#### THE COMMISSIONERS OF SCIOTO *v.*GHERKY.

Settlement — opening up settlement — conclusive if fairly made — money had and received— particeps criminis — new election of commissioners no change of party — compensation to auditor.

Where the parties have settled their accounts upon a full examination of the circumstances, and paid what they thought was reasonably due as compensation, the party paying will not be permitted to open up the settlement to reduce the amount and recover back*

Where the county commissioners settle with the auditor and direct the form of his charge in order to allow him a reasonable compensation, they can'not open up the account because such items are overchaiged.

'The action for money had and received rests on the broadest equity, and a recovery will follow the possession of the money of the plaintiff which in equity and good conscience ought not to be retained.

If the commissioners of the county settle with the auditor and allow and pay him more than his fees, they are particeps criminis, and will not be allowed to recover back the sum so paid.

A mistake of law is no cause for opening up a settlement.

*494Where the commissioners of the county do public business according to the discretion confided to them, new commissioners are bound by their acts, and take their place — they are not new parties.

The commissioners have a right to allow the auditor a fair compensation in making out the duplicates and. tax lists, and the form of the allowance does not change its nature or its legality.

Assumpsit for money had and received, to recover back money received by the defendant as auditor of the county, for his fees and compensation, for the years 1826, 7, 8, and 9; which it was claimed was more than was allowed in the fee bill for the services of that officer.

It appeared in evidence that the accounts were made out by the auditor, presented, settled, and the orders given, after a full examination, by the commissioners, of the circumstances and the law, and that the account was charged in the shape it was, so as, in their opinion, to warrant the whole allowance, which they thought reasonable compensation for his services. Evidence was also given with a view to show that the defendant had charged in the account a greater number of words in the duplicates and copies made by him, than they contained; and that he had counted dollar ($) marks as words or figures, and the *ditto's*and *continuation*dots, which he should not have done.

*S. M.*Tracy, for the plaintiff.

*W. V.*Peck, contra.

Tracy,

now moved for a new trial, because, where the law fixes a rate of fees for an officer, any sum paid to him beyond that amount is illegally received, and becomes money in his hands for the use of the county. The commissioners had no authority to allow and pay anymore than the fee bill,and the court erred in admitting evidence of what the services were worth.

Peck, contra,

cited 22 *O. L.*265.

Wright, J.

to the jury. If the parties have settfed their accounts upon a view of all the circumstances, and the plaintiffs have paid, it will not be permitted them to set aside the settlement and recover back because they have since discovered that in strict law, the defendant was not entitled to as much as they allowed him. I have but a single remark to make to you on the evidence. If you believe the testimony of the former commissioners, that they settled their accounts upon full examination, and allowed what was paid because they thought it no more than a reasonable compensation, then, we think, the defendant is entitled to your verdict.

Verdict for the defendant.

*495Wright, J.

The action for money had and received, rests upon the broadest equity. If it is unconscionable for the plaintiff to recover, he is not permitted to have a verdict. On the other hand, if the defendant has money of the plaintiffs’, which in good conscience he ought not to retain, the plaintiff is permitted to take a verdict. The issue opens the whole circumstances of the case for consideration, and permits the jury to do justice between the parties. The parties in this case, settled their accounts upon a full view of all the transactions: 1 say, *the parties,*because the change of members in the board of commissioners does not effect a change of parties — they are the same legal person. There is no pretence of a mistake, except in *law.*Every one is chargeable with a knowledge of the law, and a mistake as to the law will not open the way to recover money back, which, in equity, should be retained. If any thing was wrong in this case, the plaintiffs were *particeps criminis.*It was as bad for them to pay out the public money against law, as for the defendant to ask it of them and receive it. Law will not aid guilty parties against each other. If, therefore, strict law is applied to this case, as the plaintiffs claim, they could not recover. As to the admission of evidence of what this work was, counsel is mistaken: such evidence was not admitted. The evidence admitted was to show that the parties settled, and the plaintiffs allowed only what they then thought a fair compensation, which they intended to allow under the law. • We think the commissioners had a legal right to make such allowance under the act; and it is immaterial in this action, in what form they made the allowance.

The motion is overruled.