Woods, J.
Several questions are presented by the facts found by the auditor’s report, and submitted :
1. On the third of January, 1842, the plaintiff gave his note to the defendant, payable to Hutchins & Buchannan, for $1,224,42, for considerations and purposes indicated in the report, and to which we shall have occasion, in the sequel, to advert more particularly. At the same time he gave him, or placed at his control, several notes of Allen and Deming, amounting in all to $500, besides interest, as collateral security for the note of $1,224,42. To provide further for the payment of this note, it was arranged, that the defendant should have the surplus avails of certain personal property, mortgaged to secure an earlier note from the plaintiff to him, and should also bring an action, and attach a certain equity of redemption, which the plaintiff had in some real estate. In pursuance of this arrangement, the mortgaged chattels were sold, and a surplus of $136,94 remained, after discharging the mortgage and expenses of sale. The equity of redemption was also sold, to satisfy the judgment recovered upon the note of $1,224,42, in [573]*573April, 1842, and tbe clear sum of $662,47 was realized. These sums being applied upon the judgment, with proper allowances of interest, there remained due $449,30. To pay this sum, the money received by the defendant upon the Allen and Deming notes, which were paid in full, was strictly applicable and must be treated as having actually been go applied, in an equitable adjustment of the claims between the parties. The excess, after satisfying the judgment, must clearly be regarded as money held by tbe defendant for the plaintiff’s use. There seems to be no reason, upon this state of facts, why an action of assumpsit for money had and received, does not lie to recover it.
2. When the plaintiff gave the note of $1,224,42 to the defendant, he was indebted in several sums of money, specified in the report, to the Grafton Bank, Mr. Underwood, Mr. Goodall, and Mr. Shedd. The amount of these several debts constitute a part of the sum of $1,224,42, and the defendant promised to pay them, and that was a part of the consideration for which the note was given. The debt due to Mr. Underwood he did pay, the others he did not; but, on the contrary, before the commencement of this suit, the sureties upon the note to the bank, were called on to pay the debt, and did pay it, and tbe plaintiff paid them; and the surety upon the debt to Mr. Goodall, had been sued, and suffered judgment. The debt to Shedd, was also left by the defendant unprovided for.
The defendant having, from tbe surplus of the mortgaged property, from the Allen and Deming notes, and from the sale of the equity of redemption, by means of an action and a judgment, instituted by an agreement of the parties for the express purpose, received into his hands money, which he agreed, when received, to apply to the payment of these debts, the question arises, upon his omission to pay them under the circumstances of this case, whether the plaintiff can recover the money in the present form of action.
On this head, it is a fixed principle of law that the merits [574]*574of a judgment can never be impeached by a counter action by the judgment debtor. The plaintiff cannot, therefore, in an action for money had and received, recover the money in question, upon the ground that the note, which was the foundation of that judgment, was wholly, or in part, without consideration, or that it was given for a consideration which failed.
But if one gives his note for a sum of money, the consideration of which is that the payee shall do a certain thing, the latter is surely not absolved, by bringing an action and recovering a judgment upon the note, from performing the act, the undertaking of which formed the consideration of the note. His refusal would lay the foundation of an action upon the contract.
If one, having received money in payment of his undertaking to perform an act, refuse to perform it, the other-party has the right to treat such refusal, or any degree of neglect that shall be equivalent to a refusal, as a rescission of the contract, and bring his action to recover back the price he has paid. This proposition is fairly involved in the decision of the case of Snow v. Prescott, 12 N. H. Rep. 535, which was an action to recover the price of chattels which had been delivered by the plaintiff to the defendant, and which the defendant had agreed to indorse on a note which he had held against the plaintiff, but which he did not indorse. It was held, in derogation of the earlier case of Tilton v. Gordon, that he might recover, notwithstanding the defendant had previously brought his action on the note, in which he recovered for the whole sum.
The defendant here promised the plaintiff to pay certain debts which the latter owed, and cannot deny that he was paid by the plaintiff for so doing. Instead of performing his promise, he has broken it. The plaintiff, instead of seeking redress in a special action on the case, on the promise, chooses to treat the contract as rescinded, and to recover back what he has paid.
[575]*575That the evidence amounts to showing a breach of the contract has been assumed. But, in the absence of any proof of the time when the defendant was to have paid the debts in question, and of the time when money sufficient to satisfy the judgment was received by him, which fact lay within his own knowledge, we will not surmise that such delay as the case shows, was, owing to any cause inconsistent with what has been assumed.
We, therefore, think the action well founded, as respects this item in the plaintiff’s claim.
3. The next inquiry relates to a receipt, signed by the plaintiff, which the defendant interposes against the action, so far as relates to the two items which have been considered, It purports to acknowledge payment for the property sold at auction, and the Allen and Deming notes, by an application of the amount on claims held by Hutchins & Buehannan and the defendant against the 'plaintiff. This receipt is contradicted, and its operation met by facts disclosed in the report, from which it appears that it was given at the suggestion of the defendant, for the purpose of concealing the funds he held, belonging to the plaintiff, from his creditors, lest they should be reached by a process of foreign attachment. And it is said that this explanation, by reason of the turpitude of the transaction, the plaintiff ought not to be permitted to offer; and that, therefore, the receipt must stand as uneontradicted evidenceof the fact stated upon its face.
If any innocent party had been misled by the receipt, and induced to give credit to any one by reason of it, there might indeed be some ground for denying to the plaintiff the privilege of showing that it was a sham, and an admission against the truth. But if any one has been so deceived, it is not he who now seeks to take advantage of the admission. It was made at his suggestion, for a purpose entirely foreign to the one for which he seeks to use it, and against what he perfectly well knew to be the truth at the time.
[576]*576Some facts are admitted, because they are believed to be true, and the admission is evidence of their truth, to be considered with other evidence.
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Woods, J.
Several questions are presented by the facts found by the auditor’s report, and submitted :
1. On the third of January, 1842, the plaintiff gave his note to the defendant, payable to Hutchins & Buchannan, for $1,224,42, for considerations and purposes indicated in the report, and to which we shall have occasion, in the sequel, to advert more particularly. At the same time he gave him, or placed at his control, several notes of Allen and Deming, amounting in all to $500, besides interest, as collateral security for the note of $1,224,42. To provide further for the payment of this note, it was arranged, that the defendant should have the surplus avails of certain personal property, mortgaged to secure an earlier note from the plaintiff to him, and should also bring an action, and attach a certain equity of redemption, which the plaintiff had in some real estate. In pursuance of this arrangement, the mortgaged chattels were sold, and a surplus of $136,94 remained, after discharging the mortgage and expenses of sale. The equity of redemption was also sold, to satisfy the judgment recovered upon the note of $1,224,42, in [573]*573April, 1842, and tbe clear sum of $662,47 was realized. These sums being applied upon the judgment, with proper allowances of interest, there remained due $449,30. To pay this sum, the money received by the defendant upon the Allen and Deming notes, which were paid in full, was strictly applicable and must be treated as having actually been go applied, in an equitable adjustment of the claims between the parties. The excess, after satisfying the judgment, must clearly be regarded as money held by tbe defendant for the plaintiff’s use. There seems to be no reason, upon this state of facts, why an action of assumpsit for money had and received, does not lie to recover it.
2. When the plaintiff gave the note of $1,224,42 to the defendant, he was indebted in several sums of money, specified in the report, to the Grafton Bank, Mr. Underwood, Mr. Goodall, and Mr. Shedd. The amount of these several debts constitute a part of the sum of $1,224,42, and the defendant promised to pay them, and that was a part of the consideration for which the note was given. The debt due to Mr. Underwood he did pay, the others he did not; but, on the contrary, before the commencement of this suit, the sureties upon the note to the bank, were called on to pay the debt, and did pay it, and tbe plaintiff paid them; and the surety upon the debt to Mr. Goodall, had been sued, and suffered judgment. The debt to Shedd, was also left by the defendant unprovided for.
The defendant having, from tbe surplus of the mortgaged property, from the Allen and Deming notes, and from the sale of the equity of redemption, by means of an action and a judgment, instituted by an agreement of the parties for the express purpose, received into his hands money, which he agreed, when received, to apply to the payment of these debts, the question arises, upon his omission to pay them under the circumstances of this case, whether the plaintiff can recover the money in the present form of action.
On this head, it is a fixed principle of law that the merits [574]*574of a judgment can never be impeached by a counter action by the judgment debtor. The plaintiff cannot, therefore, in an action for money had and received, recover the money in question, upon the ground that the note, which was the foundation of that judgment, was wholly, or in part, without consideration, or that it was given for a consideration which failed.
But if one gives his note for a sum of money, the consideration of which is that the payee shall do a certain thing, the latter is surely not absolved, by bringing an action and recovering a judgment upon the note, from performing the act, the undertaking of which formed the consideration of the note. His refusal would lay the foundation of an action upon the contract.
If one, having received money in payment of his undertaking to perform an act, refuse to perform it, the other-party has the right to treat such refusal, or any degree of neglect that shall be equivalent to a refusal, as a rescission of the contract, and bring his action to recover back the price he has paid. This proposition is fairly involved in the decision of the case of Snow v. Prescott, 12 N. H. Rep. 535, which was an action to recover the price of chattels which had been delivered by the plaintiff to the defendant, and which the defendant had agreed to indorse on a note which he had held against the plaintiff, but which he did not indorse. It was held, in derogation of the earlier case of Tilton v. Gordon, that he might recover, notwithstanding the defendant had previously brought his action on the note, in which he recovered for the whole sum.
The defendant here promised the plaintiff to pay certain debts which the latter owed, and cannot deny that he was paid by the plaintiff for so doing. Instead of performing his promise, he has broken it. The plaintiff, instead of seeking redress in a special action on the case, on the promise, chooses to treat the contract as rescinded, and to recover back what he has paid.
[575]*575That the evidence amounts to showing a breach of the contract has been assumed. But, in the absence of any proof of the time when the defendant was to have paid the debts in question, and of the time when money sufficient to satisfy the judgment was received by him, which fact lay within his own knowledge, we will not surmise that such delay as the case shows, was, owing to any cause inconsistent with what has been assumed.
We, therefore, think the action well founded, as respects this item in the plaintiff’s claim.
3. The next inquiry relates to a receipt, signed by the plaintiff, which the defendant interposes against the action, so far as relates to the two items which have been considered, It purports to acknowledge payment for the property sold at auction, and the Allen and Deming notes, by an application of the amount on claims held by Hutchins & Buehannan and the defendant against the 'plaintiff. This receipt is contradicted, and its operation met by facts disclosed in the report, from which it appears that it was given at the suggestion of the defendant, for the purpose of concealing the funds he held, belonging to the plaintiff, from his creditors, lest they should be reached by a process of foreign attachment. And it is said that this explanation, by reason of the turpitude of the transaction, the plaintiff ought not to be permitted to offer; and that, therefore, the receipt must stand as uneontradicted evidenceof the fact stated upon its face.
If any innocent party had been misled by the receipt, and induced to give credit to any one by reason of it, there might indeed be some ground for denying to the plaintiff the privilege of showing that it was a sham, and an admission against the truth. But if any one has been so deceived, it is not he who now seeks to take advantage of the admission. It was made at his suggestion, for a purpose entirely foreign to the one for which he seeks to use it, and against what he perfectly well knew to be the truth at the time.
[576]*576Some facts are admitted, because they are believed to be true, and the admission is evidence of their truth, to be considered with other evidence. Other admissions are made, for the express purpose of estopping the party from showing the contrary, -whether true or not. As the receipt in controversy clearly appears not to have been of the latter description, we know of no rule of law which precludes the party from showing that it was against the truth, even though it appear to have been made for an improper purpose. Stark, on Ev. P. IV. 29-34. This applies, also, to the plaintiff’s admissions to the deputy sheriff.
Where gifts or conveyances are made for fraudulent or other illicit purposes, the law will not generally disturb the party in possession; and courts do not lend their aid to enforce agreements against the principles or the policy of law, or having injustice or fraud for their object. But the receipt in question is evidence neither of a gift for an unlawful purpose, nor of an unlawful agreement. The plaintiff is seeking neither to avoid such a gift nor to enforce such a contract, by averring and proving the truth to be contrary to his written admission. The money came into the defendant’s hands for a purpose entirely lawful and proper. The receipt is exhibited as evidence that it has been fully.accounted for. The plaintiff seeks merely to show that the paper is not conclusive on that head, because it was executed and given for another purpose; for an object in which the two parties participated, and whether lawful or not, is a question which in no way applies to the real matter of inquiry.
4. By chapter 189, section 1 of the Revised Statutes, the courts are authorized to appoint auditors, whenever it shall appear that “ an investigation of accounts or an examination of vouchers is necessary in any action.” But the defendant contends that some of the items in the specification were not proper to be submitted. Without dwelling upon the difficulty there might sometimes be, in submitting a part only of the items in a specification to an auditor, we [577]*577think the receipt which has been subject of comment in this case, was a voucher fit to be submitted to the examination of an auditor, and that it was applicable, for it was sought by the defendant to be applied to the items, to the submission of which he excepts. Besides, the action had for its precise and leading object, to compel the defendant to account for the various sums of money that had passed to him from the plaintiff, as well as those sums that had accrued from property entrusted to him to sell, and to apply to the payment of the notes due from the plaintiff to him, as those sums which, having been entrusted to the defendant for specific objects, which had failed, the plaintiff claimed to charge him with. In every aspect, the action required an investigation of accounts and examination of vouchers.
5. The same chapter of the statute (§ 6) makes it the duty of either party to answer, upon oath, such interrogatories relating to the matter in controversy, as may be pertinent and material, and visits his refusal to do so with the consequences of a contempt. It does not appear that he answered any other than such interrogatories, nor what, in fact, were answered by him. The statute appears to allow a wide range, and yet there are limits, no doubt, to the range, which an examination of a party by an auditor may take. But there is nothing apparent in this case, which requires that these limits should be indicated. The argument of the defendant, indeed, seems, in conceding that this exception was involved in that which related to the reference of the case to the auditor at all, to admit that the examination was not improperly conducted, with respect to the subject-matter of it.
6. An objection is made that depositions taken, to be used on the trial of the cause, were used before the auditor. The investigation, by the auditor, must be considered as itself the trial, or at least a part of the trial, within the meaning of the statute, which provides for taking and using depositions on the trial of civil causes. The long and imme[578]*578morial practice of making this use of depositions must be held to be a construction of the statute to that effect, too well established to be broken in upon.
7. The deposition of Nowell was taken in the State of Illinois, November 26th, and the notice was served on the 5th, leaving twenty days intervening, which, by the rule of the court, is sufficient.
8. Another objection to the deposition is, that it was notified to be taken at the house of Joseph Moore, Esq., and was taken at the house of Joseph H. Moore, Esq., the defendant not being present.
This raises a question of some practical importance, whether the omission of the initial letter between the Christian and surname is a variance. The authorities on the subject are traced to the time of Lord Coke, who lays it down that one can have but one Christian name, and that he may, at his discretion, use the one which he received in baptism or at confirmation. But this rule, to conform with subsequent authorities, must be taken with a modification, and the one name may be made up of a plurality of names. As in Arbounin v. Willoughby, 1 Marshall 477, where the defendant was sued by the name of William, his whole name being Hans William, Lord Chief Justice Gibb observed, in effect, that the omission was material, and made the rule absolute to set aside the proceedings on that ground. Also in Commonwealth v. Hall, 3 Pick. 263, Morton, J. “ The roll of "White’s company contained the name of Charles Hall, but not the name of Charles Jones Hall. Charles Jones is the respondent’s name. It needs no argument to prove that Charles and Charles Jones are different names. In the case of Hutchins v. Gibbie, 2 Chit. 335, where the plaintiff’s name was stated, in the commencement of the declaration, to be James Toll Hutchins, and the defendant demurred specially that he was named in the sequel as (t said James,” it was held sufficient; because non constat that Toll was not part of the surname. These cases pro[579]*579eeed upon the ground that when the Christian name by which the party is known is composed of a plurality of names, they must be taken together as essential parts of the one Christian name. Commonwealth v. Perkins, 1 Pick. 388.
But there is another class of cases in which between the Christian and surname there were interposed one or more initial letters, and it did not appear what those letters stood for, if for any thing.
In Keene v. Meade, 3 Pet. S. C. Rep. 1, a commission had been issued and depositions taken under it. In the commission the name of the original plaintiff was written Richard M. Mead, which in fact was Richard W. Meade, and was so in the return of the commission. The reading of the commission was opposed on account of the variance.
Mr. Justice Thompson, in delivering the opinion of the court, observes, “ It may well be questioned whether the middle letter formed any part of the Christian name of Meade. It is said the law knows only one Christian name, and there are adjudged cases strongly countenancing, if not fully establishing that the entire omission of the middle letter, is not a misnomer or variance ; and, if so, the middle letter is immaterial, and a wrong letter may be struck out or disregarded.”
In Franklin & a. v. Talmadge, 5 Johns. 84, a deed was, on trial, offered in evidence conveying the locus in quo to Abraham Franklin, Samuel Franklin, and William T. Robinson. The defendant’s counsel objected to the deed, on account of the variance as to the name of Robinson. The plaintiff’s counsel offered to show that he was known by the name of William Robinson, as well as by that of William T. Robinson, and was called sometimes by one name and sometimes by the other. The court held “ the addition of the letter T, between the Christian and surname of one of the plaintiffs, did not affect the grant, which was to be taken benignly for the grantee. It was no part of his chsis - [580]*580tian name, for the law knows only of one Christian name. (Co. Lit. 3 a; 1 Lord Ray. 562; Viner. tit. Misnom. C. 6, pi. 5, 6.) And it was perfectly competent for the plaintiff to have shown, if necessary, that one of the plaintiffs was known as well with as without the letter T. in the middle of his name, though even that was not requisite in the first instance, nor unless made necessary by testimony on the part of the defendant.”
To a like effect was the case of Rosevelt v. Gardner, 2 Cowen 463, in which the omission of the initials V. Si from the name of Cornelius V. S. Rosevelt was held to be immaterial, because “the V. S. were no part of Cornelius Rosevelt’s name.”
To the same point are the cases of Alexander v. Wilmarth, 2 Aik. 413, and Isaacs v. Willey, 12 Vermont Rep. 674. In the last-named case, Redfield, J., remarks : “ I do not find any case in which it has been decided that a middle letter is any necessary part of the name ;” and proceeds to distinguish the cases in which there are two or more Christian names, from those in which there is only the initial letter interposed between the Christian and the surname.
We think that a man may be known by two or more names, which, taken together, constitute his Christian name. But that it lies not with any one to say that he is commonly known by a name composed of an appellative word, preceded or followed by a letter only; and we think that, in reading, the initial letter may be omitted, as no part of the name or word by which the person is known. This exception, therefore, fails.
9. A question is made whether, in this action, the plaintiff may recover a small amount which, being due from Pennock to the plaintiff, was, by the consent of all the parties, used and applied to pay alike amount which the defendant owed Pennock. In other words, Pennock, having in his handsmoney belonging to the plaintiff,the defendant received the benefit of it. In this aspect, the present form of action [581]*581would seem to be appropriate. Or, as in the case of Heaton v. Angler, 7 N. H. Rep. 397, the plaintiff released Pennock and took the defendant for the debtor in his place. By the principle of that decision, he could not recover of Pennock. He must recover of Hutchins, if at all; and it would be difficult to find a more appropriate remedy than the present form of action; for the consideration which passed to Hutch-ins was money which Pennock had, belonging to the plaintiff. Willie v. Green, 2 N. H. Rep. 333. In short, it was arranged and agreed that Pennock’s money, in the hands of Hutchins, should remain there for the use of the plaintiff, and be by the defendant had and received for the plaintiff’s use.
10. The principle upon which the auditor seems to have cast the interest was correct. It does not appear when the Allen and Deming notes were paid, except that it appears that they were paid before this action was commenced. Interest was cast to the date of the writ, and the defendant was made accountable for it, which was sufficiently favorable to him.
Interest was cast upon the balance due upon the defendant’s judgment against the plaintiff to the same point of time, and then the balance of the judgment, together with, the interest thus found, was deducted from the amount of the Allen and Deming notes and interest. The defendant was accountable for the just amount of the Allen and Deming notes, at the date of their payment. So was he entitled to the balance of the judgment due to him, and interest thereon at the date of the payment of the notes. Interest should be cast' on the balance of the Allen and Deming notes, after deducting the unpaid remainder of the defendant’s judgment, and interest on that balance, cast to the time of the rendition of the judgment in this case.
Upon the facts contained in the report, there should be judgment thereon.
Judgment on the report.