if he was not, he would return the money. The counsel for the defendant, then, objected, that the plaintiff could not recover in this form of action, but should have proceeded upon the warranty, or in special assumpsit, upon the promise, proved to have been made as above, at the time when the horse was returned; and they cited Weston v. Downes, and contended, that the contract was not at an end, for the defendant did not admit that the horse was unsound, which was the subject of the warranty. * Lord ELLENBOROUGH, C. J. Observed that there was this difference between the cases, namely, in Weston v. Downes, there was no promise to return the money if the horse was not sound, and there the action could only be on the warranty for damages." He therefore, overruled the objection, and there was a verdict for the plaintiff. A rule having been obtained, in last Michaelmas Term to shew cause why there should not be a nonsuit entered. GARROW and MARRYAT, for the plaintiff, shewed cause. "They cited Towers v. Barrett; which was an action for money had and received, to recover 10 guineas which the plaintiff had paid for a one-horse chaise and harness, under an agreement to pay that sum; but if the plaintiff's wife did not approve of it, then to return the chaise and pay 3s. 6d. a day, for the hire of it. It was held there, that, upon the wife not Jiking the chaise, and its being returned and the sum for hire being tendered, the plaintiff was entitled to recover in assumpsit for money had and received, as upon a condition which had failed. And Lord Mansfield there said, that he approved greatly of the action *Dougl. 23. † 1 Term Rep. 133. 1806. PAYNE versus WHALE 1806. PAYNE versus WHALE. for money had and received, and never permitted the plaintiff to be surprized by the very general nature of the count, because, when there were other counts, he would not permit the plaintiff to recover, unless the defendant had notice of his intent to proceed upon that count also." LAWRENCE, J. "Here it does not appear to be part of the original contract that the money was to be returned, in case the horse should prove unsound; bnt in Towers v. Barrett the original contract was to return the chaise, in case the wife did not like it. There was no warranty in question there, and the plaintiff had only to prove that his wife did not like it.". GARROW. "It makes no difference, whether this is to be taken as evidence of the original contract, or, as if after the objection is made to the horse, the defendant makes a new agreement. We have only to notify to the defendant that we object to the horse, on the ground of its being unsound, and to shew it to be so, and the contract is at an end." MARRYAT, on the same siar. "The answer of the defendant that he did sell him as a sound horse, and that he was warranted so to be, and if he was not so, he would return the money,' must be considered either as evidence of the original contract altogether, or as containing an additional term of a new contract, namely, the promise to return the money. Then if a man makes a new contract, ingrafted upon the former, and unites with it this additional term, he superinduces the second agreement upon the first, and is equally bound by it, as by the original contract, to which it has relation, and he is so bound from the time of the original contract. In the case of Towers v. Barrett there was as great inconvenience in trying the wife's liking or disliking of the chaise, upon the general count for money had and received, as in trying the question of warranty or soundness in this case. The soundness, therefore, is a condition which having failed, the plaintiff is entitled to recover as for money had and received." ERSKINE and LAWES, contrà, "A count for money had and received will not lie where there is a disputed question as to the failure of the consideration; Power v. Wells,* Towers v. Barrett. They cited also Heyling v. Hastings,† to shew the necessity of proving the unsoundness of the horse, upon this new promise to return the money; and they contended that the action should have been either upon the first warranty, or else upon the additional and new contract." LordELLENBOROUGH, C. J. "As this is a case which will give the rule in a great many others, it is deserving of much consideration. It may be a question of great importance in actions against stake-holders, where it is necessary to prove the happening of the event or failure of it which is to entitle the plaintiff to the money, whether that can be given in evidence upon the count for money had and received; so in insurances where the premium is to be recovered back, on account of the unsea-worthiness of the vessel. In these and many other cases of actions for money had and received, many circumstances of a very special nature were gone into, upon mere actions for money had and received. If this were a question upon the original warranty, there could be no doubt; for, there the plaintiff could not recover the precise sum paid, but damages more or less for the injury. The only doubt is, therefore, upon the effect of the latter words of the agreement, where the party says, that, if the horse is not sound, he will return the 1806. PAYNE versus WHALE. 1806. PAYNE versus WHALE. money; Whether, upon that promise, he does not become a retainer of the money, upon that condition to pay it over, in case the horse is not sound. In Dutch N. Warren, though I am by no means inclined to go the length of that case, it was held, upon money paid upon an agreement to transfer stock at a given day, the transfer not being made, the plaintiff might recover the amount of the value of the stock at the day, in this form of action, for money had and received, and not merely the money paid. We are desirous of settling this doctrine upon full consideration upon the principles in the decided cases, and still more upon some sound principle which may be referred to both now and hereafter." Cur, adv. vult. And, afterwards, the judgment of the court was delivered to the following effect, by Lord ELLENBOROUGH, C. J. After stating the case "The counsel for the defendant at the trial, insisted that there should be a nonsuit, for, according to the case of Weston v. Downes, it was still in question whether the horse was unsound, the same as it would have been upon an action for the warranty; which question could not be properly tried in an action for money had and received. It occurred to me at the trial, that the promise, that, if the horse was unsound, he would return the money, was a new contract, by which, upon proving the horse to be unsound, the defendant was a holder of the money in the nature of a deposit, and then the money would be recovered, upon a count for money had and received, as in the case of stakeholders, upon shewing the failure of the consideration for which it was paid. But, upon further considera * Strange, 406. tion, we are of opinion, that it cannot be so considered. There should in that case have been a new promise binding on both parties. But it does not now appear, but that, although there was this second promise, the party might have brought an action upon the warranty. If so, it must be a second promise only concurrent with the first, considering what passed rather as a declaration of the party as to what is originally done, made at a time when if the horse is unsound, he would get nothing for it, and making or proposing new terms, when he excuses himself from the immediate payment of the money, and when the adverse party does not appear to have acceded to it. It therefore stands as upon the original warranty, and the rule for a nonsuit must be ABSOLUTE." MEAGHER against MOORE.-28th Jan, Declaration for words not actionable of themselves, laying as special damage, that certain persons, by name, who used to invite the plaintiff to their house, and give her meat and drink gratuitously,whereby she saped a large sum, to wit 100l. per annum in her necessary expences, afterwards refused to do so. Semble, this is upon the face of the record, special damage sufficient to maintain the action, though if it appear to be of a trifling nature, the jury must find a verdict for the defendant. DECLARATION for words spoken of a woman, in effect that she was a harlot, with an averment, that, whereas the said plaintiff, before, and at the time of speaking and publishing the false, malicious, and defamatory words herein mentioned, enjoyed the society and conversation, friendship, and countenance, of many worthy and estimable subjects of this realm, to wit, of Sir W. B. Knight, and P. his wife, J. H. and 1806. PAYNE versus WHALE Pleading, Slander. Spe cial Damage. Consortium. MEAGHER versus MOORE, |