
    Robert Dickson vs. George Cunningham.
    In Error.
    Where a promisssory note was endorsed to A, by the payee, and suit instituted in the endorsee’s name against the maker, and pending the suit, the attorney’s receipt for collecting the note, was assigned to B, and the money cannot be made of the maker, by reason of insolvency, B cannot maintain an action, as bearer of the note, against any of the endorsers on the note, upon the ground that a transfer of the attorney’s receipt was equivalent to an endorsement of the note to bearer, and that he was the bearer.
    Where the defendant was indebted to A, who was indebted to B, who was indebted to the plaintiff; and they all met together, and defendant aided and assisted A in successfully assigning to the plaintiff, a debt, which belonged to neither; and by this means; A paid his debt to B, and B paid his debt to the plaintiff, and A credited defendant, held, that defendant might disaffirm the contract and maintain an action for money had and received against the defendant.
    This was an action of assumpsit, brought by Cunningham against Dickson, in the circuit court of Lincoln county. The facts of the case are these. Henry Allen gave his-two notes, under seal, to Robert and William Dickson, one for 361 dollars, the.other for §156 T\\. These notes were endorsed at Fayetteville, by the payees, to one Benjamin Patterson, he not being present at the time of the endorsement, but residing at Huntsville, Ala., and were placed by them in the hands of Brice M. Gamer, who delivered them to Argyle Campbell (an attorney,) for collection. Campbell gave bis receipt for the notes, describing them as the property of Patterson, and delivered either to Robert Dickson or Garner; (he believed the latter.) This was on the 18th of March, 1822. Campbell considered the notes as the property of Patterson, and stated, that he had attended to other cases for Patterson, at the request of Garner, collected the money, and paid it to- Patterson, or' his agent. He also stated, that he had heard the defendant Dickson say, that Garner had received these notes from him, and that they had been transferred by him to Patterson, to pay jebt which Garner owed to Patterson.
    In April, 1322, suit was instituted on these notes, in the name of Patterson, against Allen the maker, and in July following a judgment was obtained, a fieri facias issued, and he, Allen, on the 18th of January, 1823, took the benefit of the insolvent law.
    On the 18th of May, 1822, while the suit against Allen was pending, Robert Dickson, Garner, Samuel Rhea and Cunningham, met together. It appears, from the evidence, th£jt Rhea owed Cunningham, as guardian to some heirs;— Garner owed Rhea, and Dickson owed Garner for a tan-yjird. Cunningham agreed to take notes from Rhea, in discharge of his debt, and Garner proposed transferring the receipt of Campbell, for the notes above mentioned, to Cunningham, in payment of Rhea’s debt to him, and of his to Rhea — Cunningham objected to receiving it; upon which Dickson said the notes were in suit, and the money would soon be got from Allen, and if it was not, that he was good, and would pay it; at the same time saying, (as is proved by Rhea,) that he and Patterson understood one another, that he, Patterson, made use of his name, and he made use of Patterson’s. Cunningham then took the receipt, which was endorsed to him by Garner, in the name of Patterson, without the knowledge or assent of Patterson. Cunningham gave Rhea credit for the amount of the receipt on his note, and Rhea did the same on Garner’s, and Campbell (the attorney) proves, that it was his understanding and impression, that Dickson assigned these notes to Patterson, at the request of Garner, and as a payment of the debt he owed Garner, and by this means enabled Garner to pay Patterson the debt he owed him. There is no direct proof at what time Garner gave Dickson credit on his account for the amount of the notes.
    On the failure of Allen to- pay the money, either to Patterson or Cunningham, Cunningham considered Dickson as liable to him. Dickson said that Cunningham could not make him pay, but that he would make him take notes— and Dickson did actually pay Cunningham a part in bank notes and merchandize, as appears by a credit endorsed on the receipt: and to recover the balance, Cunningham brought this suit against him in September, 1823.
    There are special counts in the declaration, and two money counts. The first count states all the circumstances, particularly upon the large and small note; but in the record, that part of the count describing the large note, is styled the first count, and that describing the small note, the second count. Then follows the other count upon the large and small note, varying the circumstances somewhat from the first; that part of this count, describing the large note, is styled in the record the third count,; and that describing the small note, the fourth. Then follows the third, • on the large and small note, representing the notes as endorsed to bearer, and Cunningham the bearer of them. This, like the two first, is divided, and called in the record the fifth and sixth counts. Thenéxt count was for money paid, &c. — and the last, for money had and received. The charge of the judge below, upon the third and fifth counts, (which it is deemed only necessary to notice here, as the jury found their verdict upon those two counts,) was in substance to this effect: “The plaintiff says he ought to recover upon the third count, because he says the endorsement of the notes was made to a fictitious person, and that he is the rightful holder and owner of the notes, and that he can recover as the bearer of them. The defendant says the endorsee, (Patterson) is not a fictitious person. Plaintiff replies, that the endorsee has no interest in the notes. It is my opinion, if Patterson had no interest by contract, nor any intended to be conveyed to him by the endorsement being filled up in his name, he may be considered as a fictitious person as regards this transaction — that it is fictitious if put there for the use of the party*using, his name. But if Patterson was the owner of this paper, the plaintiff cannot recover in his own name, as being the bearer upon this endorsement. But if the plaintiff can maintain the action, defendant, as endorser, must have notice of demand and refusal to pay by Allen. The endorsee takes the note endorsed, under a conditional engagement — he must use due diligence, or the endorser is discharged. Demand’ ought to ^ ma(je on t]le jast day of grace, and notice given in a reasonable time. But in this case, it is insisted no demand and notice were necessary, because the notes were in suit — that the suit is a demand, and its continuance evidence of refusal. If the suit was brought in the name of Patterson, which was unknown to Dickson, demand and notice to him were necessary. But if Dickson knew the suit was commenced, at the time the receipt was endorsed to plaintiff, demand and notice are unnecessary.
    “But it is insisted that Dickson waved demand and notice, by promising to pay the money, if it could not be got out of Allen. My opinion upon this point is, that if Cunningham was the lawful holder of the notes, and Patterson’s name used fictitiously, and a suit was going on, and that known to Dickson, and he knew that demand and refusal had not been made; and he said, if the plaintiff could not get the money from Allen, he was good and would pay it? it is a waver of the advantage arising from want of demand and notice.
    “But if the plaintiff be not entitled to recover upon any of the special counts, is he entitled to recover upon the money counts? If it should appear to the jury, that the interest was in Patterson, and Dickson got the amount of this note from Garner, by enabling Garner to pass the paper, and did get a consideration therefor, without any interest being vested in Cunningham, and Garner and Dickson procured plaintiff to take the assignment of the receipt, plaintiff ought to recover under those counts.”
    The jury, under this charge, found for the plaintiff upon tile third and fifth counts. A motion was made, by defendant’s counsel, to setaside the verdict, and grant a new trial; which motion was overruled.
    
      O. B. Hayes for Dickson,' the plaintiff in error.
    The record shows, that there are eight counts in the declaration, and the jury found their verdict upon the third and fifth. The third count, upon the larger note, is, in the usual form, against an endorser, averring demand and notice, and an endorsement to Patterson, and that he, Patterson, had no interest, &c. and that he is nominal. The fifth upon the same note, averring the endorsement of the notes by Dickson to bearer, and that Cunningham was the bearer, &c. Can the verdict be supported, on either of these counts?
    It is insisted, that Dickson, if responsible at all, must be so in one of two ways — by virtue of his promise to pay, if the money could not be made out of A lien, or upon his endorsement. First: with regard to the promise — when, to whom and' upon what consideration was it made, and what is its nature and effect?
    It was made after the notes had been endorsed by Dickson, and the interest thereon vested in another, and after a suit had been brought against the maker in the name of Patterson, which was then depending. It was made (not to Cunningham,) but to Rhea, who had purchased of Garner (not the notes) but the interest in the suit. The promise was gratuitous, and without consideration, and not for any debt of his own, for he neither owed Rhea nor Cunningham. But if it imposed any obligation on him at all, it was only a moral obligation — it was for the debt of another, and should have been in writing, to legally bind him. It cannot be enforced against him./ (May vs. Coffin, 4 Mass, 341.)
    But if a recovery could be had upon this promise, if made the gravamen of a suit at the instance of Rhea, it does not support the present action, and especially the counts upon which the verdict is predicated. The action, therefore, cannot be maintained upon the promise.
    Secondly. Is Dickson liable to Cunningham, by virtue of the endorsement?
    1st. The transfer from Garner, in the name of Patterson, was not an endorsement and delivery of the note — for the note was then in suit; it was simply a transfer of the attorney’s receipt, which operated, and was only intended, to vest in Cunningham the equitable interest in the suit against \llen, in the same manner, as if it had originally been brought for his use. The notes upon which that suit was founded, were not endorsed, or so negotiated to Rhea or Cunningham, as to authorize a suit to be maintained on them by Cunningham against Dickson, as endorser. ’
    . After the transfer of the suit against Allen, it was controlled by Cunningham, and Allen was prosecuted to insolvency; and had the money been made of Allen, Cunningham would have received it. He introduced the record of recovery against Allen, and bis discharge under the insolvent-law, with the view of fixing the liability of Dickson, and he is now estopped from saying that the legal title is not in Patterson. While under an assignment in the name of Patterson, he claims the equitable title. (Vide Mead vs. Young, 4 Term. Rep. 28; Master et al. vs. Miller, ib. 339,470.
    If instead of this being a transfer of the interest in the suit against Allen, it had been a sale of the notes by delivery, without any endorsement, -and they turned out to be of no value, the vendee of the notes has no right of action against the vendor. (3 Term Rep. 757; Espinasse's Reports, 447; 1 Lord Raymond 442; 3 Vesey's Rep. 368.)
    2d. Cunningham, having acquired the equitable interest in the suit against Allen, and the consequent recovery, can be placed in no better situation, in relation to the endorsement by Dickson, and its incidents and consequences, than that occupied by Patterson. Before Patterson could recover of the endorser, (although the note was endorsed after it became due,) he must have demanded, in a reasonable time, the money of Allen, and given due notice to the endorser. Neither of which was done. No demand is pretended to have been made of the maker, (except by suit,) which was on the 8th of April, 1822. The note was endorsed on the 18th of March, 1822 — the endorser was, therefore, discharged; “and a person who has been once discharged, by laches, from liability, is always discharged.” (Chitty on Bills 309.)
    The judge below, considered the pendency of the suit against Allen, when Cunningham acquired his equitable interest therein, as demand and notice. This is believed to be radically wrong. ' In all cases where the endorser of a notéis attempted tobe charged in consequence of his legal liability, demand and notice are indispensible; and the death, bankruptcy, or known insolvency of the drawer, will constitute no excuse in law or equity. Chitty on Bills 271-3-4, and authorities there cited; 1 Sergeant and Rawle 334. Neither, would it be an excuse, that the drawer and acceptor of a bill, were fictitious. 4 Taunton 731; Chitty on Bills 261. Nor that a person, who has guarantied the payment of a bill, is no party. Chitty on Bills 264; 2 Taunton’s Rep. 206.
    What Dickson said, as to paying the money if Allen did not, cannot be considered a waver, because it was not a response to any claim made on him for payment of the notes. The doctrine of waver, to endorsers of negotiable notes, is wholly inapplicable. To constitute a waver, &c., the promise to pay must be with full knowledge of the laches of the holder; for a promise, without such knowledge, is imperative. (Chitty on Bills 307, 8, and cases cited.)
    
    A prominent objection to the recovery on the third count, is, that no legal title to the note in question is shown to be in Cunningham. The facts there stated, only show an equitable interest in him, to the proceeds of the notes, when collected from Allen; and the same is bad upon demurrer or in error. But if the count is good, the facts proved do not support it; there is a variance between the allegata and probata — and particularly in alleging, (as that count does,) that the transfer of the note to B. Patterson, was for the use of the Dicksons, and that the suit against Allen was instituted for their benefit, and that they had placed it in the hands of Campbell for collection. See Chitty on Bills 482-3.
    The court erred, it is believed, in charging the jury, “that if Patterson had no interest in the notes, by contract, and his name was used, he might be considered a fictitious person, as to that transaction. This part of the charge must have been intended to bear upon the fifth count, where the notes are alleged to have been transferred to bearer. Patterson was not a fictitious person — he was in existence, in full life, and residing in the town of Huntsville; and the use of his name, without his consent, (of which there is no evi¿ence^ wpq not justify such an appellation or such a charge.
    There is no. proof to support the allegation of the fifth count, that the note was endorsed to bearer, and consequently the evidence varying from the count, there can be no recovery upon it.
    Lastly. The judgment must be reversed, because from the record it appears, that entire damages have been assessed upon the 3d and 5th counts, as if they were for distinct causes of action, when they are both upon the same note, and for the same cause of action; and the verdict and judgment, (though for the amount of both notes,) is no bar to an action on the note for $168
    
    
      Thompson and G. M. Fogg for the defendant in error.
    There are only five counts in this declaration, although they are called eight upon the record. It is evident, that the three first counts have been erroneously divided into six; because the first part of each of these counts, is bottomed on the large note, and the latter part of them upon the small note. This is clearly the fact, as appears from the charge of the judge; for he only speaks of five counts; and when charging the jury on the money counts, he speaks of them as the 4th and, 5th. The jury found their verdict upon the third and fifth counts; (termed by Mr Hayes the fifth and eighth.)
    The third count describes the notes as endorsed payable to bearer, and Cunningham the bearer; and avers demand and notice, &c. To support this count, it is contended by us, that although the notes were endorsed to Patterson by the Dicksons, and not to the bearer, yet Patterson was only ■ a nominal person, and had no interest in the notes — knew nothing of the transfer of the notes to him, being then in Huntsville; and he ought to be considered, in law, as a person not in existence; so far as regards this transaction — - and, therefore, as coming within the principle of the English decisions on bills of exchange, drawn payable to a fictitious person, the charge of the court below, was, it is conceiw ed, correct upon this point. (Collins et al. vs. Emmet, 1 H. Blk. Rep. 313; Gibson vs. Minuet, ib. 569; Chiity on Bills 84 — 5.
    As to the want of demand and notice, Dickson, with a full knowledge that there was no demand and notice, promised to pay the plaintiff, if the money could not be got from Allen, which, (if the money could not be obtained from Allen, as was proved in this case,) is a waver of demand and notice, and will support that averment in this court. (5 John. Rep. 375; 16 John. Rep. 152.)
    The fifth count is for money had and received by Dickson, to the use of Cunningham. The jury were all well warranted in finding for the plaintiff upon this count, from the facts proved in the cause.
    It appears from the testimony, that these notes were placed in the hands of Campbell for collection, by Brice M, Garner, that he gave a receipt for them, and handed it either to Dickson or Garner. The .receipt specified the notes as Patterson’s property.
    This receipt was endorsed to Cunningham, in the name of Patterson, by Garner. Rhea protes he owed Cunningham, that Garner owed him; and Campbell proves Dickson owed Garner. When Rhea, Cunningham, Dickson and Garner were together, Garner proposed transferring this receipt to Cunningham; to which the latter objected; but upon Dickson promising to pay it, if Allen did not, he agreed to receive it. Rhea also states, he gave Garner a credit on his note to him, and Cunningham credited the amount of the receipt upon the note, he, Rhea, owed Cunningham, •and Campbell proves it was his understanding, that Dickson assigned these notes to Patterson, in payment of his debt to Garner, and Garner’s debt to Patterson. Upon these facts, (particularly as there appears to be fraud in the transaction, upon the part of Dickson, thereby enabling himself to pay his own debt to Garner, and causing Cunningham, by his misrepresentations, to lose his recourse upon Rhea;) and as Cunningham is the only man that has lost, and Dickson the only man that has gained, the jury, under the charge of the court, did rigfct in finding for Cunningham upon this count: for the law, under this state of wou]¿ presume the receipt of money, by Dickson, for Cunningham’s use. (Vide Manufacturers’ and Mechanics' Banfcrs. Gore and Graften, 15 Mass. Rep. 77,79; 1 Comyn’s Digest, action on the case upon assumpsit A. 1, and notes; 2 Term Rep. 370; 3 Term Rep. 180; \ H. Bile. Rep. 289.)
    In the case of Wilson vs. Coupland, 5 Bar. and Al. Rep. 228; the facts of which case were these: “A being the creditor of B, and B being a creditor of C, it was agreed by all parties, that C should pay the debt to A, it was held by the court, that A might recover of C, for money had and received to his use. Here A, by crediting B his debt, and relying on C for the payment thereof, discharged and paid C’s debt to B.” In the present case, Cunningham was the creditor of Rhea, Rhea of Garner, and Garner of Dickson, They all met together, and Cunningham, through the representation of Dickson and Garner, was induced to take the receipt of Campbell for the notes of Allen, for so much money received of Rhea, through the medium of Garner and Dickson; and Dickson was enabled thereby, to pay the debt owing by him to Garner. Therefore, it should now be considered by this court, (especially after verdict,) that Dickson received this money from the plaintiff, and then applied it to the payment of his own debt to Garner. Ought not this, under the circumstances, to be considered as an acknowledgment, upon the part of Dickson, that he had received so much money for the use of the plaintiff, especially when taken in connexion with what Dickson said, “that he could not be legally compelled to pay Cunningham, but that he would make him take notes;” and with this further fact, that he actually did pay a part in bank notes and merchandise to Cunningham? If he did not consider himself liable, why pay apart? The substance of the whole is this: Dickson owes Garner a sum of money, and wishing to pay it, says to Cunningham, if you will take this receipt of Campbell’s, instead of the money you are entitled to from Rhea, I will take Rhea’s place, and become responsible to you for the money, to the amount of Allen’s notes, if the money cannot be got from Allen. Now shall Dickson be permitted to say, that Cunningham has no title to the receipt, and that he has received no money of Cunningham’s? Is not here such gross misrepresentation and fraud, as would authorize a court of equity to interfere with its protecting arm, and assist a person so deceived and defrauded? and if a court of equity would interfere, will not this court say, after verdict in this equitably action, that it shall be presumed, that Dickson got the amount of these notes from Garner, by enabling him to pass the receipt, and that he and Garner induced Cunningham to accept the same, through fraud and misrepresentation?
    ■ In the second volume of Starkie’si Evidence 107, it is said, “upon a count for money had and received, to the use of the plaintiff, the plaintiff may prove the receipt of money by the defendant and his deceased partner — for every partner is liable for the whole; and proving that another person, together with the defendant, received the money, does not negative the allegation, that the defendant himself received it; and, therefore, there is no variance.” So, in the case before the court — Garner and Dickson may be considered partners, so far as regards this transaction. They both want to raise money; they confederate together, and agree to share in the advantage to be derived from passing off this receipt. Garner receives it as cash, and pays a debt with it. Dickson makes the same use of it — the receipt answers him as money, for by it he pays his debt to Garner.
    To what extent our own courts have supported the action for money had and received, may be seen by the case of Boyd vs. Logan, Cook 394; vide also 1 Douglass 188.
    The cases are numerous to show, that where a plaintiff fails upon a special count, he may resort to the common counts. (Tuttle vs. May, 7 John. Rep. 132,18 John. Rep. 451, 10 ditto 36.) So if the special agreement proved is different from the one charged. (Keys vs. Stone, 5 Mass. 394.)
    
      O. B. Hayes in reply.
    If the judge, in his charge to the jury, miscalled the counts, or was mistaken as to their numerical order, does it, therefore, follow, that the jury were thus mistaken! and not their verdict be taken for what it purports, and what the record shows it to be, and not what for, by possibility, it might have been intended!
    But suppose the finding of the jury is upon the count for money bad and received, will the evidence support that count!
    It may not be amiss to premise, that this suit is not against Garner, who stands in a very different situation in relation to the plaintiff; but against Dickson, a third person — who, at or about the time Cunningham and Garner were contracting about the suit against Allen, made a collateral promise, or guaranty, to Rhea or Cunningham, that if Allen did not pay the notes, he was good, and would pay the money.
    This is a special contract, subsisting, and in force-between the parties, not disaffirmed; and the plaintiff must rest and sue upon it, and upon it alone. (American Precedents, ch. 14, pages 18, 19, 89; 12 John. Rep. 274; 7 Mass. Reports 109. Therefore, the money counts cannot be sustained.
    But suppose the contract disaffirmed, the plaintiff then looks to his implied assumpsit, to recover back the consideration money. What is the consideration money, which passed from Dickson to Cunningham! What money, or specific article, which might be presumed to be turned into money, did Dickson receive from Cunningham? He received nothing — therefore, he can recover nothing.
    
    That the action for money had and received, will not lie, in consideration of an act merely voluntary, vide 3 BibVs Rep. 528; 1 Dallas 148; 10 John. Rep. 249; 12 John. Rep. 352; 20 John. Rep. 28.
    It is alleged, that Garner was guilty of a deceit, and that Dickson was particeps criminis. If so, the appropriate remedy is an action of deceit.
    But this allegation is without proof. If Garner were guilty of any deceit, it was in the use of Patterson’s name, as is alleged, without his authority. If this were the fact, it could have been proved; but it was not proved. Patterson’s name was used with the knowledge of Cunningham, and he could not have been deceived in that particular.
    
      The cases from 5 Barnewell and Alderson, and Starkie’s Evidence, have no application. The debt due by A to B, was not by special agreement, which alone must be sued upon, but it was money which A had received to the use of B. Garner was not the creditor of Dickson, nor was Dickson otherwise liable to Garner or Patterson, but by his endorsement of a negotiable paper, endorsed anterior to that time.
    But it is said, this court should consider, that Dickson received this money from the plaintiff, and then applied it to the payment of his own debt to Garner, and that by misrepresentation and fraud, he held out the idea, that Allen was good, &c. The answer to this is, there is no such proof.
    This question cannot be determined by any abstract rule of morals; and it often happens, as is said by the court, in Wain vs. War Iters, 5 East 10, that an intended guaranty is rendered inoperative by not having it in writing, and attending to other matters of form. Nor can this suit be turned into a bill in equity. It only lies where there is an actual receipt of money, or something which may be presumed to have been converted into money. (Barnard vs. Whiling,7 Mass, Rep. 358; Brooks vs. Scott, 2Munford’s Rep. 344; Lnxckettvs. Buchanan, 3 Bibb’s Rep. 373; 2 do. 424; 1 do. 595; 1 Dallas'1 Rep. 222.)
    The case referred to from Starkie’s Ex. does not conflict with this principle — where one partner received the money, each was liable for the whole, and the money was received for the use of each. And the idea that Garner and Dickson were partners, is to make a case to fit the principle decided in that case, and not to be found in fact upon the record. The defendant himself must have received the money, to be liable. (9 East’s Rep. 378; 1 Taunton’s Rep. 65; 2 Camp. JF. P. Rep. 68, 9.)
    The case in Cook’s Reports, was decided on the ground, that the property received, might be presumed to have been turned into money.
    There was no privity of contract between Cunningham and Dickson — without which, the money counts cannot be ««stained.
    The promise was to Rhea, and upon this collateral guaranty, he is not liable, for want of a consideration, and because it was not in writing. (Act of 1801, ch.‘ 1 Comyn on Contracts 32; 5 East’s Rep. 10.)
   Crabb, J.

delivered the opinion of the court. That the finding of the jury, in this case, was upon the count representing Cunningham as the bearer of the larger note, and upon the supposed count of the same character, founded on the smaller note, but not drawn out at length, both considered as on (the third count;) and also upon the count for money had and received, considered by the coart and jury as the fifth count, there is no room for doubt. There is nothing to lead the mind to a different conclusion, except the single circumstance of a correspondence as to the numbers of the counts, as described on the face of the declaration, and as named in the verdict.

But there is no such magic in names or numbers, as that they should close our eyes, upon what we must clearly see to be the fact from an inspection of the bill of exceptions.

The judge, in his charge to the jury, goes through the declaration, and tells them by what rules they should be governed in application to all the courts. What did he call the first count? He says, “this is an action brought by a person, who declares, that he is the rightful owner of two notes.” He speaks of a special count, stating the relative situation of the parties, and the plaintiff’s title to the notes — not note! After speaking of the special counts, he proceeds to state: “There is a third count, in which the plaintiff declares as a rightful holder,” Sic. And what? a fourth, and a fifth, and a sixth, a seventh and an eighth count? No. He says, “and counts for money had and received ;” in which expression, he doubtless included the count for money paid, as there is only one count for money had and received, the other being for money paid.

Is it not manifest, that the judge considered himself through the declaration, when he had mentioned the three special counts, and the money counts? Nothing is plainer. But it is said, the jury may not have understood him. The conclusive answer is, that nearly two pages of the record are covered with minute directions to them, as to the law upon the state of facts, set out in what he called the third count; which state of facts is not set out in any other count. Besides, what goes strongly to show, that the jury did not misunderstand the judge, is, that they have found their verdict for the plaintiff below, on the very counts upon which his opinion was favorable to the plaintiff.

After the verdict, there is no complaint by the counsel, that there was a misunderstanding between the court and the jury; and the judge, who is an eye witness to the whole affair, enters judgment upon the verdict. To say, that the court and jury misunderstood each other, or, that there was any mistake between them, would be to reverse a well established rule, and to presume, (and presume strongly too,) not for, but against, the correctness of the proceedings in the court below.

The next inquiry is — does the evidence support the finding, upon what the court and jury below called the third count?

This count goes upon the ground, that the notes made by Allen, were transferred according to commercial usage; that is, that they were endorsed by the payees, the Dick-sons, to bearer, that Cunningham became the bearer, that he presented them for payment, that they were dishonored,, that Dickson was notified, and in consideration, &c. promised, c.

The evidence shows, that instead of being endorsed to bearer, by the Dicksons, they were endorsed by Benjamin W. Patterson, a person having an actual existence. And the strong and satisfactory preponderancy of the testimony, is, that there was no fiction in the transaction; but that the note was so transferred, at the instance of Garner, in payment of a debt due Patterson.

The decided cases which have been referred to, 1 H. Blackstone's Rep. 313, 1 ditto 569, have no application to this case, because this was not an endorsement feignedly made to a person in existence, much less an endorsement to a lie person?known to the defendant to he so, as was the fact in each of the cases cited.

But Cunningham could not, for other reasons, maintain this action as bearer; a conclusive one, without going farther, is, that the notes never were, nor could be transferred to him, (as in such case they must,) by delivery. They were in suit, in the name of Patterson, the legal, owner; and all the interest that Cunningham could acquire by the assignment of the attorney’s receipt, (even if Patterson had assented to it,) would be an equitable right to the proceeds of the judgment when recovered.

Lastly. How is it with regard to the count for money had and received? Did the evidence support that count? This question is not without difficulty. We have, however, come to a result, which is satisfactory to our minds; and in doing so, we disclaim the aid of any abstract spirit of justice, whose assistance has been so much invoked by the counsel on one side, and- deprecated so much by those on the other. It is the law, the legal justice of a question, or cause, which must make the rule of judicial action; and unless the finding upon this count is supported upon this latter principle, the judgment ought to be reversed.

The judge below substantially, though not precisely in these terms, left to the jury to determine, whether these notes were not transferred to Patterson as his own, and whether Dickson did not unite with Garner, notwithstanding they had been thus transferred, in inducing Cunningham to take an assignment of the claim from Garner, when Garner bad no authority to assign, and by his assignment vested no right in his assignee; and told them, that if by means of this sort, Dickson had enabled Garner to get, and Cunningham to lose the consideration money of the bargain, and had got the amount of the notes from Garner, the plaintiff would be entitled to a verdict on this count.

Rhea states, that Dickson said, that he and Patterson Understood one another — that he had made use of Patterson’s name, and Pattersofi of his name j which indistinct' representation, was probably made for the very purpose of inducing Cunningham and Rhea, who were both present, to receive Garner’s unauthorised assignment. But Camp-hell, the attorney, who managed the business, proved, that although he handed the receipt for the notes, either to Garner or Dickson, he believes to Garner, yet he understood they were to be collected on account of Patterson; and that his impression was, that Patterson had the interest in them— that they were for Patterson’s benefit — that he had attended to other cases of Patterson’s, as his attorney, at the request of Garner, collected the money and paid it to Patterson, or his agent — that he had heard Dickson say, that Garner had received from him the above notes, and that they were transferred to pay a debt Garner owed Patterson.

It also appeared, that Dickson owed Garner ior a tan-yard, that Garner owed Rhea, and Rhea owed Cunningham; and the circumstances were strong to prove, that by aiding Garner in getting off the claim against Allen, Dickson was either in the first instance procuring, or finally consummating, the arrangement by which he procured from Garner a credit on his account.

It is said by the counsel for the plaintiff in error, that Patterson might easily have been produced by the defendant in error, in order to prove this allegation, if true. The answer is, that prima facie, the ownership of the judgment, was in Patterson. The contrary came with but a bad grace from Dickson, who had assigned to him, by writing, under his hand. And at all events, it devolved on him to produce his friend Patterson, who made so free with his name, and with whose name Dickson made so free, to prove the contrary. And no doubt the non-production of Patterson, and especially the absence of Garner, who lived in the town where the court was sitting, had much effect on the minds of the jury. It does not clearly appear, when Dickson got credit from Garner for the notes. But from the interest taken by Dickson, in the transfer to Cunningham, there was good ground for the jury to infer, that it was contemporaneous with the arrangements among the others. Suppose what we may, we cannot but conclude, that the jury were abundantly authorized to believe the facts supposed by the

The question is, whether, if these facts exist, Cunningham had a right to disaffirm the contract, and recover back his consideration money from Dickson? If Cunningham had paid money to Dickson, in consideration of the assignment, no person can doubt, but that it could forthwith be recovered, back. But it is objected, (and this creates the principal difficulty in the cause,) that there was no privity between Cunningham and Dickson; or, in other words, that Dickson did not receive Cunningham’s money. - . Looking at this case, as a revising court, after verdict, and a motion for a new trial overruled in the court below, it is believed, that we are not authorized to say, that the evidence was insufficient to authorize the inference on the part of the jury, that Dickson did have and receive money, which, by law, was for the use of Cunningham. By aiding Garner, in successfully assigning to Cunningham a suit, which belonged to neither, Dickson contributed towards Cunningham’s giving a credit to Rhea, in account, in other words, paying money to Rhea; and Rhea giving Garner a credit, in other -words, paying money to Garner; and Garner giving Dickson a credit, in other words, paying money to Dickson. See Tatlock vs. Harris, 3 Term Rep. 174. It was no strained inference then, but one believed to be authorized by the decided cases, that Cunningham’s money went to Dickson. (Longchamp vs. Kenney, Douglas’ Rep. 137; Tuttle vs. Mays, 7 John. Rep. 132; Boyd vs. Logue, Cook’s Rep. 394.)

The whole transaction being disaffirmed, as grounded in mala fide, Dickson was the man who had the money; he ivas the proper person for Cunningham to sue.

The evidence of what Dickson said at the time of the transfer of the receipt, to wit, that he was good, and in a certain event would pay the money — his saying that Cunningham could not make him pay, and he would make him take notes; and paying a part in merchandise and bank notes, as appears by a credit on the lawyer’s receipt, becomes, in this connexion, important evidence. It shows, that Dickson clearly recognized the right of Cunningham to resort to him, as the person having the consideration money, and really liable to refund, if any body was liable.

It is true, that many dicta are to be found in the books, confining the action for money had and received, to cases, where they say, there has been privity of contract; as, between the payee and maker of a note, payee and acceptor of a bill, or endorsee and his immediate endorser; and this doctrine, being advanced in a nisi prius case, (Camp. Nisi Prius Cases 175,) has been introduced into the text of some editions of Chitty on Bills. But it is not supported by the best decided cases. This will sufficiently appear, without going into a minute examination of them, from the cases of Grant vs. Vaughan, 3 Burr. Rep. 1525 and 1529; Tatlock vs. Harris, 3 Term Rep. 174; Rabourgh vs. Peyton, 2 Wheaton’s Rep. 385; Riem vs. Crafts, 12 John. Rep. 90.

We must say with the supreme court of New York, in the latter case, “It is objected by counsel, that here is no privity of contract between these parties; and several authorities were cited to show, that indebitatus assumpsit will not lie, except between privies. To this objection there are two answers — first, there is a legal privity of contract between the parties in this case; secondly, it is not true, that the action for money had and received, can only be grounded on privity of contract. It is the proper remedy to recover money obtained by fraud or deceit.”

Upon the whole, upon the authority of the above cases, and those referred to below, we are of opinion, that the judgment of the circuit court ought to be affirmed.

Judgment affirmed. 
      
       Boardman vs. Gore and Grafton, 15 Mass. Rep. 331; Wilson vs. Coupland, 5 Barn. and Ald. 228; 1 Comyn's Digest, action on the case upon assumpsit A.J. Executors of Middleton vs. Robinson, 1 Bay’s Rep. 56.
     