## Facts

- Chapman Jacob made four promissory notes (30 shillings each) payable to Moses.
- Moses owed Macferlan money and endorsed the notes to Macferlan so Macferlan could collect from Jacob in Macferlan’s own name.
- Before endorsement, Macferlan assured Moses the endorsement would not prejudice him and signed a written indemnity stating Moses would not be liable for the notes, costs, or any loss arising from the endorsement.
- Despite the indemnity, Macferlan sued Moses as endorser in the Middlesex Court of Conscience, bringing four separate actions.
- Moses attempted to rely on the indemnity agreement as a defense, but the Court of Conscience refused to receive it, believing it lacked power to decide its effect, and entered judgment against Moses based solely on the endorsement.
- Moses paid the amounts into that court; Macferlan withdrew the money.
- Moses then sued Macferlan in King’s Bench in assumpsit for money had and received, seeking restitution of the sums Macferlan collected.

## Issues

1. Whether Moses could recover the money through assumpsit for money had and received, rather than being limited to a special action on the written indemnity agreement.
2. Whether a defendant may be compelled to make restitution of money received under a valid inferior-court judgment when, as between the parties, retention is unjust.

## Decision

- The King’s Bench (Lord Mansfield) held that assumpsit for money had and received was an available form of action on these facts.
- The court allowed Moses to recover from Macferlan notwithstanding the inferior-court judgment, because Macferlan’s retention of the money was contrary to the parties’ indemnity arrangement and to equity and good conscience.
- The jury’s verdict for Moses was sustained, requiring Macferlan to refund the money.

## Legal Principles

- An action for money had and received lies to recover money that, *ex aequo et bono*, the defendant ought to refund; it is a “liberal” common-law action grounded in the justice of the plaintiff’s case.
- Restitution is available where money is obtained or retained through circumstances such as mistake, failure of consideration, imposition, extortion, oppression, or other unconscientious advantage.
- The remedy is not confined by technical limits of debt; assumpsit for money had and received may lie whether or not debt would.
- A prior judgment in an inferior tribunal does not necessarily bar restitution where the judgment was obtained or exploited in bad faith or where, as between the parties, the recipient is obligated in conscience to return the money.

## Conclusion

King’s Bench recognized money had and received as a flexible restitutionary remedy and required Macferlan to return funds collected from Moses under an inferior-court judgment when retention violated an express indemnity and was against equity and good conscience.


Moses v. Macferlan, 2 Burr. 1005 (K.B. 1760)