Murray, C. J., concurred.

In this case, I am sure there was no error in the judgment of the Referee. The goods were purchased directly by the defendant, from Phillips & Mosely, and although they were consigned to the plaintiff, it was expressly to fill the order or purchase of the defendant. Although it may be true, that a payment to the plaintiff would relieve the defendant from liability to Phillips & Mosely, yet it gives him no right to sue in his own name. If this practice were allowed, infinite complexity might arise in the trials of suits at law, upon the ground of set-off, recoupment, consideration, and probably others. If the purchase had been made directly from the plaintiffs, the rule would be different, although the goods belonged to another.

The report of the Referee should not have been disturbed.

Order of new trial reversed, and cause remanded.