Curia, per

There was no proof that the defendant had information of the various relations which subsisted between the plaintiff and McNeill, and no ground for imputing to the defendant any collusion with McNeill to injure the plaintiff. I thought on the circuit that the evidence authorized the conclusion, that under the circumstances, the plaintiff was bound by McNeill’s contract to barter a buggy for his note, just as if the barter had been for provisions or materials. This court assents to this view; and directs me to assign an additional ground in support of the decree.

If the plaintiff had,a right to disaffirm McNeill’s contract, and has done so, there has been no sale: the buggy is yet the plaintiff’s : — the defendant has not received money for it, and so the plaintiff cannot waive the tort and maintain assumpsit for money had and received: — the plaintiff, instead of holding the defendant responsible for money which she had not agreed to pay, should have demanded the buggy, and brought his action for it.

The motion is therefore dismissed.