Moses v Macferlan

JurisdictionEngland & Wales
Judgment Date19 May 1760
Date19 May 1760
CourtCourt of the King's Bench

English Reports Citation: 97 E.R. 676

IN THE COURT OF KING'S BENCH

Moses
and
Macferlan

S. C. Buller, 129, 131. 1 Black. 219, cited post, 1354.

Referred to, Phillips v. London School Board [1898], 2 Q. B. 453. Discussed and approved, Jacobs v. Morris [1901], 1 Ch. 268; [1902], 1 Ch. 816. Referred to, Bradford Corporation v. Ferrand [1902], 2 Ch. 662; In re Bodega Company [1904], 1 Ch. 286. Approved, Lodge v. National Union Investment Company [1907], 1 Ch. 311.

- . moses versus macferlan. Monday, 19th May, 1760. [S. C. Buller, 129, 131. : //;/- ,-i.r j Black. 219, cited post, 1354.] If one recovers money mala fide by suit in an ,/ 4.fa- Inferior Court, indebitatus assumpsit will lie in B. R. to make him refund it -sK-A-B i ,baek ' F .ic&.AJ- back' [Referred to, Phillips v. London Sdiool Board [1898], 2 Q. B. 453. Discussed and approved, Jacobs v. Morris [1901], 1 Ch. 268 ; [1902], 1 Ch. 816. Referred to, Bradford Corporation v. Ferrand [1902], 2 Ch. 662 ; In re Bodega Company [1904], 1 Ch. 286. Approved, Lodge v. National Union Investment Company [1907], 1 Ch. 311.] Lord Mansfield delivered the resolution of the Court in this ease ; which stood for their opinion, " whether the plaintiff could recover against the defendant, in the present form of action, (an action upon the case for money had and received to the plaintiffs use j) or whether he should be obliged to bring a special action upon the contract and agreement between them." It was an action upon the case, brought in this Court by the now plaintiff, Moses, against the now defendant, Macferlan, (heretofore plaintiff in the Court of Conscience, against the same Moses now plaintiff here,) for money had and received to the use of Moses the now plaintiff in this Court. The case, as it came out upon evidence and without dispute, at Nisi Prius before Ld. Mansfield at Guildhall, was as follows. It was clearly proved, that the now plaintiff, Moses, had indorsed to the now defendant 'Macferlan, four several promissory notes, made to Moses himself by one Chapman Jacob, for 30s. each, for value received, bearing date 7th November 1758 ; and that this was done, in order to enable the now defendant Macferlan to recover the money in his own name, against Chapman Jacob. But previous to the now plaintiff's indorsing these notes, Macferlan assured him " that such his indorsement should be of no prejudice to him : " and there was an agreement signed by Macferlan, whereby ho (amongst other things) expressly agreed " that Moses should not be liable to the payment of the money or any part of it ; and that he should not be prejudiced, or be put to any costs, or any way suffer, by reason of such his indorsement." Notwithstanding which express condition and agreement, and contrary thereto, the present defendant Macferlan summoned the present plaintiff Moses into the Court of Conscience,* upon each of these four notes, as the indorser thereof respectively, by four separate summonses. Whereupon Moses, (by one Smith who attended the Court oi Conscience at their second Court, as solicitor for him and on his behalf,) tendered the said indemnity to the [1006] Court of Conscience, upon the first of the said four causes ; and offered to give evidence of it, and of the said agreement, by way of defence for Moses in that Court. But the Court of Conscience rejected this defence, and refused to receive any evidence in proof of this agreement of indemnity, thinking that they had no power to judge of it ; and gave judgment against Moses, upon the mere foot of his indorsement, (which he himself did not at all dispute,) without hearing his witnesses about the agreement " that he should not be liable : " for the commissioners held this agreement to be no sufficient bar to the suit in their Court ; and consequently decreed for the plaintiff in that Court, upon the undisputed indorsement made by Moses. This decree was actually pronounced, in only one of the four causes there depending : but Moses's agent, (finding the opinion of the commissioners to be as above-mentioned,) paid the money into that Court, upon all [* 23 Geo. 2, c. 33.] 3 BURB. 1007. MOSES V. MACFKRLAN 677 the four notea; and it was taken out of Court by the now defendant Macferlan, (the then plaintiff, in that Court,) by order of the commissioners. All this matter appearing upon evidence before Lord Mansfield at Nisi Prius at Guildhall, there was no doubt but that, upon the merits, the plaintiff was intitled to the money : and accordingly, a verdict was there found for Moses, the plaintiff in this Court, for 61. (the whole sum paid into the Court of Conscience;) but subject to the opinion of the Court, upon this question, " whether the money could be recovered in the present form of action, or whether it must be recovered by an action brought upon the special...

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189 cases
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    ...the conflict between Marriott v Hampton and the even older decision of the Court of Kings Bench (Lord Mansfield CJ presiding) in Moses v Macferlan (1760) 2 Burr 1005, which has vexed legal scholars for generations. 39 Accordingly the court order is not in itself a defence to the claim. Mr H......
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    ...Communication Marketing Inc. v. Chambre des notaires du Québec, 2004 SCC 53, [2004] 3 S.C.R. 95; Moses v. Macferlan (1760), 2 Burr. 1005, 97 E.R. 676; Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629; Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.......
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  • Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd
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    • 30 Noviembre 2014
    ...540; BC9002931. 16 Above, n 1, at [84]. 17 Above, n 1, at [84]. 18 Above, n 1, at [95]. 19 Moses v Macferlan [1558] All ER Rep 581; (1760) 2 Burr 1005; 97 ER 676. 20 Above, n 1, at [22]-[23]. 21 Above, n 1, at [28]. 22 Above, n 1, at [30]. 23 Above, n 1, at [155]. 24 Above, n 1, at [155]. 2......
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    ...Bingham, Goff, Hobhouse, Sir Martin Nourse and Sir Patrick Russell); Gertsch v Atsas (1999) 10 BPR 18 431, 18 449 (Foster A J). (92) (1760) 2 Burr 1005, 1010; 97 ER 676, 679. See also Dominion Bank v Union Bank of Canada (1908) 40 SCR 366, 381-2 (Duff (93) Lipkin Gorman [1991] 2 AC 548,580.......
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    ...2 All E.R. 485; 98 Sol. Jo. 438. 171 Moore v. Gamgee, (1890), 25 Q.B.D. 244; 59 L.J.Q.B. 505; 38 W.R. 669. 26 Moses v. MacFerlan, (1760), 2 Burr. 1005; 1 Wm.BI. 219; 97 E.R. 676. . . 100 Moss v. Anglo-Egyptian Navigation Co., (1865), 1 Ch. App. Cas. 108; 35 L.J. Ch. 179; 12 Jur. N.S.13; 14 ......
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