Chambers, J.,
delivered the opinion of this court.
Two questions arise on this record: First, whether the plaintiffs can recover back money, paid under such circumstances of knowledge or means of information as existed in this case ? And secondly, if entitled in other respects, whether the plaintiff is precluded by reason of the character of the notes in which the payment was in part made ?
The facts upon which the opinion of the court was asked, are, that the payment was made in the mistaken belief that the sum paid was the true balance appearing due by the final estimate, and that the agent who made the payment for the plaintiffs intending to pay that balance, and not noticing the deduction of $870, paid a sum larger by that amount than he intended.
It is rightly said, that a party cannot recover money voluntarily paid with a full knowledge of all the facts, although no obligation to make such payment existed. If informed of the law which exempts him, he must abide the consequences of his folly, in abandoning the protection it afforded him—if ignorant, he was bound to acquire information.
It is regarded as a gift without consideration. But full knowledge of the facts is here negatived. The statement in the bill of exception assumes, and the testimony of the witness shows, that he made the payment, believing at the moment of making it, that the engineer, whose estimates he was bound to regard, had certified the sum to be due which was actually paid.
Then it is urged that ample means were at hand to obtain full and accurate information, and many cases have been referred to as establishing the proposition, that a recovery cannot [77]*77be had where the party paying has access to information, and' by his own laches neglects to acquire it.
Certainly some of the authorities seem to countenance such a doctrine; but, we think, the opposite opinion best accords with the plainest principles of justice, and has the weight of authority to sustain it. The case of Lucas and others, and Warwick, 1 Mod. Rob. 293, in many particulars, resembles this case.
The defendant had a claim against the plaintiff’s for work and labor, amounting as defendant alleged, to £142; the plaintiff’s disputed certain items, and admitted a balance of only £97 ; at defendant’s request, Lucas, one of the plaintiff’s, paid £20 on account. The defendant afterwards met Lucas and agreed to abandon the disputed items. Whereupon, Lucas paid him £97, forgetting the previous payment of £20; but, almost immediately after, notified the defendant of the mistake, and demanded the return of the £20; and on his refusal, the action was brought to recover that sum.
The case was fully discussed before Denman and Baron Bolland, who held that as the money was paid by mistake in the hurry of business, it might be recovered back as received to the use of the plaintiffs.
The case of Kelly vs. Solari, 9 M. & W. 54, was fully considered. There the parties paying had at one time a knowledge of the fact, the forgetfulness of which subsequently induced them to make the payment. The Chief Baron, at nisi prius, instructed the jury, that the previous knowledge or means of knowledge would prevent the recovery; but on argument, he united with all the other Barons in the opinion, that there must be knowledge existing in the mind at the time of the payment. Of what avail is it, in any view of justice or sound sense, that a man once knew or had means to know a fact, if, at the moment when alone, such knowledge is practically useful, he is actually ignorant of it ?
A payment cannot well be said to be made voluntarily when it is made in consequence alone of a false view of facts. The assent is only induced by the conviction then prevailing in the [78]*78mind, that the particular fact existed, and is scarcely to be distinguished from an assent or agreement to pay on the condition that the fact did exist.
The subsequent discovery of the error destroys the whole basis of the agreement, and the parties are restored to their original condition and rights. Of what avail is it, that industry and vigilance might have procured the information? Still the party has done an act he did not intend to do, and did not know or believe he was doing. In this case, the agent assented and agreed to pay only what the engineer certified; he supposed he was paying no more when he delivered the notes to defendants, and his volition was no more involved in any amount beyond, than it would have been had he paid them a bank note of $1,000, misreading, and intending it to be a note of $100.
In the case of Bell vs. Gardner, 4 Man. Gran. 11, found in 43 Eng. Com. Law, 16, the Judges of the Common Pleas, unanimously adopt the principle of Lucas fy Worwick, and applying it to the case before them held it to be a good defence to a suit on a promissory note, that it had been given to the plaintiff to discharge a debt supposed to be due; but which, owing to a fact then unknown to defendant, was not legally recoverable, although the defendant had ample means of knowing the fact.
We are therefore of opinion, that there was nothing in the facts of this case as stated in the exception, which would prevent the plaintiffs from recovering, because of the alleged voluntary character of the payment with the means of knowing and correcting the error under which it was made.
We will now consider whether the recovery is barred by reason that the payment was made in the particular notes which the defendants received.
It has been denied in the argument that these small notes were illegally issued. We are inclined to think they are prohibited ; but do not find it necessary to express a more decided opinion upon that point—assuming the small notes to have' been issued illegally, how will the case stand ?
[79]*79The plaintiffs’ agent paid away $3,306 10, being more by $870 than was due, and more than he designed to pay; of the sum paid, $1,006 were in small notes illegally issued by the plaintiffs, the residue, $2,300 10 in good paper, the defendants received the whole as money, and as the evidence shows have used the notes as money in a few hours after the payment.
The agent having discovered his mistake, called on the defendants to return him the notes to the amount of $870, the sum overpaid by mistake, and they refuse to return the notes or account in any manner for the sum overpaid, and now contend that principles of public policy forbid the plaintiff’s from enforcing such demand.
We cannot yield our assent to a proposition which would sanction such a result. The law properly and consistently withholds its aid when parties ask to enforce an illegal contract—all are presumed to know the law, and if a contract be made to violate it, whether it be a contract to perpetrate a crime, malum in se, such as murder or arson, or to violate a municipal enactment, such as the act prohibiting the issue of small notes, and a remedy is sought either to enforce such contract or to obtain compensation for a breach of it, the parties are properly told the law will neither assist you to coerce another to violate its provisions, nor suffer you to recover against another for refusing to do so.
In this case the plaintiff’s do not ask to enforce any illegal contract. They do not ask to recover against defendants for refusing to violate the law.
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Chambers, J.,
delivered the opinion of this court.
Two questions arise on this record: First, whether the plaintiffs can recover back money, paid under such circumstances of knowledge or means of information as existed in this case ? And secondly, if entitled in other respects, whether the plaintiff is precluded by reason of the character of the notes in which the payment was in part made ?
The facts upon which the opinion of the court was asked, are, that the payment was made in the mistaken belief that the sum paid was the true balance appearing due by the final estimate, and that the agent who made the payment for the plaintiffs intending to pay that balance, and not noticing the deduction of $870, paid a sum larger by that amount than he intended.
It is rightly said, that a party cannot recover money voluntarily paid with a full knowledge of all the facts, although no obligation to make such payment existed. If informed of the law which exempts him, he must abide the consequences of his folly, in abandoning the protection it afforded him—if ignorant, he was bound to acquire information.
It is regarded as a gift without consideration. But full knowledge of the facts is here negatived. The statement in the bill of exception assumes, and the testimony of the witness shows, that he made the payment, believing at the moment of making it, that the engineer, whose estimates he was bound to regard, had certified the sum to be due which was actually paid.
Then it is urged that ample means were at hand to obtain full and accurate information, and many cases have been referred to as establishing the proposition, that a recovery cannot [77]*77be had where the party paying has access to information, and' by his own laches neglects to acquire it.
Certainly some of the authorities seem to countenance such a doctrine; but, we think, the opposite opinion best accords with the plainest principles of justice, and has the weight of authority to sustain it. The case of Lucas and others, and Warwick, 1 Mod. Rob. 293, in many particulars, resembles this case.
The defendant had a claim against the plaintiff’s for work and labor, amounting as defendant alleged, to £142; the plaintiff’s disputed certain items, and admitted a balance of only £97 ; at defendant’s request, Lucas, one of the plaintiff’s, paid £20 on account. The defendant afterwards met Lucas and agreed to abandon the disputed items. Whereupon, Lucas paid him £97, forgetting the previous payment of £20; but, almost immediately after, notified the defendant of the mistake, and demanded the return of the £20; and on his refusal, the action was brought to recover that sum.
The case was fully discussed before Denman and Baron Bolland, who held that as the money was paid by mistake in the hurry of business, it might be recovered back as received to the use of the plaintiffs.
The case of Kelly vs. Solari, 9 M. & W. 54, was fully considered. There the parties paying had at one time a knowledge of the fact, the forgetfulness of which subsequently induced them to make the payment. The Chief Baron, at nisi prius, instructed the jury, that the previous knowledge or means of knowledge would prevent the recovery; but on argument, he united with all the other Barons in the opinion, that there must be knowledge existing in the mind at the time of the payment. Of what avail is it, in any view of justice or sound sense, that a man once knew or had means to know a fact, if, at the moment when alone, such knowledge is practically useful, he is actually ignorant of it ?
A payment cannot well be said to be made voluntarily when it is made in consequence alone of a false view of facts. The assent is only induced by the conviction then prevailing in the [78]*78mind, that the particular fact existed, and is scarcely to be distinguished from an assent or agreement to pay on the condition that the fact did exist.
The subsequent discovery of the error destroys the whole basis of the agreement, and the parties are restored to their original condition and rights. Of what avail is it, that industry and vigilance might have procured the information? Still the party has done an act he did not intend to do, and did not know or believe he was doing. In this case, the agent assented and agreed to pay only what the engineer certified; he supposed he was paying no more when he delivered the notes to defendants, and his volition was no more involved in any amount beyond, than it would have been had he paid them a bank note of $1,000, misreading, and intending it to be a note of $100.
In the case of Bell vs. Gardner, 4 Man. Gran. 11, found in 43 Eng. Com. Law, 16, the Judges of the Common Pleas, unanimously adopt the principle of Lucas fy Worwick, and applying it to the case before them held it to be a good defence to a suit on a promissory note, that it had been given to the plaintiff to discharge a debt supposed to be due; but which, owing to a fact then unknown to defendant, was not legally recoverable, although the defendant had ample means of knowing the fact.
We are therefore of opinion, that there was nothing in the facts of this case as stated in the exception, which would prevent the plaintiffs from recovering, because of the alleged voluntary character of the payment with the means of knowing and correcting the error under which it was made.
We will now consider whether the recovery is barred by reason that the payment was made in the particular notes which the defendants received.
It has been denied in the argument that these small notes were illegally issued. We are inclined to think they are prohibited ; but do not find it necessary to express a more decided opinion upon that point—assuming the small notes to have' been issued illegally, how will the case stand ?
[79]*79The plaintiffs’ agent paid away $3,306 10, being more by $870 than was due, and more than he designed to pay; of the sum paid, $1,006 were in small notes illegally issued by the plaintiffs, the residue, $2,300 10 in good paper, the defendants received the whole as money, and as the evidence shows have used the notes as money in a few hours after the payment.
The agent having discovered his mistake, called on the defendants to return him the notes to the amount of $870, the sum overpaid by mistake, and they refuse to return the notes or account in any manner for the sum overpaid, and now contend that principles of public policy forbid the plaintiff’s from enforcing such demand.
We cannot yield our assent to a proposition which would sanction such a result. The law properly and consistently withholds its aid when parties ask to enforce an illegal contract—all are presumed to know the law, and if a contract be made to violate it, whether it be a contract to perpetrate a crime, malum in se, such as murder or arson, or to violate a municipal enactment, such as the act prohibiting the issue of small notes, and a remedy is sought either to enforce such contract or to obtain compensation for a breach of it, the parties are properly told the law will neither assist you to coerce another to violate its provisions, nor suffer you to recover against another for refusing to do so.
In this case the plaintiff’s do not ask to enforce any illegal contract. They do not ask to recover against defendants for refusing to violate the law. The defendants have received of them, as and for money, a large amount of notes—part good, and part not good, in consequence of a mistake committed by their agent. Their demand was to correct this mistake—to return the notes, or any of them, which were paid by mistake. Clearly, there is no violation of any law in such a claim. If the same amount of notes, and of the same denomination, had been found in the street by the defendants, or by any other person, would it be an answer to a claim made for them by plaintiffs, that a part of the property thus found consisted of small notes, issued contrary to an Act of Assembly ? Or, to [80]*80put a case more nearly resembling the one before us, if not identical in principle, would it be a sufficient answer, under such circumstances, to say the notes found amounted to $3,306 ? You are justly indebted to me in the sum of $2,436, which leaves but $870; and amongst the notes, there were more than to that amount in small notes, illegally issued. Now, the defendants had no more claim to these notes, or any of them, than if they had found them: and, we think, there is a manifest distinction between such a case as this, and one to which the principles apply, which are referred to by the defendants’ counsel.
The case of Baugher vs. Danner's Executors, affirmed in this court at December session, 1844, MS. is not like this case. There, Joseph Danner, a citizen of the town of Emmittsburg, was permitted by the corporation of the town to issue small notes in the name of the corporation, but for his sole benefit, and for the payment of which, he was to be alone responsible. He did issue a large amount of such notes, which were received as currency; and amongst others, the complainant, Baugher, received them to a considerable amount. Danner afterwards, by his will, directed his estate, real and personal, to be sold by his executors, and the proceeds to be applied to the payment of his debts and the small notes, issued by him in. the name of the corporation of Emmittsburg, for which issues he was individually bound. The executors sold the estate, and refused to apply any part of the proceeds to the payment of these small notes, which he held to the amount of more than $1,200. The bill was filed to coerce payment, but was dismissed, upon the ground that it was an attempt to enforce the execution of an illegal contract. The notes were issued in violation of law; the promise to pay, which they contained on their face, was void by the Act of Assembly; and the very object of that proceeding was to obtain the aid of a court of equity, specifically to enforce the execution of a contract, held by the court to be void. Such is not the case here; there was nothing illegal in the demand of the plaintiffs—nor would á compliance with it involve any violation of law.
[81]*81The case of Catts and Phalen, 2 Howard, 380, is in principle similar to this. Catts was in that case employed by Phalen to draw lottery tickets from the wheel. Catts, having secretly procured a tieket, concealed in his coat sleeve the numbers corresponding with those on his own ticket: and instead of fairly drawing such numbers as presented themselves by chance, drew out the concealed numbers, and thereby caused the ticket, held by his accomplice for his use, to be considered entitled to the highest prize; and Catts afterwards, through his accomplice, received the amount of the prize, for which sum the action was brought.
The defence was that the lottery was prohibited by law, and the money being received in the course of an illegal transaction, could not be recovered back. But the Supreme Court held the defence was not tenable, and affirmed the judgment of the Circuit Court, which had decided the recovery could be had.
The next difficulty suggested in the way of a recovery is, that this being an action for money had and received, it must be proved that money was actually received by the defendants.
The authorities cited, however, make it clear that any thing received as money will entitle the party. Thus, a bond, a note, a credit in account, and even land when received and acknowledged as money, have been respectively held to be sufficient to sustain a count for money had and received. Here, there arc circumstances to show the defendants received money for the small notes; and they received, also, a large part of the payment in good notes.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.