#### MARTHA NEWELL vs. WILLIAM B. MARCH.

Where money has been paid, when it was not due, under a mistake of faet*, it may be recovered ; otherwise, if paid under a mistake of law.

The case of *Pool*v. Allen,-7 Ired. 120, cited ¿ud approved.

Appeal from the Superior Court of Law of Davia County, at the Fall Term, 1847, his Honoi Judge Pearson, presiding.

*442This was an action of assumpsit for money had and received — plea *non assumpsit.*

On the trial it appeared, that the plantiffhad obtained a judgment in the County Court of Davie against one Samuel Newell for $2016 10-100, with interests and costs, an^ that an execution *oí fieri facias*was issued thereon returnable to August Term 1842, which was placed in the defendant’s hands, as sheriff, and was by him levied on a house and lot, belonging to the defendant in the execution, but he did not sell it on account of an order to that effect from the plaintiff. Several writs of *venditioni exponas*were then issued from time to time until November Term 1843, and were placed in the defendant’s hands, but the execution of them was suspended by order'of the plaintiff. From November Term 1843, an. other writ *oifi fa.*was taken out, and placed also in the defendant’s hands but likewise suspended by the plaintiff’s order, and no other execution was ever issued on the judgment. In December 1845, the defendant, who was still sheriff, called upon the plaintiff’s agent for the costs including his commissions, and ' exhibited a statement in writing, in which commisions were charged upon the sum of $2449 08-100, that being the amount of the principal debt with the interest and costs thereon; the commissions amounting to jg61 97-100. The agent paid the costs and commissions, and the action was brought, after a demand, to recover back the latter, either in whole or in part, upon the ground that the defendant was not entitled to receive them and they had been paid by mistake, it appeared further, on the part of the plaintiff, that both she and the defendant in the execution were non residents, and that he had no other property in the county of Davie than the house and lot levied on, and that they were not at anytime worth more than #1000.

For the defendant testimony was introduced to show that he had several times advertised the house and lot for sale, but had been prevented frem selling by the or*443ders of the plaintiff’s agent and that in October 1843, while the last execution was in his hands, Samuel New-ell, executed to the plaintiff a deed in fee simple for-the house and lot, in which the consideration was stated to be $2,500.

The plaintiff’s counsel contended, that the defendant was not entitled to any commissions, or at most to commissions upon the sum of $1000 only, the value of the house and lot levied upon ; and he insisted that the plaintiff could recover back in this action either the whole or a part of what had been paid to the defendant, as having been paid by mistake. His Honor held, and so instructed the jury, that the defendant was entitled to charge commissions upon the sum of $1000 only, as that was the value of the property which he had levied on, but that the plaintiff could not sustain the action against him for the excess, because the payment was made upon a mistake of law and not of fact, and was a voluntary one, and could not be recovered back in the action for money had and received; and that the defendant’s being sheriff at the time of the payment, made no difference, as he had no process in his hands by which to coerce it. The defendant had a verdict and judgment and the plaintiff appealed.

*Osborne,*for the plaintiff.

*Craige and Clarke,*for the defendant.

Battle, J.

It is the settled law of England, and has been so considered ever since the case of *Harriot*v. *Hampton,*7 Term Rep. 265, that where money has been paid by the plaintiff to the defendant under the compulsion of a recovery at law, which is afterwards discovered not to have been due, the plaintiff cannot recover it back in an action for money had and received. The rule is necessary to prevent the repeated and protracted litigation of *444the same matter ; it being better that one person should occasionally suffer the wrong and inconvenience of paying- an unjust claim, than that every person should be rendered insecure in the fruits of a recovery at law. *Interest reipublicce ut sit 'finis lilium.*Upon a principle somewhat similar, it was said by Mr. Justice Patterson, in the case of the *Duke de Cadoval*v. *Collins, 4*Ald. & Ell. 858, *(31 Eng. C. L.*Rep. 206) that ’‘where there is *bona fides,*and money is paid with full knowledge of the facts, though there be no debt, still it cannot be recovered back.” So it was held by Mr. Justice Bayley, in *Milner*v. *Duncan,*6 Barn. & Cress. Rep. 671 (13 Eng. C. L. Rep. 294) that “if a party pay money under a mistake of the law, he cannot recover it back. But if he pay money under a mistake of the real facts, and no *laches*are imputable to him in respect of his omitting to avail himself of the means of knowledge within his power, he may recover back such money.” Many other cases involving these principles have come before the Courts of England, in some of which very nice distinctions are drawn, so as to make the decisions sometimes appear almost contradictory ; but upon a review of the whole of them, Mr. Smith in his leading cases page 244, states these points to be clearly settled :

“1. That money obtained by compulsion of law, *bona fide,*and without taking an advantage of the situation of the party paying it, is not recoverable.

*2.*That money paid with full knowledge of the facts is not recoverable, if there be nothing unconscientious in the retainer of it.

i 3. That money paid in ignorance of the facts is recoverable, provided there have been no *laches*in the party paying it.”

The American notes to the same work show, on tb© same page, that the principles above stated have been recognized in several of the States of the Union. In this *445State there is no doubt that money paid under a judgment, or paid under legal process before judgment, where no advantage is taken of the situation of the party paying, cannot be recovered back. And it has been decided that it may be recovered if paid under a mistake of the facts. *Pool*v. *Allen,*7 Ire. Rep. 120. No case has been brought to our attention, where our Courts have held, that if the money have been paid with a full knowledge of the facts but in ignorance of the law, it can be recovered back. We have certainly however adopted, as a principle of our law, that necessary maxim, that *igno-rantia juris excusat neininem,*and we think it equally applicable to the payment of money under a mistake of the law, as to any other case. If so, it must govern the case before us. Here the plaintiff’s agent, having full knowledge of all the facts, paid the money to an officer indeed, but to one who had, and could have had, no legal process against the plaintiff to compel the payment, and we think it not unconscientious that he should retain it. The judgment must therefore be affirmed.

PBS CURIABÍ. Judgment affirmed.