In Weaver v. Bentley, 1 Caines 48, Judge Livingston is reported to have said, “ The case of D’Utricht v. Melchor, 1 Dall. 428, cannot be law.” The majority of the court, however, differed in opinion from Judge Livingston, upon the principle of that case, and held, that assumpsit would lie, to recover back the consideration paid on a sealed agreement, the defendant having failed to perform his part; and it is believed that D’Utricht v. Melchor, which is said by Judge Yeates (in Ritchie v. Summers, 3 Yeates 539), to be “imperfectly reported,” may be supported as an authority, if the assertion of the same learned judge, in a later case (Dorsey v. Jackman, S. & R. 51), be correct, viz., that it “was determined upon the ground of fraud and imposition.” Chief Justice Tilguman, in the case last referred to (p. 48), instanced “fraud or deception,” as furnishing an exception to the rule, that money could not be recovered back, and such, according to Judge Yeates (in Steinhauer v. Witman, 1 S. & R. 447), is the settled law. See also Mathers v. Pearson, 13 S. & R. 258; Landis c. Urie, 10 Id. 316; Charles v. Scott, 1 Id. 294.