#### Daniel Clary *v.*Allison.

Whoever has the possession of money, has the property of it. Money deposited by one person to be paid to another upon a contingency, cannot be recovered by that other, but must be sued for by tire-person who makes the deposit.

*129Tlic case was, a writ was taken out against returnable tó the County Court of Rowan, and he *vtjlh*arrested upon it, and in order to procure-. *Yarborough*to breóme his bail, he deposited in !^dr-ui|&. a very censi-do rah !4$Wn of money, and bmk^mttHKtYritiug from *Yurborimrh,*in which he prornhsedWrokYMppoiiov to Gov, *Ittouiiti'mMU*the event of FarhoI8jy itkvisilis o m e n t- from Isis sureijship for *Mlison.*Tiii$&>■'¡ti*fgfktk 11 o w I e d g e d the mumsJ*io have been receivedi§fVi/Hsdii'v.': The, Plain - tiffin the suit was nonsuited fortsvaut of tf tier la>-at ion in the Chunty Court, and immediately commenced ids suit «gain by «ay of original attachment, in which *Yarbo-rough*was summoned as a garnishee ; and upon his oath of garnishment stated the foregoing facts. 'Phis latter action was brought to trial in the County Court, and appealed from this Court : and now the cause coming on. it wa» objected for *Mlison,*that by the tenure of the writing subscribed by *Yarborough,*-the money in bis bands on the. event that had taken place, belonged to Gov* Blount; and that *Yarborough*was Hable to pay to him, not to *Mlison*; and should it now he condemned as *Mli-son's.*Governor Blount, being no party to this suit, nor bound by any decision made upon it, might sue *Yarbo-rough*and recover notwithstanding. *E contra,*for the Plaintiff,‘it was argued that whoe-ver is in the possession of money, is the proprietor, and especially if he claim to he the proprietor for bis own purposes — that as to the writing making it to be Governor *Blount's,*there was nothing in it — that writing is a promise to *Mlison,*upon a consideration proceeding from him (namely his depositing the money) to pay to Governor *Blount;*and if the promise, in* broken, Hu* action for the bread) must be brought by *Mlison*— l!$at bvf>ra the passing of the act of *(‡. Jinn, sfdt. 3*and 4 *c.*9, and our own act of Assem - bly 1762, *c.*9. the Plaintiff could not declare upon a promissory note 5 and these acts only enable the holder to declare upon such notes as are rendered negotiable by them, not upon notes not negotiable; as a note at this day for the delivery of a specific article of tobacco, pork, &e. and no notes are negotiable by these acts, but such as are independent, of any contingency ; but here at the time of making this note, it depended upon a contingency whether the money mentioned in it would ever become pay able to Governor *Blount,*and if it is not a negotiable *130Uote at the time of its making, it can never after become so by any *ex post facto*circumstance. *Et per*curiam, *Jtllison*was possessed of this money and used it as his own, and therefore he must be taken to have been the proprietor — whoever is in possession of money and undertakes to dispose of it, is in law the proprietor. *Et per*Judge Wiihams, this very point came in controversy at the last term of Hillsborough court in the case of *Quinton*v. Courtney, or *Qmntoch*v. Courtney, and was directed as we are now deciding this question. *Et per*curiam, perhaps it would be very difficult for Governor *Blount*to support an action upon the promise contained in this writing, for want of being able to shew a consideration. — So the Plaintiff recovered.

Note. — As to the first point, vide *Quinton v.*Courtney, *ante*40.—Upon the other point, see *Comyns on Contracts,*1 *vol.*27.