Williams against Everett and Others
| Jurisdiction | England & Wales |
| Judgment Date | 25 November 1811 |
| Date | 25 November 1811 |
| Court | Court of the King's Bench |
English Reports Citation: 104 E.R. 725
IN THE COURT OF KING'S BENCH
Distinguished, Fruhling v. Schroeder, 1835, 4 L. J. C. P. 171. Principle applied, Robbins v. Fennell, 1847, 11 Q. B. 257. Referred to, Fleet v. Perrins, 1868-69, L. R. 3 Q. B. 542; 4 Q. B. 500; Rustomjee v. R., 1876, 1 Q. B. D. 494; 2 Q. B. D. 69. Distinguished, New Zealand Land Company v. Ruston, 1880-81, 5 Q. B. D. 480; 7 Q. B. D. 374.
[582] williams against everett and others. Tuesday, Nov. 25th, 1811, Kelly, residing abroad, having remitted bills on England to the defendants, his bankers in London, with directions in the letters inclosing such bills to pay the amount, in certain specified proportions, to the plaintiff and other creditors of Kelly, who would produce their letters of advice from him on the subject; and desiring the amount paid to each person to be put on the back of their respective bills, and that every bill paid off should be cancelled : and the plaintiff having, before the-bills became due, given notice to the defendants tnat he had received a letter from Kelly, ordering payment of his debt out of that remittance, and having offered them an indemnity if they would hand over one of the bills to him; but the defendants having refused to indorse the bill away, or to act upon the letter; admitting, however, that they had received the directions to apply the money : and the defendants having in fact afterwards received the money on the bills when due: Held that they did not by the mere act of receiving the bills and afterwards the produce of them, with such directions, and without any assent on their part to the purport of the letter, and still more against their express dissent, bind themselves to the plaintiff so to apply the money in discharge of his debt due to him from Kelly; and consequently that the plaintiff, (between whom and the defendants there was no privity of contract, express or implied, but on the contrary it was repudiated,) could not maintain an action against the defendants as for money had and received by them to his use. But that the property in the bills and their produce still continued in the remitter. [Distinguished, Fruhling v. Schroeder, 1835, 4 L. J. C. P. 171. Principle applied, Bobbins v. Fennell, 1847, 11 Q. B. 257. Eeferred to, Fleet v. Perrins, 1868-69, L. E. 3 Q. B. 542; 4 Q. B. 500; Bustomjee v. B., 1876, 1 Q. B. D. 494; 2 Q. B. D. 69. Distinguished, New Zealand Land Company v. Ruston, 1880-81, 5 Q. B. D 480; 7 Q. B. D. 374.] The plaintiff declared in this action for money had and received by the defendants to his use, and upon an account stated; and sought to recover two several sums of 3001. and 5001., part of two remittances by bills for 11261. and 10001., made by one James Kelly, from the Cape of Good Hope to the defendants as his bankers, and which part remittances the-plaintiff, who was a creditor of Kelly to the amount of the 8001., claimed to receive from the defendants by virtue of Kelly's appropriation of the several sums to be paid to his use, contained in certain letters, inclosing those bills, addressed by Kelly to the defendants. Kelly, who was a merchant at the Cape, being indebted to several persons residing in London, remitted the first set of bills, to the amount of 11261., to the defendants, accompanied by a letter, dated at Cape Town, July 8th, 1809, in which he says, "I embrace this opportunity by the ' Warley' Indiaman, to remit you 11261., which I particularly request you will order to be paid to the following persons, who will produce their letters of advice from me on the subject. Mr. Williams (the plaintiff) 3001.;" (then followed a list of various other creditors, [583] between whom the residue of the amount was apportioned). "This being the whole of the sum inclosed, I humbly beg you will order that the amount paid to each person is put on the back of their respective bills." Kelly afterwards sent to the defendants a further remittance of 10001. by bill; and by another letter of the 19th of January 1810, directed the bill to be paid, in certain proportions, to certain persons, one of whom was the plaintiff, who was to receive 5001. The defendants were per-mitted, under an order of the Court of Chancery, to give in evidence under the general issue, that previous to and at the time when the money due on the bills remitted were received by the defendants, foreign attachments had issued out of the Mayor's Court of London, within whose jurisdiction they carried on their banking business, by which the proceeds were attached in their hands at the suits of several creditors of Kelly, and judgments were obtained by some of them, (and the proceedings of others were suspended by injunction) against the defendants as garnishees in those actions, who were obliged to pay the amount of such judgments : and admissions to this effect were agreed to be read at the trial. But when the cause was tried before 726 WILLIAMS V. EVERETT 14 EAST, 584. Lord Ellenborough, -C.J. at Guildhall, though these admissions were stated, yet the principal stress was laid, and his Lordship's opinion was ultimately given, upon a fact proved by a witness examined, that when the plaintiff applied to the defendants before the first set of bills became due, and represented to them that he had received a letter from Kelly, directing 3001. to be paid to him out of the money sent to the defendants, and proposed to them an indemnity if they would indorse or hand over to him one of the bills remitted to that amount; the. defendants [584] refused to do so, or to act upon the letter, although they admitted the receipt of it, and that the plaintiff was the person to whom the sum in question was directed to be appropriated. The defendants afterwards received the money upon the bills; and it was contended on the part of, the plaintiff, that by so doing they had irrevocably acceded to the appropriation of it, as directed in the letters of advice from Kelly the remitter. But his Lordship thought that having renounced the terms on which the bills were remitted, before the money was actually received, it was only money had and received to the use of the remitter of the bills; and therefore nonsuited the plaintiff, but reserved the point. Park accordingly moved in last Hilary term for a rule to set aside the nonsuit, upon the ground that if a party to whom a remittance is sent consent to receive it at all, he is bound to receive it upon the terms offered; and therefore that the defendants in this case, having received the bills in a letter directing the appropriation of the money when received to the use (amongst others) of the plaintiffs, must be taken to have assented to receive the appropriated sum to their use. And as to the defendants having refused to bind themselves to pay over the money; that was only because they were afraid of having the bills attached in their hands by other creditors of Kelly. But, as he was informed, bills of exchange were not attachable by the [585] custom of London (a)1: and at any rate if the money were appropriated in the first instance to the...
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