In this case the Court is satisfied with the yerdict.

It is plain, that Henderson paid the money on a mistake in fact, induced by the defendant. For the bank, as appears by the receipt, told him -that his draft was protested, and was in the hands of the bank’s agent at Mobile, on the 7th May, 1855.

It was true, the draft had been protested for non-payment by the acceptor, but had been subsequently, to wit, on the 26th of April, 1855, paid and taken up by him. So that when the bank required payment by Henderson, it and he were alike mistaken, as the draft had been previously paid, and was not in the hands of the bank’s agent at Mobile. It seems to me that this makes it plain, that Henderson was entitled to recover the money' as paid by mistake.

That the draft was accepted by Sharp for the accommodation of Henderson, can make no difference. For on Sharp’s payment, Henderson’s liability to the bank of Fairfield, was ended. When he demanded the money from the bank, he presented the draft, and of course the bank could not pretend that they had any right to hold Henderson’s money, when it *47was paid by the acceptor, and the'drawer had the possession of the bill.

Nor can it stand upon the position, that it had the right to apply Henderson’s money to Sharp’s acceptance: but it had been previously paid. Nothing remained but*' that the money should be refunded.

The motion is dismissed.

Motion dismissed.