
    HAWKINS vs. BOGGS.
    [ASSUMPSIT ÍOB MONEY PAID BY MISTAKE.]
    1. What contracts not void as against pnMic policy. — In March, 1864, after the capture of Memphis by the United States forces and the retreat of the rebel army from Corinth, which events occurred in 1863, the insurrectionary forces did not hold such control over the citizens of the county of Lauderdale in this State, as to render contracts, between citizens of said county and citizens of Kentucky, for necessaries for the family or plantation, void, as against the public policy of the United States.
    (No briefs came to the Eeporter’s hands.)
    Appeal from the Circuit Court of Lauderdale county.
    Tried before Hon. W. L. Whitlock.
    The facts appear in the opinion.
    E. A. O’Neal, for appellant.
    E. O. Pickett, contra.
    
   PETEES, J.

This is an action of assumpsit for money paid by mistake. There was a verdict and judgment for the appellee, Boggs, in the court below, for the sum of six hundred and fifty-two dollars and sixty-three cents, and costs. From this judgment the appellant brings the case to this court by appeal, and here assigns for error the refusal of the court below to give the charges asked by the defendant in the court below.

From tbe bill of exceptions, it appears that tbe transaction out of which tbis suit arose, occurred in March, 1864. Mrs. Hawkins, a resident citizen of Lauderdale county in tbis State, sold two bales of cotton to Cherry & Co., who were resident citizens of Paducah in the State of Kentucky, and received in payment therefor a quantity of family supplies and some money in “greenbacks,” or United States currency. In tbe transaction of tbe sale of the cotton Boggs was tbe agent of tbe firm of Cherry & Co. Boggs was also a citizen of Lauderdale county in tbis State. Mrs. Hawkins received payment for tbe cotton twice; once from Cherry & Co., and then again from Boggs, not knowing at tbe time that she bad already been paid. When tbe mistake was discovered, she refused to pay Boggs the money be bad advanced, and be brought tbis suit to recover it, as money paid by mistake. Tbe court was asked by tbe defendant to charge, that such a contract was void, as being-opposed to tbe public policy. Tbis tbe court refused, and tbe defendant below excepted.

It is a fact judicially known to tbis court, that in March, 1864, tbe county of Lauderdale in tbis State, was not a part of tbe enemy’s country. After tbe retreat of tbe insurrectionary forces from Corinth in the State of Mississippi, and tbe capture of Memphis in tbe State of Tennessee, in 1863, tbe rebel authorities bad only a predatory control in tbe counties of tbe State north of tbe Tennessee river. Such a control was not sufficient to impress upon tbe people of that portion of tbe State tbe disabilities of an actual insurrection. Neither the laws of war nor tbe public policy of tbe nation then forbid a contract between a citizen of Lauderdale county in tbis State, and citizens of tbe State of Kentucky, for family or plantation supplies, particularly when such trade was allowed under a military permit of tbe military authorities of tbe United States in jibe actual command of the territory in which tbe transaetion took place. There was no proof that Mrs. Hawkins was an alien enemy to the nation in fact; and the learned judge of the circuit court did not err in refusing to put her in that attitude without strong proof. Under the facts shown in this case, it was by no means a sufficient presumption of law that she was an alien enemy.

The action of the court below was without error. The judgment of the circuit court is therefore affirmed.  