Page images




try. The latter plea is, in the grantee might distrain on
deed, in the nature of the ge. the premises ; that the annuity
neral issue in this action. Per was in arrear, and that the
Lord Mansfield, Warren v. grantee demanded it, and
Theobald, Cowp. 588. It is threatened a distress; and that
under this plea, or the plea of the plaintiff paid the amount
non tenuit modo et formå, that of the rent due, &c. and so no-
the tenant may shew that his thing in arrear. Taylor v. 24.
landlord's title has determined mira, 6 Taunt. 524.
in the manner stated above; So, to an avowry for rent,
but a suspension of the rent by the tenant may plead payment
eriction or expulsion must be of a ground rent to the supe-
specially pleaded; and a mere rior landlord ; and he may ei.
disturbance in the possession, ther plead the payment of the
or a trespass, is not sufficient landlord's property tax, assess-
to maintain this plea. There ed under the 46th Geo. III. C.
must be an expulsion in fact. 65. s. 74. or he may claim it
Cowp. 242.-So, to an avowry as a deduction from his rent,
for rent it is a good plea that, giving it in evidence under the
before the lessor had any thing plea of nothing in arrear.
in the land, a termor granted Clennell v. Read, 7 Taunt. 50.
an annuity or rent charge, and But the tenant cannot avail
graated and covenanted that himself of any other set off.



[ocr errors]

An action for money had

THIS was an action for money had and reand received

ceived. The plaintiff had paid fifty pounds will not lie to recover back into the hands of the defendant, for the purpose of a sum paid upon trust, for conducting an action for a breach of promise of a specific pur.

unless it marriage, brought by a relation of the plaintiff. be shewu that the trust is The plaintiff's counsel proved the payment of the closed, and that a balance money for this specific purpose ; and then put in a remains in the letter of the defendant's, written to the plaintiff, in hands of the trustee, which he gave an account that he had expended

the money in a journey to Bristol, for the purposes of the cause. The plaintiff's counsel then contended that the defendant ought not to have gone to Bristol ; that it was not necessary for the action; and that he was not authorised to go there. He likewise falsified in some particulars the defendant's account.

Best, serj. and Gaselee for the defendant, insisted that the present action could not be maintained. If money is advanced, and the purpose for which it is advanced fails, an action lies to recover it back: but this was in substance a trust; an action of account might lie, or the plaintiff might go into a court of equity; but money had and received could not be maintained. The defendant has furnished an account, and discharged himself by it; if he has been guilty of a breach of trust, the plaintiff must have recourse to another tribunal.

Vaughan, serjeant, contrà.




BURROUGH, J.-If money is paid into the hands of a trustee for a specific purpose, it cannot be recovered in an action for money had and received, until that specific purpose is shewn to be at an end. The action for money had and received must not be turned into a bill in equity for the purpose of discovery. If the plaintiff shew that the specific purpose has been satisfied; that it has absorbed a certain sum only, and left a balance; such balance (the trust being closed) becomes a clear and liquidated sum for which an action will lie at law. Whilst the matter remains in account, and is charged with the specific trust, the action for money had and received will not lie.

The cause was afterwards settled.

Vaughan, serjeant, and

for plaintiff.

Best, serjeant, and Gaselee, for defendant.

Assumpsit lies to recover the of it; and then he cannot de. balance of a banker's account, clare generally, but must state however voluminous it may be; his special contract. Towers and the plaintiff, in such case, v. Barrett, 1 T. R. 133. The is not bound to bring an ac- difference between those cases tion of account. Tomkins v. where the contract continues Wiltshire, 1 Marsh. 115. open, and where it is not so,

Assumpsit likewise lies, is this :-If the contract be where payment has been made rescinded, as, where by the upon a contract which has been

terms of it, it is left in the put an end to; but if it conti- plaintiff's power to rescind it, due open, the plaintiff can only and he does so; or where the recover damages for the breach defendant afterwards assents to




its being rescinded, the plain contract, which is too vague
tiff is entitled to recover back and indeterminate for the law
bis whole money, and then an to raise or imply an assump-
action for money had and re- sit, the parties are without a
ceived will lie. But if the remedy in a court of law,
contract be open, the plaintiff's whilst the trust remains, and
demand is not for the whole must seek redress in equity.
sum, but for damages arising And a contract cannot be re.
out of the contract; and then scinded by one party for the
it is incumbent upon him to default of the other, unless
state the special terms. Id. ibid. both can be put in statu quo
But where there is a trust, or as before the contract, 5 East.
honorary employment; a trans- 549.
action rather of confidence than




REED and Another, Assignees of PROCTOR, a Bank

rupt, v. Ayton and Others.

ROVER, to recover the value of some flour, A trader

which, it was contended, that the defendants transfer of his had obtained from the bankrupt in fraudulent pre- eve of bankference. The bankrupt carried on business at Yarm, ruptcy, to a in the county of Durham ; and the defendants were compels him flour factors, at Newcastle. The bankrupt had any threat; but purchased 100 sacks of flour of the defendants, and fraudulent and had accepted bills for the price: the flour preference is

an act moving was shipped for London by the bankrupt's di- from the

trader, whererection, and consigned to Fell and Co. his agents, by he elects who were flour factors. The flour arrived in Lon

particular don in June, 1813; and the bankrupt, upon the creditor. representation of Fell and Co. wrote to the defendants, complaining of the quality. A correspondence took place on this subject, but nothing was finally arranged. On the 20th of June, Proctor's affairs having become embarrassed, he went to London for the purpose of arranging them. At this period the defendants had notice

to favour a

« PreviousContinue »