
    Dickins vs. Jones.
    Money paid under a mistake of the facts to one not entitled to receive it, and who has no right to retain it, may be recovered back in as-sumpsit.
    
    Money paid to the sheriff for assessed taxes, which could not be assessed under our constitution, cannot be recovered, especially after the sheriff has paid the money to the treasury.
    Money paid under a knowledge of all the facts, cannot be recovered, on the ground that the plaintiff mistook the law. (Per two of the four Judges.)
    The plaintiff in error- sued Jones in an action for money had and received, and on the trial in the circuit court before the jury, it appeared that Dickins, the plaintiff in error, had paid to defendant in error, who was sheriff and collector of Payette county, large sums of money for assessed taxes, for the years 1829 and 1830, as by the tax list in said defendant’s hands. Said assessed tax was unconstitutional, as was declared in the supreme court. It also appeared that the defendant had paid over said money to the county treasurer before plaintiff made any demand of re-payment, or gave him notice not to pay it over, or brought suit. The court charged the jury that the defendant was not liable by law to the plaintiff. Verdict for defendant, and a motion for a new trial, which was refused; and an appeal in error to this court.
    
      J. D. Martin, for plaintiff in error.
    P. M. Miller, for defendant in error.
    I take the law to he, that if an agent collects money for his principal, and pays it over to his principal without notice, although the money may not be justly due, that it cannot he recovered back, the payment being voluntary; it will be immaterial whether the mistake be of law or of fact. It is said the defendant is bound to know the law; if so, so is the plaintiff. It is said that the defendant’s authority was void; then why was it not resisted? But it does not appear ha used any authority. See Starkie, 112 and 113.
   Catroh, Ch. J.

delivered the opinion of the court.

Money paid under a mistake of the facts, to one not entitled to receive it, and who has no claim in conscience to retain it, may be recovered back in assumpsit. 2 Stark. Ev. 112.

But we are of opinion that the money paid to the sher-\ iff for assessed taxes, although a part thereof could not be assessed under our constitution, cannot be recovered, especially after the sheriff had paid over the money to the treasury. From anything appearing, the payment by the plaintiff was voluntary, and with a knowledge of the law; certainly it was made with full knowledge of all the facts; and two of the members of this court are of opin ion, that money paid under a knowledge of all the facts, cannot be recovered on the ground that the plaintiff mistook the law. 2 Stark. Ev. 112. Slight circumstances have been permitted to take cases out of the rule, and justly; but no circumstances exist in this'instance to warrant a departure from it; and therefore the judgment of the circuit court must be affirmed.

Judgment affirmed.  