PRESTON, J.
By this proceeding in prohibition we are required to declare the nature of the two causes of action pleaded in the case of John Philpott, Plaintiff, v. Broadway State Bank et al., Defendants, No. 292646, now pending in the Superior Court of the County of Los Angeles. Petitioner asserts that the cause is one in equity of which the superior court alone has jurisdiction and that unless it is restrained by this writ, said superior court will attempt to divest itself of jurisdiction of the cause by holding that the action is one at law, involving a sum less than $2,000, to wit: $625, cognizable alone by the municipal court of said county.
The far-reaching importance of this inquiry is seen when it is remembered that the jurisdiction of both the appellate and the trial courts is directly affected by the answer thereto. The right of trial by jury and, to a certain extent, the right of attachment may also be affected.
It is almost superfluous to preface this discussion with the statement that although we have but one form of action, and practically but one forum, under our system of state jurisprudence, yet in applying the relief allowable we must adhere to the distinctions commonly accepted as existing between actions at law and actions in equity. In
DeWitt
v.
Hays,
See to the same effect
Hallidie
v.
Enginger,
We are thus brought to consider the
criteria
by which we may distinguish between an action at law and one in equity. The forum, form of action, and mode of proof are no longer factors in view of the already noted court system and procedure. In reality the distinction between the two classes of remedies is more or less arbitrary and groundless. It is well said also that the courts of equity are reaching into new fields of operation and the courts of law are encroaching upon the former territory of the courts of equity. This thought was expressed by Lord Bedesdale as quoted in the case of
Spect
v.
Spect,
We must therefore find the distinction between the two forms of action in their history and development rather than in their intrinsic differences in theory or philosophy. The two forums were set up under the English system to complement each other in the field of remedial justice, actions at law occupying' a portion of the field; and actions in equity, supplying the defects in the legal system, occupied the remainder of the field. In its last analysis, therefore, the difference between the two actions lies largely in the mode of relief granted and to determine whether the action is of one type or another, one must of necessity resort to the apposite English law on the subject. Mr. Blackstone (Cooley’s Blackstone, 4th ed., vol. II, pp. 1181, 1182, sec. 436) in this connection, says: “The rules of decision are in both courts equally apposite to the subjects of which they take cognizance. . . . The difference between courts of law and equity.—Such then being the parity of law an$I reason which governs both species of courts, wherein (it may be asked) does their essential difference consist 1 It principally consists in the different modes of administering justice in each; in the mode of proof, the mode of trial and the mode of relief. ...” Therefore, to give a proper classification to a cause of action we should seek to find its counterpart in the history of the English law in the light of such modifications thereof as have taken place under our own system.
This brings us to the counts of the complaint here in question. They are two. Count one declares that plaintiff paid to the defendants $625 on account of a contract to purchase stock of defendant bank to be thereafter issued by it; that plaintiff later discovered that the stock, if and when issued, would be worthless and that the financial condition of the bank and other material facts and circumstances had been fraudulently represented to him, giving in detail the nature of the misrepresentations made, and closing with the allegation that said fraudulent representations were the sole inducing cause of the agreement to purchase and the payment of said sum; finally pleading that plaintiff had rescinded said transaction in the manner provided by the *517 code. The second count is merely one of the common counts for money had and received, to wit: indebitatus assumpsit. The prayer is for return of the $625 to plaintiff, with interest and costs, “and for such other and further relief as may he just and equitable”.
Count one, of course, contains allegations of fraud but courts of law, as well as courts of equity, have jurisdiction to give relief in certain specified cases of fraud.
(Fish
v.
Benson,
If the action is not one in equity, it follows, of course, that it is an action at law. It seems material, however, at this time to determine under what common-law species of action this complaint should be classified. It is not a case of express promise, as an action in debt; although it is for a sum certain, for it lacks the element of an express promise to pay. Neither is it an action in which there is. in fact *518 an implied promise to pay, for there is no privity of contract from which to imply such a promise. In reality, it is an action in which the law, in order to prevent the unjust enrichment of defendants from the property of plaintiff, itself implies a promise to repay the sum demanded. In other words, it is an action in assumpsit upon a promise implied by law. That is, it is a case where the plaintiff has not elected to sue for damages, general or special or both, which he may have suffered from the tort inflicted upon him by defendants; likewise it is not a case where the plaintiff is seeking the application off equitable remedies to redress his grievances. All these elements, which may have been shown by appropriate allegations for such relief, are conspicuously absent. Plaintiff apparently is content to merely seek a return from defendants of money given them, with interest, forgetting and foregoing all other elements of injury.- Is it not plain, therefore, that he has waived the tort of defendants and has come into court relying solely upon the promise created by law to return to him the consideration paid upon the contract ?
Count two is one of the common counts for money had and received, commonly styled
indebitatus assumpsit.
We then have two actions for
assumpsit,
one on a special count and one on a common count. These counts may properly be united in the same action. (5 C. J. 1399.) A case where a special and a common count in
assumpsit
for fraud were united .in one action is
First Nat. Bank
v.
Steel,
The action of assumpsit, in its development, had an interesting but stormy career at the common law. Although in existence for some years previous to that time, it came into prominence following the decision in Slade’s Case in 1603 (Coke’s Rep., vol. 2, p. 505; 2 Harvard Law Review, p. 16). It gradually gained prominence and widened in scope until 1760 when Lord Mansfield, in the case of Moses v. Macfarlan (2 Burr. 1005, English Reports, Pull Reprint, King’s Bench Book 26, vol. 97, p. 676), described its function as follows: “This kind of equitable action to recover back money, which ought not in justice to be kept, is very beneficial, and therefore much encouraged. It lies only for money which, ex aequo et bono, the defendant ought to refund,-.it does not lie for money paid by the plaintiff, which *519 is claimed of him as payable in point of honor and honesty, although it could not have been recovered from him by any course of law; as in payment of a debt barred by the statute of limitations, or contracted during his infancy, or to the extent of principal and legal interest upon a usurious contract, or, for money fairly lost at play: because in all these cases, the defendant may retain it with a safe conscience, though by positive law he was barred from recovering. But it lies for money paid by mistake; or upon a consideration which happens to fail; or for money got through imposition (express or implied); or extortion; or oppression; or an undue advantage taken of the plaintiff’s situation, contrary to laws made for the protection of persons under those circumstances. In one word the gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money.”
Quoting the above, Mr. Holdsworth in his work on the History of English Law, volume 8, page 97, uses this language: “It was thus in the action of indebitatus assumpsit that the larger part of our modern law of quasi-contract has originated.”
■See, also, Cooley’s Blackstone, fourth edition, volume II,page 975, section 162, where it is said: “It lies for money paid by mistake, or on a consideration which happens to fail, or through imposition, extortion, or oppression, or where any undue advantage is taken of the plaintiff’s situation.” Also, see 1 Chitty on Pleading, section 100.
Clark on Contracts, fourth edition, Hornbook Series, pages 699, 700, dealing with the subject of quasi-contracts, uses the following language: “A frequent illustration of a
quasi-
contractual obligation of this kind arises where a person obtains another’s money by wrongful or fraudulent means. Where one person has wrongfully taken another’s money, or has taken his property and converted it into money, the latter has a right of action
ex delicto
for the wrong done to him, as by an action of trespass or trover, or by an action on the case for the fraud. He is not always restricted, however, to an action
ex delicto
for the specific wrong, but may in general waive the tort, and sue in
assumpsit
for the money as for money received for his use. . . . Where a person steals another’s money or property, or obtains it
*520
by false pretenses, the fact that a crime has been committed will not prevent a civil action by the person injured. He may sue the thief in tort, or he may elect to sue in
assumpsit
as for money received for his use. The same is true in any case in which one person, by means of trespass, fraud, or other tortious means obtains another’s money.” This doctrine is also expressly indorsed in
Hallidie
v.
Enginger, supra
(
Authorities in support of the prevalent use of this form of action in the courts of the common law could be multiplied indefinitely, but we will close this branch of the discussion by a quotation from Professor Ames in volume 2 of the *521 Harvard Law Review, page 69: “ The main outlines of the history of assumpsit have now been indicated. In its origin an action of tort, it was soon transformed into an action of contract, becoming afterwards a remedy where there was neither tort nor contract. Based at first only upon an express promise, it was afterwards supported upon an implied promise, and even upon a fictitious promise. Introduced as a special manifestation of the action on the case, it soon acquired the dignity of a distinct form of action, which superseded Debt, became concurrent with Account, with Case upon a bailment, a warranty, and bills of exchange, and competed with Equity in the case of essentially equitable gw<m-eontracts growing out of the principle of unjust enrichment. Surely it would be hard to find a better illustration of the flexibility and power of self-development of the Common Law.”
Considerable confusion now exists among the bench and bar as to the proper classification of this cause of action, due to the fact that the courts of law administering this relief apply equitable principles and to the further fact that certain expressions found in court opinions and textbooks, on first impression, might seem to classify it as an action in equity. But from what has been said it is clearly one of a special class of cases limited to a specific set of facts which could by supplementary allegations be made an out and out action in equity or else an action
ex delicto
at law. Such words as “equitable relief” and “equitable action”, found in court opinions, have added to this confusion. For example, in the case of
Stone
v.
Superior Court,
The following authority would seem to effectually dispel all doubt in this connection:
“Money Had and Received; General nature of right. If A receives money which belongs to B, under circumstances which give A no right thereto, but which bind A on principles of justice and fairness to repay such money to B, the common law allowed B to sue as on contract, although there was no express contract and no real implied contract, in order to prevent A’s unjust enrichment at B’s expense. *522 This principle has survived in our law, and an action as upon contract will lie for money had and received wherever one person has received money which belongs to' another, and which in equity and good conscience’, or in other words, in justice and right, should be returned. Since the contract alleged in the plaintiff’s complaint is often purely fictitious, the plaintiff’s right to recover in a contract does not depend upon any principles of privity of contract between the plaintiff and the defendant, and no privity is necessary. The plaintiff’s right to recover is governed by principles of equity, although the action is one at law.” (Page on Contracts, supra, vol. 3, pp. 2510-2512, sec. 1473.)
In the case of
Chapman
v.
Forbes,
In
Davison
v.
West Oxford Land Co.,
In
Steuerwald
v.
Richter,
In
Board of Highway Commissioners
v.
City of Bloomington,
Confusion has also arisen respecting the form of action under count one in that there are found therein allegations of a rescission of • the agreement by the party injured and notice thereof given to the defendant by the plaintiff himself pursuant to sections of the Civil Code of this state on that subject. It is undoubtedly true that a litigant may invoke the power of a court of equity to effect a rescission which has not theretofore been made. This is *524 especially provided for by Civil Code, sections 3406-3408, inclusive. But where the plaintiff himself has pursued the method provided by sections 1688-1691 of the Civil Code to effect a rescission of the contract he may come into a court of law for all the relief that court is competent to give, and in the instance where he merely asks for a return of the consideration parted with by reason of the fraud, mistake, failure of consideration or -any other set of facts authorizing rescission, he is entitled to the action of assumpsit. Indeed, section 1712 of said code seems to provide for a legal action in a case such as we have here under consideration. The rule that it is not necessary to ask the aid of a court of equity to effect the rescission where the rescinding party has followed the statutory procedure, finds abundant support in California decisions.
In this connection we approve the opinion of Judge Bishop in the case of
Jensen
v.
Harry H. Culver & Co.,
127 Cal. App. (Supp.) 783, 785, 786 [
To the above should be added the further statement that the plaintiff may not only waive the tort and sue in
indebitatus assumpsit
for the money consideration parted with but, where personal goods have been thus converted, he may also have the common-law writ
(quantum
valebat) for the value of the goods so converted.
(Bechtel
v.
Chase,
The above discussion disposes of all the material elements of the subject under review except the question whether or not such a cause of action sounds in contract or in tort. It would seem clear, however, from what has already been pointed out that it is a cause of action, which although originally sounding in tort, has now become fully ex contractu by a process of slow but steady development. Quoting from Holdsworth’s History of English Law, volume 7, page 441: “The earliest of these actions of the ease to acquire a distinct character was the action of assumpsit. We have seen that it became the contractual action of the common law; and that its clear separation from the delictual actions was marked by the decision, arrived at in the sixteenth century, that the maxim actio personalis moritur cum persona did not, as a rule, apply to it. On the other hand, we have seen that it could be and was used as an action in tort. And we shall see that its extension, at the end of the seventeenth century, to cover a part of the sphere occupied by trover; and its extension, at the end of the eighteenth century, to enforce the repayment of money *526 where it was equitable that money should be repaid, created the law of quasi-contract, and thus gave it in many cases a semi-proprietary character. But though assumpsit thus retained certain of its delictual characteristics, though in its application to the law of quasi-contract it acquired certain proprietary characteristics, its contractual quality was always its most distinct feature. Of all the actions on the case it departed the most markedly from its delictual origin.”
Quoting also from Holdsworth’s History of English Law, volume 3, page 451: “It was Slade’s Case which fixed the character of the action of assumpsit; for, as we have seen, it enabled it to absorb the greater part of the sphere occupied by the action of debt, and to become a remedy for the breach of purely executory contracts. From henceforward it was the contractual action of the common law. ...”
We therefore hold this action to be one at law and one, by reason of the amount involved, of which the municipal court alone has jurisdiction.
The only further matter requiring discussion is that in the court below when the trial judge had signified his intention to hold that the action was one in law and not properly within the jurisdiction of the superior court, but within the jurisdiction of the municipal court, the petitioner offered to amend his complaint to show the ease was one where plaintiff should be given punitive damages in the sum of $1500, which amendment, if allowed, would have increased the ad damnum clause to a sum in excess of $2,000, and the cause would then be within the jurisdiction of the superior court regardless of the nature of the action. The court, in the exercise of its discretion, denied the application to amend in this particular. On the face of the proffered amendment, which asked nearly three times the amount in suit, the court was justified in holding it was clearly an attempt to retain the cause in the superior court without regard to the substantiality of the amendment. In this ruling the court did not err.
The alternative writ of prohibition is discharged.
Waste, C. J., Spence, J., pro tem., Langdon, J., and Seawell, J., concurred.
Curtis, J., and Shenk, J., dissented.