Page:Federal Reporter, 1st Series, Volume 9.djvu/596

SIMMONS V. SPENCER. S 81 �to call Newell as a witness would arise. Such a proceeding would be wholly within the control of the attorney general, (Mowry v. Whit- ney, 14 Wall. 441,) and the most that caa be said is that it is possi ble that the plaintiff's right to the testimony of the witness could be preserved by a proceeduig taken in the name of the United States, assuming, but not deciding, that the power to institute such a pro- ceeding exists. Such a possibility affords no reason for refusing to entertain the bill under consideration. �There must be judgment for the plaintiff upon the demarrer, with laave to answer on payment of costs. ���SiMMONS V. Spenoee and others. (Circuit Court, D. Colorado. 1881.) �1. Pleading— Joint Action on Contract. �In an action against t.wo or more as for money had and received, a complaint is demurrable which shows that the money was received otherwise than jomtly. �2. Case Statbd. �Certain deeds were left with a bank to be delivered on the payment of a specifled sum of money, which it was instructed to place to the plaintiff's credit. The money was paid in and turned over to a third party. No credit therefor was given. Held, that a joint action as for money had and received could not be maintained against the bank and the third party �Euling on Demurrer. �S. P. Rose, for plaintiff. �H. B. Johnson, for defendants. �Hallbtt, D. J., (orally.) The first and second counts of the com- plaint set forth, in substance, a sale of certain property, which the plaintiff alleges belonged to him, and conveyances from the plaintiff to McCartney, and from McCartney to the defendant Spencer, which conveyances were deposited with the Merchants' & Mechanics'-JBank of Leadville, to be delivered upon payment of a sum of money, amounting to $20,000, for the use of the plaintiff. By instructions given upon the leaving of the deeds with the bank, the money was to be deposited to the credit of the plaintiff in this suit. Plaintiff •received $7,000 of this sum, and $13,000, which was afterwards paid by the purchaser, whoever he may be, was not by the bank placed to the credit of the plaintiff, but was, in fact, turned over to the defendant Spencer. And upon this state of facts it is claimed that a liability bas arisen upon the part of all the defendants to pay the plaintiff this sum of $13,000. The structure of these two counts ��� �