would not lie. So where the defendant, in consideration of seventy guineas, sold the plaintiff a pair of coach horses (s), which he undertook to take back if the plaintiff should disapprove of them, and return them within a month. The plaintiff did return them within a month, but took another pair from the defendant, without making any new agreement. These the plaintiff also returned within a month, and received a third pair on the 23rd of December, without making any new agreement. The plaintiff disapproved of the third pair, because they were restive and would not draw, and offered to return them on the 5th of January following; but the defendant refused to take them back, and, thereupon, the plaintiff brought an action against the defendant for money had and received. It was holden, that it would not lie; for the original special contract having been continued through all the subsequent dealings, the defendant ought to have had notice by the declaration, that he was sued upon that contract. So where a seaman had contracted with the defendant to go a voyage from A. to B. (t) and back again, with a stipulation, that he should not be entitled to his wages until the end of the voyage; it was holden, that he could not maintain a general indebitatus assumpsit to recover his wages pro ratâ as far as B., though he had been wrongfully dismissed at B. by the defendant. Where, however, the contract is rescinded by the original terms of it (u), no act remaining to be done by the defendant, the plaintiff is entitled to recover back his money. As where plaintiff had paid to the defendant ten guineas for a chaise, on condition to be returned in case the plaintiff's wife did not approve of it, paying, 3s. 6d. per diem for the time; the plaintiff's wife not approving of the chaise, it was sent back at the expiration of three days, and left on defendant's premises without any consent on his part to receive it the hire of 3s. 6d. per diem was tendered at the same time, which defendant refused, as well as to return the money. An action for money had and received being brought for the ten guineas, it was holden, that it would well lie. So where A. agreed to sell an estate to B., upon a deposit of a sum of money, but was afterwards disabled from performing the agreement; it was holden (x), that B. might recover the deposit although the agreement for the sale was by deed. So where a contract is not carried into execution by reason of some negligence or default of one party (y), the other party, not having done any thing which can be considered as an execution of the contract in part, may abandon the contract and recover the money which he has paid on such contract but this rule holds only where the contract can be

:

(8) Weston v. Downes, Doug. 23, recognized in Street v. Blay, 2 B. & Ad. 462.

(t) Hulle v. Heightman, 2 East's R. 145.

VOL. I.

(u) Towers v. Barrett, 1 T. R. 133. But see Hurst v. Orbell, 8 A. & E. 107. (x) Greville v. Da Costa, Peake's Additional Cases, p. 113, Kenyon, C. J.

(y) Giles v. Edwards, 7 T. R. 181.

H

rescinded in toto (z), so as to place both parties in the same situation they were in before. See further on this point, Cooke v. Munstone, 1 Bos. & Pul. N. R. 351.

12. In an action for money had and received to the plaintiff's use, the plaintiff cannot recover the money, unless it be against conscience that the defendant should retain it: Hence, where a forged bill of exchange was drawn upon the plaintiff (a), which he accepted and paid to an innocent indorsee for a valuable consideration, and the plaintiff on discovering the forgery brought an action against the indorsee to recover back the money as money paid by mistake, it was holden, that the action would not lie: for it was not unconscientious in the defendant to retain the money when he had once received it, upon a bill for which he had given a fair and valuable consideration, without the least privity or suspicion of any forgery; and the plaintiff ought to have satisfied himself, whether the bill was really drawn upon him by the person whose name was subscribed to it. This decision appears to have been grounded on the general principle, that an acceptor is bound to know the handwriting of the drawer, and that it is rather by his fault or negligence, than by mistake, if he pays on a forged signature. But where the defendant had got the plaintiff to discount a navy bill, which turned out to be forged, he was holden (b) liable to refund the money; although both parties were, at the time, equally ignorant of the forgery. So in Bruce v. Bruce, 5 Taunt. 495, note, and 3 B. & C. 437, a similar decision was made on a victualling bill, which the victualling office on which it was drawn had paid before the forgery was discovered. So where bills of exchange, purporting among others to have the indorsement of H. & Co. bankers of Manchester, were presented for payment in London, where the acceptance directed them to be paid; payment being refused, the notary who presented them took them to the London correspondent of H. & Co., who took up the bills for their honour, and struck out the indorsements subsequent to that of H. & Co., and the money was paid over to the defendants, the holders of the bills. The same morning it was discovered, that the bills were not genuine, and that the names of the drawer, acceptor, and H. & Co. were forgeries; plaintiff immediately sent notice to the defendants, and demanded repayment. This notice was given in time for the post, so that notice of the dishonour could have been sent the same day to the indorsers. It was holden (c), that the plaintiff, having paid the money through a mistake, was

(z) Hunt v. Silk, 5 East, 449, recognizing Giles v. Edwards; Beed v. Blandford, S. P., (on the authority of Hunt v. Silk,) 2 Y. & Jer. Exch. Rep. 278.

(a) Price v. Neale, 3 Burr. 1354; 1 Bl. R. 390, S. C. See Smith v. Mercer, 6 Taunt. 76, and 1 Marsh, R.

453, S. C., and post, under title "Bills of Exchange." See also Barber v. Gingell, 3 Esp. Ñ. P. C. 60.

(b) Jones v. Ryde, 5 Taunt. 488. (c) Wilkinson and others v. Johnson and others, 3 B. & C. 428.

entitled to recover it back, the mistake having been discovered before the defendant had lost his remedy against the prior indorsers: and that the rights of the parties were not altered by the erasure of the indorsements; that having been done by mistake, and being capable of explanation by evidence.

13. The plaintiff, as assignee of a bankrupt, brought an action to recover the proceeds of goods of the bankrupt, sold by the defendants as sheriff, under a writ of fi. fa., the commission having been issued upon an act of bankruptcy prior to the fi. fa. The defendants had not any notice of the bankruptcy until after the levy, and they had paid over the proceeds to an execution creditor under an indemnity. It was first objected, that the plaintiff, by suing in form ex contractu, thereby treated the sheriff as his agent and affirmed all his previous acts; to which it was answered and resolved, that the plaintiff did not do so; he merely waived his claim to damages for a wrong, and sought to recover only the proceeds of the sale. Secondly, it was objected, that the action was too late, after the sheriff had paid the money over in obedience to the writ. But it was resolved, that money paid over on an indemnity might be considered as not having been paid over at all. It was also objected, that the property had been changed by the sale, to which it was answered, per Alderson, J., that although the property was changed as between a purchaser and the parties against whom the execution had issued, yet it was not changed against a party whose goods had been wrongfully taken (d).

14. In order to sustain this action, there must be a privity between the plaintiff and defendant.

If I give a sum of money to my servant to pay a tradesman, the tradesman cannot maintain an action for money had and received against the servant (e). So where the solicitor to the assignees of a bankrupt had received from them money to be applied in payment of the costs of the petitioning creditor, up to the time of the choice of assignees, and thereupon the solicitor offered to pay the money, on condition that the bill should be subject to further taxation, which was refused. The petitioning creditor sued the solicitor for money had and received. There was not any proof that the commissioners had ascertained the amount of the costs, according to the statute. This the judge thought necessary, and nonsuited (f) the plaintiff; and the court afterwards, upon consideration, confirmed the nonsuit; inasmuch as the defendant had received the money as the agent of the assignees, and not of the plaintiff; he held it subject to their control and directions, and would continue to be accountable to them, until he entered into some binding en

(d) Young, Assignee of Young, Bankrupt, v. Marshall and another, Sheriff of Middlesex, 8 Bingh. 43.

(e) Per Parke, J., 4 B. & Ad. 612.

(f) Baron v. Husband, 4 B. & Ad. 611, recog. in Howell v. Batt, 5 B. & Ad. 504.

gagement with the plaintiff to hold it for his use.

Where money, or bill productive of money, is remitted by A. to B., with directions to pay to C., C. cannot maintain (g) an action against B. for money had and received, without something having been done by B. which amounts to a privity or assent, independent of the mere receipt of the money.

15. The consideration of this action must be money. Hence stock cannot be recovered in an action for money had and received (h), stock being a new species of property, and not money. But where, upon a wager of ten guineas to one, the stake-holder received country bank-notes, and paid them over wrongfully to the party who had lost the wager; it was holden (i), that an action for money had and received would lie at the suit of the winner; Lord Ellenborough, C. J., observing, that provincial notes were certainly not money; yet, if the defendant received them as money, and all parties agreed to treat them as such, at the time, he should not be permitted to say, that they were only paper, and not money. As against him, it was so much money received by him. So where an insurance broker having received credit in account with an underwriter for a loss, upon a policy, whereupon the name of the underwriter was erased from the policy; it was holden (k), that the principal might maintain an action for money had and received against the broker, although he had not actually received any money from the underwriter; for the broker having deprived the plaintiff of his remedy against the underwriter, and having received credit in account for the money, he was estopped from saying that he had not the sum in his hands for the plaintiff's use. But no security or equivalent for money can form the subject-matter of this action, unless the parties have treated it as money, or a sufficient time has elapsed, so as to raise an inference, that it has been converted into money. Hence this action will not lie () to recover the value of foreign securites paid to the defendant, where it appears, that he had not any opportunity of converting such securities into British

money.

Indebitatus Assumpsit for Money lent, Money had and received, and on an Account stated. The production by plaintiff of an "I. O. U." signed by the defendant, but without any address, is primâ facie evidence (m) that it was given to the plaintiff by the defendant;

(g) Williams v. Everett, 14 East, 582, recog. in Brind v. Hampshire, 1 M. & W. 365; Wedlake v. Hurley, 1 Cr. & Jer. 83. See further on this subject, Scott v. Porcher, 3 Merivale, 652; Hutchinson v. Heyworth, 9 A. & E. 404.

(h) Nightingale v. Devisme, 5 Burr. 2589. See also Jones v. Brinley, 1 East, 1.

(i) Pickard v. Bankes, 13 East, 20, recog. by Best, C. J., in Spratt v. Hobhouse, 4 Bingh. 179.

(k) Andrew v. Robinson, 3 Campb. 199. (1) M'Lachlan v. Evans, 1 Y. & Jer. Exch. R. 380.

(m) Curtis v. Rickards, 1 M. & Gr. 46, recognized in Douglas v. Hone, Q. B. M. T. 1340, Law Journal N. S. vol. x. p. 43.

and if the defendant wishes to rebut the inference arising from its production by the plaintiff, he should show that it had been in the hands of some other party.

III. Of the Declaration.

Venue. THE action of assumpsit, being founded on contract, is transitory (46), and consequently the venue may be laid in any county at the election of the plaintiff.

By R. G. H. T. 4 Will. IV., after reciting that, by the mode of pleading hereinafter prescribed, the several disputed facts material to the merits of the case will, before the trial, be brought to the notice of the respective parties more distinctly than heretofore; and that, by the act of the 3rd and 4th Will. IV. c. 42, s. 23 (n), the powers of amendment at the trial, in cases of variances in particulars not material to the merits of the case, are greatly enlarged; it is ordered, that several counts shall not be allowed, unless a distinct subject-matter of complaint is intended to be established in respect of each; nor shall several pleas, or avowries, or cognizances be allowed, unless a distinct ground of answer or defence is intended to be established in respect of each. Therefore, counts founded on one and the same principal matter of complaint, but varied in statement, description, or circumstances only, are not to be allowed. Ex. gr.-Counts founded upon the same contract, described in one as a contract without a condition, and in another as a contract with a condition, are not to be allowed; for they are founded on the same subject-matter of complaint, and are only variations in the statement of one and the same contract. So counts for not giving, or delivering, or accepting a bill of exchange in payment, according to the contract of sale, for goods sold and delivered, and for the price of the same goods to be paid in money, are not to be allowed. So counts for not accepting and paying for goods sold; and for the price of the same goods, as goods bargained and sold, are not to be allowed. But counts upon a bill of exchange or promissory note, and for the consideration of the bill or note in goods, money, or otherwise, are to be considered as founded on distinct subject-matters of complaint; for the debt and the security are different contracts, and such counts are to be allowed. Where several debts are alleged in indebitatus assumpsit to be due in respect of several matters, ex. gr. for wages, work, and labour as a

(n) Continued by stat. 1 & 2 Vic. c. 100.

(46) Debitum et contractus sunt nullius loci. 2 Inst. 230.