
    Wilson vs. Greer Ex’r.
    
    1. If A. pay money to B. for the use of 0., to whom he is not indebted, by mistake, intending to have paid it for the use of D., to whom he owed it. This will not give D. aright of action against E. for the money. There is no privity of contract between the parties. The right of action lies with A. to recover it back as money paid by mistake.
    2. The act of 1801, ch. 6, sec. 59, which provides that not more than two new trials shall be granted to the same party, does not apply to cases where the record shows upon its face error in the verdict of the jury, or irregularity amounting to error in the proceedings.
    3. When, therefore, three new trials were granted to the defendant, but in each trial the verdict was for more than the plaintiff could claim in any court, and on the third trial there were but eleven jurors, all of which appeared on the record; it was held that the act of 1801, did not apply.
    4. See Trott vs. West, Moss Co.« 10 Yerg. Rep. 500; and Turner vs. Ross, 1 Humph. Rep. 16.
    This was an action of assumpsit brought by the plaintiff in error against James Greer, who died during the progress of the cause, and the suit was revived against the defendant in error as his executor. A declaration was filed, at the Decern-ber term, 1843 of the Circuit Court «of Madison county, containing the common money count, for two hundred dollars, had and received &c., for the use of the plaintiff The defent-ant pleaded non assumpsit, upon which issue was taken. At the August term, 1845, of said court, the cause was tried, by jury, John Read, Judge, presiding, and a verdict rendered in favor of the plaintiff for two hundred and seventeen dollars. Upon motion of the defendant, at the same term, this verdict was set aside, and a new trial granted. At the December term, 1845, there was a second trial and verdict in favor of the plaintiff, for $226 50, which verdict was set aside by the court, on motion, anda new trial awarded. At the August term, 1846, a third trial was had, and a verdict again rendered for the plaintiff for $241, which was also set aside and a new trial granted. The record does not show upon what ground these new trials were granted, except in the last entry, where the reason alledged is “that there was no evidence offered to sustain the verdict of the jury.” This entry contains the names of only eleven persons as constituting the jury im-pannelled to try the cause. A fourth trial resulted in a verdict for the defendant. Plaintiff moved for a new trial, which not being granted, she filed her bill of exceptions and appealed to the Supreme Court. The evidence introduced is set forth in the opinion of the court.
    
      J. D. McClellan, on behalf of the plaintiff, insisted:
    1. That the action of assumpsit for money had and received is in the nature of a bill in equity, and whenever the defendant has ■ received money, to which the plaintiff is in justice and equity entitled, the law implies a debt, and gives this action. He cited 2 Stark. Ev. 105, et seq. Chitty on Con. 181, 6 Yerg. Rep. 484, 2 Humph. 17.
    2. That the judgment of the court should be in favor of the plaintiff, more than two new trials having been granted to the defendant contrary to the provisions, of the act of 1801, ch. 6, s. 59. Car. &Nich. 500.
    
      
      J. II. Talbot, for the defendant argued:
    1. That the action could not be maintained by the plaintiff, because there is no privity, express or implied, between plaintiff and defendant. Such privity is essential to sustain this form of action. 2 Stark. Ev. 112.
    2. That the act of 1801, ch. 6, sec. 69, is in derogation of the powers and practice of the courts, and should not be sufficient to defeat the ends of justice, in the maintenance of corrupt or manifestly illegal verdicts. If the court can see from the record, that a fair trial has not been had, or that an improper verdict has been rendered, and for that reason the court below ought to have set aside the verdict, it will sustain the action of the court below in giving a new trial, although the court below may not give any reason, or may give an insufficient reason in the order granting the new trial for such action. Trott vs. West, Moss fyc. 10 Yerg. 499.
    This record shows, that the plaintiff has had three verdicts in her favor, all of which are erroneous on their face; because the action is to recover back 1200, money alledged to have been paid by mistake, and, if such a recovery can be had, the plaintiff can only recover back the amount paid, whereas the verdicts set aside are, in each instance for a greater sum than $200, the amount sued for and proved to have been paid defendant. These errors being on the face of the record, it was no error in the court below, to set aside these verdicts and grant new trials. 2. Stark. Ev. 106 to 112. 1 B. & P. 286.
    In addition, if there is any error in derogation of the act of 1801, it must be in the granting of the third new trial. But in that case, laying out of question the amount found by the jury, the verdict was rendered by only eleven jurors, as appears from the record, and there is nothing to show that the defendant assented that the case should be tried by a less number than a legal jury.
   Green, J.

delivered the opinion of the court.

This is an action of assumpsit to recover money received to the use of the plaintiff.

It appears from the bill of exceptions, that the plaintiff and one Lucinda Wilson were each entitled, to a legacy of $1200 from the estate of A. J. Key, deceased, of St. Mary’s Parish, in the State of Louisiana, of which estate Thomas Maskell was administrator. Maskell had directions from the agents ofeach of said legatees, to pay over moneys for them to Armour Lake and Cromwell of New Orleans. In the spring of 1843, John Hall, of New Orleans as the agent of Maskell, paid into the hands of Armour & Lake two hundred dollars for account of Lucinda C. Wilson, and took their receipt therefor. The said sum of money was afterwards paid over to James Greer, defendant’s testator, on account of Lucinda C. Wilson, the said Lucinda having authorised Armour & Lake to pay moneys to Greer for her. Afterwards, Maskell stated that said money was paid for account of Lucinda C. Wilson in error, and that it should have been paid for Mary Ann Wilson, the plaintiff, and he wrote to Armour & Lake directing-that it be paid to the plaintiff. But previous to the reception of this letter, Armour & .Lake had paid the money to defendant’s testator for Lucinda Wilson.

Mary Ann Wilson now brings this suit for so much money received to her use.

It is manifest from this statement that Mary Ann Wilson has no title to this money. It was not paid to the defendant on her account, but on the account of another. He did not receive it to her use, and is not answerable to her for it.

If Maskell is indebted to Lucinda C. Wilson, her representative has a right of action against the defendant. Or if Lucinda Wilson and Maskell have settled, disregarding this payment, and the money has come into the hands of Greer by mistake, then Maskell has a right of action to recover it back. But in no event can the plaintiff recover. There is no privity between her and the defendant. The money was actually paid for the use of another, and the fact that the intention of Maskell was to pay it for the plaintiff’s use, can make no difference. This intention on his part was not acted on, and consequently can give the plaintiff no right of action.

If A. pay money to B. for the use of C., to whom he is not indebted, by mistake, intending to have paid it for the use of D., to whom he owed it; this will not giveD. a right of action for the money. But A. must recover it back as having been paid by mistake.

2. In this view of the subject, the court did not err in rejecting the deposition of Maskell, and the settlement between himself and the plaintiff, as the facts were entirely irrelevant, and if proven would not have authorized a recovery.

3. There have been three new trials, but on each trial the verdict was for more than two hundred dollars, and for that reason was properly set aside, and on the third trial there appears to have been but eleven jurors.

For these reasons the prohibition to grant more than two new trials by the act of 1801, ch. 6, sec. 59, does not apply.

There is no error in the judgment/which must be affirmed.  