
    [Lancaster,
    May 24, 1826.]
    DOEBLER and Others against FISHER.
    IN ERROR.
    Evidence that a horse was received by the defendant in exchange for a patent right, is not admissible, either under a count for money paid laid out and expended, or for money had and received.
    Error to Lebanon county.
    The defendant in error, Samuel Fisher, brought this action of assumpsit in the court below, against JLbraham Doebler and Joseph Reinhart, the plaintiffs in error; and filed a declaration which contained two counts. ' The first was for money paid, laid out, and expended. The second, for money had and received. The verdict was taken generally for the plaintiff, but after the jury had left, the bar and a motion had been made for a new trial, the ver-diet was, from the judges’ notes, entered on the second count. This was objected to in this court as error; but the Chief Justice having intimated that it was often done, the objection was abandoned.
    On the trial of the cause, the plaintiff offered in evidence a deposition of George Miller, who, after stating that he was present when the plaintiff and defendants bargained about a patent right to bleach linen and cotton, and what the defendants were to do, was asked by the plaintiff “ I)o you know what compensation I gave for the patent?” The witness answered, “Yes; 1 do know that, you delivered the same men a sorrel horse, and he was a good horse, and handsome.” The plaintiff then asked the witness, “How much was the horse worth, or how much do you think he would sell for?” To which he answered, “ I think the horse was worth one hundred and fifty dollars at least, for he was an elegant horse.”
    To the reading of this deposition several exceptions were taken by the defendants’ counsel, in the court below, all of which it is unnecessary to state, as the following was the only one considered available by this court: viz. That the special contract should have been set out, and that the deposition proving that the defendants had received a horse, was not evidence under either count in the declaration.
    The deposition having been admitted by the court, a bill of exceptions was tendered and sealed.
    
      Weidman and Norris, for the plaintiffs in error,
    cited 1 John. 96. 8 John. 439. 1 Ghitty, on .PL 288.
    Elder, for the defendant in error,
    referred to Kelly v. Foster, 2 Binn. 4.
   Huston, J.

after stating the case, delivered the opinion of the court as follows:

Was the deposition evidence on either count in this declaration? Not on the first; for there, except in certain cases, the havinggiven. a negotiable note, nothing but the actual expenditure of money. will be admitted. Giving a bond for the debt of another will not support this count — of course giving property will not.

A count for money had and received has been supported without positive proof that money has been actually received, as, where goods were left a long time ago in a store to be sold — and the storekeeper would not produce them nor pay the price, it has been left to a jury to presume that the store-keeper had received the price of them. 8 John. 202. 9 Serg. & Rawle, 11. The case before the court differs in this — the horse was given absolutely in exchange for the patent right, to be kept as the party’s own property, not delivered to be sold, or the price of him accounted for in any way — no price was put on the horse by the parties. The witness .thought him worth one hundred and fifty dollars. It was not proved nor offered to be proved that the horse had been sold and turn ed into money. No case has been cited to show that receiving a horse will support a count for receiving money.

It has been decided in New York, that an attorney or agent duly authorised to receive money and give an acquittance, who gives a receipt and discharges a debtor, is liable to an action for money had and received for his principal, and that he shall not-discharge himself by'proving, that in fact he received no money. 11 Johns. 464. It would seem his own receipt concludes him. The same point has been decided in Massachusetts — but I have found no case where receiving goods has been held sufficient. On the other hand there is an express decision that receiving India stock, will not support such count. 5 Burr. 2589. It was offering to prove what was not stated in the declaration, and what would not support it if proved, and therefore ought not to have been received.

Judgment reversed, and a venire facias de novo awarded.  