delivered the opinion of the Court. — This is an action of assumpsit in three counts. The first alleges a special promise about a note, which clearly is not proved by the facts found and reported by the referee. The second count is general indebitatus assumpsit for money had and received ; and the third is a general count for goods- sold and delivered. The referee reports the fact, that the defendant had sold the note in question, before the same was demanded by the plaintifl at the last call, before the commencement of the action. This fact renders the defendant liable to the plaintiff on these general counts, provided the note was the property of the plaintiff. This overrules one of the objections made to the plaintiff’s recovering,, and brings us the principal question.litigated ; that is, whether the *48note in question was the property of the plaintiff, and ought to have been delivered up to him.

If seems, by the report of the referee, that this note, of about thirrteen dollars, was delivered by the plaintiff to the defendant in part payment for a horse, purchased by the plaintiff from the defendant, at the price of fifty-five dollars; and this under a further agreement, that, if the plaintiff should not, by a certain time agreed upon, furnish good security for the remaining value of the horse, he should deliver him back to the defendant, and the note should remain the property of the defendant. The security was not procured by the time agreed upon, and, soon afterwards, the plaintiff sent back the horse and demanded the note. The defendant made no objections to receiving the horse, but refused to give up the note. Now, it is contended by the plaintiff, that this sale of the note by the plaintiff to the defendant was void, being in the nature of a gambling contract. We have found no difficulty in deciding this point for the defendant. We discover-nothing like a deposit of this note subject to a future casualty, or event, in a way which characterizes gambling contracts. The defendant’s horse went into the possession of the plaintiff as the property of the plaintiff. He had a right to use him as his own. He had a right to sell him. If he had sold him for twenty or thirty dollars more than he gave for him, the gain would have been his. On the other hand, the defendant, while the horse was gone from him, not only lost the use of him, but was deprived of all power to make a sale, if any opportunity occurred. This may therefore be considered a fair contract, which the parties had an undoubted right to make, and in making which each could make his own calculations about the benefit of the contract to him, as well as he could as to what would prove to be the fair value of the horse.

We have had more difficulty about another point, suggested by the plaintiff’s counsel : that is, whether the recital in the report of the after conversations of the defendant with the agent, who took back the horse, and with the plaintiff himself, did not amount to a rescinding or abandonment of the contract. We think, upon the whole, that the most that can be made of this is,that it is evidence tending to prove such rescinding or abandonment. And we must treat this report like a special verdict. We can infer no facts from evidence : we can only say what the law is upon the facts •found. If the referee had, instead of detailing the evidence, reported such a rescinding or abandonment, we should have decid*49ed the contract at an end, and the defendant liable to the plain-7 1 tiff for the amount of the note he received under the contract before it was rescinded. Perhaps the referee would have been warranted in drawing the inlerence of a rescinding of this contract; though I confess I see some difficulty in it. The defendant’s strongest expressions, that he would give up the note, were accompanied with threatenings to sue for damages, when hé said he would give up the note. If we would view it as a promise, we find no consideration for the promise. And no circumstance is reported, and no conversation detailed, but what would leave it probable, that the defendant was equitably entitled to something from the plaintiff, on a settlement of the whole concern, if he gave up the note. Similar conversations while the ¡plaintifFbad the horse., and which might have induced him to return him to the defendant, would have had a stronger tendency to prove a rescinding or abandonment of the contract. But what is now said about the weight of the evidence detailed, I say for myself only. We are deciding the cause as upon a writ of error, and must decide upon the facts found. And, as the county court decided for the ■defendant upon these facts, their

•Judgement must be affirmed.