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" liable to refund the money; though both parties were, at the time, equally ignorant of the forgery. So in Bruce v. Bruce, 5 Taunt. 495. note, and 3 B. and 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. and 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. and Co. who took up the bills for their honour, and struck out the indorsements subsequent to that of H. and 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. and 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 that the plaintiff, having paid the money through a mistake, was 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 com

n Jones v. Ryde, 5 Taunt. 488.

o Wilkinson and others v. Johnson and others, 3 B. & C. 428.

mission 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 takenP.

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 servant9. 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 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 engagement 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 maintains an action against B. for money had and received,

p Young, assignee of Young, bank- r Baron v. Husband, 4 B. & Ad. 611. rupt, v. Marshall and another, sheriff s Williams v. Everett, 14 East, 582. of Middlesex, 8 Bingh. 43. Wedlake v. Hurley, 1 Cr. & Jer. 83. q Per Parke, J. 4 B. & Ad. 612.

r

without something having been done by B. which amounts to a privity or assent, independent of the mere receipt of the

money.

15. It remains only to observe, that the consideration of this action must be money. Hence stock cannot be recovered in an action for money had and received t; 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", 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 an account with an underwriter for a loss, upon a policy, whereupon the name of the underwriter was erased from the policy; it was holden, 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 liey to recover the value of foreign securities paid to the defendant, where it appears, that he had not any opportunity of converting such securities into British money.

t Nightingale v. Devisme, 5 Burr. 2589. See also Jones v. Brinley. 1 East, 1.

u Pickard v. Bankes, 13 East, 20.

x Andrew v. Robinson, 3 Campb. 199. y M'Lachlan v. Evans, 1 Y. and Jer. Exch. R. 380.

III. Of the Declaration.

Venue. THE action of assumpsit being founded on contract is transitory, (42) and consequently the venue may be laid in any county at the election of the plaintiff.

By R. G. H. T. 4 W. 4. 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. 4. c. 42. s. 23. 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 subjectmatter 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 subjectmatter 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 hired servant, work and labour generally, goods sold and delivered, goods bargained and sold, money lent, money paid, money had and received, and the like, the statement of each debt is to be

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

considered as amounting to a several count within the meaning of the rule which forbids the use of several counts, though one promise to pay only is alleged in consideration of all the debts. Provided, that a count for money due on an account stated, may be joined with any other count for a money demand, though it may not be intended to establish a distinct subject-matter of complaint in respect of each of such counts. The rule which forbids the use of several counts is not to be considered as precluding the plaintiff from alleging more breaches than one of the same contract in the same count.

Where an action is brought in an inferior court, it must be stated in the declaration, that the cause of action accrued within the jurisdiction of the court. Hence in assumpsit in an inferior court, not the promise only, but the consideration also, on which such promise is founded, must be laid within the jurisdiction: for the inferior court cannot hold plea unless the whole matter is within their jurisdictiona; consequently, if a declaration for goods sold and delivered, or money had and received, or money paidd, merely state that the defendant promised to pay within the jurisdiction, without stating the sale and delivery of the goods, or the receipt or payment of the money, to have been within the jurisdiction, it will be error; and error, even after verdicte, for in this case nothing shall be intended to be within the jurisdiction, that is not expressly averred to be sof.

Every material and traversables fact must be laid with time and place.

Day. The day mentioned in the declaration, on which the cause of action is stated to have accrued, is not material, provided it be a day after the cause of action accrued and before action brought. If the defendant by his plea makes the time material, the plaintiff may by his replication answer to that plea, without being guilty of a departure; as where the promise was laid on the first of Mayi, 3 Car. 1. and the defendant pleaded that the writ was first brought the 4th February, 14th Car. 2., and that he did not promise within six years before the said 4th February. Replication, that he promised within six years before the said 4th of February: on