
    D’Utricht versus Melchor.
    THIS cause was tried at bar, in September Term, 1788, and, a verdict being found for the Plaintiff, the Defendant obtained a rule to shew cause why a new trial should not be granted; which was
    argued at the present Term by Coxe and Sergeant, in support of the rule, and by Lewis and Heatly against it.
    
      It appeared, that the Plaintiff had bought a tract of land from the Defendant, who had previously purchased it of one Simpson, but, as, upon enquiry, no land of the description contained in the Defendant’s deed to the Plaintiff could be found, this action, which was an action of Indebitatus Assumpsit for money hand and received to the Plaintiff’s use, was brought, in order to recover back the consideration money that had been paid; and, on the trial, the Defendant’s deed was given in evidence to prove the amount and acknowledgment of such payment. The declaration also contained a count in the nature ot deceit; but, by agreement of the Counsel, it made no part of the argument, whether this could properly be coupled with the Assumpsit; to that the motion for a new trial was, supported only upon these grounds:—1st, That the action of Assumpsit would not lie; and 2dly, That the deed ought not to have been given in evidence upon the trial.
    For the Defendant, it was contended, that, as there was no suggestion of fraud to vitiate and annul the original contract of the parties, the proper action was covenant on the words grant, bargain, &c. that if there was fraud, the remedy was an action of deceit; that Assumpsit would not lie; that if there was any deceit in the words of the deed, still the action might have been brought upon the deed itself; that a deed cannot be given in evidence to support an action of Indebitatus Assumpsit; that there was no proof of a parol Assumpsit; and that the Defendant could not plead a verdict in the present suit, in bar to another action of covenant upon the deed. See Com. Dig. 145. letter F. 1. Cowp. 414, 418. 818. 819, Doug. 132. 1 State Laws, 79, I Salk. 210. Cro. J. 506. I Roll Abr. 378. 1 Vin. Abr. 277. 2 Black. Rep. 1249. Gilb. L. of E. 18 , 12 Vin. 190.
    
      For the Plaintiff, it was answered, that whenever natural justice implies that the party ought to refund, this action, which is like a bill in equity, will lie to compel him; that the deed was not the foundation of the action, but given in evidence merely to shew the amount of the consideration money, and the Defendant’s acknowledgment of its being paid; and that the declaration was supported by the precedent in Doug. 18.—See Salk. 22. 1 Lev. 102, Bull. N. P. 31. 2 Stra. 915. 1 Lord Raym. 742. 2 Burr. 1088. Salk. 284.
   The case being held for some days under advisement, the Chief Justice now delivered the opinion of the Court to the following effect:

M‘Kean, Chief Justice.

It is unnecessary at this time to determine, whether the Plaintiff might have instituted an action of covenant, or deceit, in order to obtain a redress of the wrong which he has sustained; for, we think it is sufficient for his purpose, that an action of Assumpsit for money had and received to his use, has been brought; and that, to maintain this action, he may give in evidence, that the Defendant got his money by mistake, imposition, or deceit. To prove the alledged mistake, imposition, or deceit, deeds or other writings, which are not the immediate foundation of the suit, but only leading to it, may be read.

We are all, therefore, of opinion, that a new trial ought not to be granted.

Judgment for the Plaintiff.  