#### WILLIAM TOW AND WIFE vs. GILBERT ELLIOTT.

Where a person, settling with a guardian, paid him, by mistake, more money than he was entitled to receive, Held, that he was entitled to recover the excess from the guardian individually.

Appeal from the Superior Court of Law of Pasquotank County, at the Spring Term 1850, his Honor Judge Ellis presiding.

This was an action on the case.

It was in evidence on the part of the plaintiff, that some years since, one Thomas Lister, deceased, became the guardian of Margaret, Richard, and Elizabeth Lister, infant heirs of John Lister, deceased, and as such received a considerable amount of funds belonging to his said wards. At the death of the said Thomas Lister, this defendant became guardian to said Margaret, Richard and Elizabeth ; and the wife of the plaintiff, then the widow of the said Thomas Lister, having duly administered on the estate of the said Thomas Lister, paid over to this defendant, without suit, the amount supposed to be due the said wards, amounting to some two thousand dollars: it was also in evidence from a reference and report made in this case, that the said administratrix of Thomas Lister paid to the said defendant, more than was justly due his said wards, by the sum of two hundred and five dollars, on the 3rd day of September 1849. To recover back this sum this suit was brought.

The defendant insisted that the plaintiffs had nojright to recover at all, but if they had, thoy could not recover against him individually in this form of action.

*52His Honor being of opinion with the plaintiffs, there was a verdict and judgment for $211 15, of which $205 is principal. From which judgment the defendant appealed,

A. Moore, for the plaintiffs.

Heath, for the defendant.

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.