
    D’Utricht v. Melchor.
    Evidence.— Yendor and purchaser.
    
    In an action of assumpsit for money had and received, to recover back the purchase-money of land, it was held, that the deed from the defendant to the plaintiff, was admissible in evidence to prove the amount paid, &c.; and that to maintain the action, it was sufficient for the plaintiff to prove, that the defendant received the money by mistake, imposition or deceit.
    This case was tried at bar, in September term 1788, and a verdict being found for the plaintiff, the defendant obtained a rule to show 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 Ileatly, against it.
    *It appeared, that the plaintiff had bought a tract of land from the r*, „0 defendant, who had previously purchased it of one Simpson ; but as, L upon inquiry, 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 had and received to the plaintiff’s use, was brought, in order to recover back the consideration-money that had been j>aid ; 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 of deceit; but by agreement of the counsel, it made no part of the argument, whether this could properly be coupled with the assumpsit / so that the motion for a new trial was supported only upon these grounds : 1st, That the action of assumpsit would not lie ; and 2d, 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 oí fraud to vitiate and annul the original contract of the parties, the proper action was covenant, on the words grant, bargain, <fcc.; 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, F; 1 Cowp. 414, 418, 818, 819; Doug. 132; 1 State Laws 79; 1 Salk. 210; Cro. Jac. 506; 1 Roll. Abr. 278; 1 Vin. Abr. 277; 2 W. Black. 1249; Gilb. L. of Ev. 183; 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 show 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 Str. 915; 1 Ld. 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:

McKean, 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 alleged mistake, imposition or dece^’ *c^ee^-s or °tiber writings, which are not the immediate foundation -I 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, 
      
       In Weaver v. Bentley, 1 Caines 48, Judge Livingston is reported to have said, “ The case of D’Utricht v. Melchor, 1 Dall. 428, cannot be law.” The majority of the court, however, differed in opinion from Judge Livingston, upon the principle of that case, and held, that assumpsit would lie, to recover back the consideration paid on a sealed agreement, the defendant having failed to perform his part; and it is believed that D’Utricht v. Melchor, which is said by Judge Yeates (in Ritchie v. Summers, 3 Yeates 539), to be “imperfectly reported,” may be supported as an authority, if the assertion of the same learned judge, in a later case (Dorsey v. Jackman, S. & R. 51), be correct, viz., that it “was determined upon the ground of fraud and imposition.” Chief Justice Tilguman, in the case last referred to (p. 48), instanced “fraud or deception,” as furnishing an exception to the rule, that money could not be recovered back, and such, according to Judge Yeates (in Steinhauer v. Witman, 1 S. & R. 447), is the settled law. See also Mathers v. Pearson, 13 S. & R. 258; Landis c. Urie, 10 Id. 316; Charles v. Scott, 1 Id. 294.
     