# Eastwick v. Hugg

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1787.
EASTWICK verʃus HUGG.
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In fupport of this motion, two points were made for the Defendant:–1ʃt That in an action for money had and received, the Plaintiff waves all tort, admits the right to receive, and , therefore, can recover no more than has actually come to the Defendant's hands. 2 Burr. 1008 Cowp. 416.419. Ibid. 199. Bull. N.P. 128. 2dly That the Defendant, in this cafe, held the money as truftee for the Plaintiff, and ought, therefore, to be difcharged from any payment, except in the identical paper money which he had received. 2 Penn.Laws. 496.
Sergeant, for the Plaintiff, urged that the Court would not grant a new trial where the object was fo inconfiderable ; nor merely for a miftake in the form of the action, if the juftice of the caufe was with the Plaintiff. 2 Burr. 936. Cowp. 601. 2 Burr. 604. 5. And, he infifted, that the Jury had a right to eftimate the damages. 10. Mod. 19. 1 Ld. Raym. 1000.
the president, after confideration,ftated the circumftances of the cafe,and delivered the opinion of the Court, in the following manner:
SHIPPEN, Preʃident.−The facts were fhortly thefe:−The Defendant, then Sheriff of Glouceʃter county in New-Jerʃey, having in his hands a fum of money belonging to the Plaintiff, who refided in the city of Philadelphia, in the year 1772, with the confent of the Plaintiff, lent it to one of his neighbours in New-Jerʃey at feven per cent. intereft. A bond and mortgage was taken for it in the name of the Plaintiff, which were left in the Defendants hands for the purpofe of receiving the money when it fhould become due, for the ​
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; ​
1787.
and goes only for the money received ; and fo far confirms the Defendant's act, as that he cannot gain fay his right to receive it.
As to the Juʃtice of the verdict, it is not fo very apparent as to make us anxious to fupport it, againft the rules of law. Col. Hugg was the Plaintiff's agent in this matter, without any reward. He was an Officer in the American army, and probably thought the fupport of the war depended on the fupport of the credit of the continental money ; it was the only money then in circulation ; and though it had depreciated five or six for one, he might- reafonably think it would not only be injurious to his own reputation, but to the common caufe, to refufe it. All thefe circumftances muft have been known to the Plaintiff, and yet the fuffers the bond and mortgage to remain in his hands. She might have taken the fecurities from him and abided by the confequences of refufing it herfelf. The debtor, White it is true, fwore he did not mean to force the money upon Hugg ; but it is as true, that when he brought the continental money to difcharge the debt, he brought a Witneʃs with him, which he had not done before when he paid the intereft in hard money. This circumftance might reafonably induce a belief in Hugg that he meant to make a legal tender of the money ; and White, notwithftanding what he fays, might poffibly have availed himfelf of it as a legal tender, in cafe Hugg had refufed the money.
For thefe reafons, I fay, the juftice of the verdict may be well queftioned ; yet if the cafe had been before the jury in fuch a way as that they could legally have given damages according to their difcretion, perhaps, we fhould not have thought it proper to fet afide their verdict, on account of their having, in a doubtful cafe, exercifed their judgment, and drawn different conclufions from the facts. However, as the law is clear, that in this kind of action, the Defendant is liable for no more than he has received, we muft order a new trial.