The opinion of the Court was drawn up by

When the plaintiff and the defendant settled, on July 2, 1855, the latter had in his hands fifty dollars of the former’s money, which had been paid him by one McLellan, the plaintiff’s agent, but the payment of which the defendant, as the case finds, falsely or through mistake denied. In the settlement there was an overpayment through mistake. Had the plaintiff, after discovering it, the next day commenced his action therefor, it is not denied that it might have been maintained. It is not perceived why it is still not equally maintainable. The defendant still wrongfully withholds it. *53The privity of contract exists only between these parties. It is now equally the money of the plaintiff in the hands of the defendant as at the date of the overpayment.

Defendant defaulted.