We do not discover any error in this record which would warrant a reversal of the judgment. It is said that the jury must have found for the plaintiff on the first cause of action stated on the complaint, and it is objected that there was no evidence whatever tending to prove that the defendant ever received any money from the town of Hudson for his use. It, however, appears from the bill of exceptions that the defend-' ant, as a part of his own case, proved that he applied to the town for the bounty of two hundred dollars, and that, upon showing that the plaintiff had enlisted as his substitute and had been credited to the town on its quota, he was paid the bounty which the town was at the time paying, namely, the sum of $200. It appears, then, that the defendant did receive that sum from Mr. Matteson, the committee authorized to pay bounties for the town. But it is now objected that there was no law then existing which authorized the payment of bounties to persons furnishing substitutes, and that the bounty could only be paid to the volunteer himself, or to some one for *474bis use. All tbis may be admitted, and yet it may be true that tbe defendant really recéived tbis bounty as and for tbe plaintiff. It might well be assumed from tbe facts, that tbe town authorities saw fit to treat tbe plaintiff as a volunteer who was entitled to, tbe bounty, since be bad enlisted and bad been credited on its quota. Perhaps tbe town officers took this view of tbe matter. It is to be remembered that there is no one here objecting on behalf of the town that there has been a misapplication of its funds, ánd that tbe plaintiff is not entitled to receive.the money. Nothing of the kind. Tbe town has paid tbis bounty, and does not object, that tbe plaintiff should recover it. Why, then, should this defendant be permitted to raise the objection and say, “ True, I received tbis money from the town, but there was no law which authorized tbe payment of bounties to .any persons except volunteers, aiid, although I agreed to pay it over to tbe plaintiff, yet I choose now to retain it myself, and interpose a defense for tbe town that tbe plaintiff was ‘a' substitute and not entitled to tbis bounty.” Such a defense comes with ill grace horn the defendant.
On tbe trial, tbe plaintiff testified that' the undertaking and agreément between him and'the defendant was, that be was to receive this bounty money. And’ the plaintiff further testified that’he asked the defendant bow much it was, and tbe defendant replied that be thought it was $200, and that, if it was not that much, lie would give the $200, any why. There was surely 'a good consideration’for such a promise.
Tbe court, upon tbis point, instructed the jury that, if they should find-from the evidence that tbe agreement was that the plaintiff should have the to-wn bounty, as a part of the consideration for going as a substitute for the defendant, then the plaintiff was entitled to recover it in tbe action. Tbe jury either found that tbis agreement or undertaking was entered into between tbe parties, or they must have found that the defendant agreed to pay tbe plaintiff $200, in any event, besides letting him have the horse spoken of in tbe testimony; and, *475wbicb ever conclusion tbe jury reached upon the evidence, the verdict is right. In the former view, the bounty,'in equity and good conscience, belongs to the plaintiff, and the defendant may well be held to. have received it for his use from the town. And in the latter case, the defendant owes- the plaintiff. $20.0, which he agreed to. pay him “any way.” True,--if-the defendant agreed, to .pay the-plaintiff $200 as-a párt-bf the'consideration for the latter enlisting-as his substitute, his cause of aetion was this express agreement or contract, and not the money had and received. But all the evidence on both sides about the agreement for -the enlistment; was-admitted without-'objection. If. there-was any variance between the cause of action'stated in the complaint and the one proven on -the trial, the objection could have been obviated by an amendment. But no-, question of that-kind was raised in the court below.
In our view, the only-question we' have to consider is;‘Whether there is any evidence tending to support ' the veidict. We think there is. .There is testimony which tends strongly to .show that the agreement-between-the parties wasj>that the plaintiff was to have the bounty money paid: by; the' town. If so, it is very plain that the $200 belongs ex cequo et. bono to. the plaintiff and not to the defendant. If the defendant agreed to pay the plaintiff $200 in any event, (besides; the horse), as the consideration for the latter enlisting as his substitute,1 he has still less ground for complaining -of the verdict. The technical objection that (the plaintiff did not attempt to recover on the ■latter ground, would be disregarded-here, even-if-made.
By the Court.— The judgment of the-circuit court is affirmed.