try. The latter plea is, indeed, in the nature of the general issue in this action. Per Lord Mansfield, Warren v. Theobald, Cowp. 588. It is under this plea, or the plea of non tenuit modo et formâ, that the tenant may shew that his landlord's title has determined in the manner stated above; but a suspension of the rent by eviction or expulsion must be specially pleaded; and a mere disturbance in the possession, or a trespass, is not sufficient to maintain this plea. There must be an expulsion in fact. Cowp. 242.-So, to an avowry for rent it is a good plea that, before the lessor had any thing in the land, a termor granted an annuity or rent charge, and granted and covenanted that the grantee might distrain on the premises; that the annuity was in arrear, and that the grantee demanded it, and threatened a distress; and that the plaintiff paid the amount of the rent due, &c. and so nothing in arrear. Taylor v. Zamira, 6 Taunt. 524. So, to an avowry for rent, the tenant may plead payment of a ground rent to the superior landlord; and he may either plead the payment of the landlord's property tax, assessed under the 46th Geo. III. c. 65. s. 74. or he may claim it as a deduction from his rent, giving it in evidence under the plea of nothing in arrear. Clennell v. Read, 7 Taunt. 50. But the tenant cannot avail himself of any other set off. 1817. PARRY V. HOUSE. 1817. An action for money had and received will not lie to recover back a sum paid TH CASE V. ROBERTS. HIS was an action for money had and received. The plaintiff had paid fifty pounds into the hands of the defendant, for the purpose of upon trust, for conducting an action for a breach of promise of a specific pur be shewn that the trust is closed, and that a balance hands of the trustee. pose, unless it marriage, brought by a relation of the plaintiff. The plaintiff's counsel proved the payment of the money for this specific purpose; and then put in a remains in the letter of the defendant's, written to the plaintiff, in 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. 1817. CASE ย. ROBERTS. Vaughan, serjeant, and for plaintiff. Best, serjeant, and Gaselee, for defendant. Assumpsit lies to recover the balance of a banker's account, however voluminous it may be; and the plaintiff, in such case, is not bound to bring an action of account. Tomkins v. Wiltshire, 1 Marsh. 115. Assumpsit likewise lies, where payment has been made upon a contract which has been put an end to; but if it continue open, the plaintiff can only recover damages for the breach of it; and then he cannot de- YORK. LENT ASSIZES, 57 GEORGE III. 1817. REED and Another, Assignees of PROCTOR, a Bankrupt, v. AYTON and Others. TRO A trader may make a transfer of his goods, on the creditor who a voluntary an act moving trader, where ROVER, to recover the value of some flour, which, it was contended, that the defendants had obtained from the bankrupt in fraudulent preference. The bankrupt carried on business at Yarm, ruptcy, to a in the county of Durham; and the defendants were compels him so to do by 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 was shipped for London by the bankrupt's di- from the rection, 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 |