#### AARON POOL *vs.*DRURY ALLEN.

Where a person owing a debt has two agents, and one of them pays the delft to a constable, with whom it had been placed by the creditor for collection, and afterwards the other agent pays the same debt'to the creditor himself ; *Held,*that the principal might recover back this money, without shewing that tlie constable had paid to the creditor what he had collected.

Appeal from the Superior Court of Law of Person County, at the Fall Term, 1846, his Honor Judge Battle presiding.

This is an action of assumpsit, commenced by warrant before a Justice of the Peace. It was tried in the Superior Court on the general issue; and upon the trial the facts appeared to be as follows. The plaintiff and the defendant resided in Person County until the year 1838, when the plaintiff removed to another State. At the time of his removal, the plaintiff was indebted to the *121defendant in the sum of $23 85, and he appointed two persons, Stanford Long and Wyatt Pool, his agents in this State, with directions, amongst other things, to pay the debt which he owed to the defendant. At that time, the defendant had placed his claim in the hands of H, Bumpass, a constable, to collect; and soon afterwards, Wyatt Pool saw Bumpass and paid him the money in full. About a month afterwards, Long met with Allen, the defendant, and informed him that he had been instructed by the plaintiff to discharge the debt, and that he was ready to do so as soon as he could see Bumpass. who held the claim for collection. To that the defendant replied, that the debt belonged to him, and that he was the proper person to receive the money ; and he said that, if Long would pay it to him, he would stand between him and danger. Upon that assurance, Long paid the debt, $23 85, to Allen; and upon its being .afterwards discovered, that it had been before paid by Wyatt Pool to Bumpass, the money paid to the defendant, Allen, was reclaimed from him, and this suit brought to recover it.

Upon these facts, the counsel for the defendant moved the Coih-t to instruct the jury, that the plaintiff ought not to recover, because it did not appear that Bumpass had paid to the defendant the sum which had been paid to Bumpass, and the payment by Long to the defendant himself was voluntary. But the Coui’t refused the prayer, and directed the jury, that if they believed the witnesses, who stated the facts, the plaintiff was entitled to recover. There was a verdict for the plaintiff, and from the judgment, the defendant appealed.

No counsel for the plaintiff.

*Venable,*for the defendant.

RuffiN, C. J.

The payment to Bumpass discharged the debt. It made no difference, that he did not pay the money over. That was between him and his principal, *122Allen. As he was Allen’s agent, with authority to receive the money, the payment of it to him was the same as payment to the creditor personally. Then, as the debt was discharged, the second payment, to Allen himself, was without consideration, and made by mistake ; and the case is, therefore, one of those common ones, stated in the books, in which the action for money had and received lies. The second' payment was not voluntary, in any sense that, can affect this action. It is true,, it was not illegally exacted by process or by duress* But that is not the criterion. Money paid as a debt, under a mistake and where no debt exists, may be recovered back, although there was no compulsion on the person to make the payment. There was no intention here to make a gift of the money, so as in that sense to constitute it a case of a voluntary payment. On the contrary, it was clear that the *money*was paid and received in discharge of a debt then believed to subsist. In that there was a total mistake on the part of the person making the payment, and, probably, on that of the receiver also ; and it is plain that money, thus got under a mistake, and for no consideration, cannot be kept *ex equo et bono.*On that ground, then, the plaintiff was entitled to a verdict. But here the case goes further, and sets out in substance an express promise to return the money, if it were not then properly payable to the defendant. It was said, indeed, that the defendant’s promise was to indemnify Long against personal loss, and did not extend to the present plaintiff. But clearly the promise must be considered as made to Long in the character in which he was then acting, namely,- as the plaintiff’s agent. The case is one, therefore, in which there can be no hesitation in affirming the judgment.

Per Curiam. , Judgment affirmed--