V. Mandeville and here is no privity. And if resort be had to the custom of merchants; that custom must be averred in the declaration. Riddle. *293 Simms, contra. Every endorsor is as the maker of a new note. 1 Stra. 479. Smallwood v. Vernon. Esp. N. P. 33. 2 Burr. 674. *Heylin v. Adamson. He undertakes to pay the sum mentioned in the note, if the original maker does not. As soon as the original maker fails to comply with his engagement, that of the endorsor becomes absolute. He then becomes the holder of so much money as is expressed in the note, to the use of his immediate endorsee, or of such person as he shall name. It is true the plaintiffs below have sought their remedy at common law; and by common law they are entitled to recover. Every man ought to be compelled to pay money which he has in his hands belonging to another, and which in equity and good conscience he has no right to retain. And the principle is now well established, that at common law he may be compelled to pay it by an action for money had and received. As to the evidence offered on this count, it was long doubted, before the statute of Anne, whether any other than an action of indebitatus assumpsit for money had and received, or for money lent, would lay upon a note. This was the ground of contention between Lord Holt and the merchants of Lombard street; he strenuously contending that the action for money had and received, or for money lent, was the only proper remedy; and they endeavouring to bring into use the form of declaring upon a note as a specialty. Although a note may now, under the statute, be declared upon as a specialty, yet the statute has not taken away the common law remedy which existed before. As to surprise, the objection made would go to almost every case where money had and received is the proper action; such as where the consideration happens to fail, or where money has been paid by mistake, &c. Endorsement is evidence that the endorsor has received money of the endorsee. And at and from the time of the endorsement, the endorsor is debtor to the endorsee, and the debt may be proved under a commission of bankruptcy against the endorsor before the note is payable. In this case, however, there could be no surprise; the defendants below had notice of the non-payment of the note, and that they would be held liable; and it is immaterial #by what means notice is given. Doug. 138. Longehamp v. Kenny. In the case of Grant v. Vaughan, 3 Burr. 1516. the cases upon promissory notes before the statute of Anne are taken up and considered with great clearness and ability by the court. Every principle established in that case furnishes an argument for the original plaintiffs in this. The case there was, that Vaughan drew a check or order on his banker in these words: ("pay ship Fortune or beurer 70l.") and gave it to Bicknell, who lost it. It was found by some person, and honestly taken in payment for goods by the plaintiff, in his way of trade as a mercer. Payment of the check being stopped at the banker's, the plaintiff brought suit against Vaughan, the drawer, and declared upon an inland bill, and for money had and réceived to his use. It was held that these notes are, by law, negotiable, and were so before the statute of Anne, and that the bearer of them might maintain an action as bearer, where he could entitle himself to them on a valuable consideration, and for this was cited Hinton's Case, 2 Shower, 235. in the reign of Charles II. Crawley v. Crowther, 2 Freeman, 257. in the year 1702, before the statute of Anne. 1 Salk. 126. pl. 5. Anonymous, 10 Wm. III. and Miller v. Race, 1 Burr. 452. 31 Geo. II. That the only dispute before the statute of Anne was as to the mode of declaring; but that it never was disputed "that an action upon an indebitatus assumpsit generally for money lent, might be brought upon a note payable to one or order," and cites 2 Lord Raym. 758. Clerke v. Martin. "That upon the second count," Lord Mansfield said, "the present case is quite clear, beyond all dispute. For undoubtedly, an action for money had and received to the plaintiff's use may be brought by the bona fide beurer of a note made payable to bearer. There is no case to the contrary. It was certainly money received for the use of the original advancer of it; and if so, it is for the use of the person who has the note as bearer. Mandeville Riddle. * 294 Mandeville V. Riddle. * 295 And Wilmot, Justice, said, that it was notorious, that such notes were in fact and practice negotiated. "Probably, the jury took upon themselves to consider, whether such bills or notes as this is, were in their own nature negotiable; but this is a point of law; and by law, they are negotiable." And again he says, "but this is a negotiable note; and the action may be brought in the name of the bearer. Bearer is descriptio persona, and a person may take by that description as well as by any other. In the nature of the contract, there is no impropriety in his doing so. It is a contract to pay the bearer, or to the person to whom he shall deliver it, (whether it be a note or a bill of exchange,) and it is repugnant to the contract, that the drawer should object that the bearer has no right to demand payment from him. The reasons given in the cases that are opposite to this are altogether unsatisfactory." Even before the statute of 3 and 4 Anne, Lord Chief Justice Holt himself thought that an indebitatus assumpsit for money lent, or for money had and received, might be maintained upon such a note." And Yates, Justice, said, "Nothing can be more peculiarly negotiable than a draught or bill payable to bearer; which is, in its nature, payable from hand to hand, toties quoties." It had been doubted, it is true, whether that species of action, where the plaintiff declares upon the note itself as upon a specialty, was proper; but here is a count upon a general indebitatus assumpsit, for money had and received to the plaintiff's use. The question, whether he can maintain this action, depends upon its being assignable, or not. The original advancer of the money manifestly appears to have had the money in the hands of the drawer, and, therefore, he was certainly entitled to bring this action. And if he transfers his property to another person, that other person may also maintain the like action. Whoever has money in the hands of another inay bring such an action against him. This appears from the determination in the case of Ward v. Evans, reported in 2 Lord Raym. 930. where not a shilling off money had passed between the plaintiff and defendant; and yet Holt and Powell both held that an indebitatus as sumpsit for moneys received to the plaintiff's use properly lay." This case clearly shows, that actions upon promissory notes payable to bearer, or order, might have been main . V. Riddle. tained before the statute of Anne; and that such actions Mandeville did not depend upon the privity of contract. There certainly is not more privity of contract between the drawer of a note, and the bearer, (especially after that note has been lost by the lawful owner, and comes to the hands of the plaintiff through the finder,) than between the maker of a note payable to order, and the endorsee. It also shows that there are certain instruments, which are negotiable in their own nature by force of the contract itself, independent of statute law; and that a promisee may as well be described by being the bearer of a certain paper, as by being named with his christian and surname. And if he may be designated by the fact of being the bearer of a paper, there is no reason why he may not equally be described by the fact of his being the nominee of a certain other person, and the holder of a certain note. There is no doubt that before the statute of Anne notes were passed from one to another, and actions for money had and received were, on common law principles, maintained by the bearers and endorsees. The endorsement was considered as conveying or assigning the money of the payee in the hands of the maker; and the original contract of the maker was, to hold the money to the use of the payee, or of such person as he should appoint. Privity of contract is not the ground of the action for money had and received. And among the many cases of that kind, there will be scarcely found one in which such a privity has existed. If I lose money, I may have this action against the finder. If A. delivers money to B. to be paid over to C. the latter may maintain this action against B. If a man, under pretence of authority from me, receive money due to me, I may recover it of him in this form of action. So if I pay money to another by mistake. So if a man obtains money from me by fraud and deceit. So if the consideration of a bargain fail. So if one pretending a right to an office receive fees, the rightful officer may, by an action for money had and received, recover of him the amount of fees so received. The endorsor is a new drawer as to all the subsequent parties. He has received money from his endorsee which he engages to hold to his use, or to the use of such person as he shall appoint, in case the maker does V. Riddle. Mandeville not pay the note or demand. This principle results from the custom of merchants; for the moment a promissory note payable to order is endorsed, it becomes, in its nature, independent of any statute, an inland bill of exchange, both in form and substance. The endorsor orders the maker to pay to the endorsee, or his order, the sum of money mentioned in the note. The maker by signing the note acknowledges that he has effects of the payee, to the amount of the note, in his hands; and by making the note payable to the order of the payee, he authorizes the payee to draw upon him for that amount, and pledges himself to honour the draft. An acceptance may be made before the bill is issued, and is equally binding as if made after. Kyd, 48, 49. The sig. nature of the maker to the note is an acceptance of the payee's bill. No part or circumstance of a bill of exchange is wanting. * 298 The plaintiffs below, therefore, were clearly entitled to recover the money from the defendants; and, therefore, the defendants ought not in justice and good faith to withhold it. In such a case there never has been a doubt but that the bill may be given in evidence on the count for money had and received. Swann, in reply. If the endorsor is liable, it must be under the act of assembly. But the act of assembly gives an action only against the maker, as is evident from the provision for allowing all just discounts, not only against the holder but against his assignor before notice. No case can be found of an action for money had and received brought by an endorsee against a remote_endorsor, either before the statute of Anne or after. The cases cited are of a note payable to bearer. If any action will lay, it must be on the statute of Virginia. Marshall, Chief Justice. It is decided in Virginia that an action is maintainable by the assignee against the assignor, and not under the act of assembly. *February 26th. opinion of the court. The Chief Justice delivered the |