IN THE NINETEENTH YEAR OF GEORGE III.

yet I have known so much of the cause before, that I posely avoid giving any opinion upon it.

The KING against the MAYOR and BUKGESSES of LYME REGIS, on the prosecution of the Honourable HENRY FANE.

A Mandamus having issued to restore the Honourable Henry Fane, to the office of a capital burgess of the borough

1779.

against

LYME

REGIS.

borough of Lyme Regis, the corporation returned, That one Coade, one of the capital burgesses, had exhibited " certain "articles of complaint" against Fane: that, by "the said The KING "articles of complaint," he had charged him with having been duly summoned, and having neglected to attend the corporate meeting, for the election of a capital burgess; and that, by the said articles of complaint," he had also charged him with non-residence, and neglect of his duty as a capital burgess that it was ordered, that a copy of the said articles should be given to Fane, and that he should have notice to appear, at the next meeting of the mayor and burgesses, to answer the several articles against him, in the said complaint contained, and to shew cause, why he should not be removed and displaced from his office: that the copy and notice were served: that a meeting was had, where he appeared, and was charged with, and accused of, the nonresidence, absences, contempts, neglects, breaches of duty, and misbehaviour, specified and contained in the said several articles of complaint so exhibited against him. That the meeting heard evidence in support of the "said several ar"ticles" mentioned and contained in the said complaint, and in Fane's defence, and, also, what was alleged by him and his counsel why he should not be removed from his of fice of capital burgess, " for the several matters in the said "articles of complaint mentioned;" and, thereupon, it was adjudged, that he was guilty of the non-residence, ab"sences, contempts, neglects, breaches of duty and misbe "haviour, and other matters objected and charged against "him, in and by the second and fourth articles of the said "complaint;" and that, thereupon, they had resolved to remove him from his office; and had removed him; and that he had not been elected since; so that they could not restore him. This return had been filed last term. The defendants, afterwards, discovered that they had, in that part of it which stated the conviction, set forth, that the prosecutor had been found guilty of the charges in the third and fourth articles, without having stated, in the preceding part, that the complaint consisted of four articles; that, on the contrary, by the recital of the complaint in the return, it seemed rather to be stated as containing only two; and that it did not therefore certainly appear, that the articles on which Fane was convicted, were the same which were set forth as containing the accusations against him. A motion was, therefore, made this term, (on Monday the 26th of April,) and a rule granted, to shew cause why the defendants should not be at liberty to amend, by inserting the words, "second of the," and "fourth of the," in that part of the return which "recited the articles on which he was accused, so as to make "it run thus," and, by the second of the said articles of

L3

"complaint,

[136]

1779.

The KING
against
LYME
REGIS.

[ 137 ]

complaint, charged and accused the said Honourable Henry Fane," &c. and again," and by the fourth of the said articles of complaint," &c.

The Solicitor General, Dunning and Rooke, now shewed cause. They said, enquiry had been made at the office, and that no instance could be found, where the court had permitted a return to be amended after it had been filed, and, thereby, made a record of the court. That the case of the amendment of a return in Shower (b) (which had been cited when the rule was obtained), was upon a motion which did not appear to have been opposed, and it did not appear that the return, in that case, had been filed. That, in the case of Lepara v. Germain (c), after a plea in abatement on the ground of an erroneous addition, viz. that the defendant had been stated as Knight, instead of Knight and Baronet, the court refused to permit an amendment, by inserting the words" and Baronet," although the proceedings were all in paper.

Bearcroft, in support of the rule, relied upon an affidavit, which stated, that the omission of the words, now prayed to be inserted, had arisen from a mere mistake of the gentleman who settled the draught of the return, and who had struck his pen through those words.

Lord MANSFIELD, It is very essential to the administration of justice, that slips, or mistakes of the pen, should not be fatal. I am satisfied this is a mere blunder, and not a trick; and the amendment suggests itself upon inspection. As the return stands at present, it is nonsense. There is no case cited, where the court has refused to amend such a mistake, although the return has been filed. The case in Shower seems to be an authority to the contrary.

The rule made absolute; the defendants undertaking, if an action for a false return should be brought, to take short notice of trial, and not to bring a writ of error, if there should be judgment against them [4].

(b) Rex v. Mayor of Chichester, T. and granted at the same time with W. & M. 1 Sh. 273.

(c) E. 2 Ann, B. R. 1 Salk. 50. [4] There were four other returns, to different writs of mandamus, in which similar amendments were moved for,

this. The returns were the same, (mutatis mutandis,) and the mistake in the draught had been copied in all of them.--Vide supra, Richards v. Brown, p. 114 to 116.

1779.

LONGCHAMP against KENNY.

Thursday, 29th
April.

If one person sion of goods entrusted to ano

obtains posses

ther to be sold at a fixed price,

are to be re-deli

whom they were

an action, pays

to

such person may

the fixed price the owner, recover the sum against him who them, in an action for money Perhaps in one for money paid.

took possession

of

THE plaintiff IE plaintiff was a waiter at one of the great subscription-houses, or clubs, in St. James's Street, of which the defendant was the master. Each of them had received, from Mrs. Cornelys, a number of masquerade tickets, to dispose of, for which they were to account, after the mas- and, at the time querade, by paying the value, or returning the tickets. when the goods Kenny had got possession of one of the tickets which had vered, or the been delivered to Longchamp, and, when Mrs. Cornelys's for, he refuses to agent came to demand an account of Longchamp's tickets, do either, and he was told, by Longchamp, that Kenny had had one of the person to them, and he must pay for it. Upon this, the agent went entrusted, being and made a demand on Kenny, who said, Well, if I had threatened with "it, what then? Go to the person who received it of you, " and let him pay you." Longchamp was then threatened with an arrest, on which he paid five guineas, (the value of the ticket,) to Mrs. Cornelys, and then brought this action against Kenny. The declaration contained a count for money had and received, one for money paid, laid out, and expended, and one for money lent. The cause was tried at Westminster, on Thursday the 18th of February 1779, before Lord MANSFIELD. The plaintiff, besides the above facts with regard to the ticket, endeavoured to prove a sum of money due for wages, but, there being no count for wages, nor for work and labour, it seemed clear that he could not recover on that ground; and, the jury having found a verdict for him, with five guineas damages, they mentioned that they found this sum expressly for the ticket. It appeared, that the defendant was apprised, that the plaintiff meant to sue him for the value of the ticket, and that he came prepared to resist that demand. Lord MANSFIELD, at the trial, expressed great doubt, whether the action could be maintained, either on the count for money paid, (on which the plaintiff's counsel relied,) or on that for money had and received. He said, he would reserve the question, for the opinion of the court, on a motion for a non-suit-(It was clear that none of the evidence applied to the count for money lent.)

Dunning, and Cowper, now shewed cause against setting aside the verdict.-Bearcroft, and Mingay, on the other

side.

For the defendant, it was contended, that trover was the proper form of action. In a count for money paid, the words," at the defendant's special instance and request," are not mere words of course. There must be a privity in

had and received

[138]

1779.

LONGCHAMP against KENNY.

[139]

the transaction, between the parties, in order to support such
a count; and, as to the count for money had and received,
though such privity is not necessary to support that, yet it
must appear, that
which ought to have been paid to
the plaintiff, had, in fact, been received by the defendant.
In this case, there was no proof that the ticket had been sold,
or any money received for it, by Kenny.

money,

Lord MANSFIELD, It is certain, that, where the demand is for a specific thing, an action cannot be maintained in this form. Great benefit arises from a liberal extension of the action for money had and received; because the charge and defence in this kind of action, are both governed by the true equity and conscience of the case. But it must not be carried beyond its proper limits (b). The plaintiff must never be permitted to turn the generality of the count into a surprize upon the defendant, by deserting the ground which the defendant was led to think the only matter to be tried, and resorting to another, of which he could not have the least suspicion, If the present action had been brought without notice of the nature of the demand, I should have thought it could not have been supported. But, here, the defendant came prepared. If he sold the ticket, and received the value of it, it was for the plaintiff's use, because the ticket was his. Now, as the defendant has not produced the ticket, it is a fair presumption that he has sold it. [F 1].

ASHHURST, and BULLER, Justices, were inclined to think, that the evidence would have supported the count for money paid. ASHHURST, Justice, compared this case to that of a surety, who, by paying the debt for the principal, saves him from being sued, and who can maintain an action against him for money paid. In like manner, he said, the plaintiff here had paid the five guineas under a compulsion brought

(b) Vide supra, Weston v. Downes, M. 19 G. 3. p. 23, 24,

[F1] In Leery v. Goodson, 4 T. R. 688. where goods distrained by plaintiff upon his tenant for rent were returned by him to defendant on his promising to pay the rent, it was held, that a count for money had and received could not be supported; and this case being cited, the court distinguished by observing, that here the ticket was delivered for the purpose of being sold, whereas the pictures in that case were taken by defendant to

prevent a sale. In Whitwell v. Bennett, 3 B. & P. 559. the court observed, that here there was abundant evidence out of defendant's own mouth, that he had received the price. This seems the true ground on which the case is to be supported. See the opinion of Wilson, Justice, in Israel v. Douglas, 1 H. Bl. 239. where he holds it necessary that money must be actually received, to make a defendant liable in this form of action.