Johnston County, NC - William Filgo v. William Penny, 1812 From Johnston A having by mistake paid to B a $50 bank note for a $5 bank note, cannot maintain assumpsit to recover back $45. A bank note is not money, and a delivery by mistake of anything except money does not pass the property in the thing delivered, and cannot raise an implied promise to pay money. This case commenced by a warrant before a justice of the peace, in which the plaintiff claimed the sum of $45, "a balance due to him on exchange of some bank notes." The plaintiff declared upon a special agreement, and for money had and received, for money paid to the defendant by mistake, etc. There was no evidence of any special agreement, and the only evidence to maintain the other counts was that the plaintiff had, by mistake, paid to the defendant a $50 bank note for a $5 bank note. No promise, either express or implied, was proved, unless the payment of the bank note as aforesaid implied a promise to pay money. The defendant relied upon the plea of "non assumpsit." The jury found a verdict for the plaintiff, under the charge of the court, and a rule for a new trial being obtained, the same was sent to this Court. Harris, J. The case states that there was no evidence of a special agreement, and the only evidence to support the money counts was that the plaintiff had, by mistake, paid to the defendant a $50 bank note for a $5 bank note. A bank note is not money, and does not differ in its nature from any other promisory note payable to bearer. A delivery by mistake of anything, except money, does not pass the property in the thing delivered, and cannot raise an implied promise to pay money. Let the rule for a new trial be made absolute. Source: NC Reports July Term, 1812 NC Supreme Court Pg 143 ______________________________________________________________________ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm This file was contributed for use in the USGenWeb Archives by Guy Potts - gpotts1@nc.rr.com ______________________________________________________________________