Sec 794

A supposed exception, also, has been made in suits for money had and received, in which "it is not a rule of universal application that it is necessary to show privity in order to maintain an action."4 But actions of this class, when within the range of this exception, though nominally based on contract, are virtually equitable procedures for the execution of a trust. Hence, if money be remitted by A. to B. to pay C., and B. in any way, either expressly or by implication, acknowledges his indebtedness to C., he may be sued by C. in this form of action, a contractual relation being established between B. and C. And even though we reject this view, as might be the case in those states where the line between law and equity is still strictly maintained, yet the cases before us may still be explained, on common law principles, on the ground of agency. The defendant, when he receives money as the plaintiff's agent, is bound to account.8 But where A. pays money to B. for C.'s use, a suit to recover this money must be brought by B., unless (1) B. was agent for C, in which case C. can sue as principal, or (2) B. has undertaken with C. to hold the money for C.6

Exception in suits for money had and received.

1 Holmes V. Bailey, 92 Penn. St. 57; Holmes V. German Bank, 87 Penn. St. 525; infra, sec 837.

2 Gurney V. Behrend, 3 E. & B. 622; Robinson V. R. R., 9 Fed. Rep. 129; Stollenwerck V. Thacher, 115 Mass. 224.

3 Thompson V. Dominy, 14 M. & W. 403; Pease V. Gloahec, L. R. 1 P. C. 219; Coventry V. Gladstone, L. R. 6 Eq. 44; Shaw V. R. R., 101 U. S. 567; Stollenwerck V. Thacher, 115 Mass. 224; Dows V. Cobb, 12 Barb. 310; Barnard V. Campbell, 55 N. Y. 462; Fanners' Bk. V. R. R., 72 N. Y. 188, and other cases in Cent. L. J. Jan. 13, 1882, where the authorities are carefully examined. See supra, sec 182, 292, 734.

4 Collins V. Brook, 5 H. & N. 706.

5 Supra, sec 722 et seq., 786; Lilly V. Hays, 5 A. & E. 548; Hall V. Marston, 17 Mass. 575; Mellen V. Whipple, 1 Gray, 322; Exchange Bank V. Rice, 107 Mass. 41.

6 Supra, sec 728,786; Dicey, ut supra, 93.

"If a debtor, by an order given to his agent, appropriates a fund in his hands to the discharge of the debt, and the agent pledges himself to the creditor so to appropriate the fund, the order is irrevocable, and the creditor may sue such agent..But the creditor cannot sue the agent unless the latter has assented to the appropriation so as to pledge himself to the creditor; for otherwise the debtor may countermand the order, and there is no privity between the creditor and the agent."1 Supposing the creditor accepts the substitution, this amounts to novation,2 and the consideration is not merely the advantage to the creditor from the substitution of a new debtor (as Mr. Dicey seems to think), but the relief of the original debtor. "I will relieve the original debtor if you will take his place."3 - Supposing, also, money is sent to D. by B. a debtor of A., with instructions to D. to send the money to A., and D. advises A. to this effect and promises to pay A., this establishes a contractual relation between A. and D.; in other words, in such a case the original creditor may sue the depositary of the money on his promise to pay it over.4 And when money is deposited by a debtor with his agent to be paid to the creditor, of which the creditor is advised, it may be now considered settled that the creditor can sue the agent.5 - Under the same form of action, the party equitably privileged may sue for money which the defendant has improperly received. " Where money has got into the hands of a party by means of some tortious act, this action will lie at the instance of the real owner of the money."6 This includes cases in which the defendant has in his hands money which in equity belongs to the plaintiff, but which is wrongfully withheld.

1 Forth V. Stanton, 1 Wms. Saund. 210 b, note (a); and see Howell V. Batt, 5 B. & Ad. 506, and for other cases see supra, sec 728.

2 Infra, sec 852.

3 Dicey, ut supra, 94. See Williams V. Everett, 14 East, 582, for a case in which the party receiving the money was held not to hold it in trust for a party designated as beneficiary. That assent on the part of A. to hold money for B.'s use gives B. a right of action, see Lilly V. Hays, 5 A. & E. 54S.

4 Lilly V. Hays, 5 A. & E. 548; Eph-raims V. Murdock, 7 Blackf. 10; infra, sec 852; and see criticism, supra, sec 786.

5 Wh. on Agency, sec 443, 541; Hall V. Marston, 17 Mass. 575; Frost V. Gage, 1 Allen, 262; Dow V. Clark, 7 Gray, 198; see supra, sec 786.

6 Crompton, J., Collins V. Brook, 5. H. & N. 706.

In such cases, "the law creates the privity and implies the promise."1 - But apart from such cases of tortious withholding, in cases in which the "promisee is in fact acting as the agent of a third person, although that is unknown to the promisor, the principal is the real party to the contract, and may therefore sue in his own name, on the promise made to his agent."2 sec 795. Negotiable paper, also, establishes a liability from the party bound to the holder, although the latter acquired no title until long after the former became bound.3 The engagement of the party so bound is "I will pay the amount to whomsoever may happen to hold the paper on its maturity."4 A cheque, also, with a blank left for the payee's name, which the holder is entitled to fill in, binds the maker to whomsoever may be thus designated, though unknown to the maker at the time the check was drawn.5 A bill of exchange, also, though incomplete from the want of a payee, becomes operative as soon as the name of the payee is supplied, though this is not until after it is signed and put in circulation by the drawer.6 And, as a general rule, the signing and delivering of negotiable paper imparts authority to the party to whom it is given to fill up its blanks.7 But negotiable paper must have a certain payee, either named on its face, or to be hereafter individuated by the fact that he becomes the holder or " bearer" of the paper. If the payee (in cases where designation is attempted) be named in the alternative,8 or be named so ambiguously as to make him incapable of positive identification,1 the paper cannot be sustained.2 If the alleged maker's name is forged, then, no matter how honest may have been the purchase by the holder, he cannot recover.3 - The holder of non-negotiable paper cannot sue the endorsers in his own name.4

Negotiable paper establishes liability to holder though unknown at the time of making.

1 Morton, J., Putnam V. Field, 103 Mass. 557; Bigelow, J., Brewer V. Dyer, 7 Cush. 340; Goodenow, J., Stimson V. Ins. Co., 47 Me. 385; and see supra, sec 724 et seq.

2 Gray, C. J., in Exchange Bank V. Rice, 107 Mass. 43; citing Sims V. Bond, 5 B. & Ad. 389; 2 NeV. & M. 608; Huntington V. Knox, 7 Cush. 371; Barry V. Page, 10 Gray, 398.

3 As to distinction between assignability and negotiability, see infra, sec 838.

4 See Willans V. Ayers, L. R. 3 Ap. Ca. 133; Brown V. De Winton, 6 C. B. 336; Brandao V. Barnett, 12 Cl. & F.

787; Swift V. Tyson, 16 Pet. 1; Goodman V. Simonds, 20 How. 343; Hotch-kiss V. Banks, 21 Wall. 354; Smith V. Livingston, 111 Mass. 342; Dutchess Co. Ins. Co. V. Hackett, 73 N. Y. 226. See supra, sec 24.

5 Byles on Bills, 9th ed. 3, 146; Rou-quette V. Obermann, L. R. 10 Q. B. 525.

6 Leake, 2d ed. 437; McCall V. Taylor, 19 C. B. N. S. 301; Stoessiger V. R. R., 3 E. & B. 549.

7 Byles on Bills, 9th ed. 84, 181; Russel V. Langstaffe, Dougl. 514; Hay-ward ex parte, L. R. 6 Ch. 546.

8 Storm V. Stirling, 3 E. & B. 832.