Opinion
Fall Sessions, 1834.
Gilpin, for plff.
J. A. Bayard, for deft.'s bail.
It was an action of assumpsit, and the narr. contained the usual money counts. The plff. proved her case by the production of the following receipt, and by evidence of several promises by the deft. to pay the money. "Received February 6, 1827, of Martha Guthrie by the hands of James Guthrie, $70,00; likewise received, December 26, 1827, of the said Martha Guthrie, $230,00; making together $300,00; which sum is put to interest for the benefit of the said Martha Guthrie.
Signed, JOHN V. HYATT."Bayard objected that on the face of the paper it appears that the deft. did not take the money as a borrower, but merely as a trustee; in which character he is not liable in this action, nor otherwise than upon a bill in chancery. If he received the money as a trustee, his promise to refund it was as such, and the promise of a trustee affords no ground of action at law. This defence was made in behalf of Hyatt's bail for whom Mr. Bayard appeared.
Gilpin, for plff. denied that the paper proved the money to have been paid in Hyatt's hands in the character of a trustee to lend at interest, or that there was any evidence that it was so loaned by Hyatt. The action of assumpsit is a remedy peculiarly suited to such a case as this. Wherever money is received by one which belongs to another, and which he equitably ought to pay to that other, he may be compelled to do so in this form of proceeding. If Hyatt did put out the money it was in his own name and was such a conversion as would charge him. The payments on account and promises to pay the balance, show the character in which Hyatt received the money.
The Court construed the paper as an acknowledgment of money received by the deft. for his own use; hut they said, additionally, that if it had been merely deposited in his hands to loan out for the plff. she might recover it back under the proof in this cause. The action of assumpsit has been likened to a bill in equity. Wherever a man has in his hands money belonging to another which "he cannot equitably retain and he either promises or the law can raise an implied promise to pay it, it may be recovered in this form of action. The deft. here acknowledges the receipt of money belonging to Mrs. Guthrie, and if you please to. loan out for her, he still retains it in his hands, or he has shown no other investment of it; and when called on he promises to pay it repeatedly. Assumpsit will well lie in such a case.
Verdict and judgment for plff.