Moses v Macferlan
| Moses v Macferlan | |
|---|---|
Lord Mansfield
|
|
| Court | Court of King's Bench |
| Decided | 19 May 1760 |
| Citation(s) | (1760) 2 Bur 1005; 97 ER 676 |
| Transcript(s) | Available here |
| Court membership | |
| Judge(s) sitting | Lord Mansfield |
| Keywords | |
| Law of restitution, Money had and received, Assumpsit | |
Moses v Macferlan (1760) 2 Bur 1005 is a foundational case in the law of restitution holding that in certain circumstances such as when money is paid by mistake, for failed consideration or under oppression; the law will allow the money to be recovered.
Chapman Jacob had made out four promissory notes to Moses for 30s each.
Moses owed Macferlan £26, did not pay him and was sued. A settlement was reached at arbitration whereby Moses would pay Macferlan £20; and endorse to Macferlan the four promissory notes he had received from Jacob. Moses, endorsed these notes to Macferlan, thus transferring over rights to the money. Prior to Moses endorsement, Macferlan assured him that his endorsement would not prejudice him. In other words, Macferlan would not seek to get the value of the notes from Moses. There was also an agreement signed by Macferlan that Moses should "not be liable to the payment of the money or any part of it".
Despite Macferlan's assurances and agreement with Moses; he summoned Moses into the Middlesex Court of Conscience as the endorser of the four promissory notes.
The lawyer for Moses put the agreement before the court and offered to give evidence of it in Moses defence. However, the Court rejected this defence as beyond its jurisdiction, refused to receive evidence of it and gave judgment against Moses; holding that his endorsement establishing his liability. Moses paid the money, to the value of the four promissory notes, into court. Macferlan then withdrew the money at the order of the court.
On the subsequent action of Moses in the King's Bench court to recover the £6, the jury found that Moses was entitled to the money subject to the opinion of the court on the question, "Whether the money could be recovered in the present form of action, or whether it must be recovered by an action brought upon the special agreement only".
William Gummow has summarised the problem that the court had to deal with;
"The root of the doctrinal problem presented to the King’s Bench in Moses v. Macferlan was the absence of an accepted basis for the action for money had and received. Lord Mansfield gave a number of settled instances where the action lay, but the instant case did not fall within any of them. Lord Mansfield also sought to find a principle within which past, present, and future cases might be accommodated. Given what he saw as the rigidities of the common law, Lord Mansfield looked to equity for an appropriate analogy upon which the common law should draw."
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