against the fund. The principle of that case is applicable to the present one. Edwards v. Bates et al. (7 M. & G. 590) is also much in point. It was debt for money had and received; and Tindal, C. J., stated the ground and principle for money had and received-namely, that the defendant had received money which ex æquo et bono belonged to the plaintiff; and said that he was not aware that the action had ever been allowed, except in cases where a known specific sum had been received by the defendant to which the plaintiff was entitled-as, where such money had been received without consideration, or the consideration had failed, when the moneys would be held in justice and equity to the use of the plaintiff; but that in that case, after the money had come into the hands of the defendants, something remained to be done under the contract before any portion of it was to go over to the plaintiff. He then recited the three specific trusts on which the money was received; the third being that the surplus, if any, was to be paid over to the plaintiff, and under which alone he was entitled; and, after remarking upon the second trust not being adjusted or closed, he added, "the plaintiff ought to have filed a bill in equity for an account." He referred to Roper v. Holland (3 A. & E. 99, and 4 N. & M. 668) as in point, and also Carr v. Roberts (Holt. 500). Again, after referring to Weston v. Downes (1 Doug. 25) and Ponce v. Wells (Cow. 818), he put it upon the footing of a special contract not rescinded, but still remaining open. In that case there was no dispute about the amount received; the difficulty arose out of its application and the form of action. Cresswell, J., adverting to another point-namely, that the plaintiff should have sued in covenant, and referring thereto-said it was palpably an open trust, under which something remained to be done by defendant: "suppose," he said, "the plaintiff had brought his action on the covenant (3 M. & G. 12), he must have sued for the surplus, after shewing that the trust had been performed. He was not in a situation to shew that fact in this case; and perhaps that may have been the reason why the present form of action was

adopted there, the terms of the trust were shewn by the deed-bere, all is left in uncertainty. In Roper v. Holland, cited above, the defendant was held to have admitted a specific sum in hand for the plaintiff.

Bartlett v. Dimond et al. (14 M. & W. 49).-Assumpsit for money had and received; see the facts stated at page 50, and shewing the trusts. Parke, B., said—the plaintiff, in order to recover, must shew that there was a positive surplus; that was the main question. Again, the difficulty was to see what portion of the money was received to plaintiff's use at that time; although there might be some ultimate balance coming to him, it seems to rest rather in contract than in property. Pollock, C. B.-So long as a trust continues, a bill in equity is the only remedy. We think the moneys received were originally received in trust, and that the trust had not determined at the testator's death. If that trust were ended, and the trustee had stated an account-or, in other words, had himself admitted to the plaintiff that he held any sum of money in his hands payable to him absolutely-he would, with respect to that sum, be a debtor, not properly a trustee, then an action would have been maintainable against him. This is the principle upon which Roper v. Holland, and the other cases referred to by the Court of Exchequer in Pardoe v. Price (13 M. & W. 282) were decided. The case of Allen v. Jupett (8 Taunt. 263) seems at least questionable.

If McVean himself were plaintiff, the foregoing cases would operate against his right to recover on the evidence adduced; and they operate with more force against the plaintiff's right, as to whom it vests rather in contract than in property.

The action is not founded on a special contract to pay on a certain event, &c., but it is founded on property, or a right to the money recovered as belonging to plaintiff and received or held to his use. Such right, the evidence, I think, failed to establish; and the cases mentioned only confirm me in the view I felt bound to adopt at Nisi Prius. As to the insurance money-it is evidently a nice and unsettled point; and, without seeing the deeds or title

under which the defendant holds the property, is not capable of being decided. If the defendant had an insurable interest, the policy was granted in respect thereof, not in respect of McVean's interest; and I do not see on what legal principle it was his money and recovered to his use.

He is not liable to pay, nor is he charged with the premiums; and whatever claim he may have in the premises must, I think, be adjusted in equity, although the case in 9 East. 72 treats it as a question of law; but it was not a case strictly between mortgagor and mortgagee. If the defendant had no interest, and yet insured the mill, which insurance the insurers paid without objection, a fortiori McVean could have no legal right thereto, by reason of any privity existing between him and defendant in relation thereto. If McVean is not entitled to the proceeds of the policy as received to his use, the plaintiff cannot be so entitled; and if McVean is so entitled, it shews the money to have been received to his use, and not the plaintiffs; unless, indeed, the defendant having become the holder of the notes, and made the engagement he did with the plaintiff with McVean's assent, alters the case, and renders any surplus found to remain after satisfaction of defendant's demand against McVean received and held ab initio for the use of, and therefore had and received for, as belonging to, the plaintiff. I have reflected on this view of the case, but cannot bring myself to regard any of the moneys as received to plaintiff's use, without more evidence than was shewn at the trial. It wanted something more to convert money received and held under the trusts or mortgages from McVean into money held for and belonging to the plaintiff. With respect, further, to the necessity for the plaintiff to declare specially, I think that it is in effect the case of the defendant buying and taking the notes as endorsee of the plaintiff, paying part down and promising to pay the residue whenever (if ever) the maker (McVean) paid him. It was a sale of the notes by plaintiff, on condition or a conditional purchase by the defendant; and the remedy is a covenant for notes sold and assigned, or a special assumpsit, if the consideration has ceased and the

promise therefore absolute, and not for money had and received by defendant for the use of the plaintiff.

SULLIVAN, J.—I cannot see that the evidence on the part of the plaintiff permits us to come to any other conclusion than this: That the defendant bought from the plaintiff, and the plaintiff assigned to the defendant, two promissory notes amounting to 418l. 2s. 5d. with interest, which notes were made by Alexander McVean, and were payable to the plaintiff or order, the consideration of the assignment being a payment of 75l. in hand; and, so far as we can judge from the obscure and unsatisfactory evidence which it was in the plaintiff's power to adduce, the remaining consideration being an undertaking by the defendant to pay the balance of principal and interest so soon as he should receive or realize a sufficient amount from the sale or disposal of certain lands of McVean, which the defendant was in the course of disposing of as trustee or agent of McVean. The account between the defendant and McVean rendered to the latter by the defendant, in which the whole amount of the notes and interest are charged against McVean, and not merely the sum of 75l., shews the defendant the proprietor and holder of the notes. All the parol testimony is consistent with this view of the case; and although it is possible and even reasonable to suppose the defendant only to have been an agent of the plaintiff, as we cannot see his personal advantage in the transaction, yet there is no evidence to submit to a jury upon which such a conclusion could be founded.

If the defendant had received the promissory notes from the plaintiff for collection as the plaintiff's agent, paying him the sum of 751. out of funds in his hands as trustee for McVean, and undertaking to pay the balance so soon as other funds, arising from the same source, should come into his hands over and above the debt due to the defendant himself, then this action would have been well conceived; and, in addition to proof of the deposit of the notes upon these terms, it would only have been necessary for the plaintiff to have shewn a receipt of money by the defendant in excess of the amount of defendant's claim on

McVean; which money would, I think, have been received to the use of the plaintiff, particularly as the note transaction, whatever it was, between the plaintiff and defendant, was with the assent and approbation of the cestui que trust McVean. But if, as the evidence leads us to conclude, defendant was the purchaser of the notes, and therefore the creditor of McVean to their whole amount, and debtor to the plaintiff for the balance over and above the ready money payment of 75l., the balance being payable upon a contingency—namely, the receipt of money from the trust fund-then I do not see how the receipt of that money would have been to the plaintiff's use, or anything but a receipt of the defendant's own money, and the occurrence of a naked event, upon which the balance of the notes would, under the agreement between the defendant and the plaintiff, become payable.

The only count in the declaration upon which the plaintiff can pretend to recover is that for money had and received by the defendant to his the plaintiff's use; and, taking the evidence in the light most favorable to the plaintiff's claim, I see no legal grounds upon which the action could have been sustained in its present form, or on which the nonsuit granted in this case can be set aside for misdirection.

MCLEAN, J., concurred.

Rule discharged.

IN RE HAWKINS V. THE MUNICIPAL COUNCIL OF THE UNITED COUNTIES OF HURON, Perth and Bruce.

A by-law of a municipal council is valid if it appears on the face of it to be enacted and passed by a municipal body having authority to make such bylaw under the statute 12 Vic. ch. 81.

A variance in stating the legal name of such municipal corporation in a by-law will not invalidate such by-law, if it appears on the face of it to be enacted and passed by a corporation having authority to pass it.

Municipal corporations, under 12 Vic. ch. 81, may by a subsequent by-law impose an additional rate to provide for any deficiency in the sum levied under a previous by-law for payment of debts incurred previous to the first of January 1849.

This is a rule calling on the municipal council to shew cause why the by-law passed in the January and February sessions of such council in 1850, entitled "a by-law to authorize the levying of one half-penny per pound upon all