The instructions were right. If the defendant professed to act, and borrow money, and give a note for it, which is a nullity, for a body not incorporated, and *200having no power to contract, and before paying it over to such unincorporated associates, the lender demands it back, it must be deemed to be money advanced to the agent, on a consideration which has failed, and therefore must be deemed in lav," money had and received to the lender’s use, and money had and received will lie for it. Such was the direction, in matter of law, under which the case was submitted to the jury. By their finding it appears that it had not been so paid over or applied, when demanded back by the plaintiffs.

Exceptions overruled.