#### WILLIAM MITCHELL *vs.*MOSES WALKER.

The action of assumpsit is a liberal action, and where, by the obligations of' justice and equity, the defendant ought to refund money paid to him, the action will be sustained; but where he may, with a good conscience, receive the money, and there was no fraud or unfair practice used in obtaining it, though it was money he could not have recovered by law, it cannot be recovered back.

The jurisdiction of a single justice extends to all eases for the recovery of money, when the amount is within the sum designated in the Act of the Gen erai Assembly, when a general indebitatus will lie, whether the contract is expressed, or implied by law.

The cases of *Pool*v. *Allen, 7*Ired. 120, and *Ferrell*v. *Underwood,*2 Dev-111, cited and approved.

Appeal from' the Superior Court of Law of Person County, at the Spring Term, 1848, his- Honor Judge PeahsoN presiding.

The case is as follows: In 1835, the plaintiff hired from one Brooks a negro, for the sum of $16, and gave' his note with the defendant as his surety for its payment. The plaintiff was the agent of one Shelton, for whose use the negro was hired. Of this fact the defendant was ignorant, at the time the note was given, and, upon learning the truth, insisted that Brooks should give up the note' to him, which was done upon Shelton assuming to pay the debt. Soon after Shelton did pay the money to Brooks. The defendant kept the note in his possession nine years, when he sent it for collection- to an officer in the State of Virginia, where the plaintiff lived. The' latter, upon being apprised of the fact, went to see the defendant, and' told him he had expected Shelton wonld liave paid off the note. Defendant assured him Shelton bad not so done, but that he had been compelled- to pay *244it, and looked to him for the amount. Upon this representation the plaintiff paid the amount claimed to the defendant, who undertook to collect it from Shelton and pay it over to the plaintiff.

To recover the amount so paid by the plaintiff to the defendant, this action was brought by a warrant before a single magistrate.

The defendant moved the Court to charge the, jury, that, as the payment by the plaintiff was a voluntary one, he could not recover it back; but if he could, it could not be done by warrant. This instruction the presiding Judge refused to give, but charged the jury, that, although the money was paid by the plaintiff, when under no *legal*coercion so to do, ye tif he acted under a mistake of facts, falsely represented by the defendant, he had a right to recover it back, and in this form of action.

Under the charge of the Judge, the jury found a verdict for the plaintiff, and judgment being rendered thereon, the defendant appealed.

E. *G. Reade*and *T. B. Venable,*

for the plaintiff relied upon the following authorities:

The form of action is properly, assumpsit. *Nilncy*v. *Duncan,*13 Eng. C. L. 293.

Action of assumpsit properly brought before a single magistrate. *Terrill*v. *Underwood, 2*Dev. 111.

*Kerr,*for the defendant.

Nash, J.

To the plaintiff’s recovery two objections are *urged;*first, that the payment by him *to*the defendant was voluntary; and, secondly, if he could recover, a single magistrate had not jurisdiction. The action for money had and received rests upon equitable principles, and whenever there is a privity between the payer and *245receiver, and the latter has received money to which the former is injustice and equity entitled, the law implies a promise to pay it, and gives this action. *2 Stark, on Ev.*63. It is true that in one sense the payment by the plaintiff was voluntary. He did not pay it under duress of his person, nor did he pay it under process of law, but was it voluntary in that sense, which, in law, disqualifies him to demand it back *1*In order to have this effect, the payment must be made, with full knowledge of the facts, or full means of obtaining that knowledge. *Waite*v. *Legget,*6 Con. 195. *Clarke*v. Butcher, 9 Con. 674. And when the money has been paid, not with this full knowledge and it is shown to have been unjustly paid, it may be recovered back. *Chatfield*v. *Paxton, 2*East. 471. *Pool*v. *Allen,*7 Ire. 120. In the case before us, it is not pretended, that- the plaintiff knew the facts; on the contrary, he had the best reason to believe that the statement of the defendant was true. He was the surety to the note ; the plaintiff lived in Virginia, and the defendant was the only person, in this State, who, upon the face of the note was liable to its payment, and who, upon discharging it, was entitled to its possession. The possession of the note therefore, by defendant, nine years after it fell due, was to the plaintiff evidence that he had paid it. It is true, that by applying to Shelton or to Brooks, the payee of the note, he might have ascertained the truth of the transaction. But the fraud, perpetrated by the defendant, superseded the necessity of so doing, and deprived the defendant of that defence. By his own falsehood he put the plaintiff asleep and threw him off his guard, and now asks to be protected in his fraud. The action of assumpsit is a liberal action, and where, by the obligations of justice and equity, the defendant ought to refund money paid to him, the action will be sustained ; but where he may, with a good conscience receive the money, and there was no fraud or unfair *246practice used in obtaining it, although it was money he could not have received by law, it cannot be recovered back. 4 John. Rep. 249 in note to *Hall*v. *Schulty.*The case of *Myher*and *Duncan,*13 E. C. L. Rep. 293, cited at the bar is a strong authority upon the point we are considering. A bill of exchange had come by endorsement to the defendant, Duncan, who by his negligence in not presenting it for payment, in proper time, had made it bis own. Afterwards discovering, as he honestly thought, that the bill was void, for being drawn on an improper stamp, he demanded from the plaintiff, from whom he had received it, the amount due. The case states that both the plaintiff and defendant were ignorant of the fact, that the bill was an Irish bill and did not need an English stamp. The plaintiff paid the defendant the amount due upon the bill, and upon discovering that it was an Irish bill, brought the action of assumpsit against the defendant for money had and received to his use.

Littledale, Justice, in giving his opinion states, that the plaintiff “ had means of knowing that the bill was drawn in Ireland, for he might have enquired of the prior endorser, but thei*e being nothing on the face of the bill, to lead him to suppose that it was drawn in Ireland, he was not bound to make any enquiryand the *postea*was delivered to the plaintiff. In the present case, not only had the defendant full knowledge of all the facts, but the plaintiff was ignorant of them, and his ignorance was founded upon the unequivocal and positive falsehood of the defendant.

But it is further objected by the defendant, that if an action can be sustained upon such a transaction, a warrant cannot be sustained. The case of *Ferrell*v. *Underwood, 2*Dev. 111, is a full answer. The jurisdiction of a single Justice extends to all cases, for the recovery of money, when the amount is within the sum, designated in the Act of the General Assembly, when a general *247
      *indebitatus*will lie, whether the eontraet is expressed, or implied by law.

PeR CuRiam. Judgment affirmed.