1820. ABBOTTS V. BARRY. It appeared there, that a servant had received money from her master, and applied it to the purposes of lottery insurance. Lord Ellenborough held, on the authority of Clarke v. Shee (a), that the master might recover the money back from the lottery-office keeper, as money had and received. BURROUGH J. concurred. Rule discharged (b). (a) Cowp. 197. (b) Richardson J. was absent. Nov. 25. Declaration, that Defendant, on consi deration, &c. promised to invest Plain WHITEHEAD v. HOWARD. ASSUMPSIT. The first count stated, that, in consideration the Plaintiff would employ Defendant, &c., Defendant undertook to invest certain monies of Plaintiff's in good, valid, and sufficient security. Breach, that the Defendant invested Plaintiff's money in bad security. There were other counts varying the statement, the usual money counts, and a count on an account stated. Pleas, general issue and statute of limitations. Replication, "That Defendant did, within six years next before the commencement of this suit, undertake and promise in manner and form as the Plaintiff ations: Repli- hath above thereof complained against him.” tiff's money on good security: Breach, that he invested it on bad security: Pleas, general issue and sta tute of limit cation, that Defendant promised as above, within six years: Proof, that within that time Defendant acknowledged the security to be bad, and promised that Plaintiff should be paid: Held, that Plaintiff could not recover, the declaration stating no debt to which the subsequent promise could be applied. Held, also, that the Defendant was not liable on a count upon an account stated; nor on a count for money had and received, as having received money for one purpose and applied it to another. At 1820. WHITEHEAD V. At the trial, before Dallas C. J., Middlesex sittings after Trinity term last, it was proved, that the Plaintiff, in 1808, had employed the Defendant to invest money for him by way of annuity; that part of the security HOWARD. proposed by the Defendant, consisted of some copyhold premises, supposed to belong to one Alston; that the Defendant never inspected the rolls of the manor in which the copyhold was situate; that though, in fact, Alston possessed no such copyhold, the Plaintiff's money was made over to Alston, who granted an annuity for it, which was paid by the hands of the Defendant, till 1814, when Alston became bankrupt; that, at the time of the transaction, the Plaintiff's two sons were clerks in the Defendant's office, were in some degree consulted by the Plaintiff, and might, if they had thought fit, have inspected the rolls of the manor; that, upon Alston's bankruptcy, and the state of the security being discovered, Gibbs, the Defendant's managing clerk, promised that the Plaintiff should be paid, which promise was afterwards recognised and confirmed by the Defendant. The jury found a verdict for the Plaintiff, the learned Judge reserving it to the Defendant to move to set aside the verdict, and enter a nonsuit. Accordingly, Vaughan Serjt. having obtained a rule to that effect, Lens and Pell Serjts., for the Plaintiff, admitted, that there might be some difficulty as to the special count, or the subsequent promise, after the decision in Short v. M'Carthy (a); but, at all events, the money might be recovered, on the count for money had and received, on the ground that when a party receives money for one purpose and applies it to another, the party furnishing the money may call for it again, in consequence of his (a) 3 B. & A. 626. instruc 1820. WHITEHEAD ข. HOWARD. instructions not having been pursued. Here, the Defendant received the money, for the purpose of investing it in good security; but, disobeying such instruction, he chose to invest it in bad security; and after this mis application, the Plaintiff could only consider the Dofendant as having, at least, received the money to the Plaintiff's use. [Dallas C. J. You must make out that the Defendant received the money; whereas it was transferred to Alston, and the annuity actually paid for some time.] It was very probable, from the evidence, that Alston's name was only colorably introduced, and that he never, in fact, received the money. The annuity was never, in fact, paid by him to the Plaintiff, but only an account kept up in the Defendant's books; and this, coupled with the Defendant's expressions, must certainly entitle the Plaintiff to recover on the count upon an account stated. Vaughan Serjt., contrà, was stopped by the Court. DALLAS C. J. I am of opinion, that, in this case, a nonsuit must be entered. I shall first consider the case as it stands upon the facts, and those facts I shall first view, without reference to the manner in which the action is framed. It appears, then, that Howard, who carried on the business of negotiating annuities, was employed by Alston, to raise a sum of money upon annuity security. Howard applied to the Plaintiff, or the Plaintiff to Howard, one or the other, it is immaterial which; but the material fact is, that Howard represented part of the security to consist of a copyhold estate, which he said Alston possessed, but which, it turned out, Alston, at that time, did not possess; Howard having made no search or enquiry one way or the other. It is necessary to observe here, that the Plaintiff did not repose his confidence in Howard alone; he confided also in his own sons; they might have made a search if they had thought it fit, and there was a negligence in their not doing so. It does not appear that there is any thing in the facts of the case, which would warrant us in saying, that there was any fraud on the part of Howard; but clearly there was gross negligence. Supposing, then, an action to have been brought against Howard, on the ground of his not exercising a proper degree of care in his business, in such an action, properly framed, the Plaintiff might certainly have recovered. This action is not so brought, but is framed on the footing of an express undertaking having been given by Howard, for the validity and sufficiency of the security in question. Here, it appears, the Defendant's liability on such an undertaking, is barred by the statute of limitations, unless a subsequent promise can be established; and, if so, the first question would be, whether the liability of the Defendant can be revived by any subsequent promise to pay a debt, with which he was not originally chargeable; and, upon this head, there can be no ground for doubt, the debt originally not being any debt of Howard's. To revive a debt by promise, and take a case out of the statute, there must be an antecedent debt; and if a promise should be made, where there is no antecedent debt, it would be necessary to frame a special declaration on such a promise. Confining myself, then, for the present, to what appears in the special count of the declaration before me, it seems to me, that this case is decided by that of Short v. M'Carthy. The facts of that case were, that in December, 1812, the Plaintiff having agreed to give a Mrs. Shaun 340%. for her interest in 700l. bank annuities, applied to the Defendant, who was an attorney, for the purpose of having the bargain carried into effect. The instructions given, were, that the Defendant should see that every thing was right. The deeds were accordingly prepared 1820. WHITEHEAD บ. HOWARD. 1820. WHITEHEAD V. prepared and executed at the time, and the money was then paid by the Plaintiff. It subsequently turned out, that no enquiries had been made at the Bank of HOWARD. England, and that there was no such stock to which Mrs. Shaun was entitled; this discovery was made in August, 1818. So far the two cases are similar. Here, the Defendant omitted to search the rolls of the manor; there, he neglected to search the books of the bank. The action against the Defendant in that case, having been commenced subsequently to 1818, he pleaded that the cause of action did not accrue within six years, and it was held, that the Plaintiff was entitled to recover. Then follows that which makes the two cases exactly agree. "The Defendant, on being applied to," (in August, 1818) "said that it was owing to an omission of his clerk, and that he was responsible." The Court held, that there could be no recovery on this subsequent acknowledgment, except under a declaration framed for the express purpose. Admitting, then, the negligence of the Defendant here, in not having searched the rolls of the manor, and admitting his having made an absolute promise to pay, (which I think a little questionable, but the jury having so found it, we must take it to be an absolute promise,) Short v. M'Carthy is precisely in point to show, that, upon a special count such as the present, the Plaintiff cannot recover. This brings me to the count for money had and received, and there is no foundation whatever for the Plaintiff's recovering on that count. It is urged, that the Plaintiff may recover on this count, because the consideration having totally or partially failed, by the failure of the security and the annuity ceasing to be paid, the Plaintiff's money must be deemed to have been had and received by the Defendant to the Plaintiff's use. With respect to that, if there were any foundation for so contending, the argu ment |