Moses v. Macferlan 250 Years On

Table of ContentsI. Introduction 882II. The Action for Money Had and Received 882III. The Basis of the Action 886Tv7. The Genesis of the Change of Position Defence 888V. Payment Over and Estoppel 892VI. David Securities and Change of Position 894VII. The Definition of "Change of Position" 894VIII. Conclusions 897I. IntroductionOn Monday May 19, 1760, the Court of King's Bench, led by Lord Mansfield, delivered its decision in a case which stood for their opinion upon a reservation by the trial judge. This was Lord Mansfield himself sitting at nisiprius at Guildhall in the City of London. The case was Moses v. Macferlan.1Exactly 250 years later, on May 19, 2010, at its 87th annual meeting in Washington, D.C., the American Law Institute approved the final draft of the Restatement (Third) of Restitution & Unjust Enrichment ("the Restatement Third"). The publication of the Restatement Third will provide a new and important staging post for further development of the law, not only in the United States but also in Australia and elsewhere. The notes and comments by the Reporter, Professor Andrew KuIl, supplement the succinct statements in the black law sections with a wealth of material provided by judicial and academic writings extending over a long period.Not surprisingly, a significant component of the substratum for the Restatement Third is the decision in Moses v. Macferlan itself. I have endeavoured elsewhere to give an account of the litigation which led to the question reserved for the Court of King's Bench.2 The essential point is that Macferlan had been bound by agreement not to sue Moses on four promissory notes (each for 30 shillings), and Moses now sued in the Court of King's Bench to recoup the £6 which had been recovered by Macferlan, in the Middlesex Court of Conscience, by action taken for breach of that agreement. Moses succeeded in his argument that the £6 was money had and received by Macferlan to the use of Moses.II. The Action for Money Had and ReceivedAn examination of many of the modern authorities, which in general terms are described as "restitution" cases, shows that action was one for money had and received. It thus is appropriate to say something respecting that action.The action for money had and received is the most comprehensive of the common counts, and significantly differs from the other common counts. Writing in the recently published twelfth volume of The Oxford History of the Laws of England, Professor Lobban explains:3In these counts [for goods sold or work done at the defendant's request], the originating debt was seen to have arisen from a contractual transaction, which could be implied from the fact of the defendant's request and receipt. By contrast, in the count for money had and received, the very wording of the declaration showed that the originating debt did not arise from a contractual transaction. In this count, the plaintiff did not aver a request, but stated that the defendant was "indebted to the plaintiff for money had and received to his use, and being so indebted promised to pay." Although it was essential, in indebitatus assumpsit, to allege that a promise had been made, proof of mutual assent and consideration were not necessary to sustain this action. The promise was implied by the existing debt, and was not traversable, and a plea of non assumpsit only put in issue whether there was a subsisting debt, or cause of action, at the time of commencing the suit6 - that is, whether the defendant had money to the plaintiffs use. …