
    William Graham v. William Goudy.
    THIS was an action of indebitatus assumsit, for money laid out and expended, for money had and received, and for money due on an insimul computassent.
    
    
      Goudy, for value received, had, before it was due, which was in May, 1795, assigned to Graham a bond, on one Neily and one Emerson, who, in March, 1795, went down the river. Neily never returned publicly. In July, 1795, there was judgment against Emerson, on this bond, a writ of enquiry, and final judgment for 21l. Emerson knew, that Neily had directed one Smith, to pay the bond assigned to Graham; and understood from Graham, that he had given up the bond to Smith, on whom Emerson had a bond; and saw Smith have the bond. In consequence of this, Emerson, who was only a surety, had given up to Neily property, which he had got from him to discharge the bond. There was some proof, that, when this bond was assigned, Graham had his choice of other bonds, and preferred this. And, in conversation, Goudy told Graham, to take care, as that bond was now gone from him. Emerson being insolvent, the present action was brought by the assignee against the assignor of this bond.
    
      Brackenridge and Young, for the defendant.
    This is not a negotiable paper, the indorsement of which renders the indorsor liable to the indorsee, on failure of the drawee. If it were, not using due diligence, or giving credit is equal to a payment, and discharges the indorsor. The failure of payment, in this case, arose from the conduct of Graham, who deceived Emerson, by giving the note to Smith, a debtor of his. Graham has also delayed a long time. There is no evidence of what the consideration was, whether 21l. or only 5s. and so there is no certain measure of damages. And there is evidence, that Graham was to run the risk.
    
      Ross and Woods, for the plaintiff.
    This action lies for money paid by mistake, or for a consideration which happens to fail; for money got through imposition, express or implied ; or where undue advantage is taken of the plaintiff’s situation; it lies in all cases where the defendant has money, which, in equity and good conscience, he ought not to retain. This is not a negotiable paper; nor is this action brought as if it were.
   President.

The recovery is put on two grounds:—

1. Imposition or fraud;

2. The consideration happening to fail.

1. Fraud is not to be presumed, and has not been proved. If the circumstances were equally in the knowledge of both, and the assignee took the risk, he must bear the loss.

2. If the transaction was fair, and if the consideration failed through the negligence of Graham, he must bear the loss. It does not appear, that the consideration, for which value was given, was an undertaking that the bond should be paid, but an assigning of the bond. If there had been an undertaking by the assignor, and reasonable diligence by the assignee, the assignor would have been liable.

The jury gave a verdict for 20l. But, on motion, this verdict was set aside, because there was no proof of fraud, or express promise to be answerable for the payment of the money; and because Graham’s negligence and trafficking with Smith, after the bond was due, and want of notice or demand on Goudy, is sufficient to counterbalance any presumption that can arise out of the case, in favour of Graham.

It was never tried again.  