Page:United States Reports, Volume 1.djvu/233

222 

1787.

HIS was an action for money had and received &c. The Defendant, being Sheriff of Glouceʃter county in New-Jerʃey, received a fum of money for the Plaintiff, which he lent, with her confent, upon a mortgage of lands in that ftate. The mortgagor, from time to time, paid the intereft to Hugg, and, finally, in the year 1778, paid the whole principal and intereft to him in depreciated paper money. It did not appear that Hugg had any exprefs authority from the Plaintiff to receive this payment of the principal from the mortgagor, and fhe afterwards refufed to accept the continental money, infifting that fhe was entitled to recover the full fum in fpecie ; for which, accordingly, the prefent action was brought. Upon the trial of the caufe, the Court, in their charge, left it to the Jury, is give fuch damages as they thought juft ; whereupon a verdict as returned for the Plaintiff, for the full amount received by the Defendant (Ł.27.10,) in hard money ; and Lewis, upon the ground of mifdirection moved, for a new trial.

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.

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 ufe