
    Daniel Shearer versus John Fowler.
    When money is paid in consideration of a contract, which contract is void foi a want of power in one of the parties, or for any cause other than fraud or illegality in the contract, the money so paid may be recovered back m an action for money had and received.
    The declaration, which was in case, contained four counts. The last count, upon which alone any question came before the Court, was for money had and received by the defendant for the plaintiff’s use.
    
      At the trial of the action before Sedgwick, J., at the last April term in this county, the plaintiff offered to prove, in support of his said count, that, in consideration of the deed made by Abigail Fowler, the defendant’s wife, as the attorney of her husband, and in her own right, (which deed is described in the case of Fowler vs. Shearer, ante, page 14,) of certain premises, which the husband and wife held in her right; he, the plaintiff, paid to the defendant one hundred *and sixty dollars, and gave his [ * 32 J promissory note for two hundred dollars, to recover back which money so paid was the purpose of this count. The evidence was rejected by the judge, and for that cause the plaintiff moved for a new trial, and the action stood continued upon that motion to the present term.
    
      Ashmun, of counsel for the plaintiff,
    considered this point as settled by the decision, in the action before referred to, wherein the present defendant was plaintiff, and the now plaintiff was defendant.
    
      Bliss, for the defendant,
    thought this a different question, and so, he said, did the Court; for, in delivering the opinion of the Court, in that action, the chief justice, putting the supposition that “the defendant there had paid the consideration money, and brought his action to recover it back as paid by mistake,” observes that “ a different question would have arisen, involving different considerations.”
    Here the plaintiff voluntarily paid the money, and, although he was mistaken as to the legal effect of the deed for which he paid it, he has no right to reclaim it. It was a mere mistake of the law; all the facts of the case were as well known to him at the time the transaction took place, as they have been since.
   Curia.

The principles of law, applicable to this case, seem to be well settled. Whenever money is paid in consideration of a contract, which contract is void, for want of power in one of the parties, or for any cause other than fraud or illegality in the contract, natural justice dictates that the money so paid shall be refunded; and there is no principle of law to prevent the operation of so equitable a rule. Here the deed, for which the money demanded in this action was part of the consideration, has been adjudged void; and in that action a promissory note, which was another part of the consideration of the same deed, has been avoided as nudum pactum, because the deed failed. No cause can be assigned why the money, which was actually paid, should remain in the hands of the party, who * still holds [ * 33 ] the property for which this money was paid. The evidence ought, therefore, to have been admitted. The verdict must be set aside, and a new trial granted.  