The principle which governs this case, is the one involved in the case of Yarbrough v. Wise, 5 Ala. 292 — that money paid by mistake, to an agent, or stakeholder,- may be recovered back, if he is notified of the mistake, before he pays it over to his principal. There is no pretence here that the money was paid out in the distribution of the assets, or in the payment of the debts of the estate, before the demand made by Sergeant, and upon the well established principles of law, he could not refuse to refund it.
The eharge moved for, assumes that if the money paid to the defendant, by the plaintiff, belonged to the estate of E. O’Reilly, it cannot be recovered back ; but it is clear the assets of the estate iii the hands of the plaintiff, consisted of the amount which would be left, after paying the charges against it, and the settlement subsequently made by the plaintiff, with the orphans’ court, ascertains conclusively, the assets in his hands, subject to the payment of the debts.
We may lay entirely out of view, the promise of the defendant, as the lmv implies a promise to pay, whenever one has money in his hands, belonging to another, which ex equo, et bono, he has not the right to retain, and which on demand he refuses to pay to the right owner. Judgment affirmed. ■