¶1delivered the opinion of the court.
¶2We will in the first place consider how the law is with respect to this money as between the plaintiff and Ches-ley. It is very apparent from the case stated, that Ches-ley obtained the money from the plaintiff through a gross fraud and imposition by a sale of property, to which he knew he had no title ; and that the consideration, on which the bills were paid by the plaintiff to Chesley has altogether failed. ⅜ ,
¶3It cannot then admit a doubt that the plaintiff has a right to consider the contract between him and Chesley as rescinded and to recover back the money, which has been paid under it, from Chesley in an action for money had and received. Chesley could acquire no legal title to the money by such a contract, and the hank bills he received may be legally considered as remaining the property of the plaintiff.
¶4Then how stands the law between the plaintiff and this defendant. Chesley delivered the bills thus belonging to the the plaintiff to Foss. For what purpose they were delivered does not appear. Foss does not pretend that they were delivered to him for his own use. As they were delivered after Foss had arrested Chesley as a thief the presumption is, that they were delivered for safe *296keeping or for the purpose of being restored to the owner. Foss then must account for the money and the real question is whether he shall account for it with the plaintiff, to whom it belongs, or with Chesley, to whom it does not belong ? On this question it seems to us, there can be no diversity of opinion. It is a fair presumption from the nature of the transaction, as disclosed in this case, that Chesley delivered the money to Foss for the purpose of having it restored to the true owner, and that Foss received it for that purpose. That being the case, it is well settled, that this action may be maintained.
¶5We are not aware that there is any rule of law, which required the plaintiff to shew a demand in this case.
¶6Judgment for the plaintiff.