cated to A. Wilkinson v. Godefroy, 9 Ad. & E. 536. The decision of the umpire of a race, as to the winner, is conclusive. Parr v. Winteringham, 1 E. & E. 394; 28 L. J., Q. B. 123; see Dines v. Wolfe, L. R., 2 P. C. 280. But the jurisdiction of the umpire does not arise until the race has been run. Carr v. Martinson, 1 E. & E. 456; 28 L. J., Q. B. 126; Sadler v. Smith, L. R., 4 Q. B. 214; Ex. Ch., L. R., 5 Q. B. 40. A mere contract between A. and B., to which C. is not a party, that B. shall pay C. a sum of money, does not enable C. to sue B. therefor. In re Empress Engineering Co., 16 Ch. D. 125, C. A.

the

In general an agent must account to his principal, and cannot set up jus tertii to an action brought by the principal. Nicholson v. Knowles, 5 Mad. 47; Crosskey v. Mills, 1 C. M. & R. 298; White v. Bartlett, 9 Bing. 378. Thus, if the master of a ship employ B. to sell a ship on an occasion that justifies the sale (as in case of irreparable damage on a voyage), the owner of the ship cannot sue B. for the proceeds after he has paid them over to the master; nor even, ut semble, before such payment over. Ireland v. Thomson, 4 C. B. 149, 171. All profits made by an agent in the course of his employment, when received by him, belong absolutely to his principal, who may maintain this action for their recovery. Morison v. Thompson, L. R., 9 Q. B. 480; De Bussche v. Alt, 8 Ch. D. 286, C. A. See also Whaley Bridge Calico Printing Co. v. Green, 5 Q. B. D. 109, ante, p. 527. So the promoter of a company is liable to the company for all profits made by him in the formation of the company, which he did not disclose to the company. New Sombrero Phosphate Co. v. Erlanger, 5 Ch. D. 73, C. A. ; 3 Ap. Ca. 1218, D. P.; Bagnall v. Charlton, 6 Ch. D. 371, C. A.; Emma Silver Mining Co. v. Grant, 11 Ch. D. 918; Id. v. Lewis, 4 C. P. D. 396. And a director is liable to the company, for any consideration he received from the promoter, to induce him to become a director. Nant-y-glo &c. Ironworks Co. v. Grave, 12 Ch. D. 738. But not for profit made, by sale of property, by him, to the company. In re Cape Breton Co., W. N. 1884, p. 54, Pearson, J. An agent is in general estopped from denying the accuracy of accounts rendered by him to his principal, except in the case of an error arising by mistake. Skyring v. Greenwood, 4 B. & C. 281; Shore v. Picton, Id., 715; Cave v. Mills, 7 H. & N. 913; 31 L. J., Ex. 265. Where an agent receives money to pay over to a third person, although he assent to hold it for that purpose, he continues to be accountable to his principal alone, until he has entered into some binding engagement with that third person, to hold the money to his use; and not until then will he be liable to the third person in an action for money had and received. Baron v. Husband, 4 B. & Ad. 611; Williams v. Everett, 14 East, 582; Wedlake v. Hurley, 1 C. & J. 83; Scott v. Porcher, 3 Mer. 652; Brind v. Hampshire, 1 M. & W. 365. Where money is bona fide received from an agent under a binding contract, it cannot in general be recovered by the principal. Foster v. Green, 7 H. & N. 881; 31 L. J., Ex. 158. But, if A., the clerk of B., without B.'s authority, pay money into the bank of C., having previously made an arrangement with D., the clerk of C., for some application of that money, which neither A. nor D. had authority from their masters to make, C. must refund to B. British & American Telegraph Co. v. Albion Bank, L. R., 7 Ex. 119, 122.

The holder of a bill cannot sue the acceptor's banker for money had and received, though the acceptor has put funds into his hands for payment on the bill. Moore v. Bushell, 27 L. J., Ex. 3; Hill v. Royds, L. R., 8 Eq. 290. But if A. send money to B. to discharge a debt owing from A. to C., and B. assent to hold the money for that purpose, and allows C. to be told this, C. can maintain an action against B. for money had and received. Lilly v. Hays, 5 Ad. & E. 548. See Noble v. National Discount Co., 5 H. & N. 225 ; 29 L. J., Ex. 210.

Receipt by Agents and Sub-Agents for the Principal. 539

A receipt signed by an agent for his principal, is not per se evidence to support an action for money had and received against the agent. Edden v. Read, 3 Camp. 339. So, where an attorney's clerk, B., in the absence of his master, J., received money due to the plaintiff, one of his master's clients, and gave a receipt, "B. for J.," and his master never returning, the clerk refused to pay over the money to the plaintiff, it was held that no action lay against the clerk, there being no privity between him and the plaintiff, and the money being rightfully received on behalf of J., who was accountable to the plaintiff for it. Stephens v. Badcock, 3 B. & Ad. 354. But where the defendant is a wrongdoer, as where he took money of the plaintiff found in the house of a deceased person, by direction of the executor, to whom he paid it over, he is liable, and such payment is no defence. Tugman v. Hopkins, 4 M. & Gr. 389. So, where the defendants bond fide received money from the plaintiff's wife, but without his assent, to keep for her infant child, the plaintiff can recover it. Calland v. Loyd, 6 M. & W. 26. In Stead v. Thornton, 3 B. & Ad. 357, n., the defendant received money on behalf of the assignee of a bankrupt, who was, however, insane at the time, and on his being afterwards removed, and the plaintiff appointed assignee in his stead, it was held that the plaintiff could maintain money had and received against the defendant, for he was a mere stranger, as he could not be the agent of an insane person. The directors of a company stand in the relation of agents to the company, but there is no such relation between them and persons contracting with the company. Wilson v. Ld. Bury, 5 Q. B. D. 518, C. A.

As to the liability of a firm of solicitors for the money of a client received by one of the partners, vide ante, p. 458.

Money received by a sub-agent for an agent is not in general received for the use of the principal. See Prince v. Oriental Bank Cor., 3 Ap. Ca. 325, 334, following Mackersy v. Ramsays, 9 Cl. & F. 818, cited ante, p. 536. Thus, where an agent for sale, B. has by the authority of his principal, A. employed in his own name a broker or sub-agent C. to sell A.'s goods and C. has sold them, A. cannot recover the proceeds from C., without, at any rate, allowing any set-off which would have been available by C. against B. N. Zealand Land Co. v. Watson, 7 Q. B. D. 374, C. A.; Kaltenbach v. Lewis, 24 Ch. D. 54, C. A. cited post, p. 629. So there is no such privity between the client of a country solicitor and his London agent, as will support an action by the client for money had and received against the agent, for the proceeds of a judgment recovered in the ordinary course of business. Robbins v. Fennell, 11 Q. B. 248; Robbins v. Heath, Id. 257, n.; Cobb v. Becke, 6 Q. B. 930. See also Peatfield v. Barlow, L. R., 8 Eq. 61. But the circumstances of the agency may be such, that it involves an authority to the agent to appoint a sub-agent or substitute, who shall be in direct privity with the principal. De Bussche v. Alt, 8 Ch. D. 286, C. A. And where B. as agent for A. consigned goods to C., and by B.'s direction, C. insured them, after notice that B. had an undisclosed principal, and received the policy moneys after a claim therefor by A.; A. was held entitled to recover the moneys from B. by reason of his property in the goods, less the cost of insurance only. Maspons v. Mildred, 8 Ap. Ca. 874, D. P. See also Kaltenbach v. Lewis, 24 Ch. D. 54, 84, cited post, p. 629. As to the right to follow moneys that have been received by an agent, see Knatchbull v. Hallett, 13 Ch. D. 697, C. A., and specially the judgment of Thesiger, L.J., Id., pp. 723, 724; and Kirkham v. Peel, 43 L. T. 171, T. S. 1880, M.R. : affirmed in C. A., W. N. 1880, p. 168, M.S. Where one of two tenants in common receives the whole rents of the property, the co-tenant must sue for his moiety in account, and cannot maintain money had and received. Thomas v. Thomas, 5 Exch.

28.

A strict trustee, who receives rents, &c., which he is bound by the trust deed to pay over to his cestui que trust, could not formerly be sued in this form of action by the latter for non-payment over, the plaintiff's remedy being by bill in equity; but this objection will no longer prevail. See J. Act, 1873, s. 24 (1), cited ante, p. 280.

Failure, or want of consideration.] Where money has been paid on a consideration which has wholly failed, it may be recovered in this action by the party who has paid it. Thus, if an annuity be defective, and the deeds are set aside, the consideration money may be thus recovered. Shore v. Webb, 1 T. R. 732. So if one of several securities for the annuity fails. Scurfield v. Gowland, 6 East, 241. So if an annuity is purchased at a time when the annuitant is in fact dead, but neither buyer nor seller knows of this at the time, the buyer may recover back his money. Strickland v. Turner, 7 Exch. 208; 22 L. J., Ex. 115. But where an annuity for A.'s life was regularly paid up to the time of A.'s death, but no memorial of the grant of the annuity was enrolled, it was held that although the contract was void, A.'s executor could not, on that ground, recover back the consideration money as money had and received. Davis v. Bryan, 6 B. & C. 651. Where the annuity is set aside, and the grantee brings an action to recover the consideration money, the defendant may, on a plea of set-off, deduct the payments made by him within six years in respect of the annuity. Hicks v. Hicks, 3 East, 12. Where the consideration has only partially failed, the action is not maintainable. As, where a premium was paid to the defendant's testator to instruct an apprentice for six years, and the testator died at the end of one year, it was held that no part of the premium was recoverable from the executor. Whincup v. Hughes, L. R., 6 C. P. 78; vide ante, p. 465. A broker at A.'s request bought railway scrip for him; before the day of account the company converted the scrip into shares, and made a call; held, that A. was bound to accept the shares and pay the call, and could not repudiate the contract and recover back the price. MEven v. Woods, 17 Q. B. 13. As to the recovery of freight, paid under a divisible contract for carriage, the goods having been lost; see Greeves v. W. India, &c. S. Ship Co., cited post, p. 565.

If A. sells to B. a bill as a foreign bill of exchange, which turns out to be an English bill and unavailable for want of a stamp, B. may recover the price in this action, both being ignorant of the defect; but if it had really been a foreign bill, with some latent defect which made it worthless, B. could not have recovered, unless there was a warranty or fraud. Gomperts v. Bartlett, 2 E. & B. 849; 23 L. J., Q. B. 65. So, if A. sell to B. a bar of brass as gold, B. may recover the price, though A. was ignorant of the fact; per Ld. Campbell, C.J., Id. 854. So, where the plaintiff bought of defendant a bill, purporting to be an acceptance of A., but which was in fact forged, he was held to recover back the money paid, although there was one genuine though worthless indorsement. Gurney v. Womersley,, 4 E. & B. 133; 24 L. J., Q. B. 46. Where plaintiff, a stockbroker, sold for defendant foreign bonds, which proved to be defective for want of a foreign stamp, and the bonds were afterwards returned on that account by the purchaser, whereupon plaintiff took them back and reimbursed the purchaser, it was held that money had and received was maintainable against the defendant for the amount of purchase-money paid over to him by the plaintiff. Young v. Cole, 3 N. C. 724. The defendant, a broker, received 8001. from the plaintiffs to purchase a certain number of bales of cotton, and he made a contract in his own name for a larger number, it was held that as the defendant had not made a contract upon which the plaintiffs could sue, they could recover the money back. Bostock v. Jardine, 34 L. J., Ex. 142, mis

Failure or Want of Consideration.

541

reported in 3 H. & C. 700; see L. R., 7 C. P. 101, per Mellor, J. Where A. has conveyed land on sale to B., and B. is evicted by C. owing to a defect in A.'s title, B.'s only remedy against A. is on A.'s covenants. Clare v. Lamb, L. R., 10 C. P. 334. See further, ante, pp. 300, 301.

Where shares in a company have been applied for and allotted, but the allottee has subsequently repudiated the shares, and his name has been removed from the register, it seems that the action lies. Stewart v. Austin, L. R., 3 Eq. 299. See also Ship v. Crosskill, L. R., 10 Eq. 73; Alison's case, L. R., 9 Ch. 1, 26. Where a scheme for establishing a tontine was put forth, stating that the money subscribed was to be laid out at interest; and after some subscriptions had been paid to the directors in whom the management of the concern was vested, but before any part of the money was laid out at interest, the directors resolved to abandon the project, it was held that each subscriber might, in this action, recover the whole of the money advanced by him without any deduction for expenses. Nockels v. Crosby, 3 B. & C. 814. So, the money paid for the purchase of shares in a joint-stock company may, under similar circumstances, be recovered from the person of whom the shares were bought. Kempson v. Saunders, 4 Bing. 5. So, a deposit on shares in a projected company, subsequently abandoned, may be recovered from one of the acting committee. Walstab v. Spottiswoode, 15 M. & W. 501. But, the action must be against a party, or one of the parties, who received the money or sanctioned the application of it. Payment to the bankers named in a letter of allotment "to the credit of the company," of which the defendant is an active managing director, is a payment to him. Moore v. Garwood, 4 Exch. 681. It is not enough to show that the defendant was a provisional committee-man and chairman of the managing committee, if he never in fact concurred in their acts, though he may have been present at a meeting of them, from whose proceedings, however, he dissented. Burnside v. Dayrell, 3 Exch. 224. But, on a failure of the project, a deposit applied to expenses actually incurred, with the plaintiff's authority, cannot be recovered. Willey v. Parratt, Id. 211. It is otherwise if paid without his authority. Moore v. Garwood, 4 Exch. 681, 690. Where payment of the deposit by the plaintiff was made “subject to the provisions of the subscriber's agreement," and no such agreement was then in existence; but one was subsequently made, which improperly authorized payment' of expenses out of the deposits, and which was not signed by the plaintiff, the plaintiff may recover back the deposit in full, on proof of failure of the projected company; for he neither assented, nor could be required to assent, to such an agreement. Ashpitel v. Sercombe, 5 Exch. 147. Inability to establish the company after a reasonable lapse of time, is evidence of an abandonment of the scheme. Chaplin v. Clarke, 4 Exch. 403. It is no answer to the action that the plaintiff signed the parliamentary and subscription contracts, if his signature was obtained by suppressing the fact that the scheme had been abandoned. Jarrett v. Kennedy, 6 C. B. 319; vide post, p. 546. Where the deposit was paid to the credit of certain persons in trust for the company, it cannot be recovered from other, though active, members of the company. Watson v. Charlemont, El. of, 12 Q. B. 856. Where all, or substantially all, of the shares in a cost-book mine are not subscribed for, and the directors are obliged to relinquish the mine for want of funds, they are liable to refund to allottees who have not authorized the working or other expenditure; and the deposits are recoverable from the directors, though they were, in fact, paid to their bankers, who were authorized to receive them, and though entered to the credit of some of the directors only. Johnson v. Goslett, 3 C. B., N. S. 569; 27 L. J., C. P. 122, Ex. Ch. See Blackmore v. N. Australasian Co., L. R., 5 P. C. 24. The defendant sold, and the plaintiff bought, shares in

a banking company through brokers on the Stock Exchange in the usual way (vide ante, p. 512, et seq.); the defendant executed a transfer, but the requisite consent by the company to the transfer not having been given, and the company having stopped payment, and ultimately become bankrupt, the plaintiff directed his broker not to pay for the shares or accept the transfer; in obedience, however, to the decision of the Stock Exchange, the broker paid the money to the defendant's broker, who handed it over to the defendant. The plaintiff afterwards paid the money to his broker, under a threat of legal proceedings, and then sued the defendant for money had and received; it was held that the action did not lie, as there was no proof of a total failure of consideration. Remfry v. Butler, E. B. & E. 887, Ex. Ch.; Stray v. Russell, 1 E. & E. 888; 29 L. J., Q. B. 115, Ex. Ch.

Where a fixed sum has been paid to the parish by the putative father of a bastard in discharge of further liability, and the child dies, the unexpended residue may be recovered in this action. Watkins v. Hewlett, 1 B. & B. 1. And in Chappell v. Poles, 2 M. & W. 867, the balance was held recoverable, though the defendants (the overseers who had received the money) had handed over the money to their successors, the child having died during the defendants' year of office; and semble, the whole sum paid was money had and received to the plaintiff's use from the time it was so paid; such contract being illegal and void. Ibid.

If A. pays B., a gratuitous bailee, money to be employed to a particular purpose, which B. neglects to do, A. may recover it back in this form of action; but semble, it will be otherwise, if B. has lost it by gross negligence; for this is the subject of a special action for such negligence. Parry v. Roberts, 3 Ad. & E. 118. Where the plaintiff abandons the purpose for which money was deposited with the defendant; Baird v. Robertson, 1 M. & Gr. 981; or countermands a direction to the defendant to pay over the money, before the defendant has paid it over or entered into a binding contract to do so; Taylor v. Lendey, 9 East, 49; Fletcher v. Marshall, 15 M. & W. 755; he may sue for money had and received. But, where money has been paid to an agent to apply in a particular manner, the principal cannot sue the agent in this form of action, for neglecting his instructions, before he has countermanded the agent's authority; Ehrensperger v. Anderson, 3 Exch. 148; unless there has been a total refusal on the part of the agent to perform his part of the contract. Id. 158. If A. give a letter of credit to B. to apply the proceeds to a specific purpose, and B. is persuaded by C., who is cognizant of the facts, to lend the money to him, and he fails to repay it, A. may sue C. in this form of action. Litt v. Martindale, 18 C. B. Conduct money received with a subpoena may be recovered back by the party who paid it, where the attendance of the witness has been countermanded, and he has incurred no expense. Martin v. Andrews, 7 E. & B. 1 ; 26 L. J., Q. B. 39.

314.

In cases of forgery.] Where a party paying money upon a forged instrument, has not been guilty of any want of that caution which, in consequence of the character which he fills, he is bound to exercise, and has not by his conduct affected the rights of any other parties to the instrument, he may in general recover back the money as money paid under a mistake. Thus a person, who discounts a forged navy bill, may recover back the money as money had and received to his use. Jones v. Ryde, 5 Taunt. 488; 1 Marsh. 157. So, in the case of forged bank-notes; per Gibbs, C. J., S. C.; and of Bank of England notes, the numbers of which had been altered, and payment was in consequence refused. Leeds Bank v. Walker, 11 Q. B. D. 84. So, where a banker by mistake paid a bill for the honour of a customer whose