We are clearly of opinion that a verdict for the plaintiff would be well maintained by the evidence, and that a verdict for the defendants could not be sustained upon the facts proved, as to which there is no conflicting evidence.

The only defence relied on is, that there is no privity ol contract between the present parties, and that the action should have been brought in the name of Stephen Stevens’s administrator. But there is no ground for this defence. The money now sued for was paid by the plaintiff, not as the agent or attorney of Stephen Stevens, who was only a nominal party. The plaintiff was the sole party in interest, and he paid the money, on his own account, which he was obliged to pay, on a consideration which has failed ; and this shows a privity of contract implied' by law. In the cases cited in support of the defence, it appeared that the money paid was paid by an agent. The contrary is proved in the present case; for the plaintiff paid his own money, and in no sense can he be considered as the agent of Stephen Stevens. Judgment for the plaintiff would be a good bar to an action by the administrator of Stephen Stevens.

Defendants defaulted.