#### WILLIAM CARROWAY vs. MOSES COX.

Where A., in a settlement with B., was allowed a credit of a certain sum, as being the amount due from B. toC.: — Held, that the law implies such privity of contract between A. and C. as entitles the latter to maintain assumpsit against the former for money had and received.

In such case, the plaintiff’s cause of action is not complete until he gives notice to the defendant that he accepts him as his debtor; but until such notice, the Statute of Limitations does not commence running against his demand.

(The cases of Waring v. Richardson, Hire. 77, and Buchanan v. Parity, 5 Ire. 597, and Lamb v. iVogden, 2 Dev. & Bat. Eq. 190, cited and approved.)

This was an action of assumpsit, in which the plaintiff declared upon a special contract, and for money had and received. The writ was issued in September, 1846. The defendant pleaded the general issue, Stat. Limitations, and Stat. of Frauds. Upon the trial before his Honor, Judge Battle, at Wayne, on the last Fall Circuit, it appeared in evidence that the defendant had an execution against two men by the name of Westbiook, upon whose land it was levied. At the sale it was agrreed between the plaintiff, who had a judgment against the same men, and the defend-dant, that the latter should purchase the land, and pay the plaintiff’s claim. The land was sold, and a man by the name of Monk *174purchased it, and subsequently sold it to the defendant. Before the sale the Westbrooks had placed in the hands of the defendant $200, with which t.o make the purchase, with the understanding that they should have the right to redeem. The defendant and the Westbroolig subsequently had a settlement, upon which occasion, tire amount due to the plaintiff was credited to the defendant, and he agreed to pay it to the plaintiff. The sale of the land took place in the Spring of 1843. The money was demanded by the plaintiff in August, 1846, when the defendant refused to pay, upon the ground that he did not purchase the land at the sheriff’s sale.

Several points were made by the counsel on each side in the Court below, and the jury, under the charge of his Honor, the presiding Judge, returned a verdict for the plaintiff, it being agreed that, his Honor should set aside tire verdict and enter judgment of nonsuit, if he should be of opinion against tire plaintiff. And his Honor being of opinion that the Statute of Limitations was a bar to the action, upon either count, and that there was nothing to repel it, entered judgment of nonsuit accordingly, aird the defendant appealed.

J. H. Bryan, for the defendant.

McRae, for the plaintiff, submitted a written argument.

Nash, C. J.

We thixrk there is error in the judgment below. The declaration contains two counts, the first upon a special contract, the second for money had and received. It is upon the second count that the plaintiff’s right to recover is principally contested before us. The case as to that count is simply this: (Here his Honor stated the material facts of the case as above, and proceeded: — )

Among other pleas, the defendant pleaded the Statute of Limitations, and, upon this plea, the case has been argued before us, as it affects the second count — the first being out of the way. Two questions are raised: Can the plaintiff maintain his second count for money had and received? and if so, is his claim barred by the Statute of Limitations? Upon the first point, it is a general principle, that whenever one man receives money which belongs to *175another, and which, in natural justice and honesty, he ought to pay over, it may be recovered of him in an action for money had and received to the plaintiff’s use. To recover in such an action, the plaintiff must show, that in equity and conscience he is entitled to receive it. Stratton v. Rastall, 2 T. R. 366. Here the defendant, in making'a settlement with the Westbrooks, who were indebted to the plaintiff, agrees to receive what they so owed the plaintiff, as a credit on his account, and settled upon that footing with them. This is precisely the same, in legal contemplation, as if the Westbrooks had put into his hands so much money to pay over to the plaintiff. In equity and good conscience, he was bound to pay it to him for whom it was received. But it is said that there was no privity of contract between the plaintiff and defendant, without which the action cannot be sustained; that when demanded of him, the defendant refused to pay the plaintiff. Privity of contract is essential to maintain. this action, and we hold there is in this case, such privity; for the law implies it between the person whose money is received, and the person who receives it — and here the implication is strengthened by the previous understanding between the parties. Camp v. Thompkins, 9 Com R. 553. But again: the Westbrooks were debtors to the present plaintiff, and, in substance, placed in the hands of the defendant the money to discharge their debt; and though, before an appropriation of it by the defendant, or notice by .the plrintiff that he looked to him for the money, they might have revoked their direction, and taken the money out of his hands, yet the plaintiff, before the Westbrooks had so recalled the money, might maintain an action against the defendant. Brown on Actions 374. Poole v. Goodwin, 4 Ad. & E. 94.

But the main bearing of the defence is upon the Statute of Limitations. It is necessary, therefore, to ascertain when the plaintiff’s cause of action arose. In order to set the Statute in motion, the plaintiff must not only have a cause of action, but that cause must be complete. Until the demand made by the plaintiff, his cause of action was not complete; for, until then, the Westbrooks had a right to countermand their order. Br. on Actions, 372. It cannot be that two persons can have two antagonistic claims to the same piece of property. The legal title *176cannot, in such case, be in both at the same time. One man cannot make another his debtor, without his consent, as by officiously paying his debt for him; neither can a debtor discharge his debt to another, by placing the necessary funds in the hands of a third person, with directions to pay it over to the creditor. Before such effect can follow such an act, the assent of the creditor is requisite. As soon as he does so assent, the debtor is discharged, and the third person, or agent, becomes the debtor. When, therefore, A. receives money from B., to pay over to C., until C. does an act by which he recognizes the payment to A. as a discharge of the debt due by B., the latter may withdraw his authority to A. to pay the money to C.; but as soon as C. has accepted A. as his debtor for the amount, B.’s right to countermand his authority is gone, and the cause of action on the part of C. against A. is complete. Lamb v. Trogden, 2 Dev. & Bat. Eq., 190. And, further, in the language of Mr. Brown, page 379, if the party ordering the payment be a debtor, and the third party his creditor, the action lies, as there is no objection to it on the ground that the plaintiff is not a party to the consideration; because the debtor may be regarded as the agent of the plaintiff, when he paid the money to the defendant, and therefore the consideration does in fact move from the plaintiff — the debt being tire consideration. Lilly v. Hayes, 5 Ad. & E., 548.— Walker v. Rostron, 9 Mees. & Wel., 411.

The plaintiff could not therefore maintain this action, until notice of some kind to the defendant, that he accepted him as his debtor, and looked to him for the money. Waring v. Richardson, 11 Ire. 77. Until then the defendant was at liberty to return the money to the Westbrooks, upon their request. The plaintiff’s right of action' was not complete, until such notice was given. The defendant was in no default until then; and then the Statute of Limitations is put in motion. In this case it did not begin to run, until the demand by the plaintiff, which being made but a short time before the writ issued, it is no bar to the action.

Upon the first count the plaintiff could not recover. It is barred by the Statute. But upon the second, the Statute is not a ban See the case of Buchanan v. Parker, 5 Ire. 507.

*177The judgment below is reversed, and judgment for the plaintiff according to the verdict, entered by agreement.

Per Curiam. Judgment accordingly.