the defendant may rely on his lien; it is clear he had one; Stevenson v. Blakelock, 1 M. & S. 535; and the action for money had and received, which is an equitable action, does not lie where a party can hold the money consistently with good conscience. The defendant had no means of knowing that the notice as *to the supersedeas would ever be acted on; and in his capacity of equitable mortgagee of the leasehold, he was enVOL. XXIX.-37

*354]

titled to receive the rent and payment for the party-wall: Sumpter v. Cooper, 2 B. & Adol. 223.

Manning, in reply. The defendant, by concurring in Stevens's conveyance of August, 1831, lost his lien and his claim as equitable mortagee, if he ever stood in that position. When the lien was gone, the plaintiffs might have sued in trover for the lease; and where assignees are in a position to sue in trover, they may waive the tort, and recover in an action for money had and received, the proceeds of the property converted: Marsh v. Keating, 1 New Cases, 198. That case also furnishes an answer to the argument that there was no privity between the plaintiffs and the defendant, and that they should have proceeded against Stevens; for it was held that a stockholder, whose stock had been sold without his knowledge, under a forged power of attorney, might sustain an action for money had and received against any party who held the proceeds of the sale.

In Baron v. Husband, and Stephens v. Badcock, the receipt given by the defendant was in effect the receipt of a servant given for his master.

Cur, adv. vult. TINDAL, C. J. In this case the plaintiffs who are assignees of the bankrupt Scrivener, sue for money had and received by the defendant since the bank ruptcy, to their use as assignees. All the money which has come to the hands of the defendant, consisted of payments made to him in the course of the year 1830, and consequently, subsequent to the act of bankruptcy, which took place on the 21st of December, 1829; such payments, *however, were made to the defendant under circumstances which will fall under two distinct heads of consideration.

[*355

No question can arise in this case, on the ground that the fiat of bankruptcy under which the present plaintiffs are assignees, was not awarded until the 14th of March, 1832: because the former commission which was superseded, was in force before and at the time when the several payments in question were made ; and such payments must consequently be taken to have been made after notice of an act of bankruptcy, according to the provision of the eighty-third section of the last bankrupt act, and to be protected by the provisions of that

statute.

The facts indeed of the present case can leave no doubt that there was not only constructive, but actual notice of the act of bankruptcy, on which the present fiat was awarded; the former commission having been taken out by the defendant himself, as solicitor to Stevens, the petitioning creditor, and the de fendant having been afterwards appointed, and having acted as solicitor to the first commission, when Stevens had been chosen assignee.

Now the ground upon which the defendant disputes the plaintiff's right to recover in the present action, is shortly this; that all the payments were made to the defendant by Stevens, the assignee under the first commission, or with his concurrence, whilst such first commission was in full force; and that they were made by him in satisfaction of a debt due from the bankrupt to the defendant, for which the defendant held a lease and title deeds of the bankrupt, as a pledge, or security. And it is argued, that there can be no privity of con tract between the present plaintiffs, the assignees under the second fiat, and the defendant, a creditor under the first commission, but that the only action *maintainable by the present assignees for the recovery of money of the bankrupt which came to Stevens's hands, must be an action against Ste[*356 vens himself, not against the separate creditors amongst whom he divided it. And the case of Stead v. Thornton, 3 B. & Adol. 357, note, is relied upon, as affording an inference, that such was the opinion of the Court of King's Bench. It was also further objected, that as the money was first received by Stevens, and then handed over by him to the defendant, this money cannot be followed into the hands of the defendant by any mark or trace, but must be con