WELCH

v.

LINDO

Marshall, Ch. J.

Delivered the following opinion-of tjie Court :

This was an :action brought by the Plaintiff against fije Defendant, in the Circuit ;Court for .the-county of Alexandria, The declaration 'contained two counts. Tlje first was special, arid the second for money-had and received, by the Defendant to the Plaintiff’s use.

At the trial of the cause, the Plaintiff gáve in evidence, the record of the proceedings in a Court in the state of Kentucky, in a cause in which William Hodgsett,'assignee -of James Wehdi, who was assignee.of Abraham Lindo-was Plaintiff, ..and John Kércheval -was Defendant; • This,.suit was', instituted on -a promisóry Qotej. The Defendant pleaded;payment ío Lindo, Í& sue was joined on this plea, and a verdict was found for the Defendant. The Plaintiff, also produced the original note with-the indorsements thereon, the last of which was an assignment madé' by him to Hodgsett.

On the prayer of the Defendant, the Court decided that this evidence wao not, in itself, sufficient to support the action on. the second count, and to this opinion the counsel, for the Plaintiff éxcepted.

The testimony offered by the Plaintiff, was certainly incompetent of itself to prove that the Defendant had received money to his use. The mere possession of a note which He had assigned to another could not, while that assignment remained, be evidence that the note was his property. Some re-assignment or receipt1 from the last assignee was necessary while the indorsements rer mained to prove that the title against the prior indorser' was in him, and that • he had paid a sum of money which gave him a claim on that indorser. And if. the record of the state of Kentucky conld prove thát Lindo had received the money due upon the noté, it would not prove that he had received it to the use of the Plaintiff. Nor, under this indorsement, which is an assignment of the note without expressing value received, and that, too, without recourse against the assignor, can it be fairly inferred that the nominal valué of the noté was actually paid.

Thére is, then, no error in the direction given by the Circuit Court.

On the first count, there was a-verdict for the Plaintiff, but judgment was-arrested, because that count was insufficient in law.

This count states, that, a promisory note was made by John Kercheval, payable to Abraham Lindo — that Lindo, indorsed that note to the Plaintiff, in these words, « pay the within to James Welch, or order, without any -recourse whatever'on A. Lindo.” — -That the Plaintiff in?. dorse-d the. said - note to William Hodgsett; Who instituted a suit thereon, in which the said Kercheval plead-: ed> that he' had paid the debt.to Ábrahám Lindó. A verdict was found for. the Defendant, on which a jiidg wás rendered, which remains in full forcé. By these proceedings, the Plaintiff became liable to'pay the said Hodgsett the amount of the said' note áhd costs of suit; which, he had actually paid. The declaration then proceeds to state, that, by reason of the premises, the Defendant, Abraham Lindó, became liable to pay the Plaintiff, the amount of the said note and costs of suit, and, being so liable, he assumed, &c.

Under the mere assignment from Lindo , to Welch, it is clear, that this suit fo not sustainable; because it is a part of.the contract, that Lindo shall not be liable Under his Jndorsemeht. The count is also • defective, in not Stating ihat the indorsement was made on valuable consideration, and also in not averring that Lindó had actually received the money for which the note was given.

These are substantial faults, which are not Cured try á Verdict. The declaration presents a case in Which there was no liability on the part of the Defendant, to the Plaintiff, which can sustain the assumpsit found by the Verdict.

There is no error, and the judgment is affirpied.