
    Thomas H. Henderson vs. The Plasters’ Bank of Fairfield.
    
      Mistake, Money paid by.
    
    H., the drawer of an accepted bill of exchange, payable at New Orleans, at thirty days, negotiated it to the bank. The bill having been protested for non-payment, H. paid the amount tp the bank, but at that ■ time the bill had been paid by the acceptor, (who had accepted for the accommodation of H.,) to the agent of the bank. This was then unknown, either to EL, or the bank: — Held, that H. was entitled to recover from the bank the amount paid by him, as so much money paid by mistake — although the bank claimed the right to apply it to the account of the acceptor.
    BEFORE O’NEALL, J., AT FAIRFIELD, .FALL TERM, 1857
    Assumpsit for money paid by mistake.
    The plaintiff, on the 20th. March, 1855, negotiated to the defendant at Winnsboro’,'a bilLof exchange, drawn on, and accepted by John M. E. Sharp, for one thousand and twelve dollars and fifty cents, payable thirty days after date in New Orleans, and received the nett proceeds of the bill.
    This bill of exchange, which had been accepted for the accommodation of the plaintiff, not being paid on presentation in New Orleans, was duly protested for .non-payment, and notices thereof were forwarded by mail to the defendant and plaintiff. The protest bore date 21st April, 1855. Afterwards, to • wit, on the „ 7th May, 1855, the plaintiff, at the request tíf the defendant, paid into the bank of defendant one thousand dollars, on account of said bill of exchange, and took a receipt for the amount, the bill at that, time being supposed, by defendant, to be in the hands of their agent in Mobile, Alabama. But the bill had been paid off, and taken up by John M. E. Sharp, in New Orleans, on the 26th of April, 1855. This fact of payment was unknown to the plaintiff, ór the defendant, or its bank officers in Winnsboro’, at the time the payment of one thousand dollars was made by the plaintiff to defendant, on 7th May, 1855.
    The defendant had placed the amount paid by the plaintiff, (one thousand dollars,) to the credit of John M. E. Sharp, who was a customer, and had considerable dealings with the defendant’s bank at Winnsboro’.
    The plaintiff having possession of the bill of exchange, on the 17th January, 1856, endorsed an order on the receipt given to him by the defendant, directing the defendant to pay the amount (one thousand dollars) to P. M. Huson, which, on presentation and demand at the bank, was refused. John M. E. Sharp died intestate, in October, 1855, at Montgomery, Alabama, and- John -H. Pearson had taken out letters of administration on his estate, from the ordinary’s office in Columbia, of this State.
    “I thought,” said his'Honor, in his report, “the plaintiff was entitled to recover. The only point made by the defendant was, that the bank had applied the payment, by Sharp, of the protested bill, to his credit, and had furnished him with an account to that effect before his death, and before the protested bill was returned to Henderson.
    “ But of this there was no distinct proof. The circumstances relied upon were left to the jury. They found for the plaintiff.”
    The defendant appealed and now moved this Court for a new trial:
    
      Because tbe refusal by Sharp to pay the bill at maturity, and notice thereof to Henderson, imposed upon Henderson the legal obligation to- pay it as drawer, and payment by Sharp, after protest, and without notice to Henderson of such payment, was irregular, contrary to the usual and due course of business, and therefore at his own risk, and gaye him no right of action against Henderson; his only remedy was against the bank.
    
      Boylston,Me Cants, for appellant.
    
      Bauslceit, contra.
   Curia, per O’Neall, J.

In this case the Court is satisfied with the yerdict.

It is plain, that Henderson paid the money on a mistake in fact, induced by the defendant. For the bank, as appears by the receipt, told him -that his draft was protested, and was in the hands of the bank’s agent at Mobile, on the 7th May, 1855.

It was true, the draft had been protested for non-payment by the acceptor, but had been subsequently, to wit, on the 26th of April, 1855, paid and taken up by him. So that when the bank required payment by Henderson, it and he were alike mistaken, as the draft had been previously paid, and was not in the hands of the bank’s agent at Mobile. It seems to me that this makes it plain, that Henderson was entitled to recover the money' as paid by mistake.

That the draft was accepted by Sharp for the accommodation of Henderson, can make no difference. For on Sharp’s payment, Henderson’s liability to the bank of Fairfield, was ended. When he demanded the money from the bank, he presented the draft, and of course the bank could not pretend that they had any right to hold Henderson’s money, when it was paid by the acceptor, and the'drawer had the possession of the bill.

Nor can it stand upon the position, that it had the right to apply Henderson’s money to Sharp’s acceptance: but it had been previously paid. Nothing remained but*' that the money should be refunded.

The motion is dismissed.

Wardlaw, Withers, Whither, Hlover and Mottro, JJ., concurred.

Motion dismissed.  