Page:Federal Reporter, 1st Series, Volume 9.djvu/597

 68£) FEDSBAL BEPOBTEB. �is for money due upon a contract; for money had aud received by the defendants to the plaintiff's use. Nothing is said about auy conversion of the money by the defendants to their own use, and there is nothing in the counts to indicate that they are based upon the theory that a tort was committed by the defendants in receiving this money and appropriating it in the way in which it is alleged they disposed of it. �In order to maintain an action as for money had and received it must appear that the money was jointly received by all the defend- ants, and upon that the law may imply a promise on the part of all to pay it to the rightf ul owner ; and although, upon the facts stated here, there may be a liability in that form of action against Spencer alone, or against the parties constituting the Merchants' & Mechanics' Bank of Leadville alone, there cannot be a joint liability on the part of all these persons in that form of action, because they did not jointly receive this sum of money. The allegation is, in these counts, that the money was received by the Merchants' & Mechanics' Bank of Leadville, and by it wrongfully and fraudulently turned over to the defendant Spencer. That may make a liability as for money had and received on the part of these parties, severally, — that is, upon the part of the persons constituting the bank and upon the part of Spencer, severally ; but it cannot be a liability arising by contract on the part of all of them, because they did not jointly and colleetively receive this money. �As to whether the action may be maintained against them jointly as for a tort, — in substance, as an action of trover, — there is some doubt. It is laid down in the case of Orton v. Butler, 5 B. & A. 652, that on a money demand merely to allege that the defendant received money and afterwards converted it to his own use, which is the form of declaration in an action of trover, the action cannot be maintained, because, they say, to allow that would be. to defeat the defendant's right to set-off ; and that the action of trover can only be maintained where the specifie thing for which suit is brought can be identified, and that it must be possible in such case, where an action of trover is brought, for the defendant to relieve himself from all liability by tendering the property, for which the action is brought, to the plain- tiff ; as, for instance, when it is brought for a horse, he may surrender the horse and relieve himself from liability. �The same view is takon in several cases in Croke's Elizabeth; and there are cases — one in 4 E. D. Smith, N. Y., (Donohue v. Henry, 162,) — which declare that when a sum of money has been received which ��� �