#### George B. Fairbanks *et al. versus*George Blackington.

A. being indebted to B., C., without authority from B., obtains from A., A.’s note, payable to C. for the debt due to B., but does not call upon A. for payment for several years, and in the mean time pays B. a part of the debt, and promises to pay him the remainder. Held, that B. may maintain an action for money had and received against C., notwithstanding A.’s note remains unpaid.

If a person secures property to his children in fraud of his creditors, the fraud in this transaction is no defence to an action brought by the children against a person who has received and agreed to account to them for the property.

The original transaction, though void as against the father’s creditors, is binding on the parties to it, and valid as to all persons except the creditors.

Assumpsit for $200, money had and received.

At the trial, before *Morton*J., the following facts appeared in evidence.

The plaintiffs are the children of James Fairbanks. In the year 1817 James Fairbanks gave a promissory note for $94 to George Blackington, the father of the defendant, and also father of Fairbanks’s wife, the mother of the plaintiffs. The note was made to bear date September 7th, 1814. Fairbanks testified, that before his marriage with the mother of the plaintiffs, he had agreed with her that she should have all the property which she brought him, and that when he made the note he supposed it to be equal to that property, and that when he gave the note, there was a written agreement between him and the payee, that when paid, the payee should pay over the money to the plaintiffs, who were then minors. At the time when this note was given, Fairbanks’s pecuniary circumstances were embarrassed. In 1817, the same year that the note was made, it was placed in the hands of Josiah J. Fiske, an attorney at law, for collection, (by whom, Fiske did not remember,) about the same time that divers other claims against Fairbanks were put in suit. All the demands in Fiske’s hands, including this note, were secured by attachments on Fairbanks’s property, that on the note being last, and were all eventually paid, Fairbanks paying the money on the note after execution issued. Fiske agreed to pay interest on this money so long as it remained in his hands, and no person called on him for it until 1824, when the defendant called on him for a settlement, *95the defendant’s father, the payee, being then alive. Fiske paid the defendant $ 10-40, and at the defendant’s request gave a note for the balance, which note, according to Fiske’s impression, was negotiable. He took a receipt from the defendant. Fiske had heard nothing of his note since he gave it to the defendant. The plaintiffs’ mother repeatedly called on the defendant in their name for the money in his hands belonging to them ; and he twice paid her ten dollars, on their account. He never denied to her his liability to pay them, but acknowledged himself indebted to them and promised to pay them. After Fairbanks paid his note, he was committed to jail for debt, and liberated upon taking the poor debtor’s oath.

The defendant was to be defaulted, or the plaintiffs to become nonsuit, according to the opinion of the Court upon the foregoing facts.

*Metcalf*for the defendant,

contended that as the defendant had received no more money than he had paid over, the plaintiffs could not maintain the action in this form. The presumption arising from the taking of a promissory note, that the money is received on it, is negatived by the evidence.

The defendant is not liable to the plaintiffs in any form of action, for intercepting the money in Fiske’s hands, for they never had any claim on Fiske for the money collected of Fairbanks. Only Blackington senior, or his representatives, could claim it of Fiske. The plaintiffs could originally have looked only to Blackington senior, after he should have collected the note of Fairbanks. They could not have sued their father on the note, even if it had on the face of it been payable to Blackington senior for their use. Specialties, and notes and bills not negotiable, can be sued only in the payee’s name ; although parol contracts generally may be sued either in the name of the trustee or *cestui que trust.*Besides, if Fiske ever was liable to the plaintiffs, he is liable still. The defendant’s receipt is no defence against the plaintiffs’ claim, nor against the claim of the representative of Blackington senior.

The illegality of the original transaction is a defence against this claim. The test, whether such a demand can be enforced at law, is this, — does the plaintiff require any aid from the die-*96gal transaction to establish his case ? If he does, he must latí. *Simpson*v. *Bloss,*7 Taunt. 246. This test disposes of the plaintiffs’ claim. *Booth v. Hodgson,*6 T. R. 405 ; *Fales*v. *Mayberry,*2 Gallis. 560.

The cases of *Tenant*v. *Elliott,*1 Bos. & Pul. 3, and *Farmer*v. *Russell,*ibid. 296, will be relied on by the plaintiffs. If the point decided in those cases were *res integra,*it world doubtless be decided differently now by the English courts, and according to the dissenting opinion of *Rooke*J. *Langton*v. *Hughes,*1 Maule. & Selw. 593 ; *Cannon*v. *Bryce,*3 Barn. & Ald. 182 ; *Gross*v. *La*Page, Holt’s N. P. R. 105.

If the cases in Bos. & Pul. are regarded as authority, still there is a difference between them and the case at bar. In those cases the contract was executed ; the whole effect which the law forbade had been produced. But by sustaining this action, the Court assist in carrying into effect the original contrivance of J. Fairbanks and Blackington senior to defraud the creditors of the former.

*Wilde,*for the plaintiffs,

to show that the defendant was lia ble in this action, notwithstanding James Fairbanks might have intended to defraud his creditors by the arrangement which he made with Blackington senior, cited 2 Evan’s Poth. on Obl. 14, *App. no.*1 ; *Faikney*v. *Reynous,*4 Burr. 2069 ; *Armstrong*v. *Toler,*11 Wheat. 268 ; *Holman*v. *Johnson,*1 Cowp. 344 ; *Hodgson*v. *Temple,*5 Taunt. 181 ; *Tenant*v. *Elliott,*1 Bos. & Pul. 3 ; *Farmer*v. *Russell,*ibid. 296. Even if it should be admitted that the money is a trust fund in the hands of the defendant for the benefit of James Fairbank’s creditors, and that if the plaintiffs recover they will hold it as trustees foi the creditors, still there is no injustice in the plaintiffs’ recovering, because the defendant can plead this recovery in bar to any suit by the creditors. *Phillips*v. *Hunter,*2 H. Bl. 402 ; *Embree*v. *Hanna,*5 Johns. R. 101.

Wilde J.

afterward drew up the opinion of the Court. The plaintiffs claim of the defendant a certain sum of money collected by Fiske, an attorney at law, and to which it appears they were by law entitled. The money remained in Fiske’s hands for some time, when it was claimed by the defendant, but without authority; and thereupon Fiske paid him a small *97sum m cash, and gave him a note for the balance. This note has never been paid or demanded. It does not certainly appear whether it was negotiable or not, but the impression on Fiske’s mind is that it was.

The first objection made to the plaintiffs’ recovery is, that an action of money had and received will not lie except for the small amount actually paid in cash. But this objection cannot be maintained. The defendant undertook to discharge a debt due to the plaintiffs, and they may now elect to consider him as their agent, and by thus electing they discharge Fiske from his liability to them. That the note was received in payment by the defendant appears by the receipt given at the time, and by his acknowledging his liability to the plaintiffs, by his payment of a part of the demand, and by his express promise to pay the balance.1

But the main objection to the action is, that the plaintiffs’ demand grew out of a fraudulent and illegal transaction ; and certainly, if the plaintiffs’ demand arises *ex turpi causa,*or is founded on an illegal act, the Court will not lend its aid in support of the action.

The answer given to this objection is, that whatever fraud there was in the original transaction, it was between other parties, and in which the plaintiffs did not participate. And perhaps this is a sufficient answer. Another answer is, that the original transaction was not illegal. The most that can be urged against it is, that it was voidable by creditors ; but it was valid between the parties, and is binding as to every one, except he is a creditor.2 This answer seems to be conclusive, for the defendant is not a creditor, and as to him, therefore, the original transaction is free from any taint of fraud or illegality.

According to the agreement of the parties the defendant must be defaulted.

1

 See Chitty on Contr. (4th Am. ed.) 482, and note 1; *Butterfield*v. *Hartshorn,*7 N. Hamp. R. 345; *Heaton*v. *Angier,*7 N. Hamp. R. 397.

2

 See Chitty on Contr. (4th Am. ed.) 327; Long on Sales, (Rand’s ed) 117,124.