
    FAYETTE COUNTY.
    June Term, 1792.
    John Porter v. Basil Brown.
    IN assumsit, there were three counts. The two first were on a special undertaking to pay Porter 33l. 9s. with interest from 15th November, 1787, due by one Campbell, by bond dated 27th March, 1788. The consideration of this promise was the sale of a house by Campbell to Brown, on which Porter had a mortgage for the sum demanded. The third count was for money had and received. The bond produced had no date, but it had been pasted to the mortgage, which was dated 27th March, 1788, and recited a bond of the same date, and for the same sum.
    It was proved, that, about a month after the date of the mortgage, Brown sent a message to Porter, that Campbell had left this country, that he had purchased Campbell’s house mortgaged to Porter, and, by contract, was to pay the debt due to Porter ; that he would come to Porter, but was afraid of the smallpox ; but if Porter would come to him, he would give his own bond for the money, and security if required ; and that all that he wanted was a little time to make the payment. This message was delivered to Porter, who said he was satisfied. Porter did not record his mortgage.
    
      Ross for the defendant.
    The plaintiff cannot recover on the first or second count, as the declaration states a bond dated 27th November, 1788, and the bond shewn has no date. And if he undertake to recite a deed, he must do it exactly ; or if he state a special agreement, he must prove it as laid. He cannot recover on the third count, for he has proved no money received by the defendant for his use.
    
      Woods for the plaintiff.
    The bond is but matter of inducement; not the gift of the action. It has been pasted to a mortgage, which recites it as of even date, and is dated 27th March 1788. On the third count the plaintiff will recover ; for the house being then bound to the amount of the mortgage, it will be presumed, that, when Brown bought the house, he gave the price, and got back so much from Campbell as would pay the plaintiff. In the case of Farnesly v. Murphy, in the court of Common Pleas of Allegheny county, a case resembling the present, the plaintiff recovered by the direction of the court, on the authority of decided cases.
    
      March Term 1792, Ante. p. 22.
    
    
      Alcorn versus Westbroke, 1 Wils, 115. Payne v. Bacombe, Doug, 628.
    
    
      Perry v. Nicholson, 1 Bur. 278.
    
   President.

Where the plaintiff’s proceedings have carried any appearance of hardship on the defendant, as in penal actions; or where the pleadings have been unnecessarily extended by him; he has been held to very strict rules ; and opportunities have been eagerly seized, to nonsuit him. He has been treated with much greater indulgence, when the plain rules of justice have required, that he should recover.

The declaration is of a debt due on a bond, dated 27th March, 1788. The bond produced is without date. The declaration states a promise to pay a debt due on a bond. The evidence is of a debt due on a mortgage. It might be said, that the date of a Bond is immaterial, and the bond itself but matter of inducement. And as the ground of the action is not the bond of Campbell, but the promise of Brown, it may be questioned, whether the variance be material, and whether there ought not to be a recovery on the first or second count. We should be unwilling to nonsuit a plantiff on a mere formal exception : and, in this case, we conceive ourselves not to be under this necessity, because, in our opinion, he ought to recover on the third count. We rely on the authorities, on which the decision in the case of Farnesly v. Murphy was founded, and on all the circumstances of this case. The consideration was valuable and full.-Porter’s conduct was fair and indulgent; and his claim just. Relying on the promise of Brown, he did not record his mortgage, and so lost his lien on the house, which remained unincumbered in the hands of Brown. The two first counts for the same sum gave Brown notice of the nature of the demand, and prepared him to answer it. In such a case, every presumption possible of methods in which the defendant, by receiving the house, might have received money for the use of the plaintiff, ought to be made: and there should be a verdict for 33l. 9d. with interest from 15th March, 1787.

H. Bla. 239.

4 T.Rep 637.

Doug. 132.

Note:-The following cases were not known here, when Porter v. Brown was tried, Israel v. Douglass, in C. B. Easter Term, 1789.—The first count was for money had and received. The defendant was indebted to D. 64l. 9s. who was indebted to the plantiff 40l. D. applied to the plantiff to lend him a further sum. The plantiff refused without security. D. gave him an order on the defendant for the sum due to him. The plaintiff sent this order to the defendant, who agreed to pay the plantiff the sum really due to D. and thereupon D. received 70l. from the plaintiff. Lord Loughborough, Chief Justice, Gould and Heath, Justices, thought this sufficient to support the count for money had and received. Wilson, Justice, thought not, unless it had been shewn, that money had been received by the defendant for the use of D.

Leery v. Goodfon, B. R. Easter Term, 1792. The plaintiff having distrained pictures of P. his tenant, the defendant agreed, if the plaintiff would deliver the pictures to him, that he would pay the rent. The court held, that this would not support a count for money had and received ; and that a sale of the pictures by the defendant could not be presumed here, as in the case of the masquerade ticket ; for a contrary presumption rises, from his receiving the pictures, to avoid their being sold.

The jury found a verdict for 42l. 12s. 4d.  