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is admitted by the demurrer. Therefore as this is ari
odious catching objection, and not to be by any means
favoured; vnothing hinders us from taking it to be true,
" that this was in fact sued out on the day on which
"the plaintiff has alledged it to have been prose-
6 cuted.”

It would be void,t if it bore teste upon a day out of
term : but it does not here appear, upon what day it bore

The justice of the case is extremely plain : and an ob-
jection that tends manifestly to obstruct that justice, is
intitled to no favour.

Mr. MANSFIELD- The words of the declaration are
" out of the Court of the said Lord the King, before the
“ King himself at Westminster."

Cur. - That is only the form of the writ: it is the stile
of the Court. It does not import that the Court was ac-
tually then sitting at Westminster.

Mr. Justice Willis observed that this comes on now upon a sham dilatory plea, whereas the case cited was upon a demurrer to the declaration.

Lord Mansfield-It is making the practice of thie Court chicane, and an elusion of justice, instead of being a method of coming at right. I wish gentlemen would tell their clients, that objections of this sort ought not and cannot prevail.


[7 Vin. 572.)

[ 2589 ]

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Tuesday 8th
May 1770.

NIGHTINGAL et al., Assignees of Mettivier, a Bankrupi,

versus Devisme. (S. C. 2 Bl. 684.)

Action for


THIS was an action of assumpsit, brought by the money had and

plaintiff's as assignees of the effects of Paul Metli, received will vitr, a bankrupt, against the defendant, not lie for a transfer of stock. (See 1 East 13, n. 1 Douc. 222, 223 Fitzgib. 213. See also Annual Register, 15 vol. p.119, by which it seems the assignees recovered a verdict against the defendant for the value of the stock.)

The declaration contained three counts-Ist. An inde. bilatus as umpsit, for £2000 for money lent and advanced by the plaintiff's, as assignees, to the defendant, at bis request : 2d. Indebitatus assumpsit, for £2000, for money had and received by the defendant, to the use of the plaintiff, as assignees; 3d. Indebitatus assumpsit, for £2000 for money paid laid out and expended by the plaintiffs;


1770. as assignees, for the defendant, at his request : to the plaintiff's damage, of £2000.

NIGHTIN To which declaration, the defendant pleaded “non

GAL V. assumpsit:and thereupon issue was joined.

The 'cause was tried at Guildhall, alter Michaelmas Term last, before Lord Mansfied: when a verdict was given for the plaintiffs, with £1170 damages, and 40s. costs; subject to the opinion of this Court on the following case.

Case. The bankrupt Mettivier, being a trader, com. mitted an act of bankruptcy upon the 12th of April 1769 : and a commission of bankruptcy issued against him, at the petition of a creditor for £100 and upwards ; and his effects were duly assigned to the plaintiff's.

On the 17th of April, Metlivier transferred to the defen- (13 G. 3. c. 63. dant Devisme £500 East I»rdia Stock ; which £500 East Š 3.] India Stock had been transferred from the defendant Devisme to the said bankrupt Metlivier upon the 5th of October preceding, and for which the said bankrupt Metticier had given the defendont a note for £1970: which transaction was, in the manner stated in the defendant's deposition herein after set forth, taken under the said commission.William Devisme, of Lothbury London “ merchant, being sworn and examined on the day and 4 year and at the place first above written, upon his

oath saith, that in the month (or latter end) of Sep- [ 2590 ] tember last, deponent applied to Paul Mettivier, the

person against whom this present commission of banka ruptcy is awarded and issued ; and desired he would

become a proprietor of India Stock; and the reason

why this examinant asked him such question, was be“ cause he thought he could depend on his the said Paul Metlivier's voting for directors at the ensuing election 56 in April then next and now last past :) which the said « Paul Metlivier agreed to. And this deponent saith,

that accordingly the sum of five hundred pounds East India Stock was, on the 4th or 5th of October then

following, transferred by William Fisher, this depo6 nent's broker, to the said Paul Mettivier; and for “ which, the said Paul Mcttivier, on the 7th day of said October last, gave this deponent his promissory note of “ hand for £1370 or thereabouts, payable to this depo“nent or order six months after date, for value received; " and which note this deponent kept in his custody. 5 And this deponent saith, that he did not, nor did any “ other person by his direction or knowledge, make any 66

application to the said Paul Mettivier to re-transfer or

transfer back the said stock, until the day the same As was transferred to this deponent; which was on the




16 the same.

[ 2591 )

“ 17th day of April last. And this deponent saith, that

a week or thereabouts before that 17thday of April, this “ deponent had heard some talk of the said Paul Metlivier's being in difficulties, and bad in his affairs : and " saith, that after the said Paul Mettivier had trans“ ferred the said stock to this deponent, this deponent « told the said Metlivier, the note which the said Paul 4 Meltivier had given this deponent in the month of September (as beforementioned) for the consideration “ or purchase of the said stock, was at this deponent's 6 house, and that he might call for it when it suited “ him; but that the said Paul Metlivier did not call for

And this deponent saith, that there was not “ any particular discourse between this deponent and “the said Paul Metticier on the day the said Paul Mettivier transferred the said stock, relative to the said Paul Mettivier's affairs; save that the said. Paul Mel. tivier, some short time after the said stock was transa “ferred, and before deponent left him that day, told this “ deponent he should call his creditors together. William Devisme."

The said note was not redelivered to the said bankrupt Mettivier upon the said 17th of April; but now remains in the possession of the said defendant.

The defendant paid no consideration for the transfer of the said five hundred pounds, East India Stock, on the said 17th of April.

The Question is--" Whether the plaintiffs are intitled to recover in this action." And in case the plaintiffs are not intitled to recover, then a nonsuit to be entered.

Thomas Walker, for plaintiffs :

JAMES WALLACE, for defendant. This case was argued on Tuesday 6th February 1770, by Serjeant Walker for the plaintiffs, and Mr. Wallace for the defendant.

The Serjeant argued that an action for money had and received by the defendant to the use of the plaintiffs, was maintainable in the present case.

This stock had been transferred to the bankrupt for a valuable consideration, a promissory note for £1370 ; and was the property of the bankrupt from the 5th of October preceding his bankruptcy. After his bankruptey, he had no power over it ; and at the time when be retransferred it to the defendant, the property was vested in his assignees; and they had a right to follow it in the defendant's hands. And this is a proper SPECIES of action, for the plaintiffs to recover in. They could


1770. not bring trover nor detinue. It is no specific property. This stock must be considered as MONEY'; like bank bills, or other things which are current as money. It is, in all respects, the same as money. The mode of transferring it, is only by delivery. The transfer is not a trust; but an absolute sale. This action is an equitable action : and this Court is possessed of every circumstance ; and can give the same remedy as the Court of Clancery could. The assignees are clearly intitled to the money. No action but this can be maintained by them for it. And the case of Moses v. Macferlan (ö. ante, Vol. 2. pa. 1005.) is an authority in point, “ that " this action may be maintained for it.”

Mr. Wallace, contra, for the defendant, argued, that this is a trust; and therefore the remedy is in equity, and in equity only. This action is for money lent; and for money had and received to the use of the plaintiffs. But this stock is not money ; though it may be convertible into money; and so may goods be. But it does not [ 2592 ] follow, from its being convertible into money, “ that an " action will lie for it as money."

The case of Pickering v. Appleby in C. B. Mich. 7 G. 1. reported in Comyns 354. was cited by Mr. Wallace ; where it was debated « whether a contract for ten 6 shares of stock of the governor and company of cop

per mines was within the statute of 29 C. 2." (But N. B. the whole that the reporter mentions concerning the determination of that case, is, “ that the judges “ being divided in opinion, it was adjourned,) (and if “ they had not : the case is nothing to the purpose.”]

This action " for money had and received to the plain- v. ante, par tiff's use" will only lie for the money itself. And in 1012: the case of Moses v. Macferlan, the court say,* in speak

† ante, 1010. ing of the case of Dutch v. Warren,t there cited, " that if the five shares in the Welch copper mines had been

of much more value, yet the plaintiff could only have " recovered the £260 10s. by this form of action.”

A devise of money will not carry stock. Stock is a merc chose in action. Stock in the name of the husband and wife would survive to the wife.

Here, the legal estate is vested in Devisme. This Court can't decree a transfer : that must be done by a Court of Equity.

Such an extention .of this species of action, as is now contended for, would destroy all distinction of actions. An action for money had and received to the plaintiff's use might be as well brought for a horse, as for stock, To support this species of action, money must have come




1770. into the hands of the defendant or his agent*. Here,

none has (a), NIGHTIN

It stood over, for further argument.

But Mr. Dunning, who was for the plaintiffs, did not DEVISME.' attempt to argue

it. * Ld. Raym.

Whereupon LoŘD MANSFIELD said-This is a new 1007. but see Doug. 134,135, species of property, arisen within the compass of a few and note.

It is not money. We do not say that an action [3 Durn. 542.) can not be framed, so as to come at justice in this case :

but we are all of opinion that this action for money had and received to the use of the plaintiff's" will not lie in the present case, where no money was received.

N. B. As, the stock was illegally transferred s 2593 )

by the bankrupt to the defendant, might not a declaration be formed upon the fcllowing plan, or something near to it?

That whereas the said Paul Mettitier, before and at the time of his bankruptcy, to wit, on the day of-&c, was possessed of £500 East India Stock, (giving the stock its proper description,) as of his own proper stock; and being so possessed thereof, he the said Paul Metlivier on the said -day of became and was a bankrupt. Then to state the issuing of the commisssion, and the assignment of his effects to the plaintiffs : of all which premisses the defendant afterwards, to wit &c, had notice. That afterwards, to wit on the--day of -, the said Paul Metlivier, being then a bankrupt as aforesaid, without the licence or privity of the plaintiffs, and without any just or lawful cause or consideration, took upon himself to transfer, and did in fact transfer to the defendant the aforesaid stock, which then of right belonged to the plaintiffs, as assignees as aforesaid; and the defendant then and there ac. cepted thereof : whereby the defendant became possessed of the same stock; and, by reason of the premisses, the defendant then and there became liable to account to the plaintiffs, as assignees as aforesaid, for the value of the said stock. And being so liable, be the said defendant afterwards, to wit on the day and year last

(a) Per Aston, Jus. value come into the hands of a testator, will maintain an action for money had and received against his executor, Cowp. 374. and the judg. ment of the Court was founded on that principle, Idem. 377.

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