TLEADING AND EVIDENCE FOR THE ri-AlNTIFF. 179 



If a Sheriff -wroDgfully seize and sell the Horse of a Money had 

 third person under an execution, the latter may sue him ^^^^ received 

 for Mo lie!/ had and received ; and he will make out a prima Hore^wrono-- 

 facie case hy merely proving his, the plaintiff's, possession fully sold. 

 of the Horse at the time of seizure. Thus in the case of 

 Oughton v. 8ep)pings{i), a Sheriff's officer had wrongfully 

 seized under a fi. fa. against A. a Horse belonging to B. 

 The Horse was sold by the Sheriff, and the money paid 

 over to the officer. B. brought an action against the 

 officer, for Money had and received, to recover the amount. 

 It appeared that the Horse had belonged to the husband 

 of B., but that after his death she had provided for his 

 keep ; and although no letters of administration were pro- 

 duced, it was held that this was sufficient evidence against 

 a wrongdoer to entitle her to recover in the action. 



Money received by B, on A.'s account, subject to cer- Money re- 

 tain conditions, cannot, until those conditions have been ceived subject 

 complied with, be recovered as Money had and received to aiUons^^"^ ^°^' 

 A.'s use (/t). 



Where a Horse or other article has been sold warranted, Action on a 

 but is in fact hot according to the Warranty, the purchaser S^!^^?^ ?* 

 may of course maintain an action on the Warranty (/) ; 

 and in such action the Statement of Claim will set out facts 

 showing the Consideration and the Warraniy, and state a 

 PurcJiase; it will also set out the Breach and the Damage. 



The old method of suing on a Breach of Warranty was Action for a 

 an action on the Case {m). And now the plaintiff instead ^^^seWar- 

 of suing on the breach of contract may claim damages for 

 a false Warranty : and where this is done the Statement of 

 Claim should set out concisely the facts leading up to the 

 Warranty; the statement of the Wrongful Act, namely, the 

 Sale by means of the False Warranty [n) ; and the state- 

 ment of the Damage. It ought to appear in the Statement 

 of Claim that the Warranty was made at the time of 

 Sale, Warrantizando vendidit (o). But a ^c/e»fer need not 

 be alleged, and if stated it need not be proved. 



Although Infants are liable for torts and injuries of a Liability of 

 private natm^e (^j), yet w^here the substantial groimd of ^^I^^fant. 



(i) Oughton v. Scppings, 1 B. & 325. 

 Ad. 241. (o) Com. Dig. Action on tbc 



{k) IlarcUngham v. Allen, 5 C. B. Case for Deceit, F. 2 ; Marqetson 



793. V. Wright, G M. & P. GIO ; Lysncg 



(l) Roscoe, N. P. 13tli ed. 403. v. &•%, Ld. Eaym. 1120. 



{>«) Margetson v. Wright, 6 M. & {p) Green v. Greoibank, 2 Marsh. 



P. 610. 485 ; Iloivlett v. Eastvell, 4 Camp. 



{>i) 3[mnmery v. Paul, 1 C. B. 118. 



n2 



