#### STEPHEN MONDAY AND WM. H. ROANE *vs. J.*R. SILER.

An action of assumpsit for money had and received, will not lie in favor of the equitable owner of a chose in action against a legal owner who has received the money on it.

AotioN of assumpsit,, tried- before SauNDees, Judge, at the last Spring Term of Macon Superior Court. The suit was brought for money collected upon anote, due by J. M. Bryson for $150, dated December, 1851, payable to John Baxter, assigned by Baxter on 10th March, 1852, to J. E. Mounce, and by him to Jesse E. Siler, the defendant, by whom the amount was collected.

The plaintiffs produced a deed in trust conveying the effects of J. E. Mounce to them for certain purposes, and they contended that by it the equity in this note passed to them, and that the defendant, having got the money, was liable to them in this action. They showed that they had given notice to the debtor, as well as to the defendant, previously to the note’s being collected, forbidding its payment to defendant.

His Honor charged the jury, that on this state of facts, the *390plaintiff was entitled to recover. Defendant excepted. Yer-dict for plaintiff. Judgment and appeal.

_ZY *W. Woodjm, J. W. Woodjwv*and *Gcdther,*for plaintiffs.

*Baxter,*for defendant.

Battle, J.

We cannot concur in the opinion expressed by his Honor in the Court below. He was misled, no doubt, by what has been often said of the action of assumpsit for money had and received — that it was in the nature of a bill in Equity, and would lie wherever the defendant had received money which he could not in equity and good conscience retain from the plaintiff. That may be true, wherever the defendant himself has not the *legal*title to the money, but cannot apply to a case where the plaintiff is only the equitable, while the defendant is the legal owner of the sum received. To permit a recovery at law, in such a case, would be confounding the distinctive jurisdictions of the Courts of Law 'and Equity. Accordingly it was decided in the case of *Smith*v. *Gray,*1 Dev. and Bat. Rep. 42, that where a person who was entitled to a distributive share in an estate, assigned it to the plaintiff, and afterwards collected and used it himself, assumpsit for money had and received, would not lie against him by the as-signee. *“*Whatever operation,” say the Court, *“*the assignment may have in Equity, *at Law*it did not transfer a title to the distributive share, nor to the money decreed upon it. At Law it could operate only as authority to the plaintiff to collect the money, and perhaps justify him in retaining it after it should have been collected. When therefore, the defendant received the money, he received what in Law belonged to him, and we do not see therefore how the law can infer, upon this receipt, an undertaking to pay over the money to the plaintiff.”

This reasoning applies directly to the case before us; the deed executed by Mounce to the plaintiffs, transferred to them the equitable title only in the promissory note in question, while his endorsement of it passed the legal title to the de*391fendant. When, therefore, the latter collected the money from the maker of the note, he received that, to which in law he was entitled, and the law will not infer an undertaking by him to pay it over to the plaintiffs. The case of *Hoke*v. *Carter,*12 Ire. Rep. 324, to which we were referred by the counsel for the plaintiffs,'decides nothing in'opposition to this principle. It holds that if an agent of the equitable owner of a *chose in action*receive the money, he may be sued in assump-sit by the latter for it, and that he is not protected from the suit by paying over the money to the legal owner; but it does not decide, and there is nothing in it which goes to show, that assumpsit for the money had and received could be sustained against such legal owner.

PeR OueiáM. The judgment is reversed and a *venire de novo*awarded.