
    J. W. Johnson vs. Haggin.
    October 21
    Error to the Woodford circuit; Wm. L. Kelly, Judge.
    
      Assumpsit. Bailee. Interest.
    
    Assumpsit.
    Case 154*
    On a count for money had and received, pl’tf. cannot recover unless dePt. has received money. Bailee without demand or default, is. not bound to. pay interest..
    
   Chief Justice Robertson,

delivered the opinion of the court.

It seems to the court that the judgment is erroneous. As the count is for money had and received it is not material whether Haggin had authority to receive Commonwealth paper. He is liable on such a count, for only as much money as he received. If he did not receive money the plaintiff could not be entitled to any judgment against him on a count for money. He receipted for $798, 78 cents in 1823. Whether a jury would be authorized to infer from the facts which llave been proved that Haggin received that amount in Commonwealth notes we shall not now decide. For in any event, though a bailee without demand or default ought not to pay interest, the verdict according to any allowable deduction from the facts, is for less than the minimum for which he would be liable. The circuit court did not err in awarding the new trial after the first judgment. But erred in overruling the motion for a new trial by the plaintiff'after the last judgment.

Judgment reversed, and cause remanded for a new trial.  