#6850 - Moses V. Macferlan - Restitution of Unjust Enrichment BCL

Moses v. Macferlan

Facts

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 he (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 of Conscience at their second Court, as solicitor for him and on his behalf,) tendered the said indemnity to the 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.

Judgment debt paid 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 the four notes; and it was taken out of Court by the now defendant Macferlan, (the then plaintiff, in that Court,) by order of the commissioners.

Issue on recovery of Money paid by Moses into court: 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 agreement only.”

Holding

There was no doubt at the trial, but that upon the merits the plaintiff was iutitled to the money; and the jury accordingly found a verdict for the 61. subject to the opinion of the Court upon this question, “whether the money might be recovered by this form of action,” or “must be by an action upon the special agreement only.”

Argument on implied promise: “That no assumpsit lies, except upon an express or implied contract: but here it is impossible to presume any contract to refund money, which the defendant recovered by an adverse suit.”

Argument rejected: If the defendant be under an obligation, from the ties of natural justice, to refund; the law implies a debt, and gives this action, founded in the equity of the plaintiff's case, as it were upon a contract (“quasi ex contractu,” as the Roman law expresses it)…. This species of...