DICKEY v. JOHNSON

A., being the holder of a single bond, made by B., payable to C., and passed by him to A., without endorsement, upon the representation of B., that he was entitled to a credit thereon, admitted the credit, took a new note for the residue, and surrendered the old one. Afterwards A. brought assumpsit against B., to recover the sum allowed as a credit, on the ground that it was not due and had been allowed by mistake: Held, that he could not recover, because if any promise of B. was to be implied for its repayment, it was a promise to the legal owner of the first bond.

His Honor, Caldwell, J., before whom the case was tried, at LINCOLN, on the last Spring Circuit, charged the jury, that if the credit of $94 was obtained on the settlement with plaintiff's counsel, through fraud or mistake, the plaintiff was entitled to their verdict, but by consent of parties, his Honor reserved the question of the plaintiff's right to recover upon the matter of law. There was a verdict for the plaintiff; but his Honor, on consideration of the question of law reserved, being of opinion that the plaintiff's remedy, if he had any, was in a court of equity, set aside the verdict, and entered judgment of nonsuit, from which the plaintiff appealed.