Opinion
Spring Sessions, 1837.
NARR. in assumpsit. Plea, the general issue, c.
Bates, for plaintiff.
Frame, for defendant.
Action to recover back money paid by mistake of a fact. Johnson, as the agent of one Willey, collected a debt due from plaintiff by bond; and, in calculating the balance due, he took, by mistake, $61 49 more than was due. The mistake was discovered, and Johnson notified of it, before he had paid the money over to his principal.
A witness was called to prove the indorsement on the back of the bond, of sundry payments, in the hand-writing of Willey and of Johnson. Frame, for defendant, objected that the object was to prove the bond, which could not be done without calling the subscribing witnesses.
Bates, contra, denied that the object was to prove the execution of the bond; the only purpose for which the witness was called being to prove the indorsement of credits or payments made towards the bond at sundry times; and the final calculation.
Frame. — It is apparent that the object is to prove the bond in this indirect and illegal manner. The action is for money overpaid. This cannot be shown by proof merely of the payments, without showing what the bond was. It must appear what was due, before it can appear that the sum due was overpaid.
Per curiam. — The witness may prove the endorsements, but that will not make the bond evidence, which must be proved in the usual way.
He afterwards proved an admission of the overpayment by Johnson to the amount claimed; and had a verdict under the direction of the court as to Johnson's liability.
Verdict for plaintiff.