
    Ex’ors of M. Simons vs. Ex’or. John S. Walter.
    ■The plaintiff sued upon a judgment, and defendant .offered in discount a receipt for § 156 68, ‘in part of this judgment.’ To this the plaintiff replied, by introducing- in evidence, a receipt from the defendant to the plaintiff for the same amount and of the same date — the Court Held, that it was a fact for the jury to determine, whether the defendant wa? entitled to have the amount of the receipt credited on the judgment, or whether the one was not a sufficient answer to the other. ‘ '
    Where money has been paid by mistake, interest can only be allowed, from a demand and refusal.
    T:iis was an action of debt on a judgment* entered Ne< member, 1807* for 09.
    
      The defendant sat up a discount, consisting of the fob lowing sums, viz. § 136 68, paid to M. Simons, on the 23d April, 1811, and §48 95 to the sheriff, in full for all costs prior and subsequent to the judgment.
    The plaintiffs relied on a receipt of the same date and, to the same amount as that produced by the defendant, for % 136 68, and insisted that he was not entitled to credit for it.
    The case was tried before Mr. Justice Gantt, November Term, 1820, for Colleton district, who charged the jury that the receipt of Montague Simons to John S. Walter was valid against the judgment, and was not rebutted by that of the same date produced by plaintiffs; and that if the jury should find for the defendant, they might allow interest by way of damages.
    They accordingly found for the defendant the sum of one hundred and one dollars, 4 cts. the balance of the aggregate amount of the items of set off, viz. §303 63, after deducting the judgment for §202 59, together with interest thereon from the-
    
      A new trial wasnow moved for oh the following grounds:
    1st. Because the receipt for §136 68,. produced by' plaintiffs, was a sufficient answer to that for the same sum produced by defendant, and entitled the plaintiffs to a verdict to that part of the discount.
    2d. Because his honor erred, as is respectfully submitted, in charging the jury that they might give interest; and that they did err in so doing, inasmuch as it .is contended that interest is not due on money overpaid by mistake, until demand and refusal.
    3d. Because the jury founded their verdict on an erroneous principle ; the real balance being only §64 52, and not §101 04', as the jury found.
   Mr. Justice Gantt

delivered the opinion of the Court.

On the first ground, I will remarle that it was a question entirely for the consideration of the' jury; nor can the Court discover any reason to be dissatisfied, that the finding of tbe jury was in eoniorihity with the charge of the presiding judge.

It appears by the evidence, that on the 14th of Novem- ' her, 1808, Montague Simons gave to John S. Walter, a re ceipt for §5136 68, amount of four bales of cotton, and it was expressed in the body of the receipt to have been paid on account of this judgment. On the same day, he toolc from Walter a receipt for the same amount for cotton sold. Now, it may be asked, why,was not the receipt giv» en by Simons to Walter taken up by the plaintiff’s testator, if indeed it was on account of the same four bales of cotton which had been paid for in cash ? These receipts may be considered as properly consistent with each other. Other four bales of cotton may have been sold by the defendant’s testator atone and the same time, with those paid in part of the judgment; or the plaintiff’s testator may, by taking the receipt he did, have intended it as a collateral security •against .any demand to be made against him, pn account of cotton that day sold to him'.

The testimony was submitted to the jury in the charge of the presiding Judge, and they were told that it was a question entirely for their consideration., .

Upon the second ground taken in the brief, I perfectly coincide with the opinion entertained by the Court, that a new trial should be granted.

Where money is paid by mistake, as in this case, interest can only be allowed from a demand and refusal. It is not allowed on money lent, (15 East, 223 ;) and there is less .reason perhaps for saying that it should be allowed, where the-person advancing it, does so upon supposition that it be» longs of right to the person to whom the payment is made; In that light it ought to be- considered until the error is .detected, and a demand is made.

This view taken of the second ground in the brief supersedes the necessity of making apy comments, upon the-last ground.

The motion for a new trial must prevail^.

Grimke, fur the motion.

Singleton and Clark, contra.

Justices Colcock, .Richa'i dson, and Huger f concurred..  