
    Riddle & Co. v. Mandeville & Jamesson.
    An action for money had and received, can he maintained in Virginia, by an indorsee against a remote indorser of a'negotiable promissory note.
    A sale of an indorsed negotiable note, for flour, and a sale of the flour for an amount, in cash, less than the value of the note after deducting the discount for the time it had to run, is not usurious.
    Assumpsit for money had and received. The evidence was a note made by Vincent Gray, March, 2d, 1798, to Mandeville & Jamesson, or order; by them indorsed to James McClenachan, and by him to the plaintiffs ; and the record of a suit by the plaintiffs against Gray, the maker of the note, prosecuted to judgment, execution, and insolvency.
    It was contended, by the defendants, 1st, That an action will not lie by an indorsee against a remote indorser of a promissory note. 2d. That the plaintiff cannot recover on this count; and 3d. That the note was usurious.
    1. On the first point, the cases cited, were, McWilliams v. Smith. 1 Call, 123; Swalhvood v. Vernon, 1 Str. 479; Grant v. Vaughan, 3 Burr. 1516 ; Ward v. Evans, 2 Ld. Raym. 928, and the case of Lee v. Love, 1 Call, 497.
    The Court was of opinion that the action will lie. (See the case of Dunlop v. Silver et al. ante, p. 27.) Marshall, J., contra.
    
    2. The plaintiff cannot recover on the simple count for money had and received. Because it tends to surprise the defendant. Wood v. Garris, Ex’or, 1 Call, 232. But this objection was unanimously overruled by the Court.
    3. The evidence relied on to prove the usury, was that the note with the indorsement of the defendants and McClenachan was put into the hands of Simms,'a broker, to raise money upop. With the note, which was for $1500 at 60 days, Simms purchased flour from Scott which he sold for $1200 cash, and paid it to McClenachan.
   The Court

refused unanimously to instruct the j ux-y that the transaction was usurious.

A bill of exceptions was taken on the two first points, and the judgment reversed in the Supreme Court of the United States, See 1 Cranch, Rep. 290.  