170 



PLEADING, EVIDENCE AND DAMAGES. 



tor repay- 

 ment of 

 the price. 



Under a mis- 

 take. 



Money luid 

 and received 

 tor repayment 

 of part of the 

 price. 



Money had 

 and received 



answer the description of the thing which when bought it 

 purported to be (y) ; or where a horse is bought warranted 

 sound, &c., and paid for, and on its turning out unsound is 

 returned to the seller, who receives it, there is a mutual 

 rescission of the contract, and the buyer may recover the 

 price paid iu an action for money had and received (z) . Also, 

 where a horse has been bought warranted sound, to be re- 

 turned if umound (a) ; or if the contract is, that the horse 

 is to be returned if unsuitable (b) ; or tinjit for a particular 

 purpose (c) ; and circumstances arise in any of these cases 

 which justify the return of the horse, and the horse is ten- 

 dered, the same form of action lies for repai/ineiit of the price. 

 A claim for horse meat and stabling may be added if 

 necessary. 



Where money is paid with a knowledge of all the facts, 

 but under a mistake of the law, it cannot in general be re- 

 covered back {d). But money paid under a mistake of 

 facts, and which the party retaining it has no claim in con- 

 science to retain, is recoverable as money paid without con- 

 sideration (e), even though the plaintifi' cannot be put in 

 statu quo (/). 



Where a horse is bought and the price paid, but the 

 buyer, by the terms of the agreement, has the option of 

 returning the horse within a certain time, allowing a 

 certain sum for the use of it, the residue of the price may 

 be recovered by him after the horse has been returned or 

 tendered in an action for money had and received. Thus, 

 where a pair of horses were bought for 80/. and paid for, 

 with liberty to return them within a month, allowing the 

 seller 10/. out of the 80/., but that if the buyer kept them 

 beyond the month, he should pay the seller 10/. beyond the 

 80/., it was held that upon the horses being returned within 

 the month, the buyer had a right to recover the 70/. from 

 the seller, in an action for money had and received (g). 



If a sheriff wrongfully seize and sell the horse of a third 

 [)erson under an execution, the latter may sue him for 



{!/) Gompertz v. Bartlctt, 22 L. J., 

 U. B. 99. 



[z) Weston V. Soifiics, Doug-. 24 ; 

 I'ljivcr V. ll'ells, Cowp. S18 ; and 

 /Simpson V. Potts, before Rolfe, B., 

 Carlisle Spr. A^s. 1847. 



[a) Adam v, Jilckards, 2 II. Bla. 

 573; 3 E. II. 508. 



{*) Tvwers v. llnmtt. 1 T. E. 

 133. 



(f) Clumtcr V. Hopkins, 4 M. & 

 "W. 406. 



(d) Piatt V. Bromage, 24 L. J., 

 E.x. 63 ; Barker v. Pott, 4 H. & N. 

 769 ; Rogers y. Ingham, L. E., 3 

 Ch. D. 351. 



(e) Bize V. Dickason, 1 T. E. 285. 

 (/ Slandish v. Jioss, 3 Ex. 527. 



(g) liiivsi V. Orbell, 8 A. & E. 

 107. 



