#### JAMES S. BRIDGERS, Adm'r., v. DANIEL C. McNEIL.

Where a sub-agent received from the general government a pension, under an agreement with the pensioner, that one half of it was to be paid to the agent’s principal, at Washington City, and before any demand or objection on the part of the pensioner, one half was accordingly paid to such agent, it was Held that no action would lie for its recovery from the sub-agent.

Action of assumpsit for money had and received, tried before Heath, L, at the last Fall Term of Robeson Superior Court.

The jury, by the consent of parties, was permitted to pass upon the damages, subject to the opinion of the Court, whether the verdict should not be set aside and a nonsuit awarded. The damages so assessed were $490.

The facts of the case, as proved by the witnesses, were as follows: The plaintiff showed, that he was administrator of one John Ilammand. Mr. Huslce, the pension agent of the United States Government, for Forth Carolina, proved that, in 1853, he received from the proper department of the Gov-*312eminent, and was authorised to pay over to the said John ITammond $986, and that he paid the same to the defendant on Hammond’s power of attorney, he being then alive. A demand and refusal was also proved by the plaintiff'.

The defendant proved that he had paid the plaintiff’s intestate one half of the sum, less 10 per cent on the amount. Tire defendant also proved by one McOollum, that some time previously to the allowing the pension, lie heard a conversation between the defendant and the intestate, Hammond, upon the subject. The defendant told Hammond that he was entitled to a pension, and that he (defendant) was connected with a pension-agent at "Washington City, who would or could have it allowed, but that this agent would not move in the premises, unless he should receive one half for'his services ; that he, defendant, would charge 10 per cent on the other half for Ids services, and that no charge would be made against him, (Iiammond) in the event of a failure to get the pension. After some protestation against the exorbitancy of the terms, ITammond agreed to them, saying, “half a loaf was better than no bread.” The pension, by the exertions of the Washington agent, was allowed by the department, and deposited with the pension agent at Fayetteville, in this Sate, and the whole drawn out as above stated. One half of this sum was forthwith handed over to the Washington agent, and the other half, minus the 10 per cent, was paid to ITammond. After this, a demand was made by Iiammond for the other half, and on refusal, this suit was instituted. No claim was set up in this action for the 10 per cent received by the defendant.

Ilis Honor, on-consideration of the matter reserved, ordered the verdict to be set aside, and a nonsuit entered ; from which judgment, the plaintiff appealed.

leitoh, for the plaintiff.

Banlss, for the defendant.

Battle, J.

Had the action been brought against the agent *313in "Washington City, it might have been sustained upon the authority of the case of Powell v. Jennings, 3 Jones’ Rep. 537. Eut as the defendant paid over the amount, now sought to be recovered, to the Washington City agent, with the assent, if not at the request of the plaintiff’s intestate, it cannot now be recovered from the defendant in an action for money ha'd and received. This case is very analogous to the deposit of money with a stake-holder, on an illegal wager, which" cannot bb recovered from the stake-holder, by the loser, if, at his request, or by his consent, it lias been paid over to the winner. But if it had been demanded of the stake-holder, before ho paid it to the winner, the loser might recover if back. See Wood v. Wood, 3 Murph. Rep. 172. and Forest v. Hart, Ibid, 458, and the cases there cited. We do not discover any error in the judgment and it must be affirmed.

Pee CuriaM. Judgment affirmed.