Duncan v. Berlin

It was not made to appear that the defendants would, in refunding the money, be in any worse position than if it had never been paid.

The plaintiffs supposed they had funds of Blagge & Co., which in fact they had not, and the money was paid and received as funds of Blagge & Co.

Negligence in making the mistake does not prevent the party paying from recovering back the money, if the other party has not been prejudiced.

The defect of parties is not such as could be taken advantage of in the absence of any objection by demurrer or answer. The fees of the sheriff, in so far as • they were increased by the payment of the thousand dollars, should be allowed to the defendants.

The judgment should be reversed and a new trial ordered, with costs to abide the event.