Page:Harvard Law Review Volume 2.djvu/273

 BQUirr JURISDICTION, 255

to account is one which there is some danger of losing sight of, and this danger has been much increased by the disuse of the action of account. Moreover, this distinction has been much ob- scured by the prevalence of the indebitatus count in assumpsit for money had and received. That count, indeed, seems to have been framed in entire forgetfulness that any such distinction existed, for it alleges a legal impossibility, namely, that the defendant is indebted to the plaintiff for money had and received by the de- fendant to the plaintiff ' s use. If, in truth, the defendant is indebted to the plaintiff for money had and received by the defendant, it follows that the money was received by the defendant to his own use ; and if the money was in truth received by the defendant to the plaintiff's use, it follows that it is the plaintiff's money, and that the defendant is accountable for it. And yet this inconsistency in the language of the count has never attracted attention. Less mischief, however, has resulted from it than might have been antici- pated ; for English lawyers, acting with their usual practical good sense, have treated the count as alleging an indebtedness for money had and received, and the words "to the plaintiff's use" have been disregarded. Much looseness of ideas prevailed, indeed, dur- mg the time of Lord Mansfield, and doubtless the instances have been numerous since his time in which assumpsit for money had and received has been allowed where account was the only proper action. The distinction between these two actions has, however, generally been recognized and maintained whenever attention has been properly called to it, and especially whenever substantial rights depended upon it. Thus in Lincoln v, Parr,^ the court " declared their opinion that no evidence of account will maintain indebitatus^ as on money delivered to a factor, who often have dis- charges of greater value, and so involve the court, which they will not allow " ; "and it was said so to be ruled in Guildhall last sit- ting." " In Sir Paul Neal's Case,^ it was decided by all the judges of England that case would not lie against a bailiff, where allowances and deductions are to be made, unless the account had been ad- justed and stated; and in Farrington v. Lee* the same doc- trine was held in regard to a factor ; and, in the latter case. North,

��1 2 Keb. 781.

• Cited by North, C. J., in Farrington v, Lee, Freem. 230.

» I Mod. 268, 2 Mod. 311, Freem. 229, 234, 242.