Warren County MsArchives Court.....Glass, Andrew June 1818
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Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi, June Term, 1818
Written: June 1818

ANDREW GLASS vs. JOHN LOBDELL

An action for money had and received, will lie in all cases, where the 
defendant himself has come to the possession of plaintiff's property by 
permission of the law, and has himself raised a sum certain by the sale of the 
property. Courts of law are disposed to extend the action of indebitatus 
assumpsit, to advance the ends of justice.


OPINION OF THE COURT-BY THE HON. POWHATTAN ELLIS.

This case was heard at the March term 1821, of the superior court of Warren 
county, and the judge who presided, after hearing the evidence, directed a non 
suit. During the same term, the counsel for the plaintiff prayed the court to 
set aside the non suit, and reinstate the case on the docket, for the 
following reasons.

First, because the court erred in its opinion, in pronounciug that the action 
for money had and received would not lie to recover money received by the 
defendant, for goods of the plaintiff, sold by the defendant.

Secondly, that the action for goods sold and delivered would not lie, unless 
evidence of an express sale or purchase was given. And the court doubting as 
to the law and rule of decision refers the motion to the Supreme court for its 
determination.

We are of the opinion that the judge below erred in directing a non suit upon 
the ground that the plaintiff could not maintain his action for money had and 
received for the sale of plaintiff’s goods by the defendant. In the language 
of Lord Mansfield in the case of Longchamp vs. Kenny, Douglass 137, if the 
demand had been for a specific chattel, this action could not be sustained, as 
trover or detinue would have been the proper remedy. But here the plaintiff 
alleges that the defendant had and received money to his use and benefit, and 
wishes to introduce evidence to establish the fact, and thereby fix his 
liability, but it is objected, that the testimony sought to be introduced will 
not support the court in the declaration, because the recovery was made out of 
the plaintiff’s property, after it came into his, the defendant’s possession. 
This we think is not a substantial objection to the plaintiff's right to 
recover in the present form of action, and is directly in opposition to the 
case in Douglas, and the case of Nightingale et als assignees of Mittevin, a 
bankrupt vs. Devisnie, when it was determined, that an action of indebitatus 
assumpsit for money had and received, will not lie for the transfer and 
receipt of stock in the public funds, because, it is considered as property, 
and not as money; but, it seems to have been conceded unanimously by the 
judges of the court of Kings bench in the above case, if the stock had been 
converted into money, the action would most unquestionably lie. From an 
examination of all the cases I have been able to find; we have not discovered 
a distinction taken between property (converted into money,) which comes into 
the possession of the defendant tortiously, and that which is in his 
possession by permission of the law. In the former case, we are inclined to 
believe, trover would be the proper remedy, and in the latter, if it be 
clearly established by the evidence on the trial, that the property has been 
reduced into money by a sale, the justice and equity of the case will 
certainly hold a defendant, under such circumstances, responsible in this 
action to the demands of him, for whose use, in legal contemplation the 
property was sold. The general principle of the law upon this subject is,—"if 
a person receives goods, the property of another, and converts them into 
money, an action of indebitatus assumpsit will lie to recover the money, so 
raised." From the time of Lord Mansfield, (one of the most learned and 
distinguished judges that ever adorned the English bench) down to the present 
day, courts of law have viewed this action with complacency and will extend to 
it their protection, to enable the plaintiff to recover, provided he is not 
permitted to turn the generality of the count into a aurprise, by deserting 
the ground which the defendant was led to judge, the only matter to be tried, 
and resorting to another, of which, he could not have the least suspicion. lf 
the present action had been brought without notice of the nature of the 
demand, I should have thought it could not have been supported. But here the 
defendant came prepared, as we are bound to believe from the naked question as 
referred, and if he sold the property and received its value, it was for the 
plaintiff's use, because it is not contended, the said property was in another 
person at tbe time of sale. From the language of the first reason, and its 
reference to this court, we are constrained to believe, that the judge 
directed the non suit as there stated,—that in no case could this action be 
maintained for money had and received by the defendant emanating from a sale 
of plaintiff's property by said defendant. We cannot under the rules of 
decision already referred to, sanction the unqualified doctrine laid down in 
the opinion of referenee from the court below.

If from the development of the evidence on the trial, the defendant could 
bring himself within any exception to the general rule, if he could shew that 
the sale of the property had not been affected by him, and that no privity 
existed between him and the plaintiff, he should have done so by producing the 
judge's report of the trial. But as he has not done so, we must give an 
opinion on the general abstract point of law involved in the case referred.

We are of opinion, that an action for money had and received will lie in all 
cases, where the defendant himself has come to the possession of the 
plaintiff's property by permission of the law, and has himself raised a sum 
certain by the sale of said property. In cases where the defendant was 
authorized to sell the plaintiff's property, the plaintiff might be without 
remedy, if he could not sustain this action against the defendant, for in such 
cases, he could neither pursue the property or money in the hands of third 
persons.

Nothing appears in this case, to take it out of the operation of the general 
rule, and we therefore think, it would be unreasonable, to deprive the 
plaintiff of an opportunity of having his case investigated in conformity to 
these principles.

Let the non suit be set aside, and the cause re-instated on the docket.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834; pages 105-107.

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