Opinion oe ti-ie Court by
Judge Kobertson :As the appellant, on the representation by the appellee, that he was the assignee and owner of the note on James Henry, paid him $215 for an order on the said James for that amount. If that representation was false, the appellee was guilty of a fraud which made him liable, on an implied promise, to refund the money so paid to him by the appellant. And if the appellee was assignee and owner of the note, he was guilty of a fraud in collecting the whole amount of the note, or contriving to have it paid to the obligee’s widow when he knew that his order had not been accepted, even if the order had been a bill of exchange ahd he had no notice of its non-acceptance; because he could have lost nothing for want of notice, whether he owned the note or not, and, on that hypothesis also, the law implied a promise of restitution to the appellant.
The circuit court therefore erred in its instruction for the appellee, inconsistent with this opinion. Wherefore the judgment is reversed and the cause remanded for a new trial.