1787.
use of the Plaintiff. The obligor, whose name was White, paid interest at different times to the Defendant, who paid it over to the Plaintiff. In the month of November, 1778, the Defendant received the whole principal and interest then due in Continental Money, and delivered up the bond and mortgage to the debtor.—It appeared by the testimony of White that when he paid the Money to Hugg he did not mean to make a legal tender of it, although he brought a witness to be present at the payment, which was done, as he said, only because he himself he did not well understand the English language. Hugg not having paid the money to the Plaintiff, she brings this action against him for money had and received to her use.
On the part of the Plaintiff it was contended on the trial, that the Defendant not having been compelled to received the Continental Money, received it in his own wrong, and ought to answer the full sum in hard Money to the Plaintiff.
The Court left it to the jury to confider the justice and equity of the cafe, but hinted their opinion, that, considering the circumstances of the times, it might be most reasonable and just to settle the sum according to the scale of depreciation. At the same time telling them that this action was in the nature of a bill in equity, and that they might give such a sum in damages as they though just. The jury found a verdict for the Plaintiff for the sum received in hard money. A motion was then made for a new trial on the of ground misdirection.
Having had time to deliberate and confider the law arising on this case, we are of opinion, that the court ought not to have left it to the jury to give in damages more than was actually received.
The action of assumpsit for money had and received, has been of late considered to be of so liberal a nature, that it is not to be wondered at, that on a sudden its extent should be mistaken. It is a very beneficial action, not only for the Plaintiff, but the Defendant ; yet, it has its limits. It is beneficial to the Plaintiƒƒ, because, when he has another remedy as well as this, he may elect this, and is under no necessity to state the special circumstances of his case, but may make it out by evidence on the trial. For the Deƒendant it is beneficial, because, as Lord Mansfield says, he can be liable ƒor no ƒurther than ƒor the money he has received, and against that may go into every equitable defence upon the general issue. It is in fact an action to oblige the Defendant to refund what he has received; and the word refund, ex vi termini, precludes the idea of his being answerable for more than he has actually received. Interest, indeed, may be added as damages for the detention, but no more. In this kind of action the Plaintiff waves all torts and special damages;and
