Chapman v. Forbes, 123 N. Y., 532.

creditors, and that Williams now claims such fund and has 7 brought an action, which is now pending against him, for it.

Upon the pleadings and an affidavit to the truth of the answer, and a stipulation of William's attorney consenting that he be made a party, defendant moved for an order bringing in Williams as a defendant, under the following section of the Code of Civil Procedure:

§ 452. The court may determine the controversy as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights; but where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in.

And where a person, not a party to the action, has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment.

At Special Term the court deemed the action to be of an equitable character, and therefore granted the order.

The General Term affirmed the order without opinion.

The Court of Appeals reversed the order, holding it was not, in this case, a discretionary one, and that the court below had no power to make it.

PECKHAM, J. Under the old system of pleading the plaintiff, upon the facts set out in the complaint herein, might have brought his action of assumpsit or of debt.

An action of debt would lie though there was only an implied promise, such as to pay over money had and received by defendant to the use of the plaintiff, though paid to defendant without the command of plaintiff. (3 Comeyn's Digest, Title "Debt "; (A. g.) Implied; 1 Rolle's Abrg. 597, line 25; 1 Chitty on Plead., 108.)

An action of assumpsit as for money had and received would also lie on an implied promise. (1 Chit. on Plead., 99, 100.) There was a slight difference in the form of declaration in the

9

10

12

Chapman v. Forbes, 123 N. Y., 532.

11 action of assumpsit and that of debt for money had and received. In the former the declaration upon the common count was very brief. It contained among others the allegation that the defendant was indebted to the plaintiff for money had and received, and that in consideration of such debt the defendant promised the plaintiff to pay him upon request the sum stated. The expressed promise was averred even though the plaintiff relied only upon an implied promise arising from the circumstances he should prove. But in the action of debt the pleader, although he stated the indebtedness of the defendant precisely in the same way as in assumpsit, yet omitted the allegation of a promise on the part of defendant. (1 Chit. on Plead., 341-361.) In neither was it necessary to state the circumstances out of which the debt arose, further than that it was for money had and received by the defendant to the plaintiff's use. Moses v. Macferlan, 2 Burr., 1005, 1010, per Lord MANSFIELD.) Judging the complaint in this action by these rules, it would appear to partake more of the character of an action of debt for money had and received by defendant to the plaintiff's use than that of 13 assumpsit, because there is nowhere alleged therein a promise by defendant to pay the amount received by him to the plaintiff, and a promise to pay the money is always alleged in the assumpsit action.

Both forms of action were resorted to for the purpose of collecting a debt due from defendant to plaintiff, and such indebtedness was alleged in the declaration in each action. (1 Chit. on Plead., 341–361.) In each case the action was one at law, and yet when brought in either form for money had and received, each depended upon precisely the same equitable rules. 14 Whether the action were debt or assumpsit, the plaintiff's case

depended upon the question to which party, plaintiff or defendant, does the money ex aequo et bono belong? If to the plaintiff, it was because the facts created an indebtedness to him from defendant. In this respect the action has been frequently stated to be an "equitable one," that is one depending upon general principles of equity for the maintenance of the plaintiff's claim to the money. (Kingston Bank v. Eltinge, 66 N. Y., 625; 2 Wait Law & Prac. [5th ed.] 391.) It is the most favorable

Chapman v. Forbes. 123 N. Y., 532.

way in which a defendant can be sued; he can be liable no 15 further than the money he has received, and against that he may go into every equitable defense upon the general issue; he may claim every equitable allowance, etc.; in short, he may defend himself by everything which shows that the plaintiff ex aequo et bono is not entitled to the whole of his demand or any part of it (Moses v. Macferlan, supra, 1012.)

This case is cited with approval in Eddy v. Smith (13 Wend., 488).

The nature of the action was before this court in the recent case of Roberts v. Ely (113 N. Y., 128), and it was therein stated to be a common-law action, although depending upon equitable principles for its maintenance. It was further therein stated that the fact that the money came into the hands of the defendant impressed with a species of trust to repay to the plaintiff, did not alter the character of the action or deprive a court of law of jurisdiction thereof. But although the action may be generally described as one of an equitable character, it never was in any aspect a suit in equity.

16

And in the particular case before the court there is no such 17 relation of trust between the parties as would render the cause of action cognizable in equity. Equitable relief is not demanded, nor is a case made by the complaint for granting any relief of an equitable nature.

The distinction made by the learned judge at Special Term between an action where the defendant has promised or agreedto pay to the plaintiff the money in controversy, and an action based upon the fact that the money came to defendant from such a source, and under such circumstances that in justice and equity he ought to pay it over to the plaintiffs is not very material. In case assumpsit under the old system had been adopted, such a promise would have been alleged, while, if the action had been debt, the allegation of a promise would have been omitted. But the cause of action in either case would have been the same.

That an action is of an equitable nature does not make it an action in equity.

When, in an action for money had and received, all the facts

18

Chapman v. Forbes, 123 N. Y., 532.

19 show that the plaintiff is ex aequo et bono entitled to recover, his right to recover is a legal one and maintainable in a court of law. The action being one at law, there would formerly have been no right on the part of defendant to compel the plaintiff to bring in any other party. If he did not allege a good cause of action against a defendant the latter could demur, and if a good cause of action were alleged, but not proved, the plaintiff would have been either nonsuited or a verdict ordered for the defendant.

20

If the necessary parties were not present the defendant could, by plea in abatement, take advantage of that fact. The judgment for the defendant on such a plea, whether on an issue of fact or of law, was that the plaintiff's "writ be quashed." (1 Chit. on Plead., 466.)

In a suit in equity the rule was different, and in that court all persons who were interested in the question involved in the litigation, and upon whose interest the decree might have any effect, were proper or necessary parties, according to circumstances. (Small v. Attwood, Younge, 458; Pomeroy's Rem. & Rem. 21 Rights, § 488, et seq. and cases cited in notes.) In this condition of the practice in the two courts of law and equity the Code of Procedure was adopted, and the material part of section 122 thereof reads as follows: "The court may determine any controversy between the parties before it when it can be done without prejudice to the rights of others or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties the court must cause them to be brought in." The decisions of our courts have been quite uniform that the section above quoted referred to parties in what, under the old practice, would have been suits in equity, and that it was never intended to make it incumbent upon a plaintiff in an action at law to sue any other than the parties he should choose. (Sawyer v. Chambers, 11 Abb. Pr., 110; M'Mahon v. Allen, 12 How. Pr., 39; Webster v. Bond, 9 Hun, 437.) These cases were decided under the old Code, but section 452 of the new Code uses substantially the same language, and adds a further provision which will be noticed hereafter.

22

Chapman v. Forbes, 123 N. Y., 532.

[The opinion then proceeded to review the cases on the prin- 23 ciples by which third persons are brought in; and held that the rule does not apply in an action of a common law nature.]

All the judges concurred in reversing the order.

NOTE. In the subsequent case of Rosenberg v. Salomon, 144 N. Y., 92, the court held that although the defendant in a common law action cannot require the plaintiff to bring in another person, the second clause of § 452 authorizes the court to grant the application made by the third person to be allowed to come in. In other words the first of the above paragraphs in § 452 applies only in equity actions, the second applies in all actions