Avery v. Kinsman

¶1If the plaintiff had declared simply, on the defendant’s receiving his money to his use, there would have been room for an implied promise to repay it; but when the declaration goes further, and expresses the money to have been received to account, there is no ground left for such implication. An action of account being brought for this money, the defendant would be allowed to show, that he liad laid out, or expended- it, according to the direction of the plaintiff; but as the action is now brought, nothing but pay*355ing tbe money to tbe plaintiff can be a performance: For a promise to pay, and a promise to account, are substantially different, and admit a different mode of trial, issue, and judgment.