Frye v. Lockwood

4 Cow. 454

• Court: New York Supreme Court
• Decided: May 15, 1825
• Status: Published

Opinion

Curia, per

Sutherland, J.

Where money is, paid to an agent, for the purpose of being paid over to his principal, and is actually paid over, no suit will lie. against the agent to recover it back. In Sadler v. Evans, (4 Burr. 1984,) the defendant was the receiver of the rent, of Lady Windsor, and in that character demanded from the plaintiff, and received a certain rent, for which he gave a receipt, stating that he received it for the use of Lady Windsor. The rent, in truth,' was not due to Lady Windsor, but having been paid for the purpose of being paid over to her, it was held, that it could not be recovered back from the agent. In Buller v. Harrison, (Cowp. 567,) and Cox. v. Prentice, (3 M. & S. 344,) the agent had not paid over the moneys to his principal. The case of Greenway v. Hurd, (4 T. R. 553,) which was principally relied on by the defendant’s counsel, seems to be placed by Ld. Kenyon, more on the ground of the want of the notice, required by statute to be given, before an action could be sustained, than upon the principle, that the defendant was exempt from liability as being an agent; and Buller, J. seems to put his opinion on the ground that the payment by the plaintiff was voluntary on his part.

• In Ripley v. Gelston, (9 John. Rep. 201?) the collector of the customs was held liable in an action for money had and received, for duties which had been illegally exacted - by him, although the duties had been paid oyer by him to the United States, The Court there adopted the true distinction. They say the cases which exempt thé agent . from the suit, if he has "paid over the money to his principal, without notice, do not apply. The money was paid by compulsion? it was extorted as a condition of granting the clearance, an.d not paid with the intent or purpose that the collector should pass it to the credit of the United States. And they rely upon Snowdon v. Davi.Sj(f Taunt, 359.)

In Townson v. Wilson, (1 Camp. 397,) Ld. Ellenborough says, if any one gets money into his hands illegally, he cannot discharge himself by paying it over to another. But it is not necessary to rely on that principle in this case; for it was proved, on the trial that the defendant admitted he had no interest in the defence; that it was conducted either by the secretary at war, or the marshal. In such a case, even if the'liability-of the defendant were more- questionable, I should hesitate, before I would drive the plaintiff to a new action, against the very persons who now.in truth defend this.

Judgment-for the plaintiff.