
    Curtis vers. Nightingale.
    
      1767.
    
    Assumpsit for Money had and received will not lie to recover the Consideration Money paid for land originally conveyed to the Plaintiff, and subsequently to a third Party, on the Plaintiff’s Deed being destroyed before recording.
    INDEBITATUS ASSUMPSIT for Money had and received to the Plaintiff’s Use. The Cafe was,— Nightingale, for a good Consideration, sold a Tract of Land to the Plaintiff, by Deed; and after-wards, the Plaintiff’s Deed being burnt before recording, the said Nightingale conveyed the same Land to another Person. The Plaintiff now brought this Action to recover back the Consideration Money.
    
      Mr. Dana
    
    objected, that this Adion would not lie, but that a special Action of the Case, upon the Fraud, should have been brought. 1 Salk. 22. Comb. 341. 2 Stran. 916. 1 Bac. 167.
   A Majority of

the Court

was of Opinion that this Action for Money had and received would not lie, and so directed the Jury, who found accordingly. ()

A Deed casually destroyed by Fire may be proved by Witnesses.

N. B. A ípecial Aétion on the Cafe was afterward brought, and, on Demurrer to the Declaration, the Superiour Court (March Term, Suffolk, 1768) gave Judgment in Favour of the Plaintiff, on the Authority of 10 Rep. 92, b.N. B. A ípecial Aétion on the Cafe was afterward brought, and, on Demurrer to the Declaration, the Superiour Court (March Term, Suffolk, 1768) gave Judgment in Favour of the Plaintiff, on the Authority of 10 Rep. 92, b. () 
      
       Vid. 2 Ld. Raym’d. 1216, 1217.
     
      
      (1) It was formerly the rule, that what was a tort in its inception could not be made the subject of an implied assumpsit. But many exceptions to this rule have been established. Where goods tortiously obtained or held have been fold by the wrong doer, the owner may waive the tort, confirm the sale and maintain assumpsit for the price received. 2 Ld. Raym. 1216 (cited by the reporter supra). Jones v. Hoar, 5 Pick. 285. Whether in a cafe like the one above reported the plaintiff would not have an election, either to consider the sale as rescinded, and recover his original consideration, or to treat the defendant as his agent in the second conveyance, and recover the last received purchase-money — quiere. On a subsequent page of the MS., this cafe is again reported, and the action is there stated to have been brought “ to recover back the Consideration Money, either of the ill or 2d Deed.” By the record, however, it appears that the action was brought for the original price paid by the plaintiff.
     
      
       Viner, Evid. (T. b. 22) pi. 1, 3, & ye Note, & ye Authorities there cited. Ib. (T. b. 65) pi. 3.
     
      
      (2) Doctor Leyfield's Cafe, where it is laid down that a deed casually destroyed by fire may be “ proved in evidence to the jury by witnesses, that affliction be not added to affliction.” The demurrer was evidently on the ground that the deed was not pleaded with a profert. Formerly, in case of a lost deed, relief could only be had in equity. Id. (ed. of 1826) in notis.
      
     