Horn

— Appeal from judgment and order denying defendant’s motion for a new trial.

' Action to recover money alleged to have been collected on a note by defendant as plaintiff’s attorney. It is charged that the defendant received from the debtor payment and satisfaction in full, both principal and interest, and thereupon canceled and surrendered the note to the maker; that defendant has failed and refused to pay to plaintiff the amount recovered, or any part thereof, “and now refuses to. pay the same, or any part thereof, and now wrongfully withholds the same from plaintiff.”

The defendant admits receiving the note, but denies receiving it as plaintiff’s attorney, and avers that plaintiff and defendant were both creditors of one White, and consulted in regard to the prospect of collecting their debts, and that defendant, with the full consent of plaintiff, finally agreed with White to surrender all the notes held by himself and plaintiff to White in consideration of the assignment to them of White’s interest in a certain contract, to which White was a party; that the contract was assigned to defendant with plaintiff’s knowledge and consent in pursuance of this agreement, defendant…