
    James Farnesly v. Patrick Murphy.
    THIS was an action of indebitatus assumsit for money had and received. In the year 1785, Patrick Murphy bought from James Farnesly an out-lot, improved and occupied by Farnesly, of twenty-one acres, near the town of Pittsburgh; for which he agreed to pay 40s. per acre, if at a certain time thereafter, which was then fixed by the parties, the proprietaries should not have granted a patent or deed for it, to any other person. No patent was granted at the time fixed, nor some time after, when Murphy himself was in Philadelphia, and might, as he undertook to do, have obtained a patent, in his own name. But Murphy procured one De Byerly to lend his name, to take out a patent for the land, and convey to him. Murphy paid the purchase money and fees, and gave De Byerly a bottle of wine, for his service. When Murphy returned home, he told Farnesly, that the land had been granted to another, from whom he was obliged to purchase, and therefore he could not pay him. It was the custom of the proprietaries, in giving titles in the manor of Pittsburgh, to prefer settlers to any other ; and they have even refused to grant deeds to some, for land or lots, which others had improved ; reserving them for the improvers, when they should apply. If Farnesly had not sold, he would, from the usual indulgence of the proprietaries, have got a patent for this land, in preference to any other ; and as Murphy had bought from him, he would have had the same preference. Land, such as this, and near it, has been sold for 10l. per acre.
    
      5 Burr. 2592.
    
      2 Burr. 1012.
    
      Cowp. 290.
    
      Brackenridge and Young, for the defendant,
    faintly controverted the fraud, and insisted, that the plaintiff could not recover by assumsit for money had and received, on such a case as this; and for this cited Nightingale v. Devisine.
    
    
      Ross and Woods, for the plaintiff,
    read and relied on what is said by Lord Mansfield in Moses and M'Farlane, and in Hawkes v. Saunders.
    
   President.

There are three questions.—1. Has the plaintiff any just demand, against the defendant?

2. Has he brought it forward in a proper shape ?

2 Burr. 1007.

3 Burr. 1243. Doug. 628—651

H Bla. 641.

Cowp. 289—91.

Cowp. 197, Losst. 756. Doug. 132.

2 Burr, 1009l Cowp. 290-4.

See Porter v. Brown, post.

2 Burr. 1005-1012.

3. And, if he has, how much ought he to recover ?

1. The merits are clear for the plaintiff. He sold only his claim and possession, not the title ; this the defendant undertook to procure himself from the proprietary. The defendant got from the plaintiff all that was promised him ; all that he then expected ; all for which he was to pay to the plaintiff 42l. and this he ought to have paid.

2. The objection to the form of the action is better founded, and strong. But courts have been daily enlarging the liberality of this action, and leaning more against nonsuiting a plaintiff, with justice on his side. The cases nearest the present, in which this form of action has been held to lie; are Clarke v. Shee, for notes, and Longchamps v. Denny, for a masquerade ticket. And if you presume, that the defendant has sold the land, and received the worth of it, your presumption will be something like that in the case of the masquerade ticket. There is another presumption, which may be made, to support this action, from the defendant’s having received the profits of the plaintiff’s possession and improvement. The best form of action surely has not been chosen; but the objection is unreasonably extended, in saying, that the money must not only have been received by the defendant, but paid by the plaintiff. It is clearly enough if the defendant have received money from the plaintiff’s property, or for the plaintiff’s use, from any body. The objection is not exclusively directed to us, by a motion for a nonsuit; but to you also on a general verdict. We shall not direct a nonsuit.

3. As to the quantity of damages. Some cases, where there is a just or reasonable cause for retaining the money, till there has been a legal investigation, might justify a jury in refusing even interest to a plaintiff. In some cases damages ought to be measured by the loss of the plaintiff; in some, perhaps, by the gain of the defendant, proceeding from the unjust detention. And in some cases, it is proper to give exemplary damages. Indeed these remarks which would have applied to a special assumsit, are less proper in the present form of action, which goes only for the money supposed to have been actually received. But this case is highly fraudulent.

Note.—This verdict was the first within my notice, where the jury went any considerable length, to punish fraud, by penal damages. The example deserves imitation, and if it were generally followed, little or less inconvenience would flow from the want of power to decree a specific performance. The verdict appeared (from a paper which the jury handed to the prothonotary) to have been made up thus:- l. s. d.

Debt, 42 0 0

Interest, 17 12 9¼

Damages, 100 0 0

159 12

A motion for a new trial was talked of, on the ground, that indebitatus assumsit being of the nature of an action of debt, the jury could give no more damages than the interest. But the parties accommodated the matter; the defendant paid, I believe, 112l. and we heard no more of it.

The jury returned with a verdict for the plaintiff for 159l. 12s. 9¼d. damages.  