This was an action for money had and received, &c. brought by Ralston, as assignee of Dewhurst, a bankrupt, against the defendant, who had sold goods of the bankrupt, by virtue of an authority from him; but, it appeared in evidence, that no money had been received by the defendant, at the time of commencing the action.

The counsel for the defendant (Ingersoll, Lewis & Dallas) objected, that, on this evidence, the present action could not be maintained.

The counsel for the plaintiff (Rawle & Wilcocks) after some remarks, and citing Doug. 132, submitted to the decided inclination of the Court, and suffered