The plaintiff has misconceived his form of action, the allegations contained in the declaration showing that it should have been assumpsit or debt, instead of trespass on the case. The evidence, also, shows that the only claim the plaintiff has against the defendant is for money had and received to the plaintiff's use. The declaration differs from the second count in the case of Royce, Allen Co. v. Oakes, 20 R.I. 252, which we held amounted to a charge of larceny under the statute, in that it shows that twenty-five per cent. of the money collected belonged to the defendant, while in that case it appeared that all of the money collected belonged to the plaintiffs, so that there no accounting was necessary in order to determine the ownership. We do not see, therefore, that, in view of the facts set out in the case at bar, any criminal complaint for embezzlement could be sustained so as to form the basis of a tort action under the statute. The case is clearly within the second decision in Royce, Allen Co. v. Oakes, ante p. 418.
Petition for new trial granted.