The objection to the summons is not available on this appeal. Whether the defendant could or not have taken advantage of it on the trial, it is unnecessary to decide. He appeared on the proper return day, and by pleading to the merits, he waived any objection to the process.
It is apparent that he was not misled by the error of the officer.
It is unnecessary, also, to decide in this case, whether the husband is liable for the act of the wife in hiring premises during his absence, for her use, because, although the agreement for tire hiring is made by her, the evidence is, that the plaintiff himself actually hired and occupied. It is said in one place that the plaintiff is in California. Whether he was so or not when the contract was first made, does not appear. The receipt on which the action is founded, purports to be from the defendant, and the money is stated to be received as security for the rent of these premises. Without some other evidence of the receipt of this money than appears in the case, we can only give effect to the receipt by considering it a ratification by the plaintiff of the agreement made by his wife.
An objection is taken to the form of the complaint, and it is not without force, viz., that under the present system, the action cannot be obtained for money had and received. The code requires a plain statement of the plaintiff’s cause of action, and he should have stated his claim according to the facts. But as the cause has been tried upon the merits, and we have power upon appeal to amend the pleadings so as to promote substantial justice, we order the pleadings to be amended in this particular, according to the facts, if such amendment should be necessary.
The only question which can arise on the other points stated by the defendant is, whether he is entitled to credit for the amount of rent which accrued from the 1st to the 18th of May. By the summary proceedings to dispossess the plaintiff, the *419relation of landlord and tenant terminated on the 18th of May, 1852, No rent could become due in the month of March, 1853, on that contract; and therefore the condition for which the money was deposited never could happen, and the plaintiff was entitled to a return of it, subject to such deduction as the defendant could establish by way of a counter claim.
By the terms of the hiring, the rent was payable in advance for two months, so that on the 1st day of May, 1852, there was due by the plaintiff $83 33. This debt remained due to the defendant, although the lease was terminated by the dispossession of the tenant, and for it he could have maintained an action. (6 Hill, 507.) If so, it was a good set off to the plaintiff’s claim, and should have been allowed by the justice.
I think, both legally and equitably, the defendant was entitled to ask that the money placed in his hands, as security for the rent of the premises hired for and occupied by the plaintiff’s family, should be applied to the purpose for which the deposit was made.
The judgment should be reversed, and judgment ordered for the defendant, with costs.
Judgment reversed, with costs.