Edwards v Bates and Savery
| Jurisdiction | England & Wales |
| Judgment Date | 08 June 1844 |
| Date | 08 June 1844 |
| Court | Court of Common Pleas |
English Reports Citation: 135 E.R. 238
IN THE COURT OF COMMON PLEAS.
S. C. 8 Scott, N. R. 406; 2 D. & L. 299; 13 L. J. C. P. 156; 8 Jur. 539.
edwards v. bates and savery. June 8, 1844. [S. C. 8 Scott, N. K. 406; 2 D. & L. 299; 13 L. J. C. P. 156; 8 Jur. 539.] Where money has been received by A. upon trust to make payments of an unascertained amount, and to pay the surplus to B., B. cannot sue A. for money had and received, while the trusts remain open.-Semble (per Cresswell J.) that where there is a contract between two parties under seal, the one cannot sue the other, as upon a simple contract, in respect of the subject-matter of such specialty contract.-B. assigned a debt due to him, to A., in trust to pay, 1st, certain costs; 2dly, a debt due from B. to C.; and, 3dly, to pay over the surplus to B. The amount of the costs and of the debt due from B. to C. had not been ascertained. Held, that B. could not maintain an action against A. for money had and received.-Held, also, that it was not necessary for A. to plead the deed, but that the defence was open to him under never indebted. Debt, for money had and received, and upon an account stated. Plea, never indebted. At the trial, before Maule J. at the sittings for Middlesex, in last Easter term, it appeared that the action was brought to recover the sum of 5271. 19s. 6d., being the balance of 7351. 3s. 8d. received by the defendants to the use, as alleged, of the plaintiff, after deducting 2071. 4s. 2d. in respect of a debt due from him to the Bank of England and South Wales District Joint Stock Banking Company, of which the defendant Bates was the manager, and the defendant Savery the solicitor. The receipt of the money was not disputed by the defendants; but they put in a deed of assignment, bearing date the 23d of July 1841, made between the plaintiff of the first part, one William Baker (the plaintiff's late partner) of the second part, and the defendants of the third part, whereby, after reciting that a debt of [591] 20401. had been proved in Chancery, in a suit there depending, to be due to the plaintiff and Baker in equal moieties from the estate of Edward Allies deceased-that the partnership between the plaintiff and Baker had been dissolved-that the plaintiff had a banking account with the said banking company, and was indebted to them in a large sum of money, and that, at his request, they had agreed to continue to act as his bankers on the terms that his moiety in the debt should be assigned to the defendants ,as therein stated-it was witnessed, that for securing the payment of all money due, or to become due, from the plaintiff to the company, not exceeding, in the whole, on the balance of accounts, the principal sum of 5001., the plaintiff assigned to the defendants his moiety of the debts upon certain trusts; provided always, that the defendants, out of the moneys to be received by them, in the first place, should deduct all costs, &c.; and in the next place, should pay to the company, or to their assigns, all sums due from the plaintiff to the company, not exceeding 5001.; and in the last place, should pay to the plaintiff the surplus, if any. The money which the defendants received was received by them under the trusts of the deed; and it was objected, on their behalf, that they were not liable at law, as.the trusts were still subsisting; or that, even if an action would lie, the present action was misconceived in point of form, and that the plaintiff should have sued upon the covenant. The learned judge at first intimated an opinion, that these matters ought to have been pleaded; but, .upon the authority of Atty v. Parish (1 N. E. 104), EDWARDS V. BATES 239 he nonsuited the plaintiff, reserving leave to him to move to enter a verdict, the amount of which was to be settled, if necessary, by an arbitrator. [592] Sir T. Wilde Serjt. in the same term (April 30th) obtained a rule nisi accordingly : he referred to Burnett v. Lynch (5 B. & C. 589, 8 D. & E. 368) and Tilson v. The Warwick Gas Ught Company (4 B. & C. 962, 7 D. & E. 376), in which the authority of Atty v. Parish had been doubted. Talfourd Serjt. (with whom was Butt) now shewed cause. The nonsuit was right. In every case, with one exception (that of debt upon a demise), where the rights of parties are defined by deed, and an action is brought in respect of those rights, neither assumpsit nor debt on simple contract will lie, but the action must be upon the deed itself; Com. Dig. tit. Pleader (O. 3); 1 Wms. Saund. 276, n. (I). This principle is thoroughly recognized in .Atty v...
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