
    Hart v. Smith.
    Action of indebitatus assumpsit is not sustainable for money bad and received, founded on a mistake in a settlement, on wbieb an acquittance is given, though a special action on the case, pointing out such mistake, is sustainable.
    This was a general indebitatus assumpsit, for money bad and received.
    Tbe case, from tbe pleadings, was tbis: — Tbe plaintiff being brigadier-general of a brigade of militia, ánd tbe defendant a colonel under bis command, received of tbe plaintiff tbe sum of £1,578 in bills of tbis state, to be applied to public use, and to account. On tbe 4th day of January 1783, tbe defendant rendered an account of tbe application of tbe moneys so received, and a settlement was made by tbe parties; tbe plaintiff gave to tbe defendant an acquittance from all demands on tbis account, and tbe defendant delivered to tbe plaintiff all bis vouchers and other papers relative to tbe matter: That by means of a double charge and misentry, two mistakes bad happened in tbe settlement, against tbe plaintiff, to tbe amount of £202 14s. 6d.
    On demurrer, tbe question was, whether this general action of indebitatus assumpsit, is sustainable after a settlement and acquittance.
    Judgment was for tbe defendant.
   By Law,

C. J., Dyer, Sherman and Pitkin, JJ.

Tbe ’facts conceded by the pleadings, do not support this action, v- It appears by tbe pleadings, that tbe only money received l)y tbe defendant of tbe plaintiff, was a sum of state bills, which be received as a public officer, to pay over to the soldiers of bis regiment, for which be was accountable; and if be bad failed of performing his undertaking, the plaintiff’s legal and proper remedy would have been an action of account: But the defendant having rendered his account to the plaintiff, to his acceptance, and tbe same having been settled by tbeir mutual agreement, and the defendant’s vouchers delivered up to the plaintiff; the defendant relying wholly on the plaintiff’s acquaintance for his security (as in his plea is alleged) he ought not to be subjected to the plaintiff’s demand in this action, upon any supposed mistake in the settlement, which cannot be ascertained but by opening the whole account to a new examination and settlement.

This kind of action is a beneficial remedy in many cases, but ought not to be extended so far as to destroy the effect of all legal settlements and acquittances, made by agreement of the parties.' — If a mistake is made in settlement of an account, which appears from the face of the account itself, a special action of the case pointing out such mistake, may be sustained.

Ellsworth, J.,

dissenting. It appears from the pleadings in this case, that the defendant, having received £1,578 of the plaintiff’s moneys, in bills, to pay over and account; afterwards, viz. in January, 1788, rendered his account iu writing, amounting to £1,440 8s. 4d. which was allowed, and he gave his note, payable to the treasurer, for the remaining balance of £137 11s. Sd^which note the plaintiff receipted in writing, as the balance due to him, and gave up the original receipt he held against the defendant. It is further stated by the plaintiff, and not denied by the defendant, that in said settlement there happened a mistake of £222 2s. by means of the defendant’s having twice charged an article to that amount, appearing from the account itself. Also, a further mistake of £180 12s. 6d. in favor of the defendant, occasioned by a miser try: by which means the defendant has retained in Ms bands £202 14s. 6d. of tbe plaintiff’s moneys, without any consideration, and unjustly. And tbe question is, bas tbe plaintiff any remedy? And if be bas, can be recover in tbis action?

It is an established principle of law, founded in tbe most apparent justice, that an action will lie for money paid by mistake; and it makes no difference whether tbe mistake happens in settlement of an account, or of any other matter: It is sufficient to maintain tbe action, that there bas been a settlement, and a mistake therein, whereby the defendant bas obtained money of tbe plaintiff, which in conscience be ought not to retain. The difficulty lies, in showing with clearness and certainty, that tbe mistake has happened, which in all cases cannot be done; as where a settlement is made in gross, without computation or regard had to particulars; so where a settlement is made on computation, but tbe evidence of the computation is not preserved, and only a receipt is given, to show that a settlement bas been made. But other cases there are, in which tbe mistakes are clear and certain; as where they have happened by a miscast, a mistaken, or double entry, and the account or statement is preserved for inspection, as in the present ease; so where the mistake has happened by the misconception -of a fact, which afterwards comes to light; as where a loss has been allowed on a policy of insurance, and the vessel afterwards safely arrives. Whenever the mistake is apparent, or from the nature and circumstances of it clearly demonstrable, a remedy may and ought to be admitted; nor will the admission of it invalidate the settlement of the parties, which may still be left to operate, so far forth-as the same was understanding^ made. Rectifying the errors or mistakes of a settlement, does not

destroy it, but only makes it wbat tbe parties designed it ' should be; and tbe court, on tbe trial of every sucb case, will confine tbe plaintiff to lay bis finger at once upon tbe mistake, and not suffer bim unnecessarily to ramble over tbe settlement, nor to go upon evidence of a loose or dangerous kind. But it is contended, tbat tbe plaintiff bas barred Mmself of a recovery in tbis case, by tbe receipt be passed for tbe balance found due to bim upon account rendered: Tbis receipt is a mere matter of evidence; it proves (wbicb is all it was designed for) tbat there bas been an account rendered by tbe defendant, and a settlement bad thereon; but it does not at all affect tbe question, whether tbe mistakes tbat have happened in tbat settlement can be rectified. It is no argument tbat tbe mistake cannot, or ought not to be ¡rectified; tbat there bas been a settlement, in wbicb tbe mistake happened. By tbe settlement, indeed, wbicb bas been liad in tbis case upon tbe defendant’s account rendered, tbe plaintiff’s original action of account is gone; but tbis action •is for a different matter; it is for money obtained in and by rfhat settlement through mistake, viz. by an overpayment, or ¡allowance there made to tbe defendant. In corroboration ¡•of bis plea in bar, tbe defendant bas averred, tbat at tbe itime of tbe settlement be gave up bis receipts and papers; ‘iyut as tbe averment was not traversable, it required no an¡■swer, and is not to be taken pro oonfesso. And besides, tbe '■burden does not be upon tbe defendant to make out tbat tbe -settlement was right, wbicb is to be presumed, but on tbe •plaintiff to show a mistake; and unless be produces all -the papers tbat can have relation thereto, and clears tbe point of doubt, be must fail: And it would be seasonable for the defendant- to avail himself of the loss of his papers when it should appear on the trial, from the nature of the mistake alleged, that they could have any relation to such mistake.

But admitting that neither this averment, nor the receipt relied upon, are sufficient to bar the plaintiff of a remedy; a question is still made, whether he can recover in this action, which is a general indebitatus assumpsit, for money had and received to the plaintiff’s use 3 This is a kind of action well known in our practice, as well as in the common law of England; and from the equity of the principles on which it proceeds, and the extensiveness of the remedy it gives, is highly favored. It lies generally where- one has received money belonging to another, without any valuable consideration on the receiver’s part; for the law construes this to be money had and received to the use of the owner only; it is in nature of a bill in equity, and is applicable to almost every case where the defendant has received money, which eoo equo et bono, he ought not to retain; and particularly where he has obtained it by imposition or mistake (3 Blackstone’s Com. 162; Cowper, 197) as in the present case. It is true, indeed, the defendant did not in this case directly receive any money when the mistake happened; but at a settlement and payment of his account then rendered, he had an offset of the plaintiff’s moneys in his hands, which is substantially the same thing as if he had then directly received it from the hand of the plaintiff. It is true also, that the offset of payment he then received was not in money, but in state bills; but then those bills being in nature of money, this action lies for them as for money, as it doth also for bills of exchange and negotiable notes. 2 Blackstone’s Reports, 828; Cowper, 197. So that the defendant may be considered as having by mistake received the plaintiff’s moneys, and to the plaintiff’s use; which is sufficient to maintain the action. It has, however, been urged, that the plaintiff must fail in this action, because he has not declared specially; and that were it admitted under a general count for money had and received to the plaintiff’s use, to give in evidence the payment of money by mistake, the defendant might be surprised: But the objection goes to exclude this kind of action altogether; for the count is always thus general for money had and received to the plaintiff’s use; and the plaintiff is left to make out his case, and show the particular manner and circumstances of the money’s being had or received upon the evidence. Nor is this a more beneficial indulgence to the plaintiff than the defendant in this kind of action has in his de^ fense: As the trial is on equitable principles, he may, under the general issue of non assumpsit, disprove the facts set up by the plaintiff, or set up other, and independent facts, to rebut the equity of the plaintiff’s demand. Burrow, 1006. The generality both of tLs charge, and defense are supposed to be adapted to the nature and design of the action.

As to the surprise apprehended, it can very seldom happen that a defendant will remain unconscious, or unapprised of the ground the plaintiff means to rely upon, until the final trial. If, however, this at' any time does happen, and the defendant is apparently surprised, the court will relieve him by a new trial; but they never will regard the possibility that from the nature of the action there might have been a surprise, when it appears that the defendant before final trial, in fact bad notice. Cowper, 805; Douglas, 133, Longchamp v. Kenney.

In a late case of Waldron v. Halsey, in the county of New London, where a recovery was had for money paid upon a settlement under a general indebitatus assumpsit, and a new trial was moved for, upon a suggestion (inter alia) that from the generality of the count, the defendant was liable to be surprised, and was in fact so; yet it appearing to the court that he was not surprised on the final trial, but had notice in the court below, a new trial was refused. In this case there was a full disclosure in the court below, both by the pleadings and the evidence on a hearing in damages. Eor the reasons above suggested, it appears to me that the plaintiff is not barred of his remedy, and might recover in this action, and should be admitted to a trial of his cause upon the evidence; and therefore that his replication is sufficient.

N. B.— This judgment was afterwards affirmed in the Supreme Court of Errors.  