#### ROGERS *v.*WEAVER.

Money paid by mistake — implied promise to an administrator — administrator.

Money paid by mistake may be recovered back on the common counts in assumpsit.

An administrator who pays to a creditor the full amount of bis demand, under a mistake of the solvency of the intestate’s estate, may recover both the amount overpaid in assumpsit, as the law will imply a promise by the creditor to repay, from the fact of overpayment.

An administrator is liable to extent of his assents, notwithstanding he has made errors in the administration or defending himself against suits, and if he overpay he may recover both in his own right.

Where an award has been returned between the parties, and they afterwards agreed to submit the dispute again to arbitrators, such agreement vacates the award.

Assumpsit for money had and received. The defendant was a creditor of an intestate estate of which the plaintiff was administrator. The plaintiff, supposing the estate solvent, or nearly so, had made payment from time to time to the defendant; but upon final settlement with the court, found that he had paid him $100 more than his distributive share of the estate. Of this he gave the defendant notice, and demanded repayment, which being refused, he brought this suit to recover the amount overpaid.

O. *Parish*for the defendant

contended that the plaintiff could not recover, because — 1. The payment was made with knowledge of the situation of the estate and at the peril of the plaintiff. 2. The plaintiff paid as administrator and seeks to recover back in his own right. 3. That the parties had arbitrated this dispute and in that way were concluded.

*Wilcox,*contra-, cited 3 *O. Rep.*513.

*175Wright, J.

Where money has been paid by mistake, the law ^admits of its recovery back in assumpsit. It appears to us palpable that this payment was made under a mistake of the true situation of the estate. The administrator was under no legal obligation to pay before the situation of the estate was ascertained, and if he did pay, he had a fight to require security from the creditor to refund, if it should turn out that he was paid more than his proportion of the assets. The legislature has provided that in case suit is brought against an administrator, he-'Shall only be liable for assets in his hands notwithstanding he may have pleaded falsely, or suffered a default, or have been thrown into other legal difficulty. 29 *O. L.*255. This Court has determined that an administrator cannot legally prefer one creditor to another, and if he does, the amount so paid out in such preference is assets in his hands. *5 O. R*87. In Virginia it has been held, even upon a forthcoming bond, given when the estate was apparently solvent, that the bond did not conidude or bind the administrator if the estate afterwards turned out ■insolvent. 1 *Rand. R.*421. We think it will not be going too far, to hold that a promise to refund may be inferred from the fact ,of the overpayment by mistake.

The suit is rightly brought by the plaintiff in his individual ehar-acter. He is personally responsible for the money overpaid, and has a corresponding personal right to recover back the money. 17 *Mass. R.*380.

The question upon the award occasions greater difficulty. If the award remained in force, it would be conclusive against the plaintiff ; but the cáse before us admits that the parties after the award *agreed to submit the controversy again to arbitrators.*This impliedly vacates the first submission and award. But it is said this was agreed to by the defendant, because the plaintiff threatened to sue him. Such threat would avail nothing except it amounted to duress, and that is not pretended. The agreement to submit we think vacated the award. 3 *O. R.*513.

.Judgment for .the plaintiff.