
    [Pittsburg,
    September 19, 1825.]
    MATHERS, Administrator of MATHERS, against PEARSON.
    IN ERROR.
    
      Indebitatus assumpsit lies to recover back money obtained by the defendant from the plaintiff mala fide, or by deceit.
    On writ of error to the Court of Common Pleas of Mercer county in this suit, the case appeared to be as follows:
    The plaintiff below, and plaintiff in error, William Mathers, administrator of Thomas Mathers, deceased, brought this action of indebitatus assumpsit against Bevan Pearson, the defendant below, and defendant in error, to recover.back the sum of one hundred dollars, which Thomas Mathers, in his life time had paid to the defendant on the purchase from him of a judgment in a foreign attachment obtained by Matthew Nelson against Edward, White, administrator of Isaiah Thompson. Pearson by virtue of a power of attorney from Nelson, assigned this judgment to Thomas Mathers, in consideration of the sum of four hundred dollars, of which the above mentioned one hundred dollars was paid to the defendant. The assignment was to Thomas, and to his heirs forever, without recourse back to the said Andrew Nelson, or to Pearson. A suit was brought by Pearson for the three hundred dollars, but there was a verdict for the defendant, and the one hundred dollars was now claimed to be recovered on the-ground of fraud in the assignor.
    The court below charged that “ if there was fraud or imposition knowingly practised by Pearson on Mathers by assigning to him what was good for nothing or could be of no benefit or advantage to him, then Pearson might be liable for the fraud and deceit. But that is not the ground of this suit: this is not an action for deceit but an action of assumpsit.” The plaintiff excepted to this opinion.
    
      Banks and Ayres, for the plaintiff in error,
    now contended that money obtained by deceit could be recovered back in indebitatus assumpsit, and referred to Esp. N. P. 2, 7, 12. B. N P. 133.
    
      Foster, contra,
    did not deny the principle, but insisted no fraud was proved and therefore what the court charged as to fraud was of no consequence. He cited Jackman v. Dorsey, 1 Serg. & Rawle, 42.
   The opinion of the court was delivered by

Gibson, J.

There is a class of cases in which an action can be maintained only on the contract, as where a chattel is sold without a stipulation to rescind the contract in case it should turn out ,to be'different from what it is represented to be: there the contract- remains open and the remedy is on the warranty, if there be any. But it is clear that money received mala fide or by deceit, may‘be recovered back in an action for money had and received. So where there has been no fraud, but the title of the vendor has been found to be defective: as in the case of the purchase of a lease, where the vendor had a less time to come than what was mentioned in the agreement; and there it was held that as the parties 'had proceeded on a supposition that a particular state of things existed and were mistaken in it, the purchaser might consider the contract as at an end, and recover in indebitatus assumpsit on the common principle of failure of consideration. Here there could be no failure of consideration, as the assignee of the judgment agreed to take the risk of recovery on himself; but the judge who tried the cause was of opinion also, that he could not recover even on the ground of fraud if it were shown, but that he would be driven to an action on the case in nature of deceit. The law, however, is clearly otherwise. Fraud renders the contract void, and puts the party defrauded in a condition to treat it as a nullity. If this be so there is nothing in the way of a promise by implication of law to restore the money which the defendant received as the consideration of the assignment. The cases cited and many others that might be produced, fully bear this position out; and it is therefore unnecessary to dwell longer on the subject: The judgment is to be reversed, and a venire facias de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  