Although the defendant when he bought the cotton from Kirby may have known of the plaintiff’s lien for rent, the property in it passed to him, and the money for which he sold it, as a matter of course, belonged to him.
The ground of the action for money had and received by the defendant for the use of the plaintiff is, that the defendant had received money for the benefit of the plaintiff under such circumstances as to create a privity of contract between him and the plaintiff. 2 Chit. Con, 899.
Had the cotton been tortiously taken, the money for which the defendant sold it, would have been received by him for the use of Kirby, and not for the plaintiff.
The plaintiff’s only remedy against the defendant, if under the circumstances he was entitled to any, was by specific attachment whilst it remained in the defendant’s possession, or after the sale of it, by suit in equity for the payment of the rent out of the proceeds.
The judgment is affirmed.