
    Catharine Wales, Administratrix of Rev. Samuel, Wales, against Anna Wetmore Robert W. Wetmore, and Victory Wetmore, Administrators of Rev. Izrahiah Wetmore.
    If one re-ceivt‘8 money of another for pose^áiiíl fails to apply >•, assumpsit will
    MOTION for a new trial.
    This was an action of assumpsit counting upon a receipt of the defendants’ intestate in the following words; r °
    * Milford, August 21*?, 1780,
    Received of Mr. Samuel Wales twenty-two pounds, Seventeen shillings, lawful money, which 1 have laid out for land in the township of Fairlee, in company with Captain Robert Walker, and captain Joseph Walker, and Mr. David Judson and myself, in a tract of twelve hundred acres of land, for which we gave two dollars per acre; and the said Mr. Wales is to have his proportion of land on a division, in proportion to the said sum of twenty twci pounds seventeen shillings, which he has advanced ; as witness my hand.
    
      Ixrahiah Wetmore*’
    
    The declaration negated the purchase of any lauds by the defendants' intestate, and the repayment of the moacy, and concluded with alle ging an undertaking to repay the money and interest.
    The defendants pleaded the general issue; and. on the trial, objected to the plaintiff's evidence, on the ground, that it appeared by the receipt recited in the declaration, that Mr. Wftmore received the money from Mr. Walts, as his agent; and, therefore, the action ought to have been an action of account. But the court overruled the exception, and admitted the evidence; and in their charge to the jury, instructed them, that it was not necessary that the action should be account. The jury found for the plaintiff; whereupon the defendants moved for a new trial; which ¡notion was reserved for the consideration of the nine judges.
    Ingersoll, in support of the motion,
    insisted that, by the plaintiff’s showing, Mr. Wetmore sustained the character of an agent; he was to purchase k distant tract of land, and transfer to Mr. Wales the part to which he should be entitled. This would be attended with trouble and expense, for which he might justly claim a compensation. In such case, assumpsit is an improper action ; as it precludes the defendant from accounting on oath. Collins v. Phelps, lately decided in Hartford county, and Whitman v. Wadsworth, 2 Moot, 267. support this position.
    
      Daggett and Staples, contra.
    What was the object of this action? The repetition of . money paúl on a consideration which had failed. The form is appropriate; it is the one constantly used for 'his purpose.
    
      Account is never permitted, except where the defendant ought to be allowed to substantiate charges for disbursements and services, by his own oath. Mr. Wet-more was not entitled to any commissions; for he performed no services ; he made no purchase, and conveyed no title.
    Here was no promise to account. The undertaking, on the part of Mr. Wetmore, was of a different nature. Suppose the action had been account; and Mr. Wetmore had proved, that he had purchased the land according to the writing, and tendered to Mr. Wales a deed of his proportion. This would be a good defence; and yet it could not be shown under any plea to an action of account. Tiiis shows conclusively, that account is not adapted to the nature of the case.
    In Wetmore v. Woodbridge, Kirby, 164. there was a promise to.account, which was found by the jury; and yet the court held, that the plaintiff had his election to bring assumfisit or account. The case cited goes much further than is necessary for us.
    
      
      
         Vide Appendix.
    
   By the Court,

unanimously. The only question reserved in this case is, whether, upon the facts alleged in the declaration, an action of assumfisit could be mainta n-ed ? Not, whether an action of account would lie ?

In many cases, the .plqjntiff may have his election; and may seek redress, either by an action of assumfisit, or of account.

If one receives money of another for an express purpose, and fails to apply it, assumfisit will lie.

In this case, the money was received for a right in certain lands in the township of Fairlee, in Vermont, which Mr. Wetmore claimed to have purchased previous to the date of the receipt; yet it is averred, that 1 1 ’ no land had been purchased by him, nor any title offered to Mr. Wales. It appears, that the consideration wholly failed.

If assumpsit would not lie, the defendants might have demurred to the declaration, as the receipt was spread Upon the face of the record.

New trial not to be granted.  