Waite against Leggett.
Assumpsit for money had and received; tried at the Washington circuit, in June, 1825, before Duer, 0. Judge; wben the following facts were in evidence: January 2d, 1807, Waite executed his bond and warrant *° confess judgment to Leggett, for items of account fur-
nisbed by the latter, to his attorney, amounting to $1579 64, on which judgment was entered. October 28th, 1807, Leggett furnished to his attorney vouchers of his demand against Waite, and among others, a note dated July 4th, 1804, for $1546 06, bearing interest from the date; and after considerable payments on the judgment, a balance was struck between the parties, including the note and interest according to its date, when it was found that the ju(^gment bad been taken for $291 08 less than was due to Leggett. In 1812, it was agreed, after negotiation, that Waite should pay one-half of that sum to Leggett, beside the balance on the judgment. Various payments were then made by Waite, and on the 25th of February, *1820, he paid $294, leaving the balance, according to an account *196shown to him. by Leggett’s attorney, $106 05. Being called on to pay this, and furnished by Leggett’s attorney with a statement of demands and payments, Waite refused, insisting that he had already overpaid; that the note of $1546 06, was given July 4th, 1806, instead of 1804, being improperly ante dated; and interest having been allowed on that sum from the date in 1804. And he produced a receipt for this note, stating the items of which it was composed, dated 7 mo. 4-tb, 1806, signed by Leggett & Son, which showed the overpayment, when taken in connection with the statement. The excess paid was $46 13, on the 25th of February, 1820. This sum, with interest, made $63 62, which the plaintiff, Waite, insisted he was entitled to recover. The excess in payment was admitted at the trial; but the defendant’s counsel insisted that the plaintiff could not recover, inasmuch as the payment must be taken to have been voluntary, and with knowledge that it was not due, the plaintiff, Waite, having all along had possession of the receipt, which showed the truth to him. Farther particulars will be found stated in the opinion of the court.
*195To deprive aetíon^for^mountarUy*1 be" yond what is ground”1 Rwasnot due* it must appear paid with aM knowledge not to be paid.
iy paying had the means of toowingjfo«t himselfaVailof those means attention”6 to the state of the tractions. and the creditor, is no answer to the action, provided there be in fact a mistake in the payment.
Per the circumstances in evidence upon which such mistake may be inferred see the case and opinion of the court.
*196The judge decided that the action was sustainable; and the jury found for the plaintiff $63 62.
J. L, Wendell, for the defendant,
now moved for a new trial. He said the action was not sustainable, the money being paid by the plaintiff with a full knowledge of all the circumstances showing that he was not liable to pay it. Such knowledge was inferrible from the defendant’s having had the means of acquiring it. 2 Esp. Rep. 546, 723; 1 id. 279, 84; 1 T. R. 343 ; 1 Cain. 36; 2 John. Rep. 165 ; 2 East, 469.
C. L. Allen and S. Stevens, contra,
cited 2 Ld. Raym. 1217; 6 Cowen, 297, and the cases there cited.
Curia, per Sutherland, J.
It is admitted that the note for $1546 06, given by Waite to Leggett, on the 4th of July, 1806, was erroneously dated on the 4th of July, *197*1804; and that, deducting from the account of Leggett against Waite, the interest which has been charged upon the note as accruing from 1804 to 1806, he has been overpaid to the amount of $63 62, including interest, for which the verdict was found; and the question is, whether, under the circumstances, this money can be recovered back? It appears from the evidence, that when Waite gave the note in question, Leggett gave him a receipt for it, correctly dated on the 4th of July, 1806 ; and it is contended, that inasmuch as he then had in his possession the means of ascertaining the true date of the note, he is chargeable with knowledge of that fact; and that the payments made by him are to be considered as voluntarily made, with a full knowledge that he was paying more than he was legally bound to pay. That he knew the true date of the note, may be conceded. But the evidence clearly shows that he did not know, that in the calculation made by Leggett or his attorney of the mount due, they had considered the note as having been given in 1804, instead of 1806, and had cast the interest accordingly. The last payment made by Waite, was on the 25th of February, 1820; and Mr. Wendell testifies, that subsequent to that day, Waite was furnished, as is clearly to be inferred for the first time, with a statement of the demands of Leggett containing charges and credits; that upon receiving the.statement, he pointed out the mistake in the date of the note, and alleged that he had been erroneously charged with two years interest' upon it; and that allowing for that error, he had overpaid Leggett; and refused to pay the balance then claimed from him. So far, then, from having voluntarily paid the interest for these two years, he did not know that the note had been erroneously dated, or that Leggett had made a mistake in his calculations, until the last payment. He knew he was indebted to Leggett in a large amount, and gave him a bond and warrant of attorney by way of security for the sum alleged to be due, without asking for the items, and without any statement having been furnished to him. The whole course of the transaction shows, that the judgment bond *was not considered by the parties as a final and con-*198elusive liquidation of the amount due. The bond was given in January, 1807, and the judgment was soon after entered up. But in 181.8, an omission which operated in favor of Waite, was discovered and corrected. Indeed it was not contended, on the argument, that Waite was concluded by the judgment. The objection to the action was put exclusively on the ground of a voluntary payment. In all the cases cited by the defendant’s counsel, the money which was sought to be recovered back, was paid with a full knowledge that it ought not to be paid. 1 Esp. N. P. Cas. 84, 279 ; 2 Esp. N. P. C. 546, 728 ; 2 East, 469.
Hew trial denied.