Assumpsit by William K. Rochester against William F. Reynolds, upon the common counts. Plea, the general issue. Jury trial, and verdict and judgment for the plaintiff. It was insisted upon the trial, and evidence was given tending to establish the fact, that the money sought to be recovered by this suit had been obtained by the defendant from the plaintiff by fraud.

Money obtained by fraud may be recovered back in an action of assumpsit. McQueen v. The State Bank of Indiana, 2 Ind. R. 413. Whether that in this case was so obtained, was a question for the jury, and was fairly submitted to them upon the evidence. We cannot disturb their verdict.

The point is made, that though Reynolds obtained the money by fraud from Rochester, still he obtained a part of it for the use of a third and innocent person, and hence should not be liable for that part himself.

We do not think he should be allowed, after obtaining money from another by fraud, to say that he did not use all the money he so obtained for his own advantage, but shared it with an innocent person.

We think the judgment below should be affirmed.

The judgment is affirmed with 3 per cent, damages and costs.