
    Robert Sims vs. Andrew McIntyre.
    Where the jury find greatly against the preponderance of testimony, a new trial will be granted.
    Where M. suedS., upon a receipt in these words : “ Received of M. one note on A. B., for one hundred and seven dollars and ninety-five cents, October 23d, 1840. S.; ” and it appeared from the testimony that M. was indebted to S., at the time this receipt was given, in about the sum receipted for, and that S. collected the amount of the note of A. B., and appropriated the proceeds to his own use ; and the jury found a verdict in favor of M.; it was held, that the verdict was against the evidence ; that the receipt itself, was evidence of M.’s indebtedness to S., at the time, instead of S. to M., and that S. received A. B.’s note in payment of it; and that a new trial should be granted.
    In error from the circuit court of Holmes county ; Hon. Morgan L. Fitch, judge.
    This was an action of assumpsit, brought by Andrew McIntyre against Robert Sims, on an open account for one hundred and seven dollars, and ninety-five cents. The account is stated to be for the amount of one Boyd’s note, collected by Sims, and dated 1st January, 1842. The declaration contains counts for work and labor, goods, wares, and merchandise, money lent, money had and received, and an account stated. The defendant plead the general issue. There was a jury and verdict for plaintiff for one hundred and twenty-eight dollars.
    Sims moved the court to set aside the verdict, because it was contrary to law and evidence. The court overruled the motion, to which Sims excepted. The bill of exceptions states that the plaintiff read to the jury the account filed, with the declaration, and also a receipt of Sims, in these words : “ Received of A. McIntyre one note on Augustus Boyd, for $107 95, October 23, 1840.” Boyd, witness for plaintiff, stated that Sims demanded payment of him of said note, as his own; that he gave him three small notes in lieu thereof, and had paid part; and that one James Terry gave his noté to Sims for about fifty dollars, for the balance; that he, Boyd, was in embarrassed circumstances at the time. Terry, a witness for plaintiff, stated that he has paid only eight or ten dollars on said note, and that the balance was unpaid, and Sims had transferred it to one William T. Courts. William M. Lansdale, a witness for defendant, stated that in the spring of 1840, Sims owed him about one hundred and twenty dollars, on account of a note made by W. B. Whitfield, transferred by Sims to witness. That at the April court of 1840, in a conversation between McIntyre and Sims, McIntyre admitted he was indebted to said Whitfield, and agreed, if he (McIntyre,) had any notes or accounts, that witness would accept in discharge of the note on Whitfield, for which Sims was liable, he would pay it. He also agreed to pay the note on Whitfield to Sims, in other notes or accounts, if Sims would accept them. Witness further states, that subsequently, Sims brought him the three small notes aforesaid, of Boyd, and by guaranteeing them, paid him the debt due to him on account of the said note on Whitfield.
    Sims prosecutes this writ of error.
    
      J. M. Dyer, for plaintiff in error.
    1. It is insisted that the circuit court erred in overruling the motion -to set aside the verdict. A new trial ought, unquestionably, to have been granted, as it is believed there is no shadow of testimony in the record, that warrants the finding of the jury.
    2. The account filed with the declaration, is for money collected. The party is confined to his bill of particulars, and can recover only for the items therein charged. If, for instance, I sue A. for one hundred dollars, loaned money, and my proof shows I loaned A. no money, but sold him a horse or anything else, for one hundred dollars, my action would, of course, fail. This principle has been too often settled, in this court, to need argument to support it. Now, it appears from the testitaony in the. record, that above forty dollars of the Boyd note has not yet been collected by Sims, and may never be, yet the jury gave a verdict against Sims for the whole amount of the note and interest.
    
      William Thompson, for defendant in error.
    The notes on Boyd, that Lansdale speaks of, are different from those Boyd speaks of; for Boyd says.he paid two of his to defendant himself, and got Torry to pay the other by his note, and, of course, these are different from Boyd’s notes, that Lans-dale speaks of. The jury found for plaintiff.
    The only error complained of is, that the court should have granted a new trial. It is believed this court will not interfere.
   Mr. Justice Thacheb.

delivered the opinion of the court.

This was an action of assumpsit, for money had and received, in which the following was the bill of particulars filed. “Received of A. McIntyre, one note on Augustus Boyd, for $107 95. October 23, 1840. R. Sims.” The whole evidence in the case, included in a bill of exceptions to a motion for a new trial overruled, is as follows : Boyd testified that Sims presented him, for payment, the note described in the bill of particulars, without stating that it belonged to McIntyre, and that being in embarrassed circumstances, he took up that note with three small notes, and a note of James Torry’s for fifty dollars, having paid the three small notes. Torry testified that he paid eight or ten dollars upon his note, and that Sims had transferred it to William T. Courts. The foregoing was the evidence for McIntyre. On the part of Sims, Lansdale testified that in the spring of the year 1840, he had a claim of one hundred and twenty dollars against Sims, on account of a note transferred by him, made by Whitfield, upon which he had sued Sims, and that in a conversation which took place between McIntyre and Sims, in April, 1840, it was agreed by McIntyre, that being himself indebted to Whitfield, he was willing to give Lansdale any notes or accounts that he had, which Lansdale would accept in discharge of the debt due to him fromSims, for his liability for Whitfield. This Lansdale refused at the time, but subsequently he took from Sims three small notes, made by Boyd, in discharge of the debt due on Whitfield’s note, upon the additional guarantee of Sims.

It will be seen, from reflection upon the above state of facts, and the phraseology of the receipt filed in the bill of particulars, that McIntyre must have been indebted to Sims originally. Such is the inevitable conclusion from the language of the receipt, because, there being no evidence that Sims received the note mentioned in the receipt for collection, on behalf of McIntyre, he could only have received it as a payment of a debt due from McIntyre to him. This view is confirmed by the evidence on the part of Sims, when we find McIntyre oifering to pay Lansdale the debt which Sims owed him, on account of Whitfield, by a transfer of any notes or accounts, that would be acceptable to him. Such must be the result deduced from the evidence, unless we suppose that Sims received the note from McIntyre, for collection, which the evidence, as now presented, so far from permitting, in fact, excludes; Then it follows, that the jury found palpably against the preponderance of evidence, and a new trial should have been allowed.

Judgment reversed, and new trial granted.  