This was an action for money had and received, and grew out of the purchase by plaintiff from defendant, of the lease of a lot in San Francisco. The complaint sets forth the lease, originally made on the 16th Oct. 1849, by Jonathan Cade to A. Deon & Co., for three years, for the sum of $40 per month, which lease Deon assigned as a security for $1000 due to the assignees, which assignment was cancelled by payment ,of the debt, by which Deon was remitted to his former estate, and then, on the 18th December, 1849, assigned the same to Charles H. West, the defendant. West, on the same day, assigned to William Lenning; who, on the 21st February, 1850, assigned to Van Wagner; who, on the 29th May, assigned to Elliott; who, on the 30th April, assigned to Wilson. All of which assignments to the several parties named, were regularly recorded. _

The complaint further states, that at the time of the sale of the lease to him, Elliott was the actual owner thereof, which West, the defendant, well knew, yet fraudulently, &c., pretended to be the owner, by selling the same to the plaintiff as his own property, concealing from the plaintiff the fact of his previous assignment, of which plaintiff had no actual notice. By which fraud, &c., defendant has received $500 of plaintiff’s money, and plaintiff is accountable for ground-rent to the amount of $120, and has sustained damage, &c.

The defendant demurred to the complaint, which was overruled; and then answered, that the assignment from defendant to Lenning, was made by way of mortgage, to secure the payment of borrowed money, which was afterwards repaid. And the lease was then assigned by Lenning to Van Wagner, at the request of defendant, by way of mortgage, and as security for money borrowed by defendant of Wagner. That the money so borrowed was paid to Wagner, who assigned the lease to Elliott, by way of

mortgage, and as security for money borrowed from Mm by defendant ; and that Elliott had no other or greater estate therein. And if any other was-attempted to be conveyed, &c.j, it was without the knowledge or consent of the defendant. The answer then denies all the other averments in the complaint, and avers further, that the defendant had power and could have transferred the lease to the plaintiff, at the time mentioned in said complaint, free from all incumbrance, .upon receipt of $1000; but that no person ever made demand upon him therefor.

The parties waived a jury, and the cause was tried by the Court, who found for the plaintiff, $620, with interest on the sum of $500 from 9th of Aug., 1850, and on the sum of $120 from this date. And judgment was entered accordingly; from which defendant appealed.

A great many exceptions were taken in the course of the trial, and to the opinion of the Court below; but as the Supreme Court have not deemed any of them of sufficient importance to ask for their interference, and have not passed specifically upon either of the errors, the reporter merely adds to the respective statements of the parties the opinion of this Court.