
    Richard Barton against Administrators of Samuel C. Dunlap, deceased.
    sSoyed? ¡Twin stioDgePioofserto authorize a recotajíe or'ominion; and the point must dfscioseT<ineilthe v^tany’turpn'se on the defendant. Where parties have settled their
    This was an action of assumpsit, counting, 1st, work and labour; 2d, For cotton; 3d, For money had and received; 4th, For corn and cotton baap'ing;. The account filed with the decíao© © ration contained nothing of money had and re- . _ . . _ . - ceive<*, or of any mistake m the previous settlements between the plaintiff and the defendants. - . , it, On the trial, plaintiff proved work and labour, cotton sold, &c. The defendants then produced an account of the plaintiff’s, attested, for the purpose of being presented to- the defendants in a settlement. At the bottom of this account there was a receipt, dated 14th August, 1811, the same day on which the account was attested, and after the death of the intestate, S. C. Dunlap. The defendants also produced a general receipt of the same date, “in full of all demands, from the beginning of the world to this day.” Doctor Montgomery, a witness of credit, testified that the plaintiff and defendants in his presence, and with his assistance, made a full and complete settlement of all demands on both sides, and passed receipts, and threw away or destroyed the notes and other papers containing many of the particulars of the accounts; that-.the settlement was a deliberate, careful, and fair one ; that the receipts before recited were given on this occasion, and were true and fair. The plaintiff called Samuel Dunlap to prove a mistake in the settlement to the amount of thirteen dollars; who swore, that in a conversation, at which he was present, about a settlement, it seemed to be admitted between the parties, that 40 dollars were left in the hands of the defendants to pay a debt which the plaintiff owed this witness; that this debt, in fact, absorbed but 27 dollars, and left 13 dollars in the hands of the defendants. Dr. Montgomery, on the other hand, proved, that, according to his belief, every thing relative to the last witness’s demand on the plaintiff, was included in the settlement; and that he was with the parties throughout the settlement, and believed there was nothing mistaken or omitted. \
    The .1 ury found for the plaintiff thirteen dollars. And now a new trial is moved for, on the following, among other grounds:
    1st. That the receipts should have been conclusive, unless very clear proof had been offered of a mistake, and that no such proof was offered.
    2d. That no notice of the alleged mistake having appeared in the pleadings, or in the account filed with the declaration, nor any evidence given by the plaintiff in his examinations and testimony in chief, it was a surprise on the defendant to suffer it to be introduced.in reply.
   The opinion of the Court was delivered by

Mr. Justice Cheyes.

I am of opinion, the evidence of a mistake * .... given by the plaintiff is in itself too vague and uncertain to countervail the receipts in full, the fairness and accuracy of which are testified by a witness of credibility and intelligence, and which ought the more especially to be final, as vouchers and documents were destroyed in consequence of the interchange of discharges: besides, the witness who was present ánd assisted, is ignorant of the fact, which is little more than suggested by the plaintiff’s witness. I also think, that the admission of proof on the subject of a mistake, when there was no notice of it on the pleadings, or in the plaintiff’s particular, was necessarily a surprise on the defendants, and ought not to have been suffered. I am, therefore, of opinion a new trial ought to be granted.

Grimké, Colcoclc, Gantt, and Johnson, J. concurred.  