
    Hawkins against Stark.
    B. received from- S', eight doubioons of gold, at the value of 122 dollars, which he afterwards paid to H., who endorsed thatsum on the note of B., to him. H., a few days afterwards, re • turned the doubioons to B., as being light, and not worth 122 dollars, and 5. took them back, and returned them to S.,who received them, and promised to have them exchanged,and pay to B. the 122 dollars, in other money. B. became insolvent, and in a settlement of accounts with S., he was credited the 122 dollars : Held, that Nan action for money had and received at of would not He, to recoverbaclr the value of the ihe property ¡n the^e-dtuvery ¡°aMférred°mto p™mentonthe "a0^,, bythb^ bca3ccbQdedlual'J'
    
      ASSUMPSIT for money had and received to the use of the plaintiff. Plea, non assumpsit, with notice of special matter to be given in evidence at the trial. • The cause was tried at the Albany circuit, in October, 1820, before Mr. Justice Woodworth.
    
    
      John Bishop testified, that he purchased oxen of the plaintiff, and Morris Softer, belonging to the society of Mew Lebanon Shakers, and gave the plaintiff his note for 250 dollars. That in 1819, he had the check of Mr.* Hillhouse, for 125 dollars, and told the defendant he was going to get the money and take it to the Shakers, in a week or two. The defendant asked the witness to lend him the check, or the money, until he wanted it, and the witness, accordingly, let the defendant have it, and when called on for the money, he paid to the witness eight doubloons, which he represented to" be of the value of 122 dollars, and three dollars in a bill. That he carried the money to the plaintiff, who received the gold and the bill, and endorsed the sum of 125 dollars on his note. That about ten days, or a fortnight afterwards, one P., a member of the same society, brought back the gold to the witness, saying it was light, and not worth 122 dollars. The defendant-, who happened to be passing the house of the witness, at the time, on being told rD iiiiii ° that the Shakers had sent back the gold, because it was light, said, that he had not the money with him to exchange it, but that if the witness would bring the gold to him, he would give the witness good money for it. In a day or two after-wards, the witness carried the gold to the defendant to be exchanged, when the defendant said that he had no money, but should go to Mew- York, in a day or two, where he could pass the gold without any loss upon it, and, on his return, would give the witness other money for it. The witness, thereupon, left the gold with the- defendant. Some days afterwards, the witness and Baker called on the defendant, who said, that he had.sent the gjold to New-York to be exchanged. The witness said, that he had often told the defendant that the money belonged to the plaintiff. Objections were made to the testimony of Bishop, and evidence was given to impeach his character, which was repelled by the testimony of other witnesses. He became insolvent in the Spring of 1820, and in the inventory of his debts, stated 200 dollars as due to the Shakers, and 50 dollars to the defendant.
    
      Isaac Chase, a witness for the defendant, testified, that ia a settlement of accounts, during the last winter, between Bishop and the defendant, B. was allowed a credit for 122 dollars, for the gold returned by him to the defendant, and there was, besides, a balance due to the defendant, from him, of 102 dollars. That the gold was called Shaker money. An objection was made to the action, on the ground, that the society, or family of Shakers, held all their property in common; and it was proved, that the plaintiff, who was called the dealing man, transacted all the business of the society with the rest of the world, and that Baker was the home man, who transacted their business at home.
    The judge charged the jury, that the action was properly brought in the name of the plaintiff. That from the testimony, the defendant received the plaintiff’s money, and was answerable to him for it, and had no right to apply the money to the credit of Bishop, in a settlement of accounts with him. That B., although somewhat impeached in character, stood corroborated, in all. the material facts he had stated, by other witnesses, who had related the same parts of the transaction. The jury, accordingly, found a verdict for the plaintiff for 130 dollars, and five cents, damages.
    A motion was made to set aside the verdict, and for a new trial.
    
      Cheever, for the defendant,
    contended, 1. That although an action might lie in the name of the plaintiff on the note ; yet, when the money was paid by the defendant, it became the property of the family, or society of Shakers, who holding it in common, should have been all joined.
    2. That the gold having been returned to Bishop, who consented to take it back, the property in it reverted to Bishop, and was at his absolute,disposal.
    3. That when the defendant received back the gold from B. he became accountable to him alone for the amount, and had a right to apply it to his credit in the settlement of the account. 2 Johns. Rep. 549. 6 Term Rep. 53.
    4. That the judge misdirected the jury.
    
      Van Vechten, contra.
   Platt, J.

delivered the opinion of the Court. When the plaintiff received the doubloons, in part payment of the note, they were undoubtedly his money. But after he returned them to Bishop, from whom he received them, and Bishop bad agreed to take them back, the property of the plaintiff in those gold pieces was transferred to B., and the payment on the note was virtually rescinded. By sending the doubloons back, the plaintiff elected not to consider them as his money. By accepting, them when returned, B. made them his own, and virtually agreed to stand indebted to the plaintiff, as though no doubloons had been passed between them. B. had, then, a right to dispose of the gold as he pleased. It was his own money. And the plaintiff had a right of action against him for the whole amount of the note. There appears to be no privity, nor contract, express or implied, between the defendant and the plaintiff. B. re-delivered the doubloons to the defendant from whom he received them. They then became the property of the defendant, who was accountable for their value, to B., not to the plaintiff. The action has been misconceived The verdict must, therefore, be set aside, and a new trial granted, with costs to abide the event of the suit.

New trial granted.  