Majority
p. 183The Administrators of Dumond against Carpenter.
Headnote
Where a person receives money of another, and ownusefan act!.?n ,on an im.-‘ plied assumpsit will lie against person to whom tIie ,money ought to have been paid. Where a term intervenes between the teste and return of a writ of inquiry, which i* a miscontinuance, it is cttred by the statute of jeofails.THIS cause came before the court, on a writ of error from the Ulster court of common pleas. ,
It appeared from the record that Carpenter declared againstthe administrators of Dumond, stating that the intestate on the 1st January, 1784, was indebted to hint in J J ’ 7 the sum of 200 dollars, for that the intestate was at the time sheriff of Ulster, and as such levied and received the amount of an execution against Afames Mf Masters at
p. 184NEW-YORK, May, 1808.
the suit of the plaintiff, issued out of the court of corn. mon pleas °f the county of Ulstet, and converted the same to his own use, and being so- indebted, assumed to* pay to- the plaintiff the said sum of 200 dollars. The second count was for money had and received by the intestate.-
The defendant imparled to the first Tuesday in May¿ and then made default, on which an interlocutory judgment was entered, and a writ of inquiry awarded, returnable on the third Tuesday in September, and on that day ■ the sheriff returned an inquisition assessing the damages at 170 dollars^ 80 cents, on which'final judgment was entered.
The counsel for the plaintiffs in- error relied upon twef objections arising upon the record in the above cause.
1. That the declaration in assümpsit was bad, as the money was tortiously applied- by DWmond to his- own use.-
2. - That there Was a' discontinuance, as the award of s; writ of inquiry is made as of May term,- refundable in- September term, omitting the term of fuly.-
L. Elmendorf, for the plaintiff in error.
Sudam, contra.
The answer to the first objection is, that the first count in the declaration is good in assumpsit, for the law will, and always does raise an assumpsit from the misapplication of money received to the use of another. The answer to the second objection is,, that if a terns' intervene between the teste and return of a writ of inquiry, it creates no prejudice to the party, and is, at any rate, only a miscontinuance, which is cured by the statute of jeofails. (Sayer, 245.)
The judgment must be affirmed.-