#### The President and Directors of the STATE BANK v. NATHANIEL ROBARDS.

Where an agent had received money to pay off certain debts of his principal, and made a payment to the creditor, for which the principal was by mistake credited twice, such agent, in an action'against him by the creditor to recover the amount of the mistake, cannot be rendered liable therefor, if it appears that he afterwards had a settlement with his principal, and paid over to him the balance remaining in his hands, after being allowed for only what he had actually paid the creditor.

This was an action of assumpsit, in which a nonsuit was entered at Wake, on the last Spring Circuit, before his Honor Judge Settle, subject to the opinion of the court, upon the following statement of facts.

Willis Lewis, formerly of Granville county, was in the year 1828, largely indebted to the plaintiffs, on two notes, discounted at bank for his benefit. In that year he removed from the state, having appointed the defendant his agent and attorney, and placed in his hands a large amount of funds for the purpose of settling his business and paying his debts in this state. The defendant, as such agent, paid into bank, upon the account of his principal, fifteen hundred and sixty-seven dollars, which, by a mistake of the officer of the bank, was placed to the credit of Lewis, on both notes, thereby giving him, Lewds, the advantage of the same payment, twice. The notes, after being renewed from time to time by the defendant, in the name of his principal, were finally paid off by the defendant, on the 6th of March, 1832. Lewis having died, the defendant, in September, 1832, had a final settlement with his executrix, and paid over to her the sum of one hundred and sixty-six dollars, the balance then remaining in his hands of the effects of her testator. In that settlement, the defendant was allowed credit only for the sums which he had actually paid in discharge of the two notes in bank. He also at that time surrendered his vouchers, and had not since had any of the assets of the estate of Lewis in his hands. The mistake in the entry of the above stated *112sum of fifteen hundred and sixty-seven dollars was discovered at the bank in June, 1834.

His Honor, upon this case, refused to set aside the judgment of nonsuit, and the plaintiffs appealed.

No counsel appeared for the plaintiffs in this court.

W. H. Haywood and Devereux, for the defendant.

Daniel, Judge,

after stating the case as above, proceeded : — The debt was originally contracted by Lewis, and the amount of the mistake is now the debt of his estate. The defendant personally never stipulated to pay it, although as agent he had renewed the notes at bank in the name of his principal. It was nearly two years after the defendant had closed his agency, and paid the balance of the funds in his hands to the executrix of his principal, before the mistake was discovered, or any demand made of the defendant concerning the same. In an action for not paying over money paid to the agent for a plaintiff, defendant may show that the plaintiff, by his conduct, did not consider the defendant as holding the money on plaintiff’s account; and that the defendant appropriated the money properly to other purposes, before the plaintiff called on him for it. Stewart v. Fry, Holt, 372; 1 Saund. P. and E. 86. These, and the authorities referred to by the defendant’s counsel, show that the bank cannot sustain this action against the defendant. We think that the nonsuit was proper, and that the judgment must be affirmed.

Per Curiam. Judgment affirmed.