citation">28 N.H. 513, is in point. There, the plaintiff, Winkley, having assumed to pay money to the defendant, Foye, on behalf of one Leighton, it was held that the defendant, having received the money as the money of Leighton, the plaintiff could not recover the money as his own money. So, here, the defendant, *Page 13 having received this personal property either of the wife and as her personal property, or of the husband and wife as their personal property, could not be answerable for it to the husband alone. The contract was either with the wife, or with the husband and wife; and the defendant, if the contract were rescinded, would be answerable to the party or parties from whom he received the personal property, and with whom his contract was made.

The husband could not elect, as it seems to me, to rescind the contract, and he certainly did not by bringing the action in his own name; and the case finds that there was no rescission, at all events before the commencement of the action.

The contract could only be rescinded by the parties who made it, and therefore the husband himself could not rescind it. It was necessary, also, in order to rescind the contract, that the parties should be placed in the same condition as when it was made. It was necessary that, before the action was commenced, the consideration should be restored; — and, even on the supposition that the rescission would avoid the defendant's notes so that it would be enough to surrender them at the trial, it was necessary, also, to restore the notes taken as collateral, and this, whether they were of any value or not. Then, the defendant had expended labor and money in repairs. Pars. on Con. part 2, ch. 3 sec. 3; Cook v. Gilman, 34 N.H. 556; Evans v. Gale, 21 N.H. 240.

In Cook v. Gilman, PERLEY, C. J., says, — "The case of Evans v. Gale is an authority to the point that when a party has possession of a promissory note, which he ought to return in order to maintain an action, he cannot excuse the neglect to return by proving to the jury that the note was worthless."

If the plaintiff had been the sole contracting party, and so the person who might rescind, still he had not done it, and, as it appears to me, could not do it.

If these views are correct, the only cause of action which the plaintiff in the outset had or could have, was the over-due indorsed note, and the action was properly brought to recover the amount due on that note.

We learn from the plaintiff's brief that the action was originally brought by other counsel, who was ill at the time of the trial; that he obtained such information as he could by the aid of the wife of the former counsel, — and this, I suppose, accounts for the comedy of errors which seems to have been played. The counsel for the defence objected that the plaintiff could not recover, because he had not surrendered the notes, and for other reasons. The referee appears to have sustained the objections. On what particular ground, or whether on all the grounds, does not appear. The counsel placed the notes in the hands of the referee, stating that he did not seek to recover upon them in the suit; and the matter went back from the referee to the court.

What was the effect of this? It appears to me that it was partly matter of fact, as well as matter of law. If the plaintiff had had a *Page 14 right at that time to effect a rescission, and by surrendering the notes had done so, I think he would have been bound by the act. But it appears that he had not a right to rescind, not only because, as I have suggested before, he was not the proper party, but also because the notes — at least, those held as collateral — ought to have been surrendered before the action was commenced. What the plaintiff did, therefore, could amount to nothing more than an offer to correct his supposed mistake by surrendering the notes at that time. But the defendant persisted in his objections, and the case does not show that he withdrew any of them. I think, therefore, that here was no election completed, but that the plaintiff might properly be permitted to withdraw his offer to surrender the notes.

The case does not show that any objection was made to the amendment, or the recommitment, or that any further hearing was desired than was had. The only question which appears to have been raised was as to the ruling of the court permitting the note to be resumed by the plaintiff and made the foundation of a judgment. Under all the peculiar circumstances of this case, I think it was right that this should be done. It appears to have been the only mode of working out anything like justice between the parties, and I can see no objection in point of law.

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