was of opinion that the action will lie. See the case of Dunlop v. Silver [Case No. 4,169]. MARSHALL, Circuit Judge, contra.
2. The plaintiff cannot recover on the simple •count for money had and received. Because it tends to surprise the defendant. Wood v. Carr’s Ex’rs, 1 Call (Va.) 232. But this objection was unanimously overruled by the •court.
3. The evidence relied on to prove the usury, ■was that the note with the indorsement of the defendants and McClenachan was put into the hands of Simms, a broker, to raise money upon. With the note, which was for ■31500 at 60 days, Simms purchased flour from Scott which he sold for $1200 cash, and paid it to McClenachan.
THE COURT refused unanimously to instruct the jury that the transaction was usurious.
A bill of exceptions was taken on the two first points, and the judgment reversed in the supreme court of the United States. See 1 Cranch [5 U. S.] 290.