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D’Utricht v. Melchor



HIS caufe was tried at bar, in September Term, 1788, and, a verdict being found for the Plaintiff, the Defendant obtained a rule to fhew caufe why a new trial fhould not be granted ; which was argued at the prefent Term by Coxe and Sergeant, in fupport of the rule, and by Lewis and Heatly againft it.


It appeared, that the Plaintiff had bought a tract of land from the Defendant, who had previoufly purchafed it of one Simpʃon ; but, is, upon enquiry, no land of the defcription contained in the Defendant's deed to the Plaintiff could be found, this action, which was an action of Indebitatus Aʃʃumpʃit for money hand and received to the Plaintiff's ufe, was brought, in order to recover back the confideration money that had been paid; and, on the trial, the Defendant's deed was given in evidence to prove the amount and acknowledgment of fuch payment. The declaration alfo contained a count in the nature of deceit; but, by agreement of the Counfel. It made no part of the argument, whether this could properly be coupled with the Aʃʃumpʃit ; fo that the motion for a new trial was fupported only upon thefe grounds:– 1ft, That the action of Aʃʃumpʃit would not lie; and 2dly, That the deed ought not to have been given in evidence upon the trial.

For the Deƒendant, it was contended, that, as there was no fuggeftion of fraud to vitiate and annul the original contract of the parties, the proper action was covenant on the words grant, bargain, &c. that if there was fraud, the remedy was an action of deceit ; that Aʃʃumpʃit would not lie; that if there was any deceit in the words of the deed, ftill the action might have been brought upon the deed itfelf ; that a deed cannot be given in evidence to fupport an action of Indebitatus Aʃʃumpʃit ; that there was no proof of a patrol Aʃʃumpʃit ; and that the Defendant could not plead a verdict in the prefent fuit, in bar to another action of covenant upon the deed. See Com. Dig. 145. Letter F. 1. Cowp. 414. 418. 818. 819. Doug. 132. 1 State Laws 79, 1 Salk. 210. Cro. J. 506. 1 Roll Abr. 278. 1 Vin. Abr. 277. 2Black. Rep. 1249. Gilb. L. oƒ E. 183. 12 Vin. 190.

For the Plaintiƒƒ, it was anfwered, that whenever natural juftice implies that the party ought to refund, this action, which is like a bill in equity, will lie to compel him ; that the deed was not the foundation of the action , but given in evidence merely to fhew the amount of the confideration money, and the Defendant's acknowledgment of its being paid ; and that the declaration was fupported by the precedent in Doug. 18. – See Salk. 12. 1 Lev. 102. Bull. N.P. 31. 2 Stra. 915. 1 Lord Raym. 742. 2 Burr. 1088. Salk. 284.

The cafe being held for fome days under advifement, the chief justice now delivered the opinion of the Court to the following effect:

M‘KEAN, Chieƒ Juʃtice.– It is unneceffary at this time to determine, whether the Plaintiff might have inftituted an action of covenant, or deceit, in order to obtain a redrefs of the wrong which he has fuftained; for, we think it is fufficient for his purpofe, that an action of Aʃʃumpʃit for money had and received to his ufe, has been brought ; and that, to maintain this action, he may give in evidence, that the Defendant got his money by miftake, impofition, or deceit. To prove the alledged miftake, impofition, or deceit,


deeds or other writings, which are not the immediate foundation of the fuit, but only leading to it, may be read.

We are all, therefore, of opinion, that a new trial ought not to be granted.

Judgment for the Plaintiff.