PLEADING AND EVIDENCE FOR THE PLAINTIFF. 



171 



money had and received; and he will make out a. prima facie 

 case by merely proving his, the plaintiff's, possession of the 

 horse at the time of seizure. Thus, in the case of Oughton 

 V. Seppings (A), a sheriff's officer had wrongfully seized 

 under a Ji. fa. against A. a horse belonging to JB. 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 produced, 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 certain 

 conditions, cannot, until those conditions have been com- 

 plied with, be recovered as money had and received to A.'s 

 use {i). 



Where a horse or other article has been sold warranted, 

 but is in fact not according to the warranty, the purchaser 

 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 loarranty, and state a purchase ; 

 it will also set out the breach and the damage. 



Although infants are liable for torts and injuries of a 

 private nature {k), yet where the substantial ground of 

 action is contract, the plaintiff cannot, by suing in tort, 

 render a person liable who would not have been liable on 

 liis promise. Therefore where the plaintiff declared that 

 having agreed to exchange mares with the defendant, the 

 defendant by falsely warranting his mare to be sound, well 

 knowing her to be unsound, falsely and fraudulently de- 

 ceived, the plaintiff, &c., it was held that infancy was a good 

 plea in bar (/). 



We have seen in Chapter VII. under what circum- 

 stances an action lies, where a horse has been sold without 

 a warranty, and also what constitutes fraudulent representa- 

 tion (»?). Where such an action is brought, the statement 

 of claim, in setting out the material facts, should include 

 the statement of the icrongful act, namely, the sale by 

 means of the fraudulent representation («), and with regard 



for price of 

 horse wrong- 

 fully sold. 



Money re- 

 ceiTed subject 

 to certain con- 

 ditions. 



Action on a 

 breach of 

 warranty. 



Liability of 

 an infant. 



Action for 

 fraudulent 

 representa- 

 tion. 



(A) Oughton v. Seppinffs, 1 B. & 

 Ad. 241. 



[i) Mardlngham v, Allen, 5 C. B. 

 793. 



(i) Green v. Greenbanh, 2 Marsh. 



485 ; 17 E.. E. 529 ; Howlett v. 

 Haswell, 4 Camp. 118. 



[l) Ibid. 



(m) See ante, pp. 144 — 146. 



(«) JIuHimeri/ v. £aul, 1 C. B. 325. 



