
    John A. Higdon v. R. A. Bradshaw and Pate.
    Mutual Mistake — Consideration — Peremptory Instruction.
    Money paid by one party to another under a mutual mistake is held to have been paid without consideration and should be refunded, and a peremptory instruction should not be given for defendants.
    APPEAL PROM HANCOCK CIRCUIT COURT.
    
      G. W. Williams, R. T. Bush, for Appellant.
    Kineheloe, for Appellees.
    June 14, 1867.
   Opinion op the Court by

Judge Williams:

As Higdon had been drafted when he paid Bradshaw and Pate the $300 to exonerate him therefrom, or to furnish him a substitute,, it is evident that both parties supposed the draft was legal and binding when, in fact, the county had furnished its quota of soldiers and was not liable to draft; and on correction of the quota, those who had not already been sworn into the service were discharged; the money was, therefore, paid without consideration, both parties being under a mutual mistake, as was held by this court in-and should, therefore, be refunded. The peremptory instruction to find for the defendants was radically erroneous; wherefore, the judgment is reversed with directions for a new trial and further proceedings as herein indicated.  