Majority
p. 170LEWIS and ROBERT WEST, appellants vs. ROBERT A. HOUSTON, respondent, plaintiff below. moved a nonsuit, on the ground that money paid by a person under mistake of law; Or for want of noticing a fact within his knowledge or power, cannot be recovered back in this action. (2 East. Rep. 468; 1 Eng. C. L. Rep. 43; 1 Dallas Rep. 147 ; 9 Cowen 674; 1 Esp. N. P. C. 84, 279; 2 Ibid 546; 2 Johns. Ch. R. 51, 60; 13 Eng. C. L. R. 323-5, 293; 1 Wend. R. 355; Smith’s Leading Cases 174; 3 Hall’s N. Y. Rep. 252 ; 3 Wend. Rep. 69 , 72.) said that the payment was made under a mistake of fact, and could be recovered back. Most of the cases cited, arose under mistake of law. (13 Eng. C. L. R. 293; 1 Leigh. N. P. 54.) The plaintiff in this case was misled bv the costs being taxed as if an affidavit had been filed. (1 Steph. N. P. 347-8; 2 East. Rep. 469.)
Headnote
Meney paid through ignorance or mistake of a fact, may be recovered back in the action of asssumpsit; but not where the party had full means of knowledge in his power.Appeal from the judgment of a Justice of the Peace;'in an action of-assumpsit. Pleas, non-assumpsit, &c. Issues.
The defendants below, the Messrs. West, originally brought an action of assumpsit in this court, against the plaintiff below, R. A. Houston, for $90, and recovered $44,50. The costs in that case wore-$15,15 ; and there was no1 affidavit filed to enable the plaintiffs to recover costs under sec. 37, Dig. 351. The costs were erroneously taxed by the prothonotary in making up the record, and'the defendant in that case paid them, supposing that the plaintiffs had filed an affidavit -under the -above section, which would entitle them to costs. This suit was brought to recover back the costs so paid,
Houston, for plaintiff below
Cullen, for defendants.
Cullen, for defendants,
Houston, contra,
ordered a nonsuit. Where there is a payment in ignorance or mistake of a fact, it may be recovered back, unless the I mistake arises from the negligence of the party to examine and take notice of information within his full means of knowledge. Here the plaintiff was party to the very record of the judgment which he was paying, which record showed the fact he now alledges he was ignorant of.