240 HARVARD LAW REVIEW, ation by discharging the original debtor, and are also participants in the promise. These cases are plain enough on the familiar doc- trine of novation.^ 3. The third, and by far the most numerous class, is where a debtor places money, or its equivalent, in the hands of a third person, upon his promise to pay the creditor; the creditor in such cases can recover the amount of such third person. This is famiUar law everywhere.^ But such recovery is usually by an action for money had and received to the plaintiff's use, — an equi- table action, — sustainable, not because the defendant promised to pay to the plaintiff, but equally sustainable although he actually makes no such promise,^ on the familiar ground that, wherever one has money in his hand which in equity and good conscience be- longs to another, the latter may recover it in assumpsit for money had and received. This is so, even if the defendant refuses to pay it over on demand.* That the action in such cases is not based upon the defendant's express promise to pay the plaintiff is apparent from the fact that if the defendant, for one and the same consideration, also promises to do some other thing for the plaintiff besides paying the debt, the plaintiff could not enforce such special promise in other respects. So also, if another person who does not himself receive the money, or other property, gives his guaranty to the debtor that the actual receiver shall deliver the money or pay the debt promptly, the creditor cannot maintain an action against such guarantor for failure to perform the promise.^ The fact also that the creditor can lecover only the amount so placed in the defendant's hands, and not necessarily his whole debt, although the defendant promised to pay the whole, shows that the action is not founded upon the special promise, but only upon the fact of assets received. Many of the cases cited in support of the general right of a mere ' Tatlock V. Harris, 3 T. R. 180; Heaton v. Angier, 7 N. H. 397; Wilson v. Cope- land, 5 B. & C. 228. 2 Lilly V. Hays, 5 Ad. & El. 548 ; i N. & P. 26 (1836) ; Crampton v. Ballard, 10 Vt. 251 (1838); Arnold v. Lyman, 17 Mass. 400 (1821); 9 M. &. W. 411 ; Carnegie 5y. Morri- son, 2 Met. 402(1841); Phelps Z'. Conant, 30 Vt. 277(1838); Bank of Missuuri i^. Denoist, loMo. 327 (1847); Putnam z/. Field, 103 Mass. 556 (1870); Torrensz/. Campbell, 76 Pa. St. 470 (1873) ; Barber v. Bucklin, 2 Denio, 45 (1846); Delaware & Hudson Canal Co. V. Westchester Co. Bank, 4 Denio, 97 (1847); Beers v. Robinson, 9 Pa. St. 29 (1848); Vincent v, Watson, 18 Pa. St. 96 (1851).
- Hall V. Marston, 17 Mass. 575.
- Frost V. Gage, i Allen, 262 (1861).
^ See Campbell v. Lacock, 40 Pa. St. 448.
