The Bank of the United States, Plaintiffs In Error v. the Bank of Washington, Defendants In Error

• Decision Date: 01 January 1832
• Parties: THE BANK OF THE UNITED STATES, PLAINTIFFS IN ERROR v. THE BANK OF WASHINGTON, DEFENDANTS IN ERROR
• Court: U.S. Supreme Court

31 U.S. 8

6 Pet. 8

8 L.Ed. 299

THE BANK OF THE UNITED STATES, PLAINTIFFS IN ERROR v. THE BANK OF WASHINGTON, DEFENDANTS IN ERROR.

January Term, 1832

THIS was a writ of error from the circuit court of the United States of the district of Columbia for the county of Washington.

The action was assumpsit in the circuit court, and was instituted by the Bank of Washington against the Bank of the United States for money had and received, to recover the sum of eight hundred and eighty-one dollars and eighteen cents, with interest. The case was submitted to that court on the following case agreed.

In this case, Triplett and Neale recovered a judgment, at Alexandria court, at April term 1824, against the Bank of Washington, which was afterwards taken to the Supreme Court by writ of error, and there reversed, as appears by the record of the same in the Supreme Court, and the proceedings in that court in the matter of the writ of error, Bank of Washington against Triplett and Neale, decided at January term 1828 of the Supreme Court. 1 Peters, 25.

The Bank of Washington, on the 2d of June 1824, had petitioned for the allowance of a writ of error in the said case, and presented such petition to one of the judges of the Supreme Court, by whom it was refused; and afterwards the said petition was presented to the chief justice of the United States, by whom the writ was allowed on the 15th of March 1825; and the same was accordingly issued as by the record: on the 30th of August 1824, Triplett and Neale sued out execution on said judgment, and immediately sent the same enclosed in a letter to Richard Smith, cashier of the office of discount and deposit of the Bank of the United States at Washington, with an indorsement thereon in writing, who wrote another indorsement thereon, as appears from the said execution and the indorsement thereon, in the words following:

Triplett and Neale v. The Bank of Washington.

Use and benefit of the office of discount and deposit of the United States Washington city.

CHARLES NEALE.

Pay to Mr Brooke Mackall.

RD. SMITH, Cashier.

Received eight hundred and eighty-one dollars and eighteen cents.

B. MACKALL.

Brooke Mackall, the runner in the said office, and the person mentioned in the last of said indorsements, presented the said execution, &c. to the Bank of Washington, and there, on the 9th of September 1824, received the sum of eight hundred and eighty-one dollars and eighteen cents, and signed the receipt thereon. And at the time of signing the same, William A. Bradley, then cashier of the Bank of Washington, verbally gave notice to said Mackall, that it was the intention of said Bank of Washington to appeal to the Supreme Court, and that the said office of discount and deposit would be expected, in case of a reversal of the judgment, to refund the amount. The said Mackall received the said sum as the amount of principal and interest accrued on said judgment, as appears by his receipts on the said execution: which sum he delivered to said Smith, who entered it to the credit of C. Neale, one of the firm of Triplett and Neale, on the proper books of the said office. Before the delivery of the said execution to the said Smith, as aforesaid, C. Neale, one of the said firm of Triplett and Neale, had promised said Smith to appropriate the money, expected to be recovered from the bank of Washington in said suit, to reduce certain accommodation discounts which he, the said Neale, had running in said bank, upon notes drawn by him and indorsed by indorsers as sureties for the due payment thereof, which discounts were still running upon such notes at the time and times the said execution was so delivered, and when the money was paid as aforesaid. The said Smith received the said execution with the said Neale's said indorsement thereon, as he understood and considered, for collection; and when collected, he deposited the same in bank to said Neale's credit generally; and would hav sent the same to him at Alexandria, if he had requested him to do so, or would have paid his check for the amount; and immediately on the receipt of said money as aforesaid, said Smith wrote a letter to the said Neale, in the words following to wit:——

OFFICE OF THE BANK OF THE UNITED STATES,

Washington, September 9, 1824.

CHRISTOPHER NEALE, Esq.

Dear Sir:—I have received the sum of eight hundred and eighty-one dollars and eighteen cents from the Bank of Washington, in payment of your judgment against it, and have placed the same to your credit. Be good enough to give me specific directions of the way in which you wish it applied.

RD. SMITH, Cashier.

To which letter the said Neale returned the following answer:

Dear Sir:—In reply to your esteemed favour, I have to request that you will apply the money received from the Bank of Washington to the reduction of the notes indorsed by John H. Ladd & Co. and John A. Stewart, equally, after paying Thomas Swann and Walter Jones one hundred dollars between them, or fifty dollars each, as their fees.

10th September 1824.

C. NEALE.

The said Smith applied the said money pursuant to the directions of the last mentioned letter. It was submitted to the court upon the foregoing case agreed, whether the plaintiffs were entitled to recover of the defendants, the money with interest, so received and applied by said Smith, as aforesaid: if the court decide in the affirmative, judgment to be entered for the plaintiffs for the sum of eight hundred and eighty-one dollars and eighteen cents, with interest from the 9th day of September 1824 till paid, and costs: otherwise for the defendants with costs, &c. (any objections to the competence of the evidence to be considered by the court).

The circuit court gave judgment for the plaintiffs, and the defendants prosecuted this writ of error.

The cause was argued for the plaintiffs in error by Mr Lear and Mr Sergeant, and for the defendants by Mr Dunlap and Mr Key.

For the plaintiffs it was contended, that the money which was received from the Bank of Washington by the Bank of the United States, was received as the funds of Triplett and Neale, and as their agents: the Bank of the United States did not act as the assignees of the judgment, but placed the amount to the credit of Christopher Neale: and, afterwards, by special directions, appropriated it to the reduction of the notes of Triplett and Neale in the bank, upon which notes there were good and substantial indorsers, who thereby became released to the extent of the appropriation.

The judgment against the Bank of Washington was valid, and subsisting at the time the money was received. If land had been taken in execution and sold under the judgment, the title of the purchaser would have been good, although the judgment was afterwards reversed, the writ of error not having operated as a supersedeas. Indeed, no writ of error was prosecuted until after the payment of the money. 2 Bac. Abr. 505. Barney v. Patterson's Lessee, 6 Har. and Johns.

The judgment being then good and inforce, and Triplett and Neale having at the time it was paid a right to demand and receive the money, the action for money had and received will not lie. That action is an equitable action.

The proper remedy for the defendants in error was a writ of restitution. 6 Com. Dig. Plead. 468, 469; 2 Salk. 587, 588; Rast. Entries, 388; 10 Mass. 433. If money received under circumstances of this kind could be pursued, there would be no limit to such actions.

There was no assignment of the judgment to the Bank of the United States; nor would the court have allowed an assignment to be entered on the record, upon the production of the order of Mr Neale upon the execution, as stated in the case agreed. The Bank of the United States were not treated in the proceedings upon the writ of error as the assignees of the action, and no regard was paid to them in the proceedings in the case of the Bank of Washington v. Triplett and Neale. 1 Peters, 25.

The Bank of the United States were not affected by the notice which was given to the runner of the bank when the money was paid. It was not given to one who had a right to receive it, nor in a form which entitled it to consideration.

Could the notice have any effect? The decision of this question does not depend upon the question of agency.

To make this notice available, it is indispensable that it should be of a matter of which the party has a right to give notice, and of which the party to whom the notice is given is bound, or at least has the power to take notice. It must be of something which the party has a right to require.

Had the Bank of Washington a right to stay the receipt of the money by Triplett and Neale, or to prevent them from using it as they pleased, directly or indirectly? The argument supposes, necessarily, that they had a right to intercept it in its course; or, at all events, to prevent the use of it, and detain it for themselves.

When and where did the right arise? The judgment was in full force, and warranted the issuing of this execution; and proceedings under it could not be staid. The command of the writ was to levy the money, and to pay it to the plaintiffs. The money could not be stopped in the hands of the marshal, who was bound to pay it to the plaintiffs; and if he had not paid it they could have brought suit for it. The Bank of Washington could not have stopped it in his hands after payment to the marshal; and yet this is what is sought to be accomplished by the notice.

The case is then only the ordinary case of a judgment liable to be reversed on error; but until reversed, the money belongs to the plaintiff in the execution, to all intents and purposes; liable to pay an equal amount in case of reversal, but not a specific thing. The notice therefore is of a thing totally immaterial, and to be disregarded.

These observations apply to the argument founded on the agency. The utmost extent to which the principle can be carried is, that if an...