
    John Walker versus Joseph Bradley.
    Where an administrator pays a debt in full, upon an erroneous belief that the estate oí his intestate is solvent, an action to recover back part of the money paid does not accrue until the insolvency of the estate is ascertained by a decree of insolvency and order of distribution; and consequently, the statute of limitations begins to run from that time.
    A demand of repayment was made after such decree, and interest was allowed only from the time of such demand.
    Upon a case stated the facts were these. On the 8th of June, 1814, John Walker died, intestate, indebted to the defendant upon a promissory note. On the 31st of December following, the plaintiff, being administrator on the estate of the intestate, paid the sum due to the defendant. In October 1817, the estate was represented insolvent, and on the 3d of March, 1820, a decree of distribution was passed in the probate court, ordering sixty cents only on a dollar to be paid to creditors on the amount of their claims ascertained and reported by commissioners. The plaintiff now demanded forty per cent, of the amount of the defendant’s claim, as reported, with interest; that proportion having been paid by the plaintiff over and above wnat the estate would pay, by mistake or ignorance of the facts. A demand was made on the defendant on the 1st of May, 1822. The action was commenced in 1824.
    The cause was argued by W. Richardson for the plaintiff, and Hoar for the defendant.
   Wilde J.

delivered the opinion of the Court. On the facts agreed the plaintiff is entitled to recover, on the principles laid down in the case of Walker v. Hill, 17 Mass. R. 380, unless his right of action is barred by the statute of limitations. This depends on the question when his right of action first accrued. The defendant’s counsel contends that it accrued immediately on payment of the money. But it is very clear, we think, tnat no action could have been maintained, without proof that the estate was insolvent; and no proof, short of a decree of the judge of probate to this effect, would have been sufficient.

Did it then accrue on the representation of insolvency ? We think not, for such representation is no proof that the estate was in fact insolvent; and if it were, the extent of insolvency could not have been ascertained but by a decree of insolvency and order of distribution. Before such decree and order the plaintiff had no legal means of ascertaining the amount of his claim, and could not sustain an action. It follows therefore that no right of action accrued before the final decree of insolvency. This decree was passed on the 3d day of March, 1820.

There is no analogy between the case under consideration and the common case of money paid by mistake. In the lattei case an action lies immediately to recover back the money. The legal remedy is perfect, notwithstanding the ignorance of the party. But in the present case, if the plaintiff had discovered the insolvency of the estate immediately after payment of the money, he nevertheless had no legal remedy until the decree of insolvency. On the passing of that decree, therefore, his right of action first accrued.

Richardson, after the opinion was delivered, said that, in equity, interest ought to be allowed from the time when the money was paid.

Wilde J. We can allow interest only from the 1st of May, 1822.

Judgment for the plaintiff. 
      
       1 Story on Equity, 109, note 4, 110, note 1.
     
      
       See Wood v. Robbins, 11 Mass. R. 504; Winthrop v. Carleton, 12 Mass. R. 4; Dodge v. Perkins, 9 Pick. 368. In England interest is not in general recoverable in an action for money had and received. De Bernales v. Fuller, 2 Campb. 426; De Havilland v. Bowerbank, 1 Campb. 50; Crockford v. Winter, 1 Campb. 129; Calton v. Bragg, 15 East, 224; Higgins v. Sargent 2 Barn. & Cressw. 351. Indeed the English courts hav 3 so often decided that interest is not recoverable in an action for money had and received, that the judge at nisi prius will not allow the question to be agitated. Depcke v. Munn, 2 Carr & Payne, 112; Hicks v. Mareco, 5 Carr. & Payne, 498.
     