#### Archibald Clark & Wife *v.*John King.

Mrs. G., a feme sole, employed'one King as an agent to retain counsel for the prosecution of her claims to some lands in Georgia, and for the purpose of enabling him to do so, gave her note to the agent payable to himself or order. King afterwards sold the note to one Lawton, and Mrs. G. intermarried with one Clark, (her co-plaintiff in this action,) who demanded the money from the defendant. Held, 1. That the defendant by selling the note to Lawton had turned it into money, and that as soon as he did this, it became money in his hands belonging to Mrs. C., to be applied to her use in carrying on her suit in Georgia. 2. That when her husband C. revoked the power originally conferred, and demanded the money from defendant, he was bound to pay it or account for the application of it. 3. That the plaintiffs were entitled to recover the amount on a count for *money had and received.*4. That they were entitled to recover without proof on their part that the defendant had not employed counsel in pursuance of the agreement under which the note was given. Nonsuit ordered below, set aside.

*179This case came up on a motion to set aside a nonsuit granted by his Honor the Recorder, upon the trial before him at November term, 1838, of the city court of Charleston. The report of the case by his Honor the Recorder, is as follows:

*“*This was assumpsit for the breach of a contract made between Mrs. Clarke (then Mrs. Gist,) before marriage, and John King, the defendant, for the prosecution of claims of Mrs. C. to certain lands in Georgia. The evidence, most of which is taken by commission, proved the contract: and that Mrs. C. having no money to advance' to King for the purpose of feeing lawyers, (which it appears he required,) gave him the note for #300 to raise money and apply it in that way. The declaration independent of the count on the special contract, contained the usual money counts. A record of a judgment from the common pleas, in which Roger B. Lawton was plaintiff and plaintiffs were defendants, was produced to prove that the note above referred to had been passed to the said R. B. Lawton, and that he had recovered judgment on the same. J. B. Thompson, Esq., plaintiff’s attorney, was sworn and testified that he defended Clarke and wife in the above case of R. B. Lawton. Lawton recovered upon proof of being a holder for a valuable consideration; that Judge Richardson who tried the case stated in his charge, that Lawton being a holder for a valuable consideration and no party to the original fraud, was entitled to recover. Here the testimony closed. Defendant’s counsel moved for a non-suit on the ground that there was no evidence of a breach of contract. Mr. Thompson in resisting the motion admitted that he had failed to prove a breach of the special contract, but that he had á right to abandon that and resort to his money counts. I took the law to be otherwise. Where a special contract is proved to exist, unrevoked and unbroken, the parties must stand to it, ánd cannot abandon it and rely upon the money counts. In this particular case the receiving of the note was part and parcel of the contract. King was authorised to raise money upon it and apply it to a particular object; and for aught that appeared in the evidence he might have done so, or what would have been equivalent, incurred obligations on the faith of it. At all events it was not proved that he had not done so; in other words, it was not proved *180he had violated his contract. Taking this view of the case, I ordered the nonsuit. After the nonsuit was granted, Mr. Thompson proposed to introduce in evidence a record of a judgment, in which Roger B. Lawton was defendant, and assigned to Clarke, and to prove a tender to discount off said judgment the amount of Law-ton’s judgment against him. This record was brought to the view of the court by Mr. Thompson before he closed his testimony; but on its being intimated that it could not avail if introduced without proof of the assignment, I understood Mr. T. as abandoning the idea of offering it; at least he did not press it. Under these circumstances, I did not consider myself at liberty to permit its introduction at this stage of the case without the consent of the opposite side, which being declined I refused to allow it. Its introduction however would not have affected my judgment, as the object of introducing it was to sustain the count for money had and received, of which I did not think the plaintiffs could avail themselves.”

The plaintiffs now moved the Court of Appeals to reverse the nonsuit granted, on the following grounds: 1. Because the testimony proved the defendant John King, passed the note in question for valuable consideration, viz. partly in payment of his own debt and partly for cash; and this was good evidence on the money counts to go to the jury. *2.*Because it is submitted the application of the money so received was matter of defence and should have been proved by the defendant. 3. Because it is submitted that in an action for money had and received, all that is incumbent on the plaintiff to prove, is the receipt of the money or its equivalent, by the defendant; and it is for the latter to discharge himself by proving payment to the plaintiff or to his use. 4. Because it is submitted that the mere fact of the money claimed being to be appropriated in a given manner, does not throw on the plaintiffs the onus of proving a negative, viz. that the defendant did not so appropriate the money received. 5. Because the case proved the money had been procured from the defendant by fraud, and that ground should have gone to the jury. 6. Because the plaintiffs rendered in evidence a judgment assigned to them against Roger B. Lawton, and offered to prove a tender to discount off said judgment the amount of Lawton’s judgment against them; but said tes*181timony was rejected, and in this it is submitted his Honor erred. 7. Because it is submitted the facts of the case should have been permitted to go to the jury.

*Thompson,*for the motion.

*Lance and Magrath,*contra.

Curia., per O’Neall, J.

It seems to me that in any point of view the plaintiffs were entitled to recover. The special count, (as it is called,) was nothing more than a statement of the facts, on proof of which the plaintiff would have been entitled to recover on the count for money had and received. The plaintiff’s case is, that Mrs. Clarke appointed the defendant her agent to prosecute some claims which she had to land in Georgia, and gave him her note as the means of procuring money by which he might employ counsel. The note he turned into money by selling it to Lawton. As soon as he did this, it became money in his hands belonging to Mrs. Clarke, and to be applied to her use in carrying on her suit in Georgia. When her husband revoked this power and demanded the money from the defendant, he was bound to pay it or account for the application of it. The whole error in the case arose from supposing that the plaintiffs were bound to prove that the defendant did not employ counsel. This it will be remembered was in discharge of the defendant, and the plaintiffs were therefore not bound to prove it. The plaintiffs right depended on the fact that the defendant had their money in his hands to be applied to a given purpose. If it was so applied the plaintiff’s right of action was discharged; otherwise it remained. This defence was exactly equivalent to payment to the plaintiffs, and it would never have entered into the mind of any one that the plaintiffs were bound to show that the money had not been paid.

The motion to set aside the nonsuit is granted.

Gantt, Evans, Earle, and Richardson, Justices, concurred.— Butler, J., absent on duty.