23 Ga. 477 | Ga. | 1857
delivering the opinion.
Our judgment is, that there is equity in the bill; and that the demurrer was properly overruled. Nor can we see any good reason why a recovery should not have been had at law.
In the great case of Moses vs. McFarlan, 2 Brunow, 1005, Lord Mansfield denied that the right to recover in a case like this, was founded upon the idea of privity in contract, either express or implied; but on the contrary, held, that “ if the defendant be under an obligation, from the ties of natural justice, to refund, the law implies a debt j and gives this remedy founded upon the equity of the plaintiff’s case, as if it were upon contract. “ In one word,” says his Lordship, the gist of this action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity, to refund the money.”
And this Court says, in Culbreath vs. Culbreath, 7 Ga. Rep. 64, “ if there is justice in the plaintiff’s demand, and injustice or unconscientiousness in the defendant’s withholding it, the action lies, or to use more appropriate language, the law will compel him to pay.”
Without any order then from Yopp to O’Neal, to refund the $222 50, paid to him by mistake, from the sale of the. five bales of cotton, which belonged to Yopp and not to O’Neal, as is admitted by the demurrer to the bill, we should have felt unwilling to send the complainant out of Court. With that order, we should be inexcusable for doing so. Indeed, Mr. O’Neal owes it to himself to answer this bill, and assign the reason, as he no doubt can do, why he apparently holds on to money which does not belong to him, and which an innocent man has had to pay to the rightful owner.
It is supposed that there is no precedent in the books for such a proceeding. We think,and have endeavored to show, that there is; but if not, principle requires that one should be established. It would argue a great defect in the moral
Judgment affirmed.
