Mr. Justice Woodward
delivered the opinion of the court,
The various items of evidence specified in the first, second and fourth assignments of error were made relevant by the parol testimony, Avhich had been given by the plaintiff, of the claim made and the points contested in the trial of the suit of the burgess and town council of the borough of Girard against Leffert Hart and S. L. Wright. The admission of the receipt for the amount of the judgment in that suit ay as certainly unobj ectionable, for it shoAved the money which it was the object of this action to recover in the defendant’s hands. Having made an issue in' regard to the character and subject-matter of the former suit, it is difficult to see how the issue could be better elucidated than by the production of the record. Henry Ball’s testimony was offered to meet the plaintiff’s evidence of what occurred Avhen the cause was tried. There Avas nothing in the testimony to contradict the record, or to vary the effect of any fact Avhich it disclosed. That explanatory evidence of the occurrences at a former trial is' admissible is well settled. [27]*27It was held in Carmony v. Hoober, 5 Barr 310, that it might be shown by parol that the issue had not been tried upon its merits. In Stark v. Fuller, 6 Wright 320, parol testimony of facts, in aid of those shown by the record, that transpired in the argument and disposition of a motion for a new trial, was held to have been properly received.
Mr. Ball’s testimony in regard to the authority of Hart and Wright, to the reception of which the third error is assigned, could have had no other effect than to tend to prove the negative of a fact the affirmative of which it was incumbent on the plaintiff to establish. The witness had been secretary of the council of the borough of Girard from 1864 to the time of the trial, and the offer was to prove that Hart and Wright had never been authorized to transfer to the township of Girard the .seven men whom they had secured. Part of the offer was to show the result of an examination he had made of the minutes of the proceedings of the council. Undoubtedly the books containing the minutes would have been the best evidence, but objection was not made on that ground, and nothing appears to show that the books were not within the plaintiff’s reach. No error in this particular that was at all material, or could have produced wrong results, can be gathered from the record.
The remaining assignments present the essential question in dispute. This is an action of assumpsit for money had and received. Under the call for troops made by the president on the 18th of July 1864, the quota of the borough of Girard was fourteen men. Seven men were procured at home, and agents were sent south for the others. In the absence of these agents, Hart, then the bui’gess, and Wright, a member of the council, undertook to act for the borough, and raised seven men to whom they paid three hundred dollars each. The agents abroad having obtained volunteers to fill the quota, Hart and Wright transferred to the township of Girard the credit for the seven men whom they had obtained, for the consideration of five hundred dollars for each man. An action of trespass on the case was subsequently brought by the borough against Hart and Wright to recover the money they had received from the road-masters of the township with whom the transfer had been negotiated. The declaration charged the defendants with a tort in wrongfully transferring to the township credit for seven citizens of the borough while they were “ exercising the duties and responsibilities of burgess and member of the town council,” and while they were acting as. public servants and agents for the borough.” It appears by both reports of the case in 6 P. F. Smith 23 and 13 P. F. Smith 388, that the fact was established that by the action of the town council each member, as well as the burgess, was authorized tcact as agent for the borough in procuring volunteers to fill the quota. This element of fact has not been found by [28]*28the arbitrator, but it appears adequately from the declaration, as well as the statements in the reports of the case, that the claim of the borough against Hart and Wright was for damages for a breach of duty while they were acting as its agents. That this was the character of the claim, indeed, the arbitrator has expressly found. A judgment was finally obtained for $1757, and having been paid to the borough, this action has been brought by the township to recover the amount.
The Act of the 25th of March 1864, Pamph. L. 85, limited the amount of the bounty to be paid to each volunteer to a sum not exceeding $300. A previous act, passed on the 16th of March 1864, Pamph. L. 16,. authorizing the levy and collection of taxes to pay bounties to volunteers in the city of Erie and the boroughs and townships in the county of Erie, had fixed no limit to the amount that should be paid. It is insisted on behalf of the plaintiff that the transaction in question here was subject to the provisions of the general and not the special statute: and as the price paid by the road commissioners was $500 for each volunteer, it is contended that the contract was an illegal one, and that the amount paid in excess of that legally authorized is money had and received by the defendant for the plaintiff’s use. On the other hand, the ground is taken by the defendant that for the guidance of the municipal authorities of Erie county, the Act of the 16th of March remained in force, and reliance is had on the rule stated in 6 Rep. 19, and adopted in Brown v. The County Commissioners, 9 Harris 37, that a general statute, without negative words, cannot repeal a previous statute which is particular, even though the provisions of the two be different. In view of the circumstances under which the Act of the 25th of March was passed, of the confused mass of special legislation in relation to bounties applying to different sections of the Commonwealth that was in existence, and of the broad and unqualified terms in which it was drawn, it is believed that it was designed to establish a pervading and exclusive system, and to supply and repeal the whole body of special statutes regulating the subject of taxation for bounty purposes,
Can the claim of the plaintiff be sustained upon the facts shown by the record ? This is an action of assumpsit. The money demanded by the plaintiff was recovered in an action ex delicto, brought by the present defendant to recover damages from Hart and Wright for wrongfully transferring the credits for volunteers belonging to the borough over to the township. Whatever may have been the measure of damages applied by the jury in reaching their verdict, the fact still remains that the amount recovered was made up of damages and nothing else. The money paid out by the road commissioners, eo nomine, has mot been traced to the defendant’s hands. In the suit against Hart and Wright, it was solemnly [29]*29decided, in the Common Pleas and by this court, .that the borough had been wronged by the act of its agents, and had a right to recover to the extent of the injury suffered. Is the plaintiff here entitled to take the money thus recovered under a claim utterly inconsistent with, and diverse from, any ground that was asserted in that suit ? Probably the road commissioners could have been made liable to the township for the wrongful exercise of their official functions. Possibly the township could have recovered from Hart and Wright the amount which they illegally received.
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Mr. Justice Woodward
delivered the opinion of the court,
The various items of evidence specified in the first, second and fourth assignments of error were made relevant by the parol testimony, Avhich had been given by the plaintiff, of the claim made and the points contested in the trial of the suit of the burgess and town council of the borough of Girard against Leffert Hart and S. L. Wright. The admission of the receipt for the amount of the judgment in that suit ay as certainly unobj ectionable, for it shoAved the money which it was the object of this action to recover in the defendant’s hands. Having made an issue in' regard to the character and subject-matter of the former suit, it is difficult to see how the issue could be better elucidated than by the production of the record. Henry Ball’s testimony was offered to meet the plaintiff’s evidence of what occurred Avhen the cause was tried. There Avas nothing in the testimony to contradict the record, or to vary the effect of any fact Avhich it disclosed. That explanatory evidence of the occurrences at a former trial is' admissible is well settled. [27]*27It was held in Carmony v. Hoober, 5 Barr 310, that it might be shown by parol that the issue had not been tried upon its merits. In Stark v. Fuller, 6 Wright 320, parol testimony of facts, in aid of those shown by the record, that transpired in the argument and disposition of a motion for a new trial, was held to have been properly received.
Mr. Ball’s testimony in regard to the authority of Hart and Wright, to the reception of which the third error is assigned, could have had no other effect than to tend to prove the negative of a fact the affirmative of which it was incumbent on the plaintiff to establish. The witness had been secretary of the council of the borough of Girard from 1864 to the time of the trial, and the offer was to prove that Hart and Wright had never been authorized to transfer to the township of Girard the .seven men whom they had secured. Part of the offer was to show the result of an examination he had made of the minutes of the proceedings of the council. Undoubtedly the books containing the minutes would have been the best evidence, but objection was not made on that ground, and nothing appears to show that the books were not within the plaintiff’s reach. No error in this particular that was at all material, or could have produced wrong results, can be gathered from the record.
The remaining assignments present the essential question in dispute. This is an action of assumpsit for money had and received. Under the call for troops made by the president on the 18th of July 1864, the quota of the borough of Girard was fourteen men. Seven men were procured at home, and agents were sent south for the others. In the absence of these agents, Hart, then the bui’gess, and Wright, a member of the council, undertook to act for the borough, and raised seven men to whom they paid three hundred dollars each. The agents abroad having obtained volunteers to fill the quota, Hart and Wright transferred to the township of Girard the credit for the seven men whom they had obtained, for the consideration of five hundred dollars for each man. An action of trespass on the case was subsequently brought by the borough against Hart and Wright to recover the money they had received from the road-masters of the township with whom the transfer had been negotiated. The declaration charged the defendants with a tort in wrongfully transferring to the township credit for seven citizens of the borough while they were “ exercising the duties and responsibilities of burgess and member of the town council,” and while they were acting as. public servants and agents for the borough.” It appears by both reports of the case in 6 P. F. Smith 23 and 13 P. F. Smith 388, that the fact was established that by the action of the town council each member, as well as the burgess, was authorized tcact as agent for the borough in procuring volunteers to fill the quota. This element of fact has not been found by [28]*28the arbitrator, but it appears adequately from the declaration, as well as the statements in the reports of the case, that the claim of the borough against Hart and Wright was for damages for a breach of duty while they were acting as its agents. That this was the character of the claim, indeed, the arbitrator has expressly found. A judgment was finally obtained for $1757, and having been paid to the borough, this action has been brought by the township to recover the amount.
The Act of the 25th of March 1864, Pamph. L. 85, limited the amount of the bounty to be paid to each volunteer to a sum not exceeding $300. A previous act, passed on the 16th of March 1864, Pamph. L. 16,. authorizing the levy and collection of taxes to pay bounties to volunteers in the city of Erie and the boroughs and townships in the county of Erie, had fixed no limit to the amount that should be paid. It is insisted on behalf of the plaintiff that the transaction in question here was subject to the provisions of the general and not the special statute: and as the price paid by the road commissioners was $500 for each volunteer, it is contended that the contract was an illegal one, and that the amount paid in excess of that legally authorized is money had and received by the defendant for the plaintiff’s use. On the other hand, the ground is taken by the defendant that for the guidance of the municipal authorities of Erie county, the Act of the 16th of March remained in force, and reliance is had on the rule stated in 6 Rep. 19, and adopted in Brown v. The County Commissioners, 9 Harris 37, that a general statute, without negative words, cannot repeal a previous statute which is particular, even though the provisions of the two be different. In view of the circumstances under which the Act of the 25th of March was passed, of the confused mass of special legislation in relation to bounties applying to different sections of the Commonwealth that was in existence, and of the broad and unqualified terms in which it was drawn, it is believed that it was designed to establish a pervading and exclusive system, and to supply and repeal the whole body of special statutes regulating the subject of taxation for bounty purposes,
Can the claim of the plaintiff be sustained upon the facts shown by the record ? This is an action of assumpsit. The money demanded by the plaintiff was recovered in an action ex delicto, brought by the present defendant to recover damages from Hart and Wright for wrongfully transferring the credits for volunteers belonging to the borough over to the township. Whatever may have been the measure of damages applied by the jury in reaching their verdict, the fact still remains that the amount recovered was made up of damages and nothing else. The money paid out by the road commissioners, eo nomine, has mot been traced to the defendant’s hands. In the suit against Hart and Wright, it was solemnly [29]*29decided, in the Common Pleas and by this court, .that the borough had been wronged by the act of its agents, and had a right to recover to the extent of the injury suffered. Is the plaintiff here entitled to take the money thus recovered under a claim utterly inconsistent with, and diverse from, any ground that was asserted in that suit ? Probably the road commissioners could have been made liable to the township for the wrongful exercise of their official functions. Possibly the township could have recovered from Hart and Wright the amount which they illegally received. Whether such an attempt to recover would have been a ratification of the act of the commissioners, and what would be the effect of a ratification that would have made the township a party to the contract, are questions which it is unnecessary now to discuss. But the borough cannot be reached. There was no privity of contract; there was no privity of.relation; there’was no community of participation in any act, between the borough and the township. Thé transaction on the part of the township was with Hart and Wright, and Hart and Wright were acting in violation of their duty to the borough. The existence of a tort committed by the defendant, which the plaintiff may waive .so as to maintain this action, must rest in pure invention. There was no act on the borough’s part to which the character "of a tort can be imputed. It was the victim of the wrong that was done, and it was for compensation in damages for that wrong that the verdict of the jury was rendered. Broad as is the scope which has been given to the action of assumpsit for money had and received, it has never yet been extended so as to permit a plaintiff to recover from a defendant with whom he had never dealt, for a subject-matter which he could not identify or trace, and where no undertaking to pay could possibly have been assumed. It was.not the plaintiff’s money of which the defendant obtained possession. The amount recovered was the amount of damages ascertained to have been caused by Hart and Wright’s fraudulent conduct. The claim asserted here could only be supported by remoulding the judgment in the former action, and by reading in the record of it material facts which it did not contain.
All authority supports this conclusion. Where there has been an express contract, the party injured may sustain an action of assumpsit, though the breach amount to a trespass, but unless there have been such contract, the plaintiff must resort to another form of action: 1 Ch. Pl. 95; Birch v. Wright, 1 Term Rep. 378. Henwood v. Cheeseman, 3 S. & R. 500, was an action for the use and occupation of land in New Jersey. Tilghman, C. J., said :— “ The plaintiff must prove a contract, or he fails; but this proof may be either direct or presumptive. If he prove that the defendant occupied the land by his permission, it is enough; it will be implied that the defendant promised to pay a reasonable [30]*30rent, but if the defendant came on as a trespasser, the plaintiff cannot recover in an action for the use and occupation.” To sustain a count for money had and received it is necessary to prove that the money was actually received for the benefit of the plaintiff under such circumstances as to create a privity of contract between him and the defendant. Barlow v. Browne, 16 Meeson & Welsby 128. Where the purchaser of a ticket in the Derby lottery sold it to the plaintiff, and the horse named in the ticket proved to be the winner, whereby the holder became entitled to a prize in money, it was held that the plaintiff could not maintain an action for money had and received from the treasurer of the lottery, for, although he held the money for the benefit of the plaintiff, yet there was no privity between them : Jones v. Carter, 8 Q. B. 134. And so if money in litigation between two parties is paid over by mutual consent to a trustee or stakeholder for the party entitled, it can only be recovered by that party from the stakeholder, and not from the other party by whom it was claimed: Ker v. Osborne, 9 East 378. It is essential in this form of action also that the plaintiff should establish a claim to some particular or specific sum of money as having been received to his use: Scott v. Miller, 5 Scott 11; Harvey v. Archbold, 3 B. & C. 626. Here the elements of contract, privity and identification are all wanting.
Even if the borough had recovered from Hart and Wright the money paid them in an action ex contractu, still the suit of the township could not be maintained. The rights and liabilities of the borough would have been precisely those of the seven volunteers. Could the township have recovered the money from them if they had received it ? No law forbade them to demand all they could get for their services. So far as they were concerned, the transaction was obnoxious neither to any law nor any rule of policy. That the township officers paid more than they were authorized to pay was nothing to the volunteers, and is a matter with which the borough has no concern. The contract was fully executed. The township received and retained the consideration for the money paid in the services of the volunteers. 'They could not have been compelled to pay back the money if the contract had been made with them, and the borough stands in the position they would have occupied. The contract was not per se' unlawful. There was nothing in the Act of the 25th of March 1864, to prevent a payment of $500 or any other sum to any volunteer, if funds for the purpose could be raised by private contribution. That act merely limited the amount to be borrowed on the credit of the township and to be repaid from taxes. The law imposed no restraint on the generosity or patriotism of the citizen when it fixed the limit of the taxpayers’ liability. The right of the volunteers to receive and retain a bounty in excess of $300 cannot 'be doubted. The borough could be made liable only on principles that would apply [31]*31to them. Whatever the rights and Remedies of the township of Girard may he, they cannot be enforced in this action.
Judgment affirmed.
Agnew, C. J.,.and Sharswood, J., dissent.