
    Barzilla Homes and Another, Administrators of Ebenezer Larkin versus Samuel Dana.
    Sundry persons agreed to lend to the editors of a newspaper the sums set against their respective names, the same to be paid to one of their number as agent, &c. He advanced money to the editors on the ground of the subscription; and it was holden that he had a right of action against a subscriber who refused to pay the sum he had subscribed.
    This was indebitatus assumpsit for money laid out and expended by the plaintiffs’ intestate for the use of the defendant, and at his request.
    The cause was tried upon the general issue, before the Chief Justice at the last November term, in this county.
    The plaintiffs gave, in evidence, although objected to by the defendant, a certain paper, subscribed by the defendant, among others ; in which the subscribers agreed to lend to Everett fy Monroe the sums set against their respective names, “ on the following conditions ; namely, that the same shall be put into the hands of Mr. Ebenezer Larkin, to be appropriated exclusively to the establishment and publication of a newspaper, to be called the Boston Patriot i and to be * refunded in one year with interest, if [*191] the profits of said paper will admit, after paying all necessary expenses, and allowing said Everett at the rate of one thousand dollars a year for editing said paper. But, in case the profits of the said paper should not be sufficient to refund the sums by us subscribed, we then agree to demand no more than our proportionate part, after deducting the expenses of the paper ; it being understood that the said Ebenezer Larkin shall be considered our agent, to be consulted with respect to the appropriation-of the money, and that he have a right at any time to inspect the books and accounts relative to said establishment.”
    The said Larkin agreed, on his part, to receive and appropriate the money subscribed, and to accept the agency. And the said Everett fy Monroe pledged themselves to account to Larkin for all moneys received, to exhibit a true statement of all expenditures on account of the Boston Patriot, and to repay to him all the moneys loaned as aforesaid, with interest, or such part thereof as the profit arising from the said publication should authorize at the end of the 5 ear.
    The amount subscribed, including $100 subscribed by the defendant, was $1000.
    It was proved that the plaintiffs’ intestate advanced and paid a large sum of money for the purposes of said subscription ; and that he had received from several of the subscribers four hundred dollars, which, with his own subscription of fifty dollars, left him in advance $ 150. Two of the subscribers, to the amount of $150, had paid their subscription to one of the editors of the paper ; and two others, to the amount of $ 100, were insolvent and unable to pay.
    The jury were instructed, that, if they believed that the intestate had advanced his money upon the faith of these sub-[*192] scriptions, in pursuance of the trust he had undertaken, * as stated in the paper, it was money paid to the use of the defendant; and the law would raise a promise to pay it.
    A verdict being returned for the plaintiffs, the defendant moved fox a new trial on account of the admission of the subscription paper, and for a misdirection by the judge.
    
      Parker, for the plaintiffs.
    
      J. T. Austin, for the defendant.
   Curia.

As to the first objection taken by the counsel for the defendant, that the contract read in evidence was not admissible, because it was between other parties, it cannot prevail. The action is not founded upon the contract; but this was introduced collaterally, to show the circumstances under which the money was paid by the intestate to the use of the defendant. It is, in this respect, like a note or bond, paid by one not a party, at the request of the obligor or promissor. In such a case, there can be no doubt the instrument would be proper evidence, although between other parties.

Nor is the objection maintained, that this was a contract by the defendant merely to loan money, and, therefore, that no action would lie, except for damages, for the non-performance.

The true ground of the action is, that, by reason of the contract, Larkin was led to confide in the engagement of the defendant, so far as to advance his own money for him ; and the defendant, and the other subscribers, having made Larkin the trustee, to receive and appropriate the money, for objects of importance to them, were bound in equity and good conscience to restore it. The only question which could arise in this case was, whether Larkin was induced to advance his money by the subscription, and by the confidence placed by him in the subscribers. The jury having so found, the verdict is unquestionably right.

Judgment according to the verdict. 
      
       The difficulty really was, that Larkin advanced the money without any request or authority from the defendant and he ought not to have been made debtor without his consent.
     
      
      
        Fisher vs Ellis, 3 Pick. 332.— Trustees of the Church in Hanson vs. Stetson, 2 Pick. 506. — Bryant vs. Goodnow, 5 Pick. 928.— Salem, Mill Dam Corporation, vs. Ropes, 6 Pick. 26.— Chester Glass Company vs. Dewy. 16 Mass. Rep. 94. — Trustees of Farmington Academy vs. Allen, 14 Mass. Rep. 172. — Amherst Academy vs. Cowls, 6 Pick. 427. Sed vide Holmes vs. Higgins, 1 B. & Cr. 74 — Boutelle vs. Cowden, 9 Mass. Rep. 254. — Bridgewater Academy vs. Gilbert, 2 Pick. 579.
     