delivered the opinion of the court.
This was an action of indebitatus assumpsit for money had and received, money lent, &c.; and the chief question is, whethey the promissory notes in the hands of the plaintiff below, as bearer, were properly admitted in evidence under sucha count?
It is clear, that as well before as .since the statute making notes negotiable, the person named as payee might give such note in evidence, under the general counts for money lent, or money had and received, Sec. (Clerke v. Martin, 2 Lord Raym. 755. Story v. Atkins, 2 Stra. 719. Grant v. Vaughan, 3 Burr. 1516. Smith v. Smith, 2 Johns. Rep. 235. Arnold v. Crane, 8 Johns. Rep. 81.)
- The statute of Anne gave an additional remedy, but did not take away the old one.
. That statute, as we have adopted it, enacts, “ that all notes in writing, made and signed by any person, &c. whereby such person, "&c. shall promise to pay to any other person, &c. his or their order, or unto bearer, ,any sum of money therein mentioned, shall, by virtue thereof, be taken and construed to .be due and payable as therein expressed; and shall have the same effect, and be negotiable in like manner, as inland bills of exchange,” &c.
The effect of this statute is twofold : first, in making a promissory note- evidence, per se, of money due; so that it may be declared on.like a specialty; and, secondly, in making it negotiable.
If, as all agree, such a note, before the statute, was evidence of money due from the maker to the payee, so as to support a .count for money had and received, I can see no good reason . why an assignee, by endorsement or delivery, ought not to have the same remedy. It was the object of the statute to place the assignee in the same relation to the maker, as the payee stood in before; and the legal operation of the transfer is, that the money which, by virtue of the note, was due to: the payee from the maker, is now due from the maker to the assignee.
.These notes were payable “ to William Douglass, or bearer,” like the form used in bank notes. “ Bearer is descript ¿o per-¡ soncc of the real payee.} It may be that William Douglass had no knowledge of the note, or is a fictitious person. The noté, however, is transferable by delivery merely, and possession was evidence of property in the plaintiff below, prima facie.
*94' It is objected by the counsel for the defendant, that here is no privity of contract between these parties ; and several authorities were cited to show that indebitatus assumpsit- will, not "lie# except between privies.-’ ; ■ “ ■
To this objection there are two answers: first, there is a legal privity of contract between the maker of a negotiable note and the assignee or bearer in this case. It is a contract to. pay the money to whoever may become entitled to it by transfer, as bearer; and such privity commences as soon as the bearer becomes so entitled. Secondly, it is not true .that-the action for money' had and received can only be grounded on privity of contract. It lies- against the finder of money lost. It is the proper action to recovér money obtained by fraud or deceit. If a man, without my authority, receive money due to-me, • I may recover it of him in this form of action; and 'certainly, in these eases, there is no privity of contract. ' - .
Another objection is, that this general form of action subjects the defendant to unfair surprise.; This objection is too large. It would apply with equal force to all the cases above stated, and to many others in which this action is confessedly appropriate. And besides, the defendant may always protect himself against surprise, by demanding a bill of particulars.. (Tidd’s Prac. 534.)
in the case of Waynam v. Bend, (1 Campb. N. P. 175.) precisely like the present case, Lord Ellenborough decided that the right of giving a promissory note in evidence under the gene-, raí money coxxnts, - is coüfinéd: to the original party to whom It was made payable; But this was a nisi prius opinion; and as the plaintiff in that cáse recovered.on another count, as endorsee of the same note, it. never became material to revise that decision. ... ...
That opinion of Lord Ellenborough contradicts the decisions of several of his illustrious predecessors.
In the case of Tatlock v. Harris, (3 D. & E. 174.), it was decided that an endorsee of á bill of exchange may recover' against the accepter, under a count for money had and received, and Lord Kenyon there says, “ In making this decision, we do not mean to infringe a rule of law, which is very properly settled, that a chose in. action cannot be transferred ; but we consider it as an agreement between all the parties-to ap*95propriate so much property to be carried to the account of the holder of the bill.”
In the case of Grant v. Vaughan, (3 Burr. 1516.) it was deeided that indebitatus assumpsit for money had and received, was a proper action to recover the value of a bill of exchange, by the bearer against the drawer; and Lord Mansfield there says, « Undoubtedly, an action for money. had and received to the plaintiff’s use, may be brought by the bona fide bearer of a note, made payable to bearer. There is no case to the contrary.” The case of Cruger v. Armstrong and another, (3 Johns. Cases, 5.) supports the same doctrine.
Another exception to the record in this case is; that .the judgment purports to be rendered upon a verdict for 27 dollars and 55 cents, whereas it appears by the bill of exceptions that the verdict was for 25 dollars and 55 cents only.
To this I think it a sufficient answer, that it is not strictly the office of a bill of exceptions to ascertain the amount of the verdict. The clerk received and enrolled the verdict under the direction of the court, and we must presume the record to foe made up according to the official entry of the clerk, which is the best evidence in the case.
The court are of opinion that the judgment below ought to •be affirmed.
Judgment affirmed,