THIS cause was tried at bar, in September Term, 1788, and, a verdict being found for the Plaintiff, the Defendant obtained a rule to shew cause why a new trial should not be granted; which was argued at the present Term by Coxe and Sergeant, in support of the rule, and by Lewis and Heatly against it.
It appeared, that the Plaintiff had bought a tract of land from the Defendant, who had previously purchased it of one Simpson; but, as, upon enquiry, no land of the description contained in the Defendant's deed to the Plaintiff could be found, this action, which was an action of Indebitatus Assumpsit for money hand and received to the Plaintiff's use, was brought, in order to recover back the consideration money that had been paid; and, on the trial, the Defendant's deed was given in evidence to prove the amount and acknowledgment of such payment. The declaration also contained a count in the nature of deceit; but, by agreement of the Counsel, it made no part of the argument, whether this could properly be coupled with the Assumpsit; so that the motion for a new trial was supported only upon these grounds: — 1ft, That the action of Assumpsit would not lie; and 2dly, That the deed ought not to have been given in evidence upon the trial.
The case being held for some days under advisement, the CHIEF JUSTICE now delivered the opinion of the Court to the following effect: M`KEAN, Chief Justice.
It is unnecessary at this time to determine, whether the Plaintiff might have instituted an action of covenant, or deceit, in order to obtain a redress of the wrong which he has sustained; for, we think it is sufficient for his purpose, that an action of Assumpsit for money had and received to his use, has been brought; and that, to maintain this action, he may give in evidence, that the Defendant got his money by mistake, imposition, or deceit. To prove the alledged mistake, imposition, or deceit, deeds or other writings, which are not the immediate foundation of the suit, but only leading to it, may be read.
We are all, therefore, of opinion, that a new trial ought not to be granted.
Judgment for the Plaintiff.