ufe of the Plaintiff. The obligor, whofe name was White, paid intereft at different times to the Defendant, who paid it over to the Plaintiff. In the month of November, 1778, the Defendant received the whole principal and intereft then due in Continental Money, and delivered up the bond and mortgage to the debtor.– It appeared by the teftimony of White that when he paid the Money to Hugg he did not mean to make a legal tender of it, although he brought a witnefs to be prefent at the payment, which was done, as he faid, only becaufe he himfelf he did not well underftand the Engliʃh language. Hugg not having paid the money to the Plaintiff, fhe brings this action againft him for money had and received to her ufe.
On the part of the Plaintiff it was contended on the trial, that the Defendant not having been compelled to received the Continental Money, received it in his own wrong, and ought to anfwer the full fum in hard Money to the Plaintiff.
The Court left it to the jury to confider the juftice and equity of the cafe, but hinted their opinion, that, confidering the circumftances of the times, it might be moft reafonable and juft to fettle the fum according to the fcale of depreciation. At the fame time telling them that this action was in the nature of a bill in equity, and that they might give fuch a fum in damages as they though juft. The jury found a verdict for the Plaintiff for the fum received in hard money. A motion was then made for a new trial on the of ground mifdirection.
Having had time to deliberate and confider the law arifing on this cafe, we are of opinion, that the court ought not to have left it to the jury to give in damages more than was actually received.
The action of aʃʃumpʃit for money had and received, has been of late confidered to be of fo liberal a nature, that it is not to be wondered at, that on a fudden its extent fhould be miftaken. It is a very beneficial action, not only for the Plaintiff, but the Defendant ; yet, it has its limits. It is beneficial to the Plaintiƒƒ, because, when he has another remedy as well as this, he may elect this, and is under no neceffity to ftate the fpecial circumftances of his cafe, but may make it out by evidence on the trial. For the Deƒendant it is beneficial, becaufe, as Lord Mansʃield fays, he can be liable ƒor no ƒurther than ƒor the money he has received, and againft that may go into every equitable defence upon the general iffue. It is in fact an action to oblige the Defendant to reƒund what he has received; and the word refund, ex vi termini, precludes the idea of his being anfwerable for more than he has actually received. Intereft, indeed, may be added as damages for the detention, but no more. In this kind of action the Plaintiff waves all torts and fpecial damages;
