Bank of Louisiana v. Ballard , 8 Miss. 371 ( 1843 )

Clayton J.

stated the case and delivered the opinion of the court.

When money has by mistake in matter of fact been paid to a wrong person, or when one man has by fraud obtained the money of another, it may in either case be recovered back. The party receiving the benefit of another’s money under these circumstances, ought in right and justice to return it, and that is the foundation of the action for money had and received. Manufacturer’s and Mechanic’s Bank v. Gore, 15 Mass. Rep. 72; Bogart v. Nevins, 6 Serg. &. Rawle, 369; 9 Cowen, 685; 15 Wendell, 321. The defendants in this case availed themselves of a payment made upon their bill by the plaintiff; they adopted the credit which had been placed upon it, knowing that they had not made the payment; no stronger case could be put to create an obligation of repayment and the plaintiff is clearly entitled to recover.

It is objected by the counsel for the appellees, that no account was filed with the declaration, and that the decision should for that reason be affirmed. It does not appear that this objection was made on the trial of the cause in the court below; it is too late to take it in this court, if not then insisted upon.

The judgment of the circuit court in setting aside its judgment and granting a new trial, and in deciding upon the agreed case that the plaintiff could not recover, must be reversed, and the original judgment of the court upon the verdict affirmed.