Tow v. . Elliott ( 1850 )

Nash J.

The action is brought to recover a sum of money paid to defendant by mistake. One of the most familiar heads in text writers on actions to recover money, is that of mistake. In this case it does not seem to be denied by the defendant, that the money claimed is justly due to the plaintiffs. It is questioned so feebly, as to amount nearly to an admission. He insisted, if they hada right to recover at all, they could not recover against him individually in this form of action. Why not 1 He had received the money through mistake, and it was still in his hands. He was the only person against whom the action could be brought. His receiving it as guardian could make no difference, as against the plaintiff; it was not the money of his wards, and was in fact held by him for the use of the plaintiffs. We must suspect the claim was resisted and the action brought to furnish the defendant with a satisfactory voucher of a proper disbursement of so much of the apparent funds of his ward. The action is properly brought in assumpsit.

Per Curiam. Judgment according!v.