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Page:Harvard Law Review Volume 2.djvu/274

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C. J., said,^ " If, upon an indebitatus assumpsity matters are offered in evidence that lie in account, I do not allow them to be given in evidence." In Anonymous,^ Powell, J., having said, " If I give money to another to buy goods for me, and he neglects to buy them, for this breach of trust I shall have election to bring debt or account," Holt, C. J., answered, " If the party did not take it as a debt, but ad computandum or ad merchandisandum^ it must be an account, and he shall have the benefit of an account- ant ; which is, he may plead being robbed, which shall be a good plea in the last case, but not in the first." In Poulter v, Corn- wall^ it was virtually admitted by the court that a count in indebi- tatus assumpsit for money had and received by the defendant ad computandum was bad on demurrer. Finally, in Thomas v, Thomas* it was held, upon great consideration, that indebi- tatus assumpsit for money had and received would not lie by one tenant in common against his co-tenant, to recover the plaintiff's share of rents received by the defendant for the land held in com- mon. In order to appreciate the force of this decision, it must be borne in mind that the plaintiff would have had no remedy at all at common law, unless he had appointed the defendant as his bailiflE of his share of the land ; that, without such an appointment, not even an action of account would have lain^ for want of privity ; but that the want of privity had been supplied by statute,^ and hence that the defendant was liable as the plaintiff's bailiff, just as if he had been actually appointed. The decision was, there- fore; to the effect that indebitatus assumpsit for money had and received will not lie against a bailiff to recover money received by him as bailiff.

Allowing indebitatus assumpsit iox money had and received to lie upon an obligation to account, involves one of two false assump- tions, namely, either that such an obligation constitutes a debt, or that such an action will lie, though there be no debt. If the first

1 I Mod. 268, 270.

2 II Mod. 92.

  • I Salk. 9. Though the decision in Uiis case was in the plaintiffs favor, yet it was

rendered on a motion in arrest of judgement, and was based entirely on the ground that the declaration was cured by the verdict, *• for it must be intended there was proof to the jury that the defendant refused to account, or had done somewhat else that had rendered him an absolute debtor."

  • 5 Exch. 28.
  • 4 Anne, ch. 16, s. 27.