Opinion op the Court by

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.