Page:United States Reports, Volume 2.djvu/60

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him with the money received, as well from some other persons, as from those who gave the notes, and finally strikes a balance in favor of Fairchild. If all these matters appeared to the court at St. Eustatia, as probably they did, it is not much to be wondered at, that they should determine that Smith, as garnishee in the attachment, had effects of Fairchild in his hands.

In point of law the court entertained a considerable doubt, whether under the circumstances of the case, an action for money had and received was at all supportable against the defendant. As the counsel for the plaintiffs appeared sanguine in the cause, we directed a new argument upon this point, and it has accordingly been argued ably and ingeniously; but, on full consideration, we must retain our former sentiments, that it cannot be supported. If this had been the case of a specific article, the property in which had been the subject of dispute between Amory and Fairchild, any decision with regard to that property, would certainly not have prevented the plaintiffs, being third persons, not parties to the suit, from supporting an action of trover, if they could have shewn better right. But the contest in St. Eustatius did not regard any specific property ; but was an attachment against the general effects of Fairchild, and the action brought here is not an action of trover, detinue, or replevin, for any specific property, but an action for money had and received to the use of the plaintiffs. The distinction between specific property and money is well established; in the one case the true owner will have a right to recover it from any person who is found in possession of it; but in the case of money (the medium of commerce) to enable the party to recover, there must be either some privity between the owner and receiver, or there must be a mala fides, an unjust receipt of the money, or at least a receipt of it without a valuable consideration. In those cafes, but in no other, the true owner by identifying the money, and tracing it into the hands of the receiver, may support an action for money had and received, against an utter stranger; and under such circumstances, money is considered in the nature of specific property. This distinction is fully explained by Lord Mansfield in Cowper’s Reports, p. 200.

In this case there was no privity between the plaintiffs and the defendant; there was no contract, either express or implied, between them; the money was not received as the money of the plaintiffs; the defendant was a creditor of Fairchild, who recovered and received his debt in a due course of law, by the judgment of a court having jurisdiction of the cause; there was no fraud or collusion, no mala fides, no want of consideration; an honest debt was due; and though a distinction has been made between a past consideration, as a debt, and a present consideration given, no such distinction can hold in a case of this sort; as the mala fides, which could alone make the fendant