The opinion
President.
Where the plaintiff’s proceedings have carried any appearance of hardship on the defendant, as in penal actions; or where the pleadings have been unnecessarily extended by him; he has been held to very strict rules ; and opportunities have been eagerly seized, to nonsuit him. He has been treated with much greater indulgence, when the plain rules of justice have required, that he should recover.
The declaration is of a debt due on a bond, dated 27th March, 1788. The bond produced is without date. The declaration states a promise to pay a debt due on a bond. The evidence is of a debt due on a mortgage. It might be said, that the date of a Bond is immaterial, and the bond itself but matter of inducement. And as the ground of the action is not the bond of Campbell, but the promise of Brown, it may be questioned, whether the variance be material, and whether there ought not to be a recovery on the first or second count. We should be unwilling to nonsuit a plantiff on a mere formal exception : and, in this case, we conceive ourselves not to be under this necessity, because, in our opinion, he ought to recover on the third count. We rely on the authorities, on which the decision in the case of Farnesly v. Murphy was founded, and on all the circumstances of this case. The consideration was valuable and full.-Porter’s con duct was fair and indulgent; and his claim just. Relying on the promise of Brown, he did not record his mortgage, and so lost his lien on the house, which remained unincumbered in the hands of Brown. The two first counts for the same sum gave Brown notice of the nature of the demand, and prepared him to answer it. In such a case, every presumption possible of methods in which the defendant, by receiving the house, might have received money for the use of the plaintiff, *39 ought to be made: and there should be a verdict for 33l. 9d. with interest from 15th March, 1787.
H. Bla. 239.
4 T.Rep 637.
Doug. 132.
Note:-The following cases were not known here, when Porter v. Brown was tried, Israel v. Douglass, in C. B. Easter Term, 1789.—The first count was for money had and received. The defendant was indebted to D. 64l. 9s. who was indebted to the plantiff 40l. D. applied to the plantiff to lend him a further sum. The plantiff refused without security. D. gave him an order on the defendant for the sum due to him. The plaintiff sent this order to the defendant, who agreed to pay the plantiff the sum really due to D. and thereupon D. received 70l. from the plaintiff. Lord Loughborough, Chief Justice, Gould and Heath, Justices, thought this sufficient to support the count for money had and received. Wilson, Justice, thought not, unless it had been shewn, that money had been received by the defendant for the use of D.
Leery v. Goodfon, B. R. Easter Term, 1792. The plaintiff having distrained pictures of P. his tenant, the defendant agreed, if the plaintiff would deliver the pictures to him, that he would pay the rent. The court held, that this would not support a count for money had and received ; and that a sale of the pictures by the defendant could not be presumed here, as in the case of the masquerade ticket ; for a contrary presumption rises, from his receiving the pictures, to avoid their being sold.
The jury found a verdict for 42l. 12s. 4d.