Illllii' ' ' I lllliliiiiijlii, ^ililli SUM Ut'llilH \i{\ i .■UiiiiinliiU PI PI 'iiiilillliii' h IJI !lii: iiiiiililliip,, liiiiiiiliiilllllillliiil WmmM'. M '%\\ y, iiif >^ 1 ^ TIF' r » ^ ^^^^ 1 '"^ UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY JJ^ (^ ^ojnv }mm-i^^ yjwmw .^lOS'ANGELfj^ ^^liiiK/ o i k n' ":^ a / ^ \ \ / ^ 55 If 'iJn I Wf ja>^ 4';-/'- A SELECTION OF CASES ON THE LAW OF QUASI-CONTRACTS. BY WILLIAM A. KEENER, STOUY PROFESSOK OF LAW IN HARVARD UNIVEKSITV. VOLUME I. CAMBRIDGE : CHARLES W. S 1^: V E R. 1888. «25";??7"- Copyri(/ht, 18S8, By William A. Keener. 0/ r I'MVIItSITY I'ici.sr: John Wilson am> Son, ("AMiiltUXiK PREFACE. This collection of cases deals in the main with that portion of the law of quasi-contracts depending on the theory of unjust enrichment, and enforceable at common law by the use of the indebitatus counts. While nmch that is exclusively of equitable cognizance might prop- erly be discussed under the title of quasi-contracts, the fact that such topics are treated in other courses in the School renders it unneces- sary to refer to them in a collection intended primarily for the use of Harvard Law Students. That Quasi-Contracts has been chosen as a title will not be a surprise to any one familiar with the confusion existing in the cases in consequence of the indiscriminate use of the term " Implied Con- tract," — the term being used not only with reference to a contract implied in law, which is not a contract at all, but also with reference to a contract implied in fact, which is a true contract. It is safe to say that the development of this branch of the law has been much retarded by a confusion of ideas consequent upon this confusion of terms. The method of teaching by cases has grown steadily in favor since its introduction in the Harvard Law School, and has almost univer- sally commended itself to those who have examined it, or have seen its fruits. As these volumes may, however, fall into the hands of persons not acquainted with the use made of the cases, a few words relating thereto may not be out of place. While this method of teaching does not at all proceed on the idea that the common law is wanting in jurists, its advocates regard the adjudged cases as the original sources of our law, and think that it is better for the student, under proper advice and guidance, to extract from the cases a principle, than to accept the statement of any jurist, however eminent he vi PREFACE. may be, that a certain principle is established by certain cases. AVhen the student has by the study of cases grasped a principle, it has iissuined to him a concrete form, and he can apply it because it was by studying it in its application that he has acquired his knowl- edge. Under this system the student must look upon law as a science consisting of a body of principles to be found in the adjudged cases, the cases being to him what the specimen is to the geologist. And judged from this point of view an overruled case may be of as much importance as a decision that has never been questioned. For example, the case of Moses v. Macferlan, 2 Burr. 1002, is generally regarded as overruled. Yet no opinion in which the count for money had and received is discussed, is so often referred to as the opinion of Lord Manstield in that case. And no student can afford to ignore the case. A system in which principles are studied in their application to facts would seem to combine in the highest possible degree the theo- retical and practical. In no other way can a student .so thoroughly acquaint himself with the methods used by judges in applying priu- cijdes of law to the facts before them. It must be borne in mind that this method of teaching does not consist in lectures by the in- structor, with references to the cases in support of the jjropositions stated by him. The exercises in the lecture-room consist in a state- ment and discu.ssion by the students of the cases studied by them in advance. This discussion is under the direction of the instructor, who makes such suggestions and expresses such opinions as seem necessary. The student is required to analyze each ca.se, discrimi- nating between the relevant and irrelevant, between the actual and possible grounds of decision. And having thus discussed a case, he is jirepared and r<'quired to deal with it in its relation to other cases. In other words, the student is practically doing as a student what he will lie constantly doing iis a lawyer. By this mi'lliod the student's rea.soning powers are constsintly developed, an^4-^_t,,,^^ i^M- . others were bound by recognizance in chancery in two thousand pounds to /o,/^*-^.^*-^.^,*/^ t-tr-pCu^ the plaintiff, and that after other process and judgment, 10 Julii 14 Jac, lv^^^^ -{U ^^^c^,^*, the plaintiff sued a levari fac. to the defendant, returnable 15 Mich., ^^^^^^^ J^,^^J /j- iju/ ^^ was delivered Augr. 1, whereupon the defendant levied the sum, and at the , . , day returned that he had levied the same sum, quos paratos nabeo, and yet - -j ' i did not deliver it in court ; per quod, &c. The defendant, qtioad 308, ATC pleaded nihil debet, whereupon the plaintiff took issue ; and as to the rest "t"^^' ^^^^ ' he pleads, that after the issuing of the writ, and before the return, scil. e*-^^-^ / ^' 'u^i. . Aug. 31, he did pay unto the plaintiff the same sum, whereupon the plain- ^^^'■y-^u^J-'■*^>^ *^^^ tiff, by his acquittance, the same day, reciting that he had received it, did Jli,.tA^*t ^o-tm :^. acquit him of it ; whereupon the plaintiff demurred in law. Y-.A^>^<^crv^-»-«-<^ ■ct'^-ti The first question ^ in this case was, whether the action of debt would -C-c^^ -^^^xrv-t-^ iZ*- lie, because there was no contract between the plaintiff and the sheriff. ^,>^,.v^^c trWtoUi^A. But that was resolved by the court that it would lie ; for though there ^^^^^^^..^^ \i i^^ (t^iAM were no actual contract yet there was a kind of contract in law, so it is ex j j^^^^ iyX OuJn quasi contractu. And therefore upon damages recovered in an action of ^ trespass; the plaint iff shall have an action of debt ; and by the same rea son j; ^ ' ^_^ when the money is levied by the sheriff, so as the action ceased against the ^^i-^^ ^^ I A. defendant, the same action is ipso facto by law transferred to the sheriff, '^'ll ' <- ^-—^ ■^ -\J^U o^fiiM^o.^i,*' . ^ Only so much of the case is given as relates to this question. — Ed. /0^vL-t,^~A.*^ 1 2 HODSDEN V. HARRIDGE. [CHAP. I. haviu" bo th the judgment to make it a debt, as before, and the levy to make him answerable ; like unto the case of 1 H. 7. of a tally delivered to the customer, as soon as money comes into his hands he is made a debtor. Quart, if an action of debt may not be had against the executor as the principal debtor, declaring of a devastavit by him. Debt lies by corpora- tions for the penalties forfeited upon their laws ; so for amerciaments in the court barons; so 11 H. 7. 14. for three pounds forfeiture, upon a cus- tom for pound breach ; and 3-t H. G. 36. t 9 E. 4. 50. It is holden that upon such levies by the sheriff appearing upon record, the court may award a distringas, or the party may have ^jieri fac. or elegit against the sheriff, to levy as much of his own : see Mich. 8 H. 8. Reports, Crooke 187. 0. N. in the exchequer makes the sheriff debtor to the king, and the debtor him- self debtor to the sheriff; and though an action of account will lie properly in this case, yet the same case will many times bear both actions, though the money be received per auter mains, or the like. But then the action of account is necessary, when the first receipt ab initio was directed to a merchandizing, which makes uncertainty of the neat remain till account finished ; or where a man is charged as bailiff of a manor, or the like, whereupon the certainty of his receipt appears not till account. Yet even in the case of merchandizing an action of debt will lie for the sum received before the merchandize, yea and after the merchandize, for so much as he hath not so employed ; and therefore if I deliver an hundred pounds to one, to buy cattle, and he bestow fifty pounds of it in cattle, and I bring an ac- tion of debt for all, I shall be barred in that action for the money bestowed, and charges, kc. ; but for the rest I shall recover. IIODSDEN V. HARRIDGE. In the King's Bench, Hilary Term, 1G70. [Reported in 2 Saunders, 04.] Debt on an award by Hodsden against Harridge ; the plaintiff declares, that there were divers disputes and controversies between the plaintiff and defendant, concerning certain monies due to the plaintiff for malt sold and delivered by him to the defendant, and for quieting those controversies, the r plaintiff and defendant, on the 24th day of October, in the 13th year of the ^^ reign of the now king, submitted themselves to the award of two arbitrators, ^ and if they should not agree by a certain day, then to the umpirage of an \, umpire to Ik) chosen by the arbitrators, so as the umpirage should be under .)^ the hand and seal of the umpire before another certain day ; and the plain- '' tiff avers that the arbitrators made no award, but chose one Weekes to be umpire who within tlie time made an umpirage under his hand and seal, SECT. I.] HODSDEN V. HARRIDGE. 3 and thereby awarded the defendant to pay the plaintiff 15/. in fidl satisfac- tion of all debts, accounts and demands due to the plaintiff: and for the non- payment of the said 15/. the plaintiff brings his action, &c. The de fendant pleads in bar the statute of limitations, and that the cause of action did not accrue within six years next before the exhibiting of the bill ; and this, &c., therefore, &c., upon which it was demurred in law. And the question was, whether this action of debt on award be within the statute of 21 Jac. 1. c. 1 6. of limitations or not 1 And it was argued by Saunders for the plaintiff, in Trinity term last past, that it was not within the statute ; for the words of the statute are, " all actions of debt grounded upon any lending or contract without specialty, and all actions of arrearages of rent " shall be sued within six years, kc. And he argued in the first place, that it was a specialty.-' Then it was argued upon the second point, that admitting there was no specialty at all, yet an action of debt on an award was not limited by the statute, for the words being as before, " all actions of debt grounded upon any lending or contract without specialty, &c." therefore all actions of debt without spe- cialty generally are not limited, but only all actions of debt without spe- cialty which are grounded upon any lending or contract ; and here this action of debt is not founded upon any lending, and therefore it is not limited, though it be without specialty. And as to the objection on the other side, that in the present case the law raises a conti'act, as, on a judg- ment or recovery in trespass or trover, the law gives an action of debt as upon a contract raised by law, and therefore this case is within the express letter of the statute, being a debt grounded on a contract raised by law, it was answered, that all actions of debt whatsoever are founded upon a con- tract raised either in fact or by construction of law, and by such an expo- sition all actions of debt without specialty generally will be limited by the statute, which without question was not the true meaning of it ; for if it had been so, the words "grounded upon any lending or contract" had been needless and superfluous : but the statute intends to restrain and limit those actions only which were founded upon any lending or contract in fact, as appears by the words ; and the word lending explains the word contract to be of the same nature. And in the present case, the action of debt is not founded upon any lending or contract, but it is a debt ex quasi con- tractu, as the civilians term it, for which the law gives an action of debt, although there is no contract between the parties : so it is of a recovery in trover or trespass in the county court, or court baron; and the case of debt for an amerciament in a court baron, and so in 11 H. 7. debt for 3/. for a pound breach by the custom of the manor, are all of them actions of debt without specialty, because the defendant may wage his law against them, and yet they are not founded upon any lending or contract between the parties \ and in the two last cases the debt is no contract, but is rather ^ So much of the argument as relates to tliis question has been omitted. — Ed. 4 THE CITY OF LONDON V. GOREE. [CHAP. I. dehitum ex ddicto ; and because those actions so rarely occur, and the ac- tions of debt founded upon express contracts between men without spe- cialty are so frequent every day, the statute intends to restrain and linait the last mentioned actions, without having any regard to the others on account of the paucity of them, from the non-limitation of which the makers of the statute did not find any such inconvenience as they found in the non-limitation of actions of debt founded upon contracts in fact ; et ad ea qucB frequent iHS accidinit jura adaptantur, as is said in Sherwin and Cart- icr{ Hutt. loy. SECT. I.] COCKKAM, EXECUTOR, V. WELBY, 5 much for shewing of them : after verdict it was alledgcd in arrest of judg- ment, that uo assumpsit lay for such a duty, for there ought to be a con- tract, express or implied, to maintain an assumpsit. Again, forasmuch as the customs of the City are confirmed by Parliament, this is a duty by record : sed non allocatur ; for there are multitudes of precedents in such like cases. An assumpsit lies upon a bill of exchange accepted ; an assignee of commissioners of bankrupt may bring an assump- sit, and yet the debt is assigned by virtue of an Act of Parliament. And the Court said, in such case as this the declaration might be upon an in- debitatus assumpsit, as it was in the case at bar. COCKRAM, EXECUTOR, v. WELBY. In the Common Pleas, Easter Term, 1678. [Reported in 2 Modern, 212.] In debt, the plaintiff declared that his testator recovered a judgment in this court, upon which he sued out a fieri facias, which he delivei'ed to the defendant, being sheriif of Lincoln ; and thereupon the said sheriff returned Jieri feci, but that he hath not paid the money to the plaintiff, ^^er quod actio accrevit, tkc. The defendant pleaded the statute of limitations. To which the plaintiff demurred. The question was, whether this action was barely grounded on the con- tract, or whether it had a foundation upon matter of record ] If on the contract only, then the statute of 21. Jac. 1, c. 16. is a good plea to bar the plaintiff of his action, which enacts, " that all actions of debt ground ed . upon any lending or contract without specialty, shall be brought within ^ ^UX^M. six years next after the cause of acti on doth accruej " and in this case nine years had passed. But if it be grounded upon matter of record, that is a specialty, and then the statute is no bar. Barrel, Serjeant, held this to be a debt upon a contract without special- ty ; for when the sheriff had levied the money, the action ceases against the party, and then the law creates a contract, and makes him debtor, as it is in the case of a tally delivered to a customer. It lies against an exec- utor, where the action arises quasi ex contractu, which it would not do if it did not arise ex maleficio, as in the case of a devastavit. It is true, the judgment recovered by the testator is now set forth by the plaintiff's exec- utor ; but that is not the ground but only an inducement to the action, for the plaintiff could not have pleaded ^^ mil tiel record;" so that it is the mere receiving the money which charges the defendant, and not virtute officii upon a false return ; for upon the receipt of the money he is become debtor, whether the writ be returned or not, and the law immediately 6 STEA3ISniP COMPANY V. JOLIFFE. [CHAP. I. creates a contract ; and contracts in law are as much within the statute as actual contracts made between the parties. All this was admitted on the other side; but it was said, that this con- tract in law was chiefly grounded upon the record ; and compared it to the case of attornies fees, which hath been adjudged not to be within the stat- ute, though it be quasi ex contractu, because it depends upon matter of record, i. lioll. Abr. 598. pi. 17. And afterwards, in Michaelmas Term following, by the opinion of North, Chief Justice, Wyndham and Atkixs, Justices, it w\is held, that this case was not within the statute, because the action was brought again st the defendant as a n oflScer who acted by virtue of an execution, in which case the law did create no contract ; a nd that here was a wrong done, for whic the plaintiff had taken a proper remedy and therefore should not barred by this statute. ScROGGS, Justice, was of a contrary opinion ; for, he said, if another re' ceived money to his use due upon bond the receipt makes the party sub- ject to the action, and so is within the statute. But by the opinions of the other Justices judgment was given for the plaintiff. Lse i STEAMSHIP COMPANY v. JOLIFFE. 7 In the Supreme Court of the United States. December, 1864. [Reported in 2 Wallace, 450.] .''/ u^//'/<-/^^Jy^c^. yj u.s-. "^"^ Messrs. Copt, Yale, and Carlisle, for the defendant in error. !Mr. McCullough for the State of California. Mr. Justice Field delivered the opinion of the court.^ This case arises upon the act of the State of California, of the 20th of May, 1861, entitled " An act to establish pilots and pilot regulations for the port of San Francisco." The act provides for the creation of a Board of Pilot Commissioners, and authorizes the board to license such number of pilots for the port as it may deem necessary, and prescribes their qualifica- tions, duties, and compensation. It makes it a misdemeanor, punishable by fine or imprisonment, for any person not having a license from the board, to pilot any ship or vessel in or out of the port by way of the " Heads," that is, by the way which leads directly to and from the ocean. It enacts that " all vessels, their tackle, apparel, and furniture, and the ma.sters and the ownere thereof, shall be jointly and severally liable for pilotage fees, to be recovered in any court of competent jusisdiction." And it declares, that when a vessel is spoken by a pilot and his services are de- 1 Tlio facts boinp sufficiently stalcil in tin- ojiinidii of tlie Court, the statement of fiicts lias l)fcn omitted. — Kn. /<* SECT. I.] STEAMSHIP COMPANY V. JOLIFFE. 7 clined, he shall be entitled to one-half pilotage fees, except when the vessel is in tow of a steam-tug outward bound, in which case no charge shall be made, unless a pilot be actually employed. On the 1st of November, 1861, the [jlaintiff in the court below, the de- fendant in error in this court, was a pilot for the port of San Francisco havinty been regularly appointed and licensed by the board created under the act of the State. At that time the steamship Golden Gate was lying in the port, and about to proceed to Panama, carrying passengers and treasure. This vessel was then, and ever since 1852 had been, an Ameri- can ocean steamer, registered at the custom-house, in the port of New York, and exclusively employed in navigating the ocean, and carrying pas- sengers and treasure between San Francisco and Panama, and was owned by the Pacific Mail Steamship Company, a corporation created under the laws of the State of New York. To the master of this steamship the plain- tiff offered his services to pilot the vessel to sea; but his services were refused, and to recover the half-pilotage fees allowed in such cases by the act of 1861, the present action was brought. At the last term of this court, it was suggested that the constitutionality of the act in question was involved in the decision of the case ; and the court thereupon reserved its consideration until the State of California could be represented. The Attorney-General of the State has accordingly appeared and filed a brief in the case. Since the action of the court in this respect, the legislature of California has passed a new statute on the subject of pilots and pilot regulations for the port of San Francisco, re-enacting sub- stantially the provisions of the original act, but at the same time in terms repealing that act. And the first point made by the Attorney-General is, that, by reason of the repeal,^ the present action cannot be maintained. His position is, that as the claim to half-pilotage fees was given by the statute, the right to recover the same fell with the repeal of the statute ; and that this court must dismiss the writ of error on that ground. The claim to half-pilotage fees, it is true, was given by the statute, but only in consideration of services tendered. The object of the regulations established by the statute was to create a body of hardy and skilful sea- men, thoroughly acquainted with the harbor, to pilot vessels seeking to enter or depart from the port, and thus give security to life and property exposed to the dangers of a difficult navigation. This object would be in a great degree defeated if the selection of a pilot were left to the option of the master of the vessel, or the exertions of a pilot to reach the vessel in order to tender his services were without any remuneration. The experi- ence of all commercial states has shown the necessity, in order to create and maintain an efficient class of pilots, of providing compensation, not only when the services tendered are accepted by the master of the vessel, but also when they are declined. If the services are accepted, a contrac tus 1 Only so much of the case is given as relates to this question. — Ed. _ e^ .y ^ ' 'Ax^^~v oCq ^^k c/j A -y^..^'^^ ^^'U^ JL4^^e.-x..^L<^ Uic. a^ffUyx. .**^ . 8 STEAMSHIP COMPANY V. JOLIFFE. [ClIAP. I. created between the master or owner of the vessel and the pilot, the terms of which, it is true, are fixed by the statute ; but the transaction i s not less a contrjict on that account. If the services tendered are d eclined, the half fees allowed are by way of compensation for the exertions and labor made by the pilot, and the expenses and risks incurred by him in placing himself in a position to render the services, which, in the majority of cases, ■would be required. The transact ion, in this latter ca se, between the pilot and the master or owners, cannot be strictly t ermed a contract, but it is a tra nsaction to which the law attaches sim ilar consequen ces ; it is a quoLsi contract. The absence of assent on the part of the master or owner of the vessel does not change the case. In that large class of transactions desig- nated in the law as implied contracts, the assent or convention which is an essential ingi-edient of an actual contract is often wanting. Thus, if a party obtain the money of another by mistake, it is his duty to refund it, not from any agreement on his part, but from the general obligation to do justice which rests upon all persons. In such case the party makes no promise on the subject; but tlic law, "consulting the interests of morality," implies one ; and the liability thus arising is said to be a liability upon an implied contract.^ The claim for half-pilotage fees stands ujion substantially similar grounds. "There are many cases," says !Mr. Justice Curtis, speaking for this court, "in which an offer to perform, accompanied by present ability to perform, is deemed by law equivalent to performance. The laws of commercial states and countries have made an offer of pilotage services one of those cases." ^ The claim of the plaintiff below for half-pilotage fees resting upon a transaction regarded by the law as a quasi contract, there is no just ground for the position that it fell with the repeal of the statute under which the transaction was had. When a righ t has arisen u pon a contract , or a trans- action in the nature of a contract authorized by statute, and has been so far perfec ted that nothing remains to be done b y the party asse rting it, the repeal of the statute does not affect it, or an action for its enforcement. It has become a v este d right w hich stan d s in dependent of th e statute. And such is the position of the claim of the plaintiff below in the present action : the pilotage services had been tendered by him ; his claim to the compensation prescribed by the statute was then perfect, and the liability of the master or owucr of the vessel had become fixed. And it is clear that the legislature did not intend by the repealing clause in the act of 1801, to impair the right to fees, wliich had arisen under tlie origin.'il act of 1801. The new act re-enacts substantially all the provisions of the original act, relating to pilots and jdlot regulations for the harbor of San Francisco. It subjects the pilots to similar examinations ; it requires ' AiKrnti I'. Sati Fmiif^is.o, IG Cal. 2S2 ; Maine, Ancient I.iiw, .344. ' Cooley V. IJoanl of Wai.kns ot I'url i.| I'liiladelpliia, 12 How. 312. SECT. I.] STEAMSHIP COMPANY V. JOLIFFE. 9 like qualifications ; it prescribes nearly the same fees for similar services ; and it allows half-pilotage fees under the same circumstances as provided in the original act. It appears to have been passed for the purpose of embracing within its provisions the ports of Mare Island and Benicia, as well as the port of San Francisco ; of creating a Board of Pilot Examiners for the three ports, in place of the Board of Pilot Commissioners for the Port of San Francisco alone, and of prohibiting the issue of licenses to any persons who were disloyal to the Government of the United States. The new act took.effect simultaneously with the repeal of the first act; its pro- visions may, therefore, more properly be said to be substituted in the place of, and to continue in force with modifications, the provisions of the original act, rather than to have abrogated and annulled them. The observations of Mr. Chief Justice Shaw, in Wright v. Oakley,^ upon the construction of the Revised Statutes of Massachusetts, which in terms repealed the previous legislation of the State, may with propriety be applied to the case at bar. " In construing the revised statutes and the connected acts of amend- ment and repeal, it is necessary to observe great caution to avoid giving an effect to these acts which was never contemplated by the legislature. In terms, the whole body of the statute law was repealed ; but these repeals went into operation simultaneously with the revised statutes, which were substituted for them, and were intended to replace them, with such modi- fications as were intended to be made by that revision. There was no moment in which the repealing act stood in force without being replaced by the corresponding provisions of the revised statutes. In practical opera- tion and effect, therefore, they are rather to be considered as a continuance and modification of old laws than as an abrogation of those old and the re-enactment of new ones." Judgment affirmed.'^ 1 5 Met. 406. ' Mr. Justice Miller (with whom concurred Wayne and Clifford, JJ.,) dissented in an opinion, of which so much as relates to tlie nature of the defendant's obligation is as follows : — "It is contended by counsel in the argument that the judgment in this case is based on contract, and that no repeal of the statute by State law can impair its obligation. This idea seems to me without foundation. The statute enacts, for the protection of the pilots of San Francisco, that a vessel approaching or leaving the harbor shall employ the first pilot, licensed under that law, wlio offers his services ; and if the oHlcers of the boat refuse, it renders the owners liable in an action by that pilot to half tlie usual ]iilot fees. If the officers of the vessel accept the pilot and his services, unquestionably the law im- plies a contract to pay either what they may reasonably be wortli, or the sum fixed by statute. But if they refuse to acce])t him or liis services, they violate the law ; for wliich violation it imposes tlie ]ienalty of half the usual pilot fees. Here is no element of contract ; no consent of minds ; no services rendered for which tlie law implies an obli- gation to pay. It is purely a case of a violation of the law in refusing to perform what it enjoins, and the enforcement of the penalty for the benefit of the party injured. It is just as easy to see a contract in a hundred other cases where the law imposes a penalty for its violation, and gives an action of debt for tlie recovery of that penalty." — En. 10 SCEVA V. TRUE. [CHAP. I. SCEVA V. TRUE. In The Supreme Judicial Court of New Hampshire, June, 1873. [Reported in 53 New Hampshire Reports, 627.] For the purpose of raising questions of law, and no other, the parties agreed that the facts are as stated in the following motions to dismiss, and the questions were reserved for the consideration of the whole court. ec .*««-fc.;^«*/*.-/^i«t^ "^y^. "^^^^ of said writ, and for more than forty years prior thereto, she was, and j^ 'aJ!1>- -)C_^ t^*i been, insane, and without any guardian, and was, and for more than a , /quarter of a century had been, so hopelessly insane as to have no reason or "^'^-^ <'-'-^ /^ understanding ; that at the time of such attachment and service, and since ,,.,^,0,,^ 4^.^.^.^ i-^ about November 1, 1871, she was, and has been, kept at a private mad- ^ house in said town, by its overseers of the poor, as one of its insane poor ; f^ / ^"^^ that the service of said writ was made and completed by leaving a writ of cC-cX^ <^-~^-^-~-— 7 *^^ summons therein, at said mad-house ; that, for nearly the entire forty years u t.*^^ v^ -^jL^ JuLi prior to said November 1, 1871, she had lived under the same roof with plaintiff's intestate, who was her brother-in-law, and under his charge, and *'''■ "^ V that all the facts which transpired prior to the death of said intestate (about June 1, 1872) were well known to him, and that the plaintiff had notice or knowledge of all the facts in the premises. (2) That this suit is assumpsit for the support of said Fanny, under the circumstances before set forth, and those which follow. Prior to his death, August 11, 1822, William True, father of said Fanny and her sister Martha, wife of said intestate, owned a farm in Andover and Hill, with a house, barn, and out- buildings thereon, situate in said Andover. On May 25, 1822, in expecta- tion of his death, said William True made the following disposition of his property : He gave, by an instrument in writing under seal, all his personal jiroperty, upon certain conditions and subject to certain charges, to his widow, Ik'tsey True, who died upon said premises in May, 18-44, without re-marrj'ing. He also gave her on the same day, in the same way, " the use and occupation of said real estate, both of lands, buildings, and tene- ments, so long as she, the said Betsey, remains my widow." He also, by deed, conveyed on the same day one imdivided half of all said real estate to each of said daugliters. Said intestate carried on said premises in 1822, and married said Martha in December, 1823, and lived on said premises till iib(jut one inoiitli bcfurr his death. All the parties, save Fainiy, treated Kiiid ilceds and instruments as valid, and supposed they were valid ; and, SECT. I.] SCEVA V. TRUE. 11 aside from the time that the said defendant was away in insane asylums and infirmaries for treatment, all lived together on said premises in one family till they died, or until said Enoch F. Sceva refused to support said Fanny longer; and she was taken away about said November 1, and when said Enoch F. Sceva left, the month prior to his death. Said Sceva took the entire charge of the premises, used the crops and the proceeds of the lumber, wood, and bark, sold off' of the whole farm for the common benefit of the family, and paid the taxes and other bills for the support and main- tenance of the family. No administration was ever had upon any part of the estate of said William True, nor was there any use or trust for the benefit of said Fanny. No attempt was ever made to make any contract with said Fanny about her support, or anything else. No application was made for the appointment of a guardian in the interest of said Enoch F. Sceva, because of the opposition of his wife to any step looking to that end. She has been supported during said forty years by said Sceva, his wafe, and her mother, out of the avails of said real estate taken as aforesaid, and out of their own funds. Since 1844 her chief support has been from said Sceva. Said intestate was worth nothing when he commenced on said farm, and died worth about $1600. Shirley, for the defendant. The foundation principle of the entire law of contracts is, that the par- ties must have the capacity to contract, and must actually exercise their faculties by contracting. Here there was no capacity, for there was but one mind ; no contract was made, and no attempt was made to make one. The two vital facts, without which no contract, tacit or express, can exist — capacity and its exercise — are wanting. Was there an implied con- tract 1 What does that term mean 1 In thousands of cases, in the books, we know just what it means. The parties have capacity to contract ; facts, circumstances, few or many, clear or complicated, exist, which lead the minds of the jurors to the conclusion that the minds of the parties met. Minds may meet by words, acts, or both. The words even may negative such meeting, but "acts which speak louder than words" may conclude him who denies a tacit contract. Aside from cases where the capacity to contract is wanting, no instance now occurs to us in which the implied contract cannot be supported upon these principles, and the familiar doc- trines of waiver and estoppel. Our position is, that where there is no ex- press contract, a jury may from circumstances infer one, but that this can in no case be done where the capacity to contract is wanting. This court has settled that there is a distinction between the cases of minors and lunatics. Burke v. Allen. ^ The reasons are apparent. It is another fun- damental principle, that no one, by voluntarily performing services for another, can make that other his debtor. If these principles apply to cases where the contracting mind is wanting, they settle this case. We know it 1 29 N. H. 117. 12 SCEVA V. TRUE. [CIIAP. I. is sometimes said, in such a case, " the law will imply a contract." "What does that meani As it seems to us, only this: that where A., who has capacity to contract, furnishes B., who is totally destitute of such capacity, what is proper for B. to have, the judges will turn the bench into a broker's board, will substitute themselves for B., make a contract where none existed, cause it to relate back to the voluutary acts of A., and then sit in judgment upon and enforce their own contract. It is a perversion of language to call such a performance a contract of any kind. It is judicial usurpation. The Constitution gave the court no such power. The court has no power to make contracts for people: it can only infer one where a jury might. ^ Barnard for the plaintiff. Ladd, J. It is obvious, we think, that one question which has been argued by counsel at considerable length, namely, whether legal service of a writ can be made upon an insane person or idiot, is not before the court, on this motion to dismiss, in such way that any practical results would be gained by deciding it. The agreement of the parties is not that the suit shall be dismissed in case the court are of opinion that the service was in- sufficient, but only that the facts may be taken to be as stated for no other purpose but to present the question to the court ; and, if the decision should be adverse to the plaintiff, we see no reason why he is not still in a position to take the objection that the matter ought to have been pleaded in abatement in order that an issue may be raised for trial by jury upon the facts which he reserves the right to contest. For this reason we have not considered that question. The other facts stated in the motion (which is to be regarded rather as an agreed case than a motion to dismiss) stand upon a different footing, inasmuch as they go to the merits of the case, and may be pleaded in bar or given in evidence under the general issue, and, when so pleaded or proved, their legal effect will be a matter upon which the court, at the trial, must pass. Some suggestions upon this part of the case may there- fore be of use, "We regard it as well settled by the cases referred to in the briefs of counsel, many of which have been commented on at length by Mr. Shirley for the defendant, that an insane person, an idiot, or a person utterly bereft of all sense and reason by the sudden stroke of accident or disease, may be held liable, in assumpsit, for necessaries furnished to him in good faith \\hile in that unfortunate and ht-lpl es s condition . And the reasons upon which this rests are too broad, as well as too sensible and humane, to be overborne by any deductions which a refined logic may make from the cir- cumstance that in such cases there can be no contract or promise in fact, no meeting of the minds of the jiartics. The cases ])ut it on the ground o f a n imp li ed contract ; and by this is not meant, as th e defendant/scounsel seems t o suppo se, an actual contract, — that is, an actual meeting of the ' roiinst'l licrp rited a number of cases. — En. SECT. I.] SCEVA V. TRUE. 13 minds of the parties, an actual, mut ual understanding, to be uiferrcd from language, acts, and circumstances, by the jury, — but a contract and prom- ise, said to be implied by the law, where, in point of fact, there w as no contract, no mutual under standing, and so no promise. The defendant's counsel says it is usurpation for the court to hold, as matter of law, that there is a contract and a promise, when all the evidence in the case shows that there was not a contract, nor the semblance of one. It is doubtless a legal fiction, invented and used for the sake of the remedy. If it was ori- ginally usurpation, certainly it has now become very invetei*ate, and firmly fixed in the body of the law. Suppose a man steals my horse, and afterwards sells it for cash : the law says I may waive the tort, and recover the money received for the animal of him in an action of assumpsit. Why % Because the law, in order to protect my legal right to have the money, and enforce against the thief his legal duty to hand it over to me, implies a promise, that is, feigns a prom- ise when there is none, to support the assumpsit. In order to recover, I have only to show that the defendant, without right, sold my horse for cash, which he still retains. Where are the circumstances, the language or conduct of the pai'ties, from which a meeting of their minds is to be in- ferred, or implied, or imagined, or in any way found by the jury % The defendant never had any other purpose but to get the money for the horse and make oflF with it. The owner of the horse had no intention to sell it, never assented to the sale, and only seeks to recover the money obtained for it to save himself from total loss. The defendant, in such a case, may have the physical capacity to promise to pay over to the owner the money which he means to steal ; but the mental and moral capacity is wanting, and to all practical intents the capacity to promise according to his duty may be said to be as entirely wanting as in the case of an idiot or lunatic. At all events, he does not do it. He struggles to get away with the money, and resists with a determination never to pay if he can help it. Yet the law implies, and against his utmost resistance forces into his mouth, a promise to pay. So, where a brutal husband, without cause or provoca- tion, but from wanton cruelty or caprice, drives his wife from his house, with no means of subsistence, and warns the tradesmen not to trust her on his account, thus expressly revoking all authority she may be supposed to have, as his agent, by virtue of the marital relation, courts of high author- ity liave held that a promise to pay for necessaries furnished her while in this situation, in good faith, is implied by law against the husband, resting upon and arising out of his legal obligation to furnish her support. See remark of Sargent in Ray v. Alden,^ and authorities cited. So, it was held j that the law will imply a promise to pay toll for passing upon a turnpike road, notwithstanding the defendant, at the time of passing, denied his lia- bility and refused payment. Proprietors of Turnpike v. Taylor.'^ In the 1 50 N. H. 83. 2 (5 N. h. 499. 14 SCEVA V. TKUE. [CIIAP. I, recent English case of The Great Xortheru Kaihv. Co. v. Swaftield/ the defendant sent a liorse by the pluintift''s railway directed to himself at S. station. On the arrival of the horse at S. station, at night, there was no one to meet it, and the plaiutitt's, having no accommodation at the sta- tion, sent the horse to a livery stable. The defendant's servant soon after arrived and demanded the horse : he was referred to the livery stable keeper, who refused to deliver the horse except on payment of charges which were admitted to be reasonable. On the next day the defendant came and demanded the horse, and the station-master oftered to pay the charges and let the defendant take away the horse ; but the defendant declined, and went away without the horse, which remained at the livery stable. The plaintiffs afterwards offered to deliver the horse to the defend- ant at S. without payment of any charges, but the defendant refused to receive it unless delivered at his farm, and with payment of a sum of money for his expenses and loss of time. Some months after, the plaintiffs paid the livery stable keeper his charges, and sent the horse to the defendant, who received it ; and it was held that the defendant was liable, upon the ground of a contract implied by law, to the plaintiffs for the livery charges thus paid by them. Illustrations might be multiplied, but enough has been said to show that when a contract or promise implied by law is spoken of, a very different thing is meant from a contract in fact, whether express or tacit. The evi- dence of an actual contract is generally to be found either in some writing made by the parties, or in verbal communications which passed between .them, or in their acts and conduct considered in the light of the circum- stances of each particular case. A contract implied by law, on the con- trary, rests upon no evidence. It has no actual existence ; it is simplj a mythical creation of the law . The law says it shall be taken that there was a promise, when, in point of fixct, there was none. Of course this is not good logic, for the obvious and sufficient reason that it is not true. It is a legal fiction, resting wholly for its support on a plain legal obligation, and a plain legal right. If it were true, it would not be a fiction. There is a class of legal rights, with their correlative legal duties, analogous to the ohligationes quasi ex contractu of the civil law, which seem to lie in the region l)etween contracts on the one hand, and torts on the other, and to call fur the application of a remedy not strictly furnished either by actions ex contractu, or actions ex delicto. The common law supplies no action of dtity, as it does of assumpsit and trespass ; and hence the somewhat awk- ward contrivance of this fiction to apply the remedy of assumpsit where there is no true contract, and no promise to support it.** » L. R. 9 Ex. 132. 2 Tin- part of Roman law whidi has liad most extensive influence on foroiffn subjects of in(|uiry lias been the law of Ohlif^'atioii, or, what comes nearly to tlie same thing, of Contract and Delict. The liomans themselves were not unaware of the offices which the SECT. I.] SCEVA V. TRUE. 15 All confusion in this matter might be avoided, as it seems to me, by a suitable discrimination in the use of the term implied contract. In the discussion of any subject, there is always danger of spending breath and strength about mere words, as well as of falling into error when the same term is used to designate two different things. If the term, implied con- copious and malleable terminology belonging to this part of their system might be made to discharge, and this is proved by tlieir employment of the peculiar adjunct quasi iii such expressions as Quasi-Contract and Quasi-Delict. "Quasi," so used, is exclusively a term of classification. It has been usual with English critics to identify the quasi- contracts with implied contracts, but this is an error ; for implied contracts are true contracts, which quasi-contracts are not. In implied contracts, acts and circ umstances are the symbols of the same ingredients which are symbolized, in expr ess cont racts, by words ; and whether a man employs one set of symbols or th e other must bo a matter of inditference so far as concerns the theory of agreement. But a (|uasi-i-(iiilia(t is imt a contract at all. The commonest sample of the class is the relation subsisting between two persons, one of whom has paid money to the other through mistake. The law, con- sulting the interests of morality, imposes an obligation on the receiver to refund, but the very nature of the transaction indicates that it is not a contract, inasmuch as the Con- vention, the most essential ingredient of Contract, is wanting. This word "quasi," prefixed to a term of Roman law, implies that the conception to which it serves as an index is connected with the conception with which the comparison is instituted by a strong superficial analogy or resemblance. It does not denote that the two conceptions are the same, or that they belong to the same genus. On the contrary, it negatives the notion of an identity between them ; but it points out that they are sufficiently similar for one to be classed as the sequel to the other, and that the phraseology taken from one department of law may be transferred to the other, and employed without violent strain- ing, in the statement of rules which would otherwise be imperfectly expressed. — Maine, Ancient Law, 4th ed., 343-4. Strictly, Quasi-Contracts are acts done by one man to his own inconvenience for the advantage of another, but without the authority of the other, and, consequently, withou t any promise on the part of the oth er to indemnify him or reward him for his trouble. Instances : Negotiorum gestio, in the Roman law ; Salvage, in the English. An obligation arises, such as would have arisen had the one party contracted to do the act, and the other to indemnify or reward. Hence the incident is called a " quasi- contract ; " i. e. an incident, in consequence of which one person is obliged to another, as if a contract had been made between them. The basis is, to incite to certain useful actions. If the principle were not admitted at all, such actions would not be performed so often as they are. If pushed to a certain extent, it would lead to inconvenient and impertinent intermeddling, with the view of catching reward. Whether it shall be admitted, or not, depends upon the nature of the act : — i. e. its general nature ; since, without a general rule, the inducement would not operate, nor would the limitation to the principle be understood. Acts which come not within the rule, however useful in the particular instance, must be left to benevolence incited by the other sanctions. But quasi-contract seems to have a larger import, — denoting any incident by w'hich one party obtains an advantage he ought not to retain, because the retention would damage another ; or by reason of which he ought to indemnify the other. The promi- nent idea in quasi-contract seems to be an undue advantage which would be acquired by the obligor, if he were not compelled to relinquish it or to indemnify. — 2 Austin, Juris- prudence, 4th ed., 944, — Ep. CX6^, ■^^-tf-'Vl.^ 16 SCEVA V. TRUE. [CHAP. I. tract, be used indifferently to denote (1) the fictitious creation of the law spoken of above ; (2) a true or actual but tacit contract, that is, one where a meeting of the minds or mutual understanding is inferred as matter of fact from circumstances, no words written or verbal having been used ; and (3) that state of things where one is estopped by his conduct to deny a contract, although, in fact, he has not made or intended to make one, — it is not strange that confusion should result, and disputes arise where there is no difference of opinion as to the substance of the matter in controversy : whereas, were a different term applied to each, as, for exaraj)le, that of legal duty to designate the first, contract, simply, to designate the second, and, contract by estoppel, the third, this difficulty would be avoided. It would of course come to the same thing, in substance, if the first were always called an implied contract, while the other two were otherwise designated in such way as to show distinctly what is meant. This is not always done, and an examination of our own cases would perhaps show that more or less confusion has arisen from such indiscriminate use of the term. A better nomenclature is desirable. But whatever terms are employed, it is indispensable that the distinction, which is one of substance, should be kept clearly in mind, in order that the principles governing in one class of cases may not be erroneously applied to another. See remarks of Smith, J., in Bixby v. Moore,^ and authorities cited at page 404. Much may doubtless be said against supplying a remedy for the enforce- ment of a plain legal right "by so rude a device as a legal fiction" — '^ but, at this time of day, that is a matter for the consideration of the legislature rather than the courts. The remedy of indehitattis assum2)sit can hardly be abolished in that large class of cases where it can only be sustained by I'esorting to a fiction until some other is furnished to take its place. It by no means follows that this plaintiff is entitled to recover. In the first place, it must appear that the necessaries furnished to the defendant were furnished in good faith, and with no purpose to take advantage of her unfortunate situation. And upon this question, the great length of time which was allowed to pass without procuring the appointment of a guardian for her is a fact to which the jury would undoubtedly attach much weight. Its significance and importance must, of course, depend very much on the circumstances under which the delay and omission occurred, all of which will be for the jury to consider upon the question whether everything was done in good faith towards the defendant, and with an expectation on the jjart of the plaintiff's intestate that he was to be paid. Again : the jury are to consider whether the support for which the plaintiff now seeks to recover was not furnished as a gratuity, with no expectation or intention tliat it should be paid for, except so far as compensation might be derived from the use of the defendant's share of the farm. And, upon this point, » 51 N. II. 402. 2 Miune, Ancient Law, 26. SECT. I.] THE PEOPLE V. GILBERT M. SPEIR. 17 the relationship existing between the parties, the length of time the defend- ant was there in the family without any move on the part of Enoch F. Sceva to charge her or her estate, the absence (if such is the fact) of an account kept by him wherein she was charged with her support, and cred- ited for the nse and occupation of the land, — in short, all the facts and circumstances of her residence with the family that tend to show the inten- tion or expectation of Enoch F. Sceva with respect to being paid for her support, are for the jury. Hunger v. Munger ; ^ Seavey v. Seavey ; '^ Bundy V. Hyde. 3 If these services were rendered, and this snpport furnished, wit h no expectation on the part of Enoch F. Sceva that he was to charge or be paid therefor, this suit ca nnot be maintained ; for then it must be regarded substantially in the light of a gift actually accepted and appropriated by the defendant, without reference to her capacity to make a contract, or even to signify her acceptance by any me ntal assent. In this view, the facts stated in the case will be evidence for the jury to consider upon the trial ; but they do not present any question of law upon which the rights of the parties can be determined by the court. Case discharged. THE PEOPLE ex. rel. CHARLES DUSENBURY, APPELLANT, v. GILBERT M. SPEIR AS JUSTICE, ETC., RESPONDENT. In the Court of Appeals of New York, April, 1879. -, ^ . • > [Reported in 11 New York Reports, 144.] - ^ ^5P Appeal from order of the General Term of the Supreme Court, in the first judicial department, affirming upon certiorari, proceedings under the non-imprisonment act (chapter 300, Laws of 1831), by and before defend- ant as justice of the Supreme [Superior] Court, which resulted in the issuing of a warrant for the arrest of the relator. The facts appear sufficiently in the opinion. Hall & Blandy, for appellant. D. M. Porter, for respondent. Danforth, J. In the course of supplementary proceedings instituted by judgment and execution creditors of Selah Hiler, William S, Kiely was appointed receiver of the property, etc., of the judgment debtor, and as such commenced an action in the Superior Court of the city of New York, against Selah Hiler, Charles Dusenbury, George W. Lane, as chamberlain of the city of New York, and others. It appears from the complaint that at the time of his appointment there was an action pending in favor of Hiler against certain parties, in which a considerable sum of money had been obtained and placed in the hands of Lane as chamberlain, to the 133N. H. 581. 3 37N. H. 125. 3 50 N. H. IIG. 2 18 THE PEOPLE V. GILBERT M. SPEIR. [CIIAP. I. credit of the action, and payment of the same to Hiler was forbidden by injunction ; that afterwards Hiler, with the fraudulent intent of obtaining possession of the money, and preventing it from coming to the hands of his creditors, and with intent to violate the injunction order, claimed that the money had been previously assigned by him to Duseubury, in trust for the benefit of certain creditors of Hiler; that Dusenbur}-, with knowledge of this injunction, induced Lane to pay the money to him as such trustee ; that the assignment under which Dusenbury made the claim was fraudu- lent and void as against creditors, and the plaintiff as receiver ; and the prayer was that the assignment be declared fraudulent and void, and the plaintiff have judgment against each defendant, payable out of the money received by him. Issue was joined, and the trial court found, and de- cided among other things, "that the defendants Hiler and Dusenbury, with the fraudulent intent and purpose of obtaining possession of said money, or of transferring and disposing of the same, and preventing it from coming to the hands of creditors, and with full knowledge of said in- junction order, and with the intent to violate it, procured by fraud an order from the court, requiring the chamberlain to pay to Dusenbury as trustee the money so deposited with him. That it was so paid to him as trustee. That no assignment was in fact made to Dusenbury as trustee or otherwise ; that he was not individually or as trustee entitled to it ; that he wrongfully and fraudulently procured possession of the same, and judg- ment was entered as stated in the affidavit hereinafter referred to. After the recovery of this judgment, the plaiutiif upon the affidavit of his attorney, to which was attached a copy of the judgment roll in the ac- tion above referred to, applied to the respondent for a warrant for the arrest of the relator, under the provisions of the act of 1831 (chapter 300) "to abolish imprisonment for debt, and to punish fraudulent debtors." Upon the return of the warrant a hearing was had, and the relator dis- charged. The General Term of the Supreme Court reversed the determi- nation of the magistrate, and upon a reliearing, the respondent, following the rulings of that court, convicted the relator, and he removed the pro- ceedings to the Supreme Court, where they were affirmed, and from the order of that court the relator has api)ealcd. The first question to be ex- amined relates to the jurisdiction of the officer who issued the warrant. His autliority in this case was not absolute. It dept'uded upon the exist- ence of certain facts. He was required by the statute from which he derived his aiithority to have proof of these f;ict8, and the same statute declared that he should not issue a warrant without that proof, which is there prescribed, and thus made indispensable to the exercise of his author- ity. His jurisdiction, and its limitation depend upon the provisions of the act above referred to. Under those provisions, no person can lawfully be arrested or imprisoned on any civil process, issuing out of any court of law, or on any execution issuing out of any court of equity in any suit or pro- SECT. I.] THE PEOPLE V. GILBERT M. SPEIR. 19 ceeding instituted for the recovery of any money due upon any judgment or decree founded upon contract, or due upon any contract express or im- plied, or for the recovery of any damages for the non-performance of any contract. (Section 1.) But in such cases it is made "lawful for the plaintiff" who shall have obtained judgment against such person, to apply to any judge of the court in which such suit is brought for a warrant to arrest the defendant therein. (Section 3.) Then follow these words of prohibition : " No such warrant shall issue, unless satisfactory evidence be adduced to him by the affidavit of the plaintiff, or of some other person, that there is a debt or demand due to the plaintiff from the defendant, amounting to more than fifty dollars, and specifying the nature and amount thereof, as near as may be, for which the defendant according to the pro- visions of this act cannot be arrested or imprisoned," and establishing one or more particulars, which are specified, but which do not become at pres- ent, material in this inquiry. We are thus met at the outset with the question, whether the judgment, for the enforcement of which these pro- ceedings were instituted, was founded upon contract, or resulted from a suit, which had for its cause of action a claim for damages for the non-per- formance of a contract. And this inquiry must be answered from the affidavit presented to the judge, and on which he based his warrant. The affidavit states the recovery of a judgment against the relator, in favor of the plaintiff, William S. Kieley, as receiver, etc., of Selah Hiler, for $3,627.91, but neither states the cause of action nor the nature of the indebtedness, nor that it was upon contract express or implied, nor any fact from which either of these conditions can be inferred. The affidavit however contains these words : " Deponent further says and charges, that he verily believes that the defendant Dusenbury neither had any title or right to the moneys received by him from the chamberlain of the city of New York, which is particularly mentioned in the judgment roll in which the judgment in favor of the plaintiff was recovered, and that he well knew that he had none, but that he obtained it in disobedience of the in- junction restraining him from receiving the same, and by fraud and im- position on the Court of Common Pleas, which court made the order on which he obtained the money, .and this statement is made upon the judg- ment roll in this action, and findings of fact contained in said judgment roll, and upon the documentary evidence put in evidence on the trial to obtain said judgment. Deponent further says the said judgment is wholly unpaid, and constitutes the foregoing indebtedness ; and further says that for the said cause of action, the defendant by the first two sections of the act (above referred to) cannot be arrested or imprisoned, as deponent is advised and believes." The clause last cited states a mere inference of law, and that not the verified inference of the affiant, but his belief merely of the truth of advice given him. It is not enough. Latham v. Westervelt ; ^ 1 26 P.arb. 260. 20 THE PEOPLE V. GILBERT M. SPEIR. [CHAP. L Broadhead v. McCounell.^ Every fact stated in the affidavit as to the cause of action, meagre as it is in fticts, leads to an inference that there was no contract at the foundation of the action, nor any act or circum- stance from which one could be inferred or implied. Indeed the facts charged indicate directly a cause of action resting in tort. That the de- fendant obtained the money without right or title, and that he well knew he had none, excludes the idea that he received it under a contract, and when we are told furthermore that he received the money in disobedience of an injunction order restraining him from receiving it, and then that he obtained it by fraud and imposition on the court, we perceive not only that there was no contract, but that there is no fact from which a contract can be implied, and that if the allegations are true, the cause of action was not one for which the defendant, according to the provisions of the statute, could not be arrested. Nor is there any fact stated in the judgment roll which aids or strengthens the affidavit. There is nothing in the complaint or findings to indicate that the cause of action was a contract express or implied, and iipon the hearing before the respondent after the arrest of the defendant, he so held, saying: "In looking at the judgment roll it is plain that the warrant herein should not have been granted, for the de- fendant could have been arrested in that original action, and if so he can- not be prosecuted under " the act to abolish imprisonment for debt." And the learned judge who delivered the opinion of the General Term upon the first review,* sa.ys : " The complaint in the receiver's action neither set forth in terms, nor in any manner alluded to any contract existing between himself or the judgment debtor, and the defendant Dusenbury, either as a ])asis of the liability desired to be enforced and maintained, or otherwise," but upholds the jurisdiction of the judge upon the ground that " from the facts, imperfectly stated in the complaint as they were, it could readily be seen that an implied contract existed in law for the payment of the moneys received by the defendant Dusenbury, to the receiver, in case he had no right to receive and hold them upon the ground claimed by him." We cannot agree with the learned judge in this construction of the statute. On the contrary we think tliat the express contract referred to in the statute is one which has been entered into by the parties, and upon which if broken an action will lie for damages, or is implied, when the intention of the parties, if not expressed in words, may be gathered from their acts and from surrounding circumstances ; and in either case must be the result of the free and bona fide exercise of the will, producing the agijregatio mentinm, the joining together of two minds, es- sential to a contract at common law. There is a class of cases where the law prescribes the rights and liabilities of persons who have not in reality entered into any contract at all with one another, but between whom cir- cumstances have arisen which make it just that one should have a right, 1 3 Barb. 187. * 12 Hun, 70. SECT. I.] THE TEOrLE V. GILBERT M. SPEIR, 21 and the other should be subject to a liability, similar to the rights and lia- bilities in certain cases of express contract. Thus, if one man has ob- tained money from another, through the medium of oppression, imposition, extortion, or deceit, or by the commission of a trespass, such money may be recovered back, for the law implies a promise from the wrong-doer to restore it to the rightful owner, although it is obvious that this is the very ojjposite of his intention. Implied or constructive contracts of this nature are s i milar to the constructive trusts of courts of equity, and in fact are not contracts at all.^ And a somewhat similar distinction is recognized in the civil law, where it is said : " In contracts it is the consent of the con- tracting parties which produces the obligation ; in quasi-contracts there is not any consent. The law alone, or natural equity produces the obligation by rendering obligatory the fact from which it results. Therefore these facts are called quasi-contracts, because without being contracts, they pro- duce obligations in the same manner as actual contracts." ^ And again at common law says Blackstone:^ "If any one cheats me with false cards, or dice, or by false weights or measures, or by selling me one commodity for another, an action on the case lies against him for damages, upon the con- tract which the law implies that every transaction is fair and honest." So if money is stolen, its owner may sue the thief for conversion ; doubtless he may sue him for money had and received to his use, but in either of these cases could it be claimed that the wrong-doer was within the pro- tection of the act passed to abolish imprisonment for debt, or that the con- tract implied by law was the contract specified in the first section of that act ] Surely not. And to that class the present case belongs. The court below expressly puts the obligation upon the mere authority of the law, and makes a contract " by force of natural equity." The learned judge 1 Addison on Contracts, 22. 2 1 Poth. Ob. 113. It remains to consider the development of Indebitatus Assumpsit as a remedy upon quasi-contracts, or, as they have been commonly called, contracts implied in law. The contract implied in fact, as Vf e have seen, is a true contract. But the obligation created by law is no contract at all. Neither mutual assent nor consideration is essential to its validity. It is enforced regardless of the intention of the obligoi". It resembles the true contract, however, in one important particular. The duty of the obligor is a positive one, that is, to act. In this respect they both differ from obligations, the breach of which constitutes a tort, where the duty is negative, that is, to forbear. Inasmuch as it has been customary to regard all obligations as arising either ex contractu or ex delicto, it is readily seen why obligations created by law should have been treated as contracts. These constructive duties are more aptly defined in the Eoman law as obligations quMsi ex contractu than by our ambiguous "implied contracts." (In Finch, Law, 150, they are called "as it were" contracts.) Quasi-contracts are founded (1) upon a record, (2) upon a statutory, official, or customary duty, or (3) upon the fundamental principle of justice that no one ought unjustly to enrich himself at the expense of another. — Ames, TJie History of Assumpsit, 2 Harvard Law Review, 63, 64. — Ed. 3 3 Bl. Com. 165. 22 THE PEOPLE V. GILBERT M. SPEIR. [CHAP. I. says : " The law implied a promise to pay over, as the judgment directed that to be done." So obligations are created in consequence of frauds or negligence, and in either case the law compels reparation, and permits the tort to be waived, but there is no contract. That can only come from a convention or agreement of two, not by the optiou or at the election of one. In the case before us there is not even an election, for the complaint states no contract, nor charges any assumpsit. It is also claimed by the respondent's counsel that inasmuch as the judg- ment declares the assignment under which the defendant claimed the money in question to be void, therefore Dusenbury must be deemed to have fraudulently incurred the obligation for which the action was brought, but that position is subject to the objection before mentioned ; in that the debt or obligation spoken of in the act of 1831 means a contract resulting from the voluntary arrangement of the parties, and not cue implied by law for the purjiose of giving a remedy for a wrong suffered. That the debt or obligation was fraudulently incurred is one of the par- ticulars which, proved to exist, permits the judge to issue the warrant; but it must be remembered that in an action for the recovery of a debt, no arrest can be had, and it is mere evasion to say the defendant violated the injunction ; imposed upon the court ; made a claim under a fictitious as- signment ; and so, having wrongfully obtained the money, he refuses to pay it over, but the law says he ought to, therefore he shall bp Hppmpfl to have promised, hence you may sue on that assumpsit, but you cannot arrest because the non-imprisonment act says yo u shall not in an actio n on contract. Therefore you set out in an affidavit the very frauds in conse- quence of which the law implied the contract, and demand the arrest of the defendant. It is very clear that an action for wrongs to persons, or to their property ; actions of trover or trespass, or replevin, are not within the section, for they do not arise on contract. The party wronged cannot by waiving the tort make a contract, and t hen j-csort to the fact wh ich constituted the tort as a ground of a rrest. Fassett v. Tallmadge,^ was an action similar to the one upon which these proceedings are based, to set aside a conveyance made by a debtor of the plaintiff to the defendant Tall- madge, on the ground that it was fraudulent and void as to creditors ; it was so held, and the defendant was ordered to pay to a receiver appointed by the court a sum of money for the property received by him. In con- sidering whether he was liable to be imprisoned, the court say : "The first section <»f the act to abolish imprisonment for (lel)t, and the one hundred and Kcventy-ninth section of the Code, fourth subdivision, are expressly confmcMl ill their ojtpration to cases of contract, or in which the debt is c/Hitracted, or an obligation is incurred. Neither of them apply to a case like the present, where the action is a proceeding in equity to set aside a conveyance or assignment of personal property." " 37 Barb. 436. SECT. I.] STATE OF LOUISIANA V. NEW ORLEANS. 23 As the complaint stated no cause of action upon con tr act, an d as the affidavit presented to the judge contained no statement or assertion t end- ing to establish a contract express or implied as the basis ni tlie jud^^iuent, but on the contrary an a ction to reco ve r the fund on the gro und of its unlawful appropriation or conversion by the defen dant, showing misfeas- ance or malfeasance on his part, rather than a contract liability, the case is not within the sta t uj.e^ Many other questions are raised by the appellant's points, but as the conclusion to which we have arrived in regard to the one above mentioned goes to the foundation of the proceedings, it is unnecessary to discuss them. The order of the General Term should be reversed, and the warrant of Judge Speir for the arrest of the relator, dated 14th of November, 1876, and all subsequent proceedings thereunder, vacated and set aside. All concur, except Miller, J.^ absent at argument. Ordered accordingly. STATE OF LOUISIANA ex rel. FOLSOM v. MAYOR AND ADMINISTEATORS OF NEW ORLEANS. -, «. In the Supreme Court of the United States, November 19, 1883. [Reported in 109 United States Reports, 285.] Mandamus prayed for in the Supreme Court of Louisiana to the city authorities of New Orleans, to compel them to levy taxes and pay a judgment recovered by the relator. The prayer being denied, the decision was brought here on error for review, on the ground of repugnancy to the Constitution and laws of the United States. The facts appear in the opinion of the court. Mr. Thomas J. Semmes for the plaintiffs in error. Mr. W. F. Morris for the defendants in error. Mr. Justice Field delivered the opinion of the court. The relators are the holders of two judgments against the city of New Orleans, one for $26,850, the other for $2,000. Both were recovered in the courts of Louisiana ; the first in June, 1877, by the relators ; the second in June, 1874, by parties who assigned it to them. Both judgments were for damages done to the property of the plaintiffs therein by a mob or riotous assemblage of people in the year 1873. A statute of the State made municipal corporations liable for damages thus caused within their limits. Rev. Stats, of La., 1870, sect. 2453. The judgments were duly registered in the office of the comptroller of the city, pursuant to the provisions of the act known as No. 5 of the extra session of 1870, and the present proceeding was taken by the relators .. ^ 24 STATE OF LOUISIANA V. NEW ORLEANS. [CHAP. L to compel the authorities of the city to provide for their payment. At the time the injuries cumphiincd of were committed, and one of the judg- ments was recovered, the cfty of New Orleans was authorized to levy and collect a tax upon property within its limits of one dollar and seventy-five cents upon every one hundred dollars of its assessed value. At the time the other judgment was recovered this limit of taxation was reduced to one dollar and fifty cents on every one hundred dollars of the assessed value of the property. By the Constitution of the State, adopted in 1879, the power of the city to impose taxes on property within its limits was further restricted to ten mills on the dollar of the valuation. The effect of this Itxst limitation is to prevent the relators, who are not allowed to issue executions against the city, from collecting their judgments, as the funds receivable from the tax thus authorized to be levied are exhausted by the current expenses of the city, which must first be met. The relators sought in the State courts to compel a levy by the city of taxes to meet their judgments at the rate permitted when the damages were done for which the judgments were obtained. They contended that the subsequent limitation imposed upon its powei's violated that clause of the federal Constitution which prohibits a State from passing a law im- paiiiug the obligation of contracts,^ and also that clause of the Fourteenth Amendment which forbids a State to deprive any person of life, liberty, or property without due process of law. The supreme court of the State, reversing the lower court, decided against the relators, and the same contention is renewed here. The right to reimbursement for damages caused by a mob or riotous assemblage of people is not founded upon any contract between the city and the suff'erers. Its liability for the damages is created by a law of the legislature, and can be withdrawn or limited at its pleasure. Municipal corporations are instrumentalities of the State for the convenient adminis- tration of government within their limits. They are invested with authority to establish a police to guard against distxirbance ; and it is their duty to exercise their authority so as to prevent violence from any cause, and particularly from mobs and riotous assemblages. It has, therefore, been generally considered as a just burden cast upon them to require them to make good any loss sustained from the acts of such assemblages which they should have repiessed. The imposition has been supposed to create, in the holders of property liable to taxation within their limits, an interest to discourage and prevent any movements tending to such violent proceed- ing's. Hut, however considered, the imposition is simply a measure of legislative policy, in no respect resting upon tdiitract, and subject, like all otlier measures of policy, to any change tlie legislature may sec fit to make, either in the extent of the lial)ility or in tlie means of its enforcement. And its cliaracter is net at all changed by tlie fact tliat tlie amount of loss, * Only so imi.li (if 111.. fi|iiiii()n is given as relates to this question. — Ed. SECT. I.] STATE OF LOUISIANA V. NEW ORLEANS. 25 in pecuniary estimation, has been ascertained and established by the judg- ments rendered. The obligation to make indemnity created by the statute has no more element of contract in it because merged in the judgments than it had previously. The term "contract" is used in the Constitution m its ordinary sense, as signifying the agreement of two or more minds, fur considerations proceeding from one to the other, to do, or not to do, certain acts. Mutual assent to its terms is of its very essence. A. judgment for damages, estimated in money, is sometimes called by text writers a specialty or contract of record, because it establishes a legal obligation to pay the amount recovered ; and, by a fiction of law, a promise to pay is implied where such legal obligation exists. It is on this principle that an action ex coiitractu will lie upon a judgment.^ But this fiction cannot convert a transaction wanting the assent of parties into one which necessarily implies it. Judgments for torts are usually the .result of vio- lent contests, and, as observed by th# court below, are imposed upon the losing party by a higher authority against his will and protest. The prohibition of the federal Constitution was intended to secure the observ- ance of good faith in the stipulation of parties against any State action. Where a transaction is not based upon any assent of parties, it cannot be said that any faith is pledged with respect to it ; and no case arises for the operation of the prohibition. Garrison v. City of New York." There is, therefore, nothing in the liabilities of the city by reason of which the relators recovered their judgments that precluded the State from changing the taxing power of the city, even though the taxation be so limited as to postpone the payment of the judgments. Judgment affirmed? Mr. Justice Harlan dissenting. By the Constitution of Louisiana adopted in 1879, and which went into effect January 1st, 1880, it is declared "no parish or municipal tax, for all purposes whatever, shall exceed ten mills on the dollar of valuation." The judgments held by plaintiff in error against the city of New Orleans were rendei'ed and became final long before the adoption of that constitu- tional provision. At the time of their rendition, the law forbade execution against the defendant, but the city had the power, and was under a dut}', which the courts could compel it to discharge, to include in its budget or annual estimate for contingent expenses, a sum sufficient to pay these judgments. At that time, also, the rate of taxation prescribed by law was ample to enable the city to meet all such obligations. But if the limitation upon taxation imposed by the State Constitution be applied to tlie judg- ments in question, then, it is conceded, the city cannot raise more money than will be required to meet the ordinary and necessary expenses of municipal administration. Consequently under the limit of ten mills on 1 Chitty on Contracts, Perkins' Ed. 87. ~ 21 Wall. 203. 3 Mr. Justice Bradley delivered a concurring opinion. — Ed. 26 STATE OF LOUISIANA V. NEW ORLEANS. [CHAP. I. the dollar of valuation, the judgments of plaintiffs become as valueless as they would be, had the State Constitution, in terms, forbidden the city from paying them. 1. Are the judgments in question contracts ? ^ This question is answered by the Court of Appeals of New York, speaking by Woodruff, J., in Taylor V. Root.* It is there said : — " Contracts are of three kinds : Simple contracts, contracts by specialty, and contracts of reconl. A judgment is a contract of the highest nature known to the law. . . . The cause or consideration of the judgment is of no possible importance; that is merged in the judgment. "When recovered, the judgment stands as a con- clusive declaration that the plaintiff therein is entitled to the sum of money recovered. No matter what may have been the original cause of action, the judgment forever settles the plaintiffs claim and the defendant's assent thereto ; this assent may have been reluctant, but in law it is an assent, and the defendant is estopjied by the judgment to dissent. Forever thereafter, any claim on the judgment is setting up a cause of action on contract." Blackstone says that " when any specific sum is adjudged to be due from the defendant to the plaintift' on an action or suit at law, this is a contract of the highest nature, being established by the sentence of a court of judi- cature."* Chitty enumerates judgments among contracts or obligations of record, and observes that they " are of superior force, because they have been promulgated by, or are founded upon, the authority and have received the sanction of a court of record." * An action in form ex contractu will lie on a judgment of a court of record, because the law implies a contract to pay it from the fact of there being a legal obligation to do so, "although," says Chitty, " the transaction in its origin was totally unconnected with contract, and there has been no promise in fact." ^ It seems to me that these judgments are contracts, within any reasonable interpretation of the contract clause of the national Constitution. It can hardly be that the framers of that instrument attached less consequence to contracts of record than to simple contracts. If this view be correct, then the withdrawal from the city of New Orleans of the authority which it possessed when they were rendered, to levy taxes sufficient for their payment, impaired the obligation of the contracts evidenced by those judgments. 1 Only so much of the opinion is given as relates to this question. — Ed. « 4 Ki'ye8, 344. » 3 Bl. Com. 465. * Chitty on Contracts, 3. » Id. 87. SECT. I.] MILFORD V. COMMONWEALTH. 27 INHABITANTS OF MILFORD v. COMMONWEALTH. In the Supreme Judicial Court of Massachusetts, February 26 1887. [Reported in 144 Massachusetts Reports, 64.] Petition to the Superior Court, under the Pub. Stats, c. 195, to recover for the support of Susan Touhey, alleged to have been a State pauper, who fell into distress in Milford, and who was not able to be removed to the State almshouse. At the trial before Knowlton, Mason, and Barker, JJ., the petitioner's evidence tended to show that said Susan was a State pauper, and that she was in need of relief, and was properly supported by the petitioner, under the provisions of the Pub. Stats, c. 8G, § 25, at the cost stated in the account annexed to the petition. The court found as a fact that no express contract was made by the respondent for the board of the pauper named in the petition, but thaf whatever was said by the agent of the Commonwealth was with reference merely to the amount of the allowance to be made, under the statute, upon the bills of the town of Milford, presented in accordance with the provision^ of the Pub. Stats, c. 86, § 26. The court ruled, as matter of law, that the claim of a town for reimburse- ment under said § 26 was not a claim founded upon contract for the pay- ment of money, within the meaning of the Pub. Stats, c. 195, § 1 ; and found for the respondent. The petitioner alleged exceptions. S. H. Tyng, for the petitioner. H. N. Shej)ard, Assistant Attorney General, for the Commonwealth. Field, J. The question of law to be decided is whether the claim that the Commonwealth reimburse to the town the expenses incurred in the support of a State pauper, under the Pub. Stats, c. 86, §§ 25, 26, is a claim which is founded upon a contract for the payment of money, within the meaning of the Stat, of 1879, c. 255 (Pub. Stats, c. 195). See Stats. 1865, 0. 162; 1869, c. 12; 1879, c. 291, §3. The Court of Claims of the United States, under statutes which give it jurisdiction to hear and determine " all claims founded upon any law of Congress, ... or upon any contract, expressed or implied, with the govern- ment of the United States," &c., has heard and determined claims for salaries or pay established by a law of the United States, and these have been sometimes spoken of as claims founded on contract, although it is not clear that they ought not to be regarded as claims founded upon a law of the United States. U. S. Rev. Stats. § 1059. Patton v. United States;^ 1 7 Ct. of CL 3G2, 371. 28 MILFORD V. COMMONWEALTH. [CHAr. L French v. Uuited States ; ^ Collins v. United States ; ^ Mitchell v. United States ; ' United States v. Langston,* In matters of procedure, penalties have usually been regarded as debts. In the Pub. Stats, c. 167, § 1, actions for penalties are excluded from actions of contract, and are included in actions of toi-t, but actions under statutes to recover for money expended have usually been actions of contract. New Salem v. "Wendell ; ^ Oakham v. Sutton ; ® Amherst v. Shelburne ; ^ Wenham V. Essex. ^ The law regai'ds the money as expended at the implied request of the defendant, and a promise to pay the money is said to be implied from the liability created by the statute. A contract may be expressly made, or a contract may be inferred or implied when it is found that there is an agree- ment of the parties and an intention to create a contract, although that intention has not been expressed in terms of contract ; in either case, there is an actual contract. But a contract is sometimes said to be implied when there is no intention to create a contract, and no agreement of parties, but tlie law has imposed an obligation which is enforced as if it were an obliga- tion arising ex contractu. In such a case, there is not a contract, and the obliga tion arises ex lege. We are of opinion that the Stat, of 1879, c. 255, was not intended to give to the Superior Court jurisdiction over obligations for the payment of money imp osed l)y statute upon the Commonwealth. There are many such obligations, but they are not within any of the definitions of a contract , all of which require a consent or agreement of the parties. These statutory obligations are performed by the various officers of the Commonwealth, or by the Legislature. In one case, at least, there is a remedy by a petition in the nature of a petition of right, to be filed in the Supreme Judicial Court. Pub. Stats, c. 13, § 64. In mos t cases, ho wever, no ju dicial remedy against the Commonw ealth has been provi ded, and the Common- w ealth cannot be sued in its own courts without clear s t atutory au thority. We think that the Pub. Stats, c. 1 95, must be confined to actua l contracts made by the Commonwealth for the payment of money, and we are not now required to determine whether they must be express contracts. Excejytions overruled. 1 16 Ct. of CI. 419. 2 15 Ct. of CI. 22. 8 18 Ct. of CI. 281 ; s. c. 109 U. S. 1 * 118 U. S. 389. 6 2 Pick. 341. 6 13 Met. 192 ' 11 Gray, 107 8 103 Mass. 117. SECT. II.] PEEKINSON V. GILFORD AND OTHERS. 29 SECTION II. WHEREIN IT DIFFERS FROM TORT. PEEKINSON V. GILFORD and Others. In the King's Bench, Easter Term, 1G40. [Reported in Croke, Charles, 539.] Debt against Gilford and others, e xecutors of William Collier, Esq., late sheriff of the county of Dorset, for two and twenty pounds ten shillings. Whereas the plaintiff had recovered in the Common Pleas against the executor of William Pawlett a debt of one hundred pounds, and two and twenty pounds ten shillings for damages, the debt and damages de bonis testatoris, si, dx. ; et si non, the said two-and-twenty pounds ten shillings de bonis propriis ; and the record being removed into this court, the plaintiff had d^ fieri facias directed to the said William Collier, sheriff of Dorset, for the levying of the said two-aud-twenty pounds ten shillings damages of the goods of the said executor : and by virtue thereof he levied the said two- and-twenty pounds ten shillings, and afterwards died without paying, &c. ; whereupon he demanded it of the said executors, and they had not paid it, per quod actio uccrevit. The defenda nts pleaded non debet; and found against them . Mallet moved in arrest of judgment. The Fourth Objection, ^ That although the action lies against the sheriff himself, yet it lies not against his executors ; for the non-payment is a personal wrong, wherewith his executors are not chargeable, as debt upon an escape lies not against a sheriff's executors. But Berkley, Jones, and myself (Brampston being absent) agreed, that the action well lies. And for the fou rth object ion they held, that th e sheriff's executors are as well chargeable as himself :_for, as Jones^ said, there is a d iversity^here the sheriff i s chargeable in his life fo r a personal tort or misfeasance ; there hi s person is only chargeable, and there actio moritur c um persona : but where he is chargeable for levying-cr f money, -and not payin g i t over, that is for a duty ; and there, if he dies, his executors are charge able as well as himself; which is the reason, that for an escape by~the sheriff his executors are not chargeable : but there would be great mischief if the sheriff's executors should not be liable in this case ; for the j)laintiff had a duty due to him from the, executor s of Pawlett the first 1 Only so much of the case is given as relates to this objection. — Ed. 30 HAMBLY V. TROTT. [CHAP. I. defendant, wh o paid it to ^e sher iff, and thereby was discharged thereof: and if_the phiiutiff should not recover it against the sheriff's executors, he should be without remedy, which the law wiirnot suffer. Wherefore they all agreed, that the action well lay. And rule was given to have judgment entered, unless, ic. HA]\IBLY AND Another, Assignees op MOON^ v. TEOTT, Administrator. In the King's Bench, Hilary Term, 167G. [Reported in Cowper, 371.] In trover against an administrator cum testamento annexo, the dec lara- tion la id the conversio n by the testator^ in_ his lifetime. Plea, that the testator was not guilty. Verdict for the plaintiff. Mr. Kerhy had moved in arrest of judgment upon the ground of this being a personal tort, which dies with the person ; upon the authority of Collins V. FennerelVand had a rule to shew cause. Mr. Buller last term shewed cause. — The objection made to the plain- tiff's title to recover in this case is founded upon the old maxim of law which says, actio personalis moritur cum 2^e^'sona. But that objection does not hold here ; nor is the maxim applicable to all personal actions ; if it were, neither debt nor assumpsit would lie against an executor or adminis- trator. If it is not applicable to all personal actions, there must be some restriction ; and the true distinction is this ; where the action is founded merely upon an injury done to the person, and no property is in question, there the action dies with the person, as in assault and battery, and the like. But where property is concerned, as in this case, the action remains notwithstanding the death of the party. Trover is not like trespass, but lies in a variety of cases where a party gets the possession of goods lawfully. It is founded solely in property, and the value of the goods only can be recovered. Therefore, the damages are as certain as In any action of assumpsit. As to the case of Collins v. Fennerell, it is a single authority and was not argued ; therefore, most prol)!il>ly was determined simply on the old maxim. But Savile 40, case 90, is directly the other way. Where the damages are merely vindictive and uncertain, an action will not lie against an executor ; but where the action is to recover property, there the damages are certain, and the rule does not hold. This is an action for sheep, goats, pigs, oats, and cyder converted by injustice to the use of the person deceased ; tlierefore, this action does not die with the person. » Tiiu. 22, 23, Geo. 2, B. R. SECT. II.] HAMBLY V. THOTT. 31 Mr. Kerhy contra for the defendant cited Carter v. Fossett,^ where Jones, Justice, said, " that when the act of the testator includes a tort, it does not extend to the executor ; but being personal dies with him ; as trover and conversion does not lie against an executor for trover fait jmr Itii/." Collins V. Fennerell, above cited. Here, the goods came to the hands of the testator, and he converted them to his own use. Trover is an action of tort, and conversion is the gist of the action. No one is answerable for a tort but he who commits it ; consequently this action can only be maintained against the person guilty of such conversion. But here the conversion is laid to be by the testator. Therefore the judgment must be arrested. The distinction that has been taken in the books is, that the action may be maintained by an execntor but not against him. Hughes v. Robotham ; Le Mason v. Dixon. ^ Lord Mansfield. If this case depends upon the rule, actio personalis moritur cum persona, at present only a dictum has been cited in support of the argument. Trover is in form a tort, but in substance an action to try^ prop erty. M^Y. Kerhy. The executor is answerable for all contracts of the testator, but not for torts. Lord Mansfield. The fundamental point to be considered in this case^ is, whether if a man gets the property of anot her in to his band s it ma y be recovered against his executors in the form of an actiori^of trover, w here There is an action againstjjie executors in another form. It is merely a distinction whether the relief shall be in this form or that. Suppose the testator had sold the sheep, etc', in question ; in that case an action for money had and received would lie. Suppose the testator had left them in specie to the executors, the conversion must have been laid against the executors. There is no difficulty as to the administration of the assets, because they are not the testator's own property. Su ppose the testato r had consumed them, and had eaten the sheep ; what action would have lain then 1 Is the executor To get off altogether % I shall be very sorry to decide that trover will not lie, if there is no other remedy for the riglit Aston, Justice. Suppose the executor had had a counter demand against the plaintiff, he could not have set it off in trover ; but in an action for money had and received, he might. If these things had been left by the testator in specie, the conversion must have been laid to be by the executor. There seems to be but little difference between actions of trover and actions for money had and received. As at present advised, I incline to think trover maintainable in this case. AsHHURST, Justice. The maxim does not hold as a universal proposition, because assumpsit lies. As to the case of Collins v. Fennerell, all the court considered it as unargued, and given up rather prematurely by ]\Ir. Henleij. Lord Mansfield. 'Hie enter ion I go upon is this : Can justi ce possibly 1 Palm. 330. 2 Popham, 31. ^ Popham, 139. 32 HAMBLY V. TROTT. [CHAP. I. be done in any other form of actioii ] Trover is merely a substitute of the oid^action of detiuue.^_ The^ courtj)rdered it to stand over. Upon a second argument this day, Mr. Dunning cited Cro. Car. 540 ; 1 Sid. 88. Lord Mansfield. Many difficulties arise worth consideration. An action of trover is not now an action ex malejicio, though it is so in form ; V)ut it is founded in property. If the goods of one person come to another, the jicrson who c onverts them is answerable. In substance, trover is an action of property. If a man receives the property of another, his fortune ought to answer it. Suppose he dies, are the assess to l^e m no^espect liable ? It will require a good deal o f consid eration before w e dec id e t hat there is no j-emedy. AsTON', Justice. The rule is, quod oritur ex delicto, non ex contractu shall not charge an executor.^ Executors and administrators.^ Where goods come to the hands of the executor in specie, trover will lie ; where in value, an action for money had and received. But the difficulty with me is, that here it does not appear whether the goods came to the hands of the defendant in specie or in value. Ciir. advisare vult. Afterwards, on Monday, February 12th, in this term. Lord Mansfield delivered the unanimous opinion of the court as follows : — This was an action of trover against an administrator, with the will annexed. The trover and conversion were both charged to have been com- ^5 mitted by the testator in his lifetime; the plea pleaded was, that the yj testator was not guilty. A verdict was found for the plaintiffs, and a mo- \ .^ tion has been made in arrest of judgment, because this is a tort, for which an executor or administrator is not liable to answer. The maxim, actio personalis moritur cum persona, upon which the objec- tion is founded, not being generally true, and much less universally so, leaves the law undefined as to the kind of personal actions which die with the person, or survive against the executor. An action of trover being in furm a fiction, and in substance founded on property, for the equitable purpose of recovering the value of the plaiutifi^'s specific property, used and enjoyed by the defendant, if no other action could be brought against the executor, it seems unjust and inconvenient that the testator's assets should not be liable for the value of what belonged to another man, which the testator had reaped the benefit of. We therefore thought the matter well deserved consideration. We have cat-efully looked into all the cases upon the subject. To state and go through them all w(jnld be tedious, and tend rather to confound than elucidate. Upon the whole, I think these conclusions may be drawn from tliera. » 2 Keb. 502 ; V.-ntr. 30 ; Sir T. lUiyni. 95. « 2 Bac. Abr. 444, 445. tit. * 2 Buc. Abr. 2S0. tit. Trover. SECT. II.] HAMBLY V. TROTT. 33 First, as to actions which survive against an executor, or die with the person, on account of the cause of action. Secondly, as to actions which survive against an executor, or die with the person, on account of the fori/i of action. As to the first ; where the cause of action is money due, or a contract to he performedTgam or^acquisition of the testator by th e work and labor or prop erty of another,"ora~promise of the testator express or implied ; where these are the causes of action, the action survives against the executor, But^vhereli he cause of action is a tort, or aris es e x delicto, as is sa"i3" in Hole V. Blandford,^ supposed to be by force and against the King's peace, there tlie^action dies^^^^as battery, false imprisonment , trespass, words, nuisance, obstructing lights, diverting a water-course, escape against the she riff, and many other cases of the like kind. Secondly, as to those which survive or die, in respect of the form of action. In some actions the defendant could have waged his law ; and therefore, no action in that form lies against an executor. But now other actions are substituted in their room upon the very same cause, which do survive and lie against the executor. ] S"o actio n where in form the declar- ation must be quare vi et armi s, et contra pacem, or where the p le a mus t b e. as in this case, that the testator was not guilty, can lie against the exec utor. Upon the face of the record, the cause of action arises ex delicto, and all private criminal i njuries or wrongs, as well as all public crimes, are buried with t he offender. But in most, if not in all the cases where trover lies^ggajnstjthej^estator, another action might be brought against the executor w hich would answer the purpose. An action on the custom of the realm against a common carrier is for a tort and supposed crime ; the plea is not guilty ; therefore, it will not lie against an executor. But assumpsit, which is another action ^ for the same cause, will lie. So if a man take a horse from another, and bring him back again, an action of trespass will not lie against his execu- tor, though it would against him ; but an action for the use and hire of the horse will lie against the executor. There is a case in Sir Thomas Raymond, 71,^ which sets this matter in a clear light : There, in an action upon the case, the plaintiff declared, "that he was possessed of a cow, which he delivered to the testator, • Richard Bailey, in his lifetime, to keep the same for the use of him, the plaintiff; which cow the said Richard afterwards sold, and did convert and dispose of the money to his own use ; and that neither the said Richard in his life, nor the defendant after his death, ever paid the said money." Upon this state of the case, no one can doubt but the executor was liable for the value. But the special injury charged obliged him to plead that the testa- tor was not guilty. The jury found him guilty. It was moved in arrest of judgment, because this is a tort for which the executor is not liable to - Sir T. Raym. 57. 2 Bailey v. Birtles d uxor, executrix of Richard Bailey. 3 34 HAMBLY V. TROTT. [CHAP. I. answer, but moritur cum persona. For the plaintiff it was insisted, that though an executor is not chargeable for a misfeasance, yet for a non-fea- sance he is ; as for non-payment of money levied upon a fieri facias, and cited Cro. Car. 539 ; 9 Co. 50 b, where this very difference was agreed ; for non-feasance shall never be vi et armis, nor contra pacem. But notwith- standing this the court held " it was a tort, and that the executor ought ot to be chargeable." Sir Thomas Raymond adds, "vide Saville 40, a difference taken." That was the case of Sir Henry Sherrington, who had cut down trees upon the Queen's laud, and converted them to his own use in his lifetime. Upon an information against his widow, after his decease, Manwood, Justice, said, " In every case where any price or value is set upon the thing in which the offence is committed, if the defendant dies his exe- cutor shall be chargeable ; but where the action is for damages only, in satisfaction of the injury done, there his executor shall not be liable." These are the words Sir Thomas Raymond refers to. Herejtherefore is a fundament a l distinction . If it is a sort of injury by whic h the offender acq uires no gain to himself at the expense of the suffe rer, as beating or imprisoning a man, etc., there the person injured has onl y a reparation for the delictum in damages to be assessed by a jnry. But where, besides the crime, property is acquired which benefits the testa tor, there an action for the value of the property shall survive against the ex- ecutor. As for instance, the executor shall n ot be c har geable for the in jury doiiebyliis testator in cutting down another man's trees, but for the benefit arisin g to his testatoj- for the value or sale of the trees he shall . So far as the tort itself goes, an executor shall not be liable : and there- fore it is, that all public and alPprivate crimes die with the offender, and the executor is not^harge^ble^ but so far as the act of the^ o ffende r is beneficial, his assets ought to be answerable ; and his executor therefore shall be charged. There are express authorities that trover and conversion does not lie against the executor; I mean, where the conversion is by the testator. Sir William Jones, 173-4.^ There is no saying that it does. The form of the plea is decisive, viz., that the testator was not guilty ; and the issue is to try the guilt of the testator. And no mischief is done : for s o far as th e cause of action does n ot ar ise ex delicto or ex tnaleficio of the tes tator, Ijut is f ounded in a du ty whicli_the tostiitor owes the plaintiff, upon _p rinciples of civil obligatio n, another form of action may be brought, jis an action for money had and received. Therefore, we are all of opinioa that the judgment must be an'ested. Judgment arrested. 1 Palm. 330. SECT. II.] POWELL, HUGHES, AND PROTHEKO, V. REES. 35 rOWELL, HUGHES, and PEOTHERO v. REES, Administratrix of JOHN REES. In the Queen's Bench, Michaelmas Term, 1837. [Reported in 7 Adolphus ;2^'*^^'*'^ the minerals under three closes had been excepted from the demise, but A^^cZTfeC*. X-^ -A/i— he had worked them, brought the coals to the market, and received the 6w,Lt ^Z U^ r -L-Jji-^K^ produce. The plaintiffs had sued the defendant in trespass, after the (U^ iLi^ u.^Um. tt^ intestate's death, and recovered damages for the coals abstracted within t^J cy^.t-f.'K*^ •(-, ^ the six months next preceding that event, availing themselves of the aU^,-.^ i . Wt! Ji-^ remedy given by Stat. 3 & 4 W. 4, c. 42, s. 2. The present action was co*Xt^^^ .^ l^^l^-^i^ brought to recover damages for the proceeds of the sales of coals by the ^^{^ artc adamson. In re collie. 41 for unliquidated damages, and not against either separate estate. Or he miwht have maint ained a c laim against them for a tort, for the fraud they had committed, in which case one may observe that, acconling to Ba rwick V. Eno'lish Joint Stock Bank,' one partner would be liable for the fraud of the other, even if pers onally innocent of it. This claim he might have 1 maintained against both jointly or either separately from the other for un- liquidated damages, and, except that he is precluded by his proof, might j do so now ; for if he had shaped his case in this way, he would have shaped it in a way which showed that he had not a provable claim, and so the | bankruptcy of those liable would be no impediment to his maintaining an action against them. These are the ways in which he might have shaped : his claim at common law before the Judicature Act, and so he may now. But, beside these three ways of shaping and enforcing his claim, it appears there is another. It seems that a court of equity, before the Judicature Act, where a definite specific sum of money was obtained by fraud by two or more persons, would decree a restitution of the sum so obtained, and make the decree against the defendants joint and several. Why, I know not. If there was no fraud the plaintiff would be sent to law. So he would if the damages were unliquidated. But where there was the combination of two things neither of which was enough, the court of equity would grant relief. So, of course, must the High Court now. So that the appel- lant may now maintain an action for the fraud, and recover, as I have pointed out, in accordance with the former common-law practice, unliqui- dated damages against the defendants jointly, or, according to the former equity practice, a liquidated sum against them jointly and severally. But how does this entitle him to prove for the liquidated sum due and recover- able for a fraud, any more than he could for the unliquidated sum due and recoverable for a fraud 1 It is to be remembered that he has not got a judgment. If he had, the amount would be provable, whether recovered for a fraud, a slander, or any other tort. What is the difference between the two claims both founded on fraud? One is a claim for a liquidated, the other for an unliquidated sum. But that is an immaterial difference, as claims for unliquidated amounts are provable now. What other differ- ence is there ? The former equity decree for the liquidated sum would be against the defendants jointly and severally. The judgment at common law would be against them jointly only. But this makes no difference ; the foundation of the claim is the same, and, as I have said, no judgment has been got. And though the common-law judgment is not against the defendants jointly and severally, its effect is nearly the same. If the claim for the unliquidated amount is not provable, why is that for the liquidated ] The reason why the one is not provable is equally applicable to the other. And that reason is this, that the law does not allow it. Clajmsjomidedon tort are not provable ; nothi ng is provable but those claims which arise out 1 L. K. 2 Ex. 259. 42 Ex parte adamson. In re collie. [chap. i. of contract. The Bankruptcy Act, sect. 1, says, "Debt provable in bank- ruptcy shall include any debt or liability by this Act made provable in bank- ruptcy." Sect. 31 says, "Demands in the nature of unliquidated damages arising otherwise than by reason of a contract or promise shall not be prov- able in bankruptcy." If that was all, it might be said that this is not a demand in the nature of unliquidated damages, and therefore not prohib- ited. True, it may not be thereby prohibited, but the next clause is ''save as aforesaid all debts and HabiHties," etc., shall be deemed to be debts prov- able, and " liability " is afterwards said to include a variety of matters all of which suppose an express or implied contract. There are, no doubt, prov- able debts where there is no contract, as a debt on a judgment. But in such cases the law implies a duty to pay it. But, certainly, till the present case, it was never supposed that a claim for a wrong was provable, or that the discharge of the bankrupt released him from such a claim. Would the discharge of these bankrupts discharge them from an action against them in the form of the old suit in equity for a joint and several decree for pay- ment of money 1 The proof against the separate estate in Read v. Bailey,^ was the proof of a debt. The proof in Phosphate Sewage Company v. Hartmont- was ordered without the question being mooted as to whether the ground of fraud in the case prevented the proof. The proof against the separate estate of the infant obligor of a joint and several bond was allowed, because it was a joint and several bond, and ho was held to be bound by it. Breaches of trust are provable against joint or separate estate, because, I suppose, trustees are held to undertake jointly and severally for the per- formance of their duties, not because there is fraud in breach of trust. There may be a breach of trust where in all good sense there is no pretence for saying there is fraud. To my mind, then, the present claim is contrary to principle, contrary to tjie st atute, and without precedent. Mr. Justice Lindley's opinion is clearly against it. On_ the other point, whether the appellant is too late to change his proof, I am in his favor. I will only add that I cannot see that the separate estate has any ground for com- plaint, except that the j)roof c omes la te, which is no objection ; and that _the joint estate cannot complain th at it is relieved of aj)roof^ But, on the other ground, I am of opinion that the appeal should be dismissed. The Court gave the trustee leave to appeal to the House of Lords, on condition of his piesenting the appeal within a month. 1 3 App. Cas. 94. 2 5 ch. D. 394. r^c, SECT. 11.1 , .PHILLIPS V. HOMFRAY. ^^' PHILl /-V*!^ C^ t^CuJjL c/IiiLTHE Court op. Appeal, July 9, 1883. , ^ c/.x- -^'O i'i^J[Reported in Law Reports 24 Chancery Division, 439.] cy^-t,-"-^ t<,-ix-« This suit was instituted 'in the year 1866 by tne plaintiffs against S. Homfray and other persons, including the deceased K. Fothergill, praying for a declaration that the defendants were liable in respect of certain coal and ironstone gotten and removed by them from under the plaintiffs' farm, , for an account of the coal and ironstone gotten by them from under the i^ 5 Ex. 9.32. * 7th Ed. vol. i. ]i 7 3 M. &S. VJ\. 2 2 H. & N. 446. .•J36. 6 2 r. & M. 495. 8 2 Ld. Ray in. 1216. 8 1 T. R. 378. 6 1 Tavuit. 112. 9 21 Ch. D. 484, 488. iPs ,;?oC-X..-» ^'//C Z^(^ '^-^■Hi SECT. II.] PHILLIPS V. HOMFRAY. 55 sued the original defendants for fouling and polluting a brook. It was held that the action would not survive against their executors. The late Master of the Rolls used the following language : " This was an action on a simple tort. It did not appear that the defendant had got any benefit by fouling the plaintiff's stream, he had only injured the plaintiff. As I understand the rule at common law, it was this, — you could not sue execu- tors for a wrong committed by their testator for which you could recover only unliquidated damages. That rule has never been altered except by the Act 3 tk 4 Will. 4, c. 42, which allowed the executors to be sued in certain cases, but witli the limitation that the injury must have been com- mitted not more than six months before the death of the testator. That was not so here ; therefore the statute did not apply, and tlie rule of the common law remained in its simplicity." In every case where one man fouls the flow of water to which another is entitled he probably saves him- self expense by doing so. But the benefit to which the Master of the Rolls alludes appears to us to be some beneficial property or value capable of being measured, followed, and recovered. It remains to be considered whether there is any equitable doctrine which can extend or vary the above rules of the common law. We can see none. An action fo r account will only, under such circumstan ces^ lie where the defendant has something in his hands representing the plaintiffs' pro- perty or the proceeds or value of it. But if there were any such it co uld be recovered at law as well as in equity. It is true that the wrongful acts complained of were done in secret, but even if such concealment could raise in favor of the plaintiffs an equity to be relieved from the application of the principle actio personalis moritur cum persona, which we doubt, the fraud in this case was discovered during the lifetime of the deceased, R. Fothergill. The mere circumstance of the defendant's death, after the de- cree and before the accounts taken, would not raise any equity in the plaintiffs' favor, and as far as we can see the equity authorities relied upon in argument by the plaintiffs do not assist them. In Bishop of Winchester V. Knight ^ it was held that the lord of the manor might maintain a bill for an account of ore dug or timber cut by the defendant's testator. Lord Chancellor Cowper in giving judgment said, " It would be a reproach to equity to say, that where a man has taken my property, as my ore, or tim- ber, and disposed of it in his lifetime, and dies, that in this case I must be without remedy." But he added, that the trespass of breaking up meadow or ancient pasture-ground dies with the person. If the plaintiffs in the present action were to recover, it is difficult to see why a landlord should not be entitled in equity to an account against the executors of his tenant, for a profit indirectly derived or expense saved by the testator through breaking up ancient meadow or pasture land. In Pulteney v. Warren ^ an account of mesne profits was decreed against executors on the special 1 1 P. Wms. 40G, 407. ^ q Yes. 73. 56 PHILLIPS V. HOMFRAY. [CHAP. L ground that the plaintiff had been prevented by injunction afterwards dis- solved from proceeding in ejectment against the testator in his lifetime, and that it ought to have been one of the terms on which the injunction was granted that the testator or his estate would compensate the plaintiff against the loss of such mesne profits if the injunction turned out to be unjust. It would follow that, had not such special grounds existed, the bill for an account of mesne profits would have been held not maintainable against the executors. Pulteney v. Warren is therefore an authority which bears against the plaintiffs in the present case. In Monypenny v. Bristow ^ a suit was held maintainable against the executors for rents received during the continuance in possession of the testatrix, but the rents in question seem to have been rents which had actually been paid over to the testatrix and fell within the description of property taken by the trespasser. The history of the case of Marquis of Lansdowne v. Marchioness Dowa- ger of Lansdowne ^ appears to us to show that the doctrine of the courts of equity is in exact conformity with the distinction we have pointed out. A bill was filed by a remainderman against the representative of a deceased tenant for life without impeachment for waste. Two causes of complaint ■were put forward by the bill. The first that the deceased tenant for life had been guilty of equitable waste by cutting down ornamental timber and young trees about the property. A second cause of complaint was dilap- idations which he had permitted in and about the mansion-house. The defendants demurred to so much of the bill as related to the former griev- ance, and the demurrer was decided in fiivor of the plaintiff on the ground that the plaintiff was entitled to the proceeds of the equitable waste, and to relief against the assets of the tenant for life so far as they were aug- mented by such proceeds, and an account was directed as to the equitable •waste. The second cause of complaint, which related to the dilapidations, was dealt with on the hearing.' The Master of the Rolls decided that no ac- count of the dilapidations could be decreed, observing that "with respect to incumbents the law was otherwise, and accordingly suits against their rep- resentatives were very common, but no instance of such suits by remainder- men had occurred." It has always been held that ecclesiastical dilapidations by deceased incumbents do not fall within the rule actio personalis moritur cum persona. The fact that an account was granted in respect of the produce of the timber wrongly cut, but refused in respect of the dilapida- tions, shows t hat the yjrofi t whic h equity foll ows i nto t he hands of the executors must b e some profit of which the plaintiff has been deprive d, and not merely a negative benefit which the testator may indirectly have acquired by saving himself the expense of performing his duty. In Gardiner v. Fell * no doubt was suggested as to the right of the court to decree an account of rents and profits against the personal represcnta- 1 2 Knss. & My. 117. ^ \ Madd. 116. 8 1 Jac. & W. 522. ♦ 1 Jac. & \V. 22. SECT. II.] rillLLirS V. HOMFRAY. 57 tivcs of a person who had taken possession under a mistake of law. It appears, however, to be probable, on the facts of the case, that the rents and profits in question were rents and profits actually received in the shape of moneys or actual property by the deceased, as distinguished from the mere wrongful use and occupation of land or houses. It was pressed upon us by the counsel for the plaintiffs that, the decree having been made and the inquiries directed during the lifetime of the de- ceased R. Fothergill, his liability must be taken to have been pronounced, and that what remained to be done in the action was of a ministerial char- acter only, and would not be affected by the maxim actio personalis moritiir cum persona. We cannot take this view. The claim of the plaintiffs is in substance, so fiir as these inquiries are concerned, an action for trespass. The inquiries, whatever the form of language in which they are directed, are an assessment of damages, and until they have been completed the ac- tion is still undetermined. It is of the essence of the rule that claims which are inde t erminate in their cha racter shall not be pursued against the estate of a person after his death. If the claim is one for unliquidated damages, and has not been perfected by judgment at the time of the death of the defendant, the rule applies : Smith v. Eyles.^ It appears to us ac- cordingly that the claims of the plaintiffs to which the second and third inquiries are directed are claims for unliquidated damages in respect of a wrong done, and that the object of the inquiries is to assess such unliqui- dated damages. Su ch claims, and the inq uiries which relate to them , abated in our opinion upon the death of the deceased, R. Fothergill . The appeal of the defendant, Mary Fothergill, as to the second and third inquiries will, therefore, be allowed, with costs. A fortiori, the claim in respect of which the fourth inquiry was directed, is a pure claim for damages for a wrongful act. It follows that, in our opinion, such claim and the inquiry under it abated by the death of R. Fothergill. The plaintiffs' cross-appeal must be dismissed accordingly, with costs. The order which Mr. Justice Pearson made as to the fourth inquiry will thus be extended to the second and third inquiries. Baggallay, L. J : — I regret that, as regards the appeal of Mrs. Fother- gill, I have arrived at a conclusion different from that which has been arrived at by the other members of the court. I am of opinion that the appeal should be dismissed, for the reasons which I am about to state. Though the case of Hambly v. Trott '^ has been very fully considered by Mr. Justice Pearson in the course of his judgment, and also by my col- leagues in that which has been just delivered, I desire to add my own com- ments upon it, as its true effect has, in my opinion, been to some extent misapprehended. The judgment in Hambly v. Trott ^ is generally referred to as that of Lord Mansfield, but it expressed the unanimous, fully considered opinion 1 2 Atk. 385. 2 1 Cowp. 371. 58 PHILLIPS V. HOMFRAY. [CHAP. I. of the court, which inchided Justices Actox and Ashurst, as well as Lord Maxsfield, and was delivered after the case had been twice argued. The action was in trover against an administrator with will annexed ; the dec- laration laid an unlawful conversion by the testator to his own use of cer- tain sheep, pigs, goats, oats, and cider ; the plea was that the testator was not guilty ; the verdict being for the plaintifif, the court was moved on behalf of the defendant in arrest of judgment upon the ground that the wrongful act of the testator was a personal tort which died with the person ; a rule to show cause was granted, and it was upon cause being shown that the judgment was given. At the close of the arguments on the first occa- sion Lord Mansfield said, " I shall be very sorry to decide that trover will not lie if there is no other remedy for the right," and after an opinion ex- pressed by the other judges that as then advised they thought the action maintainable, the court ordered the matter to stand over for further argu- ment, Lord Mansfield adding, " The criterion I go upon is this, can jus- tice possibly be done in any other form of action 1 " After the second argument on the 24th of January, 1776, the court took time to consider its judgment, and on the 12th of February in the same year held that the judgment must be arrested. But it is important to notice the grounds upon which the court arrived at this conclusion. After stating (a) that the maxim " actio j^^sonalis moritur cuvi pe7'sona was not generally true and much less universally so, and that it left the law undefined as to the kind of personal actions which die with the person or survive against the executor, and (b), that an action of trover was in form a fiction, and in substance founded on property, for the equitable purpose of recovering the value of the plaintiffs' specific property used and enjoyed by the defendant, and that if no other action could be brought against the executor it seemed unjust and inconvenient that the testator's assets should not be liable for the value of what belonged to another man which the testator had reaped the benefit of; and (r), that the court, deeming the matter well deserved consideration, had carefully examined all the cases upon the subject, Lord Mansfield proceeded to enunciate the conclusions at which the court had arrived as to actions which survived against an executor, and those which died with the person, distinguishing between those which survived or died on account of the cause of action, and those which survived or died on account of the form of action, a distinction which it is in my opinion most important to bear in mind. As regards those actions which survive or die on account of the cause of action, Lord Mansfield expressed himself as follows:^ ""Where the cause of action is money due, or a contract to be performed, gain or acqui- sition of the testator by the work and labor or j)roperty of another, the action survives against the executor. But where the cause of action is a tort, or arises ex delicto, supposed to be by force and against the King's J 1 Cowp. 375. SECT. II.] PHILLIPS V. IIOMFRAY. 59 peace, there the action dies : as battery, false imprisonment, trespass, words, nuisance, obstructing Hghts, diverting a water-course, escape against the sheriff, and many others of the Uke kind," and as regards those actions which survive or die in respect of the form of action, he went on to say as follows : " In some actions the defendant could have waged his law, and therefore no action in that form lies against an executor. But now other actions are substituted in their room upon the very same cause which do survive and lie against the executor. No action where in form the declara- tion must be q^lare vi et armis et contra pacem, or where the plea must be, as in this case, that the testator was not guilty, can lie against the executor. Upon the face of the record the cause of action arises ex delicto, and all private criminal injuries or wrongs, as well as all public crimes, are buried with the offender." But having said thus much Lord Mansfield added, that in most, if not in all, of the cases where trover lies against the testator another action might be brought against the executor which would answer the purpose. In applying the rules so enunciated to the circumstances of the case then under consideration, the court held that the form of the plea that the testator was not guilty was decisive, and that the judgment must be arrested, but added that no mischief would be thereby occasioned, be- cause, so far as the cause of action did not arise ex delicto or ex vialeficio of the testator, but was founded on a duty which the testator owed to the plaintiff, another form of action might be brought. It would appear then that the judges who disposed of Hambly v. Trott^ were of opinion, first, that the cause of action was such that the executors might have been made liable ; secondly, that by reason of the form of the action, the declaration being in trover, and the plea that the testator was not guilty, it could not be maintained against the executors ; and thirdly, and notwithstanding the arrest of judgment in the pending action, another form of action might be brought and maintained against the executors. It is to my mind clear that t he judges were of opinion that th e merits we re with the plaintiff, but that they were precluded by the technicalities of the pleadings from giving him that to which they deemed him morally entitled. That this was their view is supported by the comments of Lord Mansfield upon two older cases, which he cited in the course of the judgment. In the first of those cases, which was later in date than the other, and which he cited from Sir Thomas Raymond, the plaintiff declared that he was possessed of a cow which he delivered to the testator to keep for the use of the plaintiff, which cow the testator sold, and disposed of the money to his own use, and that neither the testator nor the defendant, his executor, had ever paid the money. Commenting upon this case Lord Mansfield said : ^ " Upon this state of the case no one can doubt but that the executor was liable for the value. But the special injury charged obliged him to plead that the testa- tor was not guilty." That is to say, the cause of. action was such as to 1 1 Cowp. 371. 2 1 Cowp. 376. 60 PHILLIPS V. IIOMFRAY. [CHAP. I. render the executor liable, but a form of action was adopted which obliged the defendant to plead that the testator was not guilty. The jury found the defendant guilty, but on motion for an-est of judgment it was held that the executor ought not to be chargeable. The other case cited was that known as Sir Henry Sherrington's.^ He had cut down trees upon the land of Queen Elizabeth, and converted them to his own use. Upon an information against his widow, Justice Manwood, in the course of his judgment, said : " In every case where any price or value is set upon the thing in which the offence is committed, if the defendant dies his executor shall be chargeable, but where the action is for damages only, in satisfiic- tion of the injury alone, there his executors shall not be liable." In fur- ther commenting upon these two cases Lord Mansfield said : ^ " Here therefore is a fundamental distinction. If it is a sort of injury by which the offender acquires no gain to himself at the expense of the sufferer, as beating or imprisoning a man, etc., there the person injured has only a reparation for the delictum in damages to be assessed by a jury. But where besides the crime property is acquired which benefits the testator, there an action for the value of the property shall survive against the ex- ecutor. As for instance, the executor shall not be chargeable for the injury done by his testator in cutting down another man's trees, but for the bene- fit arising to his testator from the value or sale of the trees he shall." Upwards of one hundred years have elapsed since this judgment in Hambly v. Trott ' was delivered. It has ever since been regarded as au accurate representation of the state of the law as affecting executors in re- spect of causes of action and forms of action arising out of the acts of their testators. The circumstances under which the wrongful act with which we at present have to deal was committed may be concisely stated as follows : In the year 18GG the plaintiffs were the owners of a farm in Monmouth- shire, and the defendants, Homfray, Fothergill, and Forman, who carried on business under the style of the Tredegar Iron Company, had for some time past been working the minerals underlying lands adjoining the plain- tiffs' farm, and in the course of that year the plaintiffs discovered that the defendants were not only getting minerals from under the farm but were using roads and passages made by them through the plaintiffs' minerals for the conveyance of minerals gotten by the defendants from their own mines. In the observations I am about to make it is important to bear in mind the nature of the wrongful act in respect of which the plaintiffs claim re- dress ; but I deem it unnecessary to further refer to tiie institution and progress of the suit, as those have been sufficiently detailed in the judg- ment which has just been delivered. It has hardly been disputed on the present appeal tliat a remedy for a wrongful act can be pursued against the estate of a deceased person by whom the act has been committed, when property, or the proceeds of property, belonging to another have been ap- > .Savile, 40. 2 ] f'owp. 37C. 3 j Cowp. 371. SECT. II.] PHILLIPS V. HOMFRAY. 61 propriated by the deceased person, in other words, that the action in such cases, though arising out of a wrongful act, does not die with tlie person ; but it has been urged that the principle thus enunciated is limited to cases in which property, or the proceeds of property, have been appropriated by the deceased person, and that it does not apply to a case in which the de- ceased person has derived any other benefit from his wrong-doing than property or the proceeds of property, and in particular that it does not apply to a case in which the benefit derived has not been in the form of an actual acquisition of property, but of a saving of expenditure which must otherwise have been incurred by the wrong-doer, as in the present case, in which, for the purpose of the present argument, it must be assumed that by the use by the defendants, for the carriage of their minerals, of the roads and passages under the plaintiffs' farm, there was a saving to them of an expenditure which they must otherwise have incurred. Speaking with much diffidence, as iny views in this respect differ from those of my colleagues, I feel bound to say that I cannot appreciate the reasons upon which it is insisted that although executors are bound to account for any accretions to the property of their testator derived directly from his wrongful act, they are not liable for the amount or value of any other benefit which may be derived by his estate from or by reason of such wrongful act. I can find nothing in the language used by Lord Mansfield that can support this view. On the contrary, when classifying the actions which survive against an executor by reason of the causes of action, he includes among such causes of action "gain or acquisition by the testator by the work and labor or property of another," and he in no respect limits or qualifies the nature or character of the " gain " referred to. A gain or acquisit ion to the wrong- doer by the work and labor of another does not necessarily, if it does at all, imply a diminution o f the property of such _ot her perso n. Whether the amount of the wayleave which a person could reasonably be called upon to pay for the use for the carriage of his minerals over the roads of another, would be a fair measure of the gain or acquisi- tion to the property of the person who has so used them without paying any wayleave, is a question which it is not necessary to decide. I enter- tain no doubt as to there being ample means of ascertaining the amount of gain or acquisition to the property of a person so using the roads of an- other. That Lord Mansfield did not intend to limit the generality of the rule enunciated by him in the manner suggested is, I think, clear from the following observations made by him in the course of the first argument in Hambly v. Trott : ^ " Suppose the testator had sold the sheep, etc., in ques- tion. In that case an action for money had and received would lie. Sup- pose the testator had left them in specie to the executors, the conversion must have been laid against the executors. Suppose the testator had con- sumed them and had eaten the sheep, what action would have lain there % 1 1 Cowp. 373. 62 PHILLIPS V. HOMFEAY. [CHAP. I. Is the executor to get off altogether 1 I shall be very sorry to decide that trover will not lie if there is no other remedy for the right." It appears to me clear that in the opinion of Lord Mansfield the injured owner of the sheep was equally entitled to redress against the estate of the wrong- doer, whether the sheep were sold by him, or were consumed by him, or were left by him in specie at his death. Now, if the sheep had been con- sumed by the testator, the only accretion to his property derived from his so doing would have been the amount of the saving in his butcher's bill, and I am unable to appreciate the distinction in principle between adding to his property by savings in the amount of his butcher's bills and by sav- ings in the cost of carrying his minerals. Upon the whole, I have come to the conclusion that the causes of action which were the foundation of the decree made in the present suit, and to which I deem it unnecessary to more particularly refer, were such as, within the rule in Hambly v. Trott,^ to entitle the plaintiffs to maintain their suit against Mrs. Fothergill as the executrix of the deceased defendant, R. Fothergill, in respect of the subject- mutter of the second and third inquiries directed by the decree. AVhetlier the proceedings which the plaintiffs have adopted for the purpose of en- forcing their rights are in form such as to entitle ]\rrs. Fothergill to suc- ceed in her appeal is a question the consideration of which I will postpone until after I have referred to some cases in equity which appear to me to have an important bearing upon it, but as to some of which the views formed by me in some respects differ from those expressed in the judgment of my colleagues. The first case to which I will refer is that of Garth v. Cotton,' decided by Lord Hardwicke in the year 1753. This was before the decision in Ham- bly V. Trott. The bill w^as for an account of all sums of money produced by a fall of timber in the year 1714. A number ot objections were raised on the part of the defendant, the seventh of which was stated by Lord Hardwicke* in the following terms: "I shall mention but one objection more, and that arises recently from the present state of the cause, as it comes before the court upon a bill of revivor against the representative of Sir John Hind Cotton, the original defendant, — that an action of waste dies with the person, and if the plaintiff had in other respects been in a condition to maintain waste against Sir John Hind Cotton, the party to the articles, it had been gone by his death ; that the law is the same as to the action of trover : pari ratione he hath lost his equitable remedy for the waste." In meeting this objection Lord Hardwicke ^ said ; " There have been several determinations in this court whore, by force of the rule actio personalis moritnr cum persona, the remedy at law hath been extinguished, yet equity hath given the like satisfaction ; " and after referring to various authorities, he proceeded as follows;* "I hold that in all cases of fraud the 1 1 Cowp. 871. M Dick. 183. ^ \ Cowp. 371. * 1 Dick. '^14. '' 1 Dick. 215. 6 i Dick. 217. SECT. II.] PHILLIPS V. HOMFRAY. 63 remedy doth not die with the person ; but the same rehef shall be had against an executor out of the assets of his testator as ought to have been o-iven against the testator himself. Fur, as equity disclaims the maxim that a personal remedy dies with the person, wherever the demand is proper for that jurisdiction, this court will follow the estate of the party liable to tliat demand, and out of that decree satisfaction." In 1801 the case of Pulteney v. Warren^ came before Lord Eldox. The bill prayed an account of mesne profits against the executors of one Dr. Warren. Under ordinary circumstances a bill in equity could not be main- tained for an account of mesne profits, the proper jurisdiction being at law-, and the substantial question was whether under the special circumstances of the case the suit could be maintained. The plaintiff had been prevented from recovering in ejectment by a rule of the Court of King's Bench staying proceedings against Dr. Warren, to abide the result of proceedings in the House of Lords in another case, and also by an injunction at the instance of the occupier, who ultimately failed both at law and in equity. Lord Eldon held that these circumstances were suflScient to justify the plaintiff in commencing proceedings in equity, and having upheld the juris- diction, he decreed the account prayed against Dr. Warren's executors, though it was strongly urged upon him that, having regard to the case of Hambly v. Trott,^ the remedy was gone by reason of the death of Dr. War- ren. It being held that the demand of the plaintiff was one which could properly be entertained in equity, the common-law maxim that the personal remedy died with the person was disregarded. The case of Marquis of Lansdowne v. Marchioness Dowager of Lansdowne' came before the Vice-Chancellor, Sir Thomas Plumer, in 1815. The bill was against the representative of a deceased tenant for life, and prayed an account of equitable waste committed by him ; on the part of the defendant it was urged that if the tenant for life had committed waste and died, his representatives would not have been answerable, and that the same doc- trine applied by analogy to equitable waste. In dealing with this argu- ment Sir Thomas Plumer quoted in some detail the observations of Lord Mansfield in Hambly v. Trott, and added :" "This I take to be a just ex- position of the qualifications under which the maxim actio personalis mori- tiir cum persona is received at law ; and, if equity is to decide in analogy to a court of law, the question in the present case will be whether, by the equitable waste committed by the late Marquis, he derived any benefit, or whether it was a naked injury by which his estate was not benefited 1 It is clear it was benefited ; and as at law if legal waste be committed, and the party dies, an action for money had and received lies against his represen- tative ; so upon the same principle, in cases of equitable waste, the party must through his representatives refund in respect of the wn-ong he has done." The case was decided by Sir Thomas Plumer upon the broad prni- 1 6 Yes. 73. 2 i Cowp. 371. ^ i Muda. 116. " 1 Madd. 139. 64 PHILLIPS V. HOMFRAY. [CHAP. L ciple that where equitable waste had been committed the court had juris- diction to make the representatives of the party committing such waste accountable. Again, in Monypenny v. Bristow ^ the bill was filed by the heir of a tes- tator against tlie personal representative of his widow, who, with the ac- quiescence of his heir, had been let into possession of certain freehold houses, under an erroneous supposition that they passed by the will along with other property in which a life interest was devised to her. She died before the error was discovered. The bill prayed delivery of the title-deeds and an account of the rents received by the widow during her continuance in possession. It was urged by way of defence that these rents, being wrongfully received by the widow, could have been recovered in her lifetime only by an action of trespass, and that this suit being founded in tort died with her, but this contention was rejected by the Master of the Rolls, Sir John Leach, who, after referring to the judgment in Hambly v. Trott,^ decreed the account prayed. There was an appeal to the Lord Chancellor, Lord Brougham, who dismissed the appeal and affirmed the decree of Sir John Leach. The last case in equity to which I will refer is that of Peek v. Gurney.^ In that case it was sought to make the estate of Mr. Gibbs liable for a mis- representation made by him in conjunction with other directors of a com- pany formed under the Companies Act. His executors contended that the suit was in effect a proceeding to recover damages for a wrong done by Mr. Gibbs, and that the maxim actio personalis moritur cum 2^ersona applied. But the plaintiffs failed in their case as against the executors of Mr. Gibbs on the express ground that Mr. Gibbs' estate had derived no benefit from the misrepresentation to which he was a party. The general result of these cases, and of others to the like effect, may be thus stated, that a court of equity will give effect to a demand against the estate of a deceased person in respect of a wrongful act done by him, if the wrongful act has resulted in a benefit capable of being measured pecuniar- ily, and if the demand is of such a nature as can be properly entertained by the court. The principles thus acted upon by courts of equity are in accordance with the conclusions enunciated by Lord Mansfield with refer- ence to actions at common law which survive or die on account of the cause of action ; but as regards those actions which at common law survive or die on account of the form of action, courts of equity will not permit the justice of the case to be defeated by reason of the technicalities of particular procedure. That the demand of the plaintiffs in this suit was one pioper to be made in a coiut of equity cannot be disputed ; the decree is conclu- sive on this point. Upon the question whether the wrongful act resulted in a benefit to the estate of the wrong-doer I think the proper inquiry is that suggested by Sir Thomas Plumer, " Did the wrong-doer derive any 1 2 Russ. & My. 117. "^ 1 Coup. 371. ^ L. II. 6 II. L. 377. SECT. II.] THE PEOPLE V. GIBBS. 65 benefit from the wrong done by him, or was it a naked injury by which his estate was in no way benefited?" My answer to that inquiry, as appUcd to the circumstances of tlie present case, is that tlie estate of tiie defendant K. Fothergill, was benefited by the wrongful user by the defendants of the loads and passages under the ph^intiff 's farm. Indeed the decree, as varied by Lord Hatherley and as explained by him, appears to me to be conclusive on this point also. If the views which I have expressed are correct, it would follow that had no suit been instituted against the defendant K. Fother- gill, a suit to the like effect as regards the subject-matter of the second and third inquiries might have been commenced and prosecuted after his death against his executrix. Does the fact, that the suit was commenced against him and abated upon his death, make any difference 1 Can it be said that the suit survives as regards part of the relief prayed, but has died as re- gards the subject-matter of the second and third inquiries^ I think not. The decision of Lord Hardwicke in Garth v. Cotton ^ was upon a bill of revivor against the representative of a defendant to the original bill, and that in the case of the ]\Iarquis of Lansduwne was upon a demurrer to a supplemental bill filed against the representative of the Marquis, who was a defendant to the original bill. For these reasons the appeal of Mrs. Fothergill ought, in my opinion, to be dismissed. I think, also, that the appeal of the plaintiffs as regards the 4th inquiry fails, inasmuch as the wrongful acts which are the subject of it, though occasioning injury to the plaintiffs, did not result in any profit to the wrong-doers. THE PEOPLE V. GIBBS and Another, Executors op GIBBS, Late Sheriff of Washington. In the Supreme Court of Judicature of New York, May, 1832. [Reported in 9 Wendell, 29.] This action, tried at the Washington circuit in November, 1830, before the Hon. Esek Cowen, one of the circuit judges, was brought to recover the balance of a sum of money directed to be levied on a warrant issued by the treasui'er of the county of Washington, commanding the sheriff of that county to levy of the goods, &c. of one J. J. Sherwood, $1743.05, being the balance of a certain tax, for the collection of which a tax roll and warrant in due form had been delivered to Sherwood as collector of the town of Salem, and which sum remained due and unaccounted for by him. The warrant against the collector was delivered to a deputy of the sheriff, and $343.39 remaining unaccounted for by the sheriff, and the warrant not having been returned to the treasurer, this action was brought. The 1 1 Dick. 215. 5 66 THE PEOPLE V. GIBBS. [CIIAP. I. declaration was in assumpsit, containing the common money counts and an accuuut stated ; the defendants pleaded the general issue. On the above facts appearing, the counsel for the defendants insisted that the action did not lie against the executors of the sheriff, it being in its nature ex delicto and falling within the rule actio personalis moritui- cum persona. The pre- siding judge decided that the action could not be sustained, unless it w;is proved that the balance claimed had been actually received by the sheriff in his lifetime, or by his deputy ; and no such proof being given, the judge instructed the jury to find a verdict for the defendants, who found accord- ingly. The counsel fur the people excepted to the decision and charge of the judge, and moved for a new trial. Greeiie C. Branson, Attorney-General, for the people. J. Willard and D. Russell, for defendants. By the Court, Savage, Ch. J. By the laws relating to taxes, every collector is required to settle his account with the county treasurer within one week after the time mentioned in his warrant. If the collector refuses or neglects to pay to the county treasurer the amount of taxes contained in the assessment roll, or to account for the same in the manner prescribed by the statute, the county treasurer is required to issue his warrant to the sheriff of the county, commanding him to cause the amount specified to be levied of the goods and chattels, lands and tenements of the collector. If the sheriff neglects to return such warrant or pay the money levied thereon within the time limited, he is declared liable to pay the amount of the warrant to the people of the State, to be recovered in an action for so much money received to their use. The county treasurer certifies the default of the sheriff to the comptroller, and he gives notice thereof to the Attorney- (Jeneral, whose duty it is to prosecute the sheriff.^ This action is brought under this statute. It is not denied that the action would lie against the sheriff himself upon the facts proven in this case ; but it is contended that the action, tliough in form ex contractu, is one actually in tort ; that it is for a nonfeas- ance in his office, and does not survive against his representatives. The action against the sheriff himself would lie, not because money had been received i)y him, but because ho had been guilty of ofl[icial negligence, for wliich the legislature have said he raiglit be made liable in this form of action. There seems to have been some difficulty in the application of the prin- ciple actio piersonalis moritur cum persona. To a certain extent there is no difficulty. Actions upo n contracts relating to property survive ; executors and administrutors are the^rcpreseiitatives of the j)roperty, that is, personal property of the deceased, — they represent the goods and chattels, rights and credits . 68 THE PEOPLE V. GIBBS. [CHAP. I. his deputy, which was personal and died with the person. In Cravath v. Plymptou,\it was held that no action lay against the executor of a deputy sheriti" for a nonfeasance of the deputy in neglecting to levy an execution for the plaintifi' on the body of his debtor. In all these cases the courts refer to, and rely upon the case of Ilambly v. Trott. In Cravath v. Plymp- ton, Pl'txam, Justice, states the principle to be, that where the deceased by a tortious act acquired the property of the plaintiff, as by cutting his trees and converting them to his own use, although trover does not lie, yet the plaintiff may recover the value of his trees in some other form of action ; but where, by the act complained of, the deceased acquired no gain, although the plaintiff may have suffered great loss, then the rule applies, actio persorutlis moritur cum persona. The cases of Cutler & Hay v. Brown's Ex'rs,'^ and Ex'rs of Crane v. Crane,' do not establish a different rule, nor are they at all at variance with the other cases refeiTcd to. The first states that an action for enticing away the plaintiff's slave will lie against executors for the same reason that trover will ; that is the whole case. If it is intended in a case where the testator's estate was benefited, as I presume it is, then there is no objection to it ; if anything else is meant, it is incorrect. The other case was assumpsit against executors for wood cut and sold by the testator ; it is the precise case supposed by Lord Mansfield in Hambly v. Trott. "Were it not for the stat ute allowing an action for money had and received to be brought against the sheriff in a case like the present, the action must have been an action o n the case against t he sheriff for the default of his deputy in neglecting to return an execu tion (for the warr ant in this case was in the na ture of an execution,) and then it would be like the case of McEvers v. Pitkin. It is analogous in principle with the action of debt for an escape ; th ere, as here, the act ion is in form ex contractu, but in substance ex delicto ; yet t he form of the action does not vary the cause of ac tion, and when tha.t is ex delicto, and not^ beneficial to the est ate, no actio n lies against the representativ e of the estate. I am satisfied, therefore, that the learned circuit judge was correct, and a new trial should be denied. 1 13 Mass. 454. ^2 Hayw. 182. . » 4 Hals. 173. CHAPTER II. FAILURE OF CONSIDERATION. SECTION I. MISTAKE. (a) Mistake may he as to Law or Fact. HEWER V. BARTHOLOMEW. In the King's Bench, Trinity Term, 1598. [Reported in Croke, Elizabeth, 614.] AccoMPT, supposing that he received £100 by the hands of John Coven- try. The defendant pleaded ne unqiies son receiver by the hands of John Coventry to render accompt, etc. ; and thereupon they were at issue. The jury found, that Bartholomew paid that £100 to Hewer the plaintiff, in redemption of a mortgage ; and he commanded his servant to put it in his closet ; who did so. Afterwards Bartholomew demanded of the plaintiff certain evidences and bonds, which he refused to deliver. The defendant then required that he might have his money again, which he then had paid. The plaintiff thereupon commanded his servant John Coventry, that he should fetch back the said £100 ad redeliberandum to the foresaid J. Bartholomew the said £100 by him paid; and that the said John Coven- try did fetch again the same money, and poured it forth upon the table eidem J. Bartholomew ea intentione, ut idem J. Bartholomew suas centum libras prcedict. quas idem J. Bartholomew to the said plaintiff had paid reciperet hi prcesentia of the plaintiff; and the plaintiff then and there did will the defendant ad recipiendum the foresaid £100 per ipsum defendentem prcefato querenti, 2it prtsfertur, solid, quas £100 idem defendens adtunc et ibidem recepit, et asportavit. Et si super tota materia, etc. And all the court resolved, that this payment was a good discharge of the mortgage ; and although he afterwards required it again, as his own money, yet it shall not avoid that which was absolutely paid ; but the mortgage remains absolutely discharged; and the monies were the plaintiff's own monies. And although he delivered them to the defendant as his own, not knowing the law therein, supposing it to be no payment, yet in regard he did not give it otherwise, nor upon other consideration, the defendant received them as the plaintiff's money, and is accountable for them. 70 BONNEL V. FOUKE. [CHAP. II. Secondly, Popham and Oawdy held, that this was not any receipt by the hands' of J. Coventry, but by the hands of the plaintiflF himself; for when he willed the defendant to receive it, it was his own delivery ; and when he commanded his servant to fetch it ad deliberandum to the defend- ant, and he brought it down and poured it forth ea intentione that the defendant should receive it, that is not any authority to the servant to deliver it, nor did he by that act deliver it. But Popham said, i f he had commanded his servant to bring the^said mo ney, and de liver it to the defendant, and he had done it i n the presence of his m aster, and the m as- ter had regiTired the other to receive it, that peradv e nture might have been a receipt by the hands of the ser vant. Fenxer held the contrary in this point, for he conceived it to be a deliv- erv bv the servant, because he fetched it down, and poured it forth to the other to receive it. And Clench doubted. Et adjournatur. But afterwards the plaintiff discontinued his suit, and brought a new action, supposing the receipt by his own hands. JACOB BONNEL v. JOHN FOUKE, Alderman of London. In the Upper Bench, Michaelmas Term, 1657. [Reported in 2 Siderfin, 4.] The plaintiff being one of the colemeeters of London, for which he was to pay 1*80 per annum, the special matter was found to be that by divers char- ters the Kings of England have granted and confirmed to the Mayor and Aldermen of London, the measuring of cloths, as well woollen as linen, silks, etc., and the weighing and measuring of fruit, fish, coals, etc., both in the port of London and on the Thames from Stanesbridge to London bridge, and thence to ^ledway near the sea, as also upon the river ]\Iedway, of all such goods landed upon the banks within the said space before limited ; and it was found that in ancient times there were but four cole- meeters, and afterwards six were appointed, and later eight. And in the third year of King James it was enacted by the Common Council of Londoa (which has as much power within the walls of London as an act of Parliament without) that there should be ten colemeeters, eight of whom should pay their rent to the Lord Mayor for the time being, for the main- fenanc-e of his honorable house, while the other two should pay their rent to the Cliamberlain of London. The plaintiff was one of these two. About the year 1652 (as I remember), when the defendant was Mayor, he de- manded of the jilaintiff the said rent, who paid it quarterly and holds several receipts of this tenor : Received of J. B., one of the colemeeters of the city of Loudon, the sum of £20 for his rent, by me, J. F., Lord Mayor, SECT. I.] TURNER V. TURNER. 71 etc. Afterwards the rent was demanded of the said defendant [plaintiff?]] by the Chamberlain of the city, and he paid the said rent to the Cliainber- 1 lain, and therefore bronght assumpsit, namely, iudabltatus assumpsit, against the defendant Fouke, It was adjudged that the action well lies. As if one comes to me and says : Pay me my rent, I am your landlord ; and I answer : Give me your receipt and you shall have it, and so I pay, and afterwards another who has right comes and demands the rent, and I pay him, I may have indebitatus assumpsit against him who gave me the first receipt. And if I pay money in satisfaction of a duty, and he to whom it is paid has no title to receive it, and so the duty is not satisfied, he to whom the nioney was paid is thereby indebted to me, and therefore I may maintain an action against him as well as against one who has no title to demand rent. TUENER V. TURNER. In Chancery, 1680. [Reported in 2 Reports in Chancery, Sd Ed., 81.] That the plaintiff's father lent to Ayloff £700, and at another time £200, for which Ayloff mortgaged lands to the plaintiff's father and his heirs, with proviso, that on payment of £600 to the said plaintiff's fixther or heirs, then the premises to be reconveyed to Ayloff; that the plaintiff is executor to his father and brothers, and so claims the mortgages as vesting in the executors of his father, and not in his heirs. The defendant, being the son and heir of the plaintiff's eldest brother deceased, and grandson and heir to the plaintiff's fjxther, insists that the plaintiff and defendant, and others who claimed several shares and parts of the plaintiff's father's personal estate, agreed to a division thereof amongst themselves ; and a division was made, and releases given of each one's de- mands, in law or equity to the said estate, and the plaintiff in particular released, and the said Ayloff's mortgage, with the money due thereon with other things, was set out and allotted to the defendant by consent of all the parties, and received by the defendant in part of his share, and the plain- tiff accounted to the defendant for the profits of the said Ayloff's mortgaged premises received by him, and afterwards in 1664 the defendant had a decree for the mortgage money against Ayloff's executor, and received the same, to which proceedings the plaintiff was privy, and the defendant say s it is unreasonable that the plaintiff should now make a demand to the sa^d mortgage, to unsettle matters so settled by his own consent^| but the plain tiff i nsists he looked on the premis e s at that time to come to the defendant 72 LANSDOWNE V. LANSDOWNE. [CHAP. II. as h eir, and knew not his own title ther eto, an d the sh ares set out ca me but to £250 ap iece, and AylofF's mortgage w as worth £8000. This Court is of opinion that the phiintiff ought to be relieved, aud had an undoubted right to the said mortgaged premises, and decreed the de- fendant to repay all the money received b y him the reon to the plaintiff. LAXSDOWNE v. LANSDOWNE. In Chancery, before Lord King, C, June 15, 1730. [Reported \n 2 Jacob Sf Walker, 205.1] !M.\RY Lansdowne, having four sons, Eichard, John, Thomas, and Wil- liam, by settlement limited to each of them in fee a part of her real estates, after her death. The plaintiff was the son and heir of Richard. John died without issue, having devised his share to Thomas, and Thomas afterwards died without issue and intestate. On this a question arose between the plaintiff and William as to the right of succession to Thomas; after con- sulting with one Hughes, they agreed to divide the lands between them, and in pursuance of the agreement they executed first a bond, and after- wards conveyances of the shares fi.xed on for each. The plaintiff sought to be relieved against these instruments, alleging by his bill that he had been surprised and imposed upon by Hughes and William Lansdowne. Hughes was made a defendant to the bill ; the other defendant was the infant son and heir of William, who had died before the commencement of the suit. Hughes, in his answer, admitted that he had given his opinion that William was the heir at l aw of Thomas , "being," as he said, " misled herein by a book which this defen dant then had with himj_ called The Clerk's Remembrancer." He recommended them to take fur- ther advice, which they at first intended to do, but the plaintiff afterwards voluntarily told him, " That if his cousin William would, he would agree to share tlie land between them, let it be whose right it would, aud thereby prevent all disputes and lawsuits." The decree declared, that it appe ared tha t the bo nd and indentures were obtained by a mistake and misrepresentation of the law, and ordered them to be given up to be cancelled. The bill was di smissed, as agaiiislTIughes, withou t costs.' ' R^'portfd also in Mospley, 364. — En. - In Mosflcy, .364, the Lord Chancellor is reported as saying in this case: — "That maxim of law, irpwrantin juris nnn crctisat, was in rof^ard to the imhlic, that i 'mor a 1 1 c c (.aniiot Ik- pleaded in excuse of crimes, but did not hold in civil cases." — En. SECT. I.] FARMER V. ARUNDEL. 73 BINGHAM V. BINGHAM. Before William Fortescde, M.R., October 27, 1748. {Reported in 1 Vescy, Senior, 126.] An agreement was made for the sale of an estate to the plaintiff by de- f fondant, who had brought an ejectment in support of a title thereto under V. a will.* The bill was to have the purchase-money refunded, as it appeared to have been the plaintiff's estate. It was insisted, that it was the plaintiff's own fault, to whom the title was produced, and who had time to consider it. Decreed for the plaintiff with costs, and interest for the money from the time of bringing the bill ; for though no fraud appeared, and the defendant apprehended he ha d a right, yet there was_a plain mistake, such as t he court was warranted to relieve against, and not to suffer t he defendant to run away with the money in consideration of the sale of an estate to which he had no right. FARMER V. ARUNDEL. In the Common Pleas, Trinity Term, 1772. {Reported in 2 William Blackstone, 824.] Assumpsit for money had and received to the plaintiff's use, and for money lent and advanced, and for money laid out and expended by the, plaintiff for the defendant. On 7ion assumpsit pleaded and issue thereon,] the case, upon trial at last Woi'cester Assizes before Mr. Justice Nares, appeared to be, — " That the plaintiff was overseer of Grimley, in Co. 1 The material facts were as follows : One John Bingham (inter alia) devised an I estate tail in certain lands to Daniel his eldest son and heir, limiting the reversion in I fee to his own heirs. Daniel left no issue, but devised this estate to the plaintiff in fee. The bill stated that the latter, being ignorant of the law, and persuaded by the defend- ant, and his scrivener and conveyancer, that Daniel had no power to make such devise, and being also subjected to an action of ejectment, purchased the estate of the defendant for £80 ; and that it was conveyed to him by lease and release. The bill was to have this money repaid with interest. The defendant by his answer first of all insisted, that Daniel had no power to make such devise ; but if he had, he urged that the plainlirt" should have " been better advised before he parted with his money, for that all pur- chases were to be at the peril of the purchaser," The decree was for the money, with interest and costs. Belt's Supplement to Vesey, 79. — Ed. 74 FARMER V. ARUNDEL. [cHAP. II, Worcester, and the defendant of St. Martin's, in Worcester city. That, in 1724, Richard Lamb was certificated by the parish of Grimley to St. Peter's, in Worcester, or any other parish in the said city. On the 14th of March, 1771, a common order of removal was made by two justices to remove Lamb and his fomily from St. ^Martin's to Grimley. The defend- ant, meeting the plaintiff in the city of Worcester, produced the pauper and his family to him, and acquainted him with the order. Whereupon the plaintiff received the paupers ; and the defendant then demanded pay- ment of a bill of 8/. 9s. \Qd. for money expended by St. Martin's in main- taiuinir the pauper and his family for the last four years, which the plaintiff accordingly paid. That the pauper still continuing in St. Martin's, another order of two justices was made on the 11th of September, 1771, for his re- moval, but in neither of the orders is any mention made of the certificate. To this order Grimley appealed, and the Sessions confirmed the same, but made no order for costs." x\nd this action is now brought to recover back this sum of 8/. 9s. 10(/., which the plaintiff says he paid in his own wrong. Walker, for the plaintiff, argued that the defendant, having no right to demand, had therefore no right to retain this money ; that the pauper was not certificated to St. Martin's, but St. Peter's ; and that, under stat. 8 & 9 W. 3, c. 30, the certificate must be to some particular place ; that stat. 3, Geo. 2, c. 29, [s. 9,] provides for reimbursing the expenses of certificated persons, to be liquidated by a justice of peace. This certificate is three years prior to that act, and that act recites that the expense could not then be recovered by law. The remedy pointed out by that act has not been pursued, even granting the certificate to extend to the parish of St. Martin's. Burland, for the defendant, insisted, that the direction was surplusage ; for certificates need not be directed at all ; ^ but when once delivered, it is satisfied, and cannot be used again : High and Low Bishopside ; * that stat. 3 Geo. 2 extends to all removals subsequent to that act under certificates, whenever given, and that the justice is only to liquidate in case of a dis- pute, not where the sum is admitted, as in the present case ; that there are many cases where a man has no right to demand money, which yet (if volinitarily paid him) he may retain, — as debts of honor or gratitude, and bounties. r)E Gket, C. J. — W^hen money is paid by one man to another on a mis- take either of fact or of law, or by deceit, this action will certainly lie. B ut the proposition is not universal, that whenever a man pays mon ey wliicli he is not bound topaj he may by this action recover i t back . Money due in point of honor or conscience, t hough a man is not co mpclla- ble to pay it, yet if paid, shall not be r ecovered back. — as a bona fide debt. which is barred by the statut e of lim itati ons. Put the form of the certifi- ^ St. Nicholas Harwich and Wolferstan. Str. 1163. » T. 28 Geo. 2, Burr. Settlem. Cases, 381. SECT. I.] BIZE V. DICKASON. 75' cat e out of the case, it is however eviden ce, at all events, that the parish of Grim ley have a ckno wledge d the pauper to be their parishioner. And it is allowed, that he has been maintained four years by the parish of St. Mar- tin's. Admitting, therefore, that this money could not have been demanded by the defendant (which it is not now necessary^© decide), yet I am of opinion that it is an honest d ebt, and that the plaintif f, havi ng once pa id it, shall not, by this a ction, which is considered as an equitabl e action, recover it Jjack agam. Gould, Blackstone, Nares, Js., of the same opinion. Judgment for the defendant. '^- BIZE V. DICKASON, and Another, Assignees op BARTENSHLAG. In the King's Bench, June 23, 1786. [Reported in 1 Term Reports, 285.] This was an action for money had and received by the defendants, as assignees of the bankrupt, for the plaintiff's use. Plea, the general issue. The cause came on to be tried at the sittings after Easter Term, 1786, at Guildhall, London, before Buller, Justice, when the jury found a verdict for the plaintiff; damages 66K 9s. lOd. and costs 40s., subject to the opin- ion of the Court on the following case : — That the bankrupt John Rodolph Bartenshlag, being an underwriter, subscribed policies filled up with the plaintiff' 's name for his foreign corres- pondents, who were unknown to the bankrupt. That losses happened on such policies to the amount of 655^. 9s. 7d. be- fore the bankruptcy of Bartenshlag, and were adjusted by him. That a loss on another policy to the amount of 61. Os. Sd. happened before the said bankruptcy, but was not adjusted till after such bankruptcy. That the plaintiff paid the amount of the losses to his foreign correspon- dents after such bankruptcy. That the plaintiff had a commission del credere from his correspondents, was made debtor by the bankrupt for the premiums, and always retained the policies in his hands. That a dividend of 10s. in the pound was declared under the said com- mission on the 15th of June, 1782. That at the time of the bankruptcy there was due from the plaintiff to the bankrupt the sum of 1356Z. Os. dd. And there was due from the bank- rapt for the above losses 661/. 9s. 10^?. That on the 15th of March, 1782, the plaintiff paid to the defendants the sum of 750/., and on the 17th of November, 1785, the further sum of 606/. Os. M., amounting to 1356/. Os. Sd. 76 BIZE V. DICKASON. [CHAP. II. And on the 18th November, 1785, the plaintiff proved the said sum of C61/. 9s. lOJ. imder the said commission. That the plaintiff never received any dividend under the commission for or on account of the said losses. That a final dividend of the effects of the said bankrupt was declared by the said commissioners on the 24th day of January, 1786. That on the 1st of February, 1786, previous to such dividend being paid, the pl aintiff caused a notice to be se rv ed on tlic defend a nts, purporting that he had paid them the sjiid sura of 1356^. Os. 3d. under a mistaken idea, without ded acting therefrom the said 66 H. 9s. lOd. for the aforesaid losses on the said several policies subscri bed by the b a nkrupt, for whom he was del credere to the said forei gn correspond ents, and^ had p aid such losses ac- cordingly ; and c autioning them ag ainst making any d ividend until he was paid the said sum of 66H. 9s. 10c?. ""^That there is now in the hands of the said defendants effects of the bank- rupt more than sufficient to satisfy the demand of the plaintiff. The question for the opinion of the Court is. Whether the plaintiff is en- titled to recover in this action? If the plaintiff is entitled to recover in this action the verdict to stand. But if the Court shall be of opinion that the plaintiff is not entitled to recover, then a verdict to be entered for the defendants. Smith was to have argued for the plaintiff, but Mingay for the defend- ants declined arguing the case. The Court being of opinion that it came within the principle of the case of Grove v. Dubois ; ^ and — Lord Mansfield, Ch. J., said, The rule had always been, that if a ma n has actually paid what the l aw would not have compelled him to pay, b ut what in equity a nd conscience he ought, he cannot recover it back again in an action for mo ney had and received . So where a man has paid a debt, which w ould otherwise have bee n barred by the statute of limitation s ; or a debt contracted durin g his infancy, whic h in justice he ought to discharg e, though the law would not ha ve c ompelled the payment, y et the money bei ng pa id, it will not oblige th e payee to refund it. B utwhere money is paid under a mistake, which there was no ground to claim in c qas pifincer the p arty may recover it back again by this kind of action. Judgment for the plaintiff. 1 1 T. R. 112.- £EC5r. 1.1 ■ ' / BILBIE j;. UJ^LEY. ^ . ^ 77 / P«-vuw.^ y/,t^^^_ BILBIE V. LUMEEY and Others. -^-- v^ r.^ c . In THE King's Bench, June 28, 1802. [Reported in 2 ^as^, 469.] This was an action for money had and received, and upon other common counts, which was brought by an underwriter upon a policy of insurance, in order to recover back 100^. which he had paid upon the poHcy as for a loss by capture to the defendants, the assured. The ground on whicli the action was endeavored to be sustained was, that the money was paid under a mis- take, the defendants not having at the time of insurance effected, disclosed to the underwriter (the present plaintiff) a material letter which had been before received by them, relating to the time of sailing of the ship insured. It was not now denied that the letter was material to be disclosed ; but the defence rested on now and at the trial was, that before the loss on the pol- icy was adjusted, and the money paid by the present plaintiff, all the papers had been laid before the underwriters, and amongst others the letter in question ; and therefore it was contended at the trial before Rooke, J., at York, that the money having been paid with full knowledge, or with full means of knowledge of all the circumstances, could not now be recovered back again. On the other hand, it was insisted that it was sufficient to sustain the action that the money had been paid under a mistake of the law ; the plaintiff not being apprized at the time of the payment that the concealment of the particular circumstance disclosed in the letter kept back, was a defence to any action which might have been brought on the policy ; and the learned judge being of that opinion, the plaintiff obtained a verdict. A rule nisi was granted in the last term for setting aside the verdict and having a new trial, which was to have been supported now by Park for the defendants, and opposed by Wood for the plaintiff. But after the re- port was read, and the fact clearly ascertained that the material letter in question had been submitted to the examination of the underwriters before, the adjustment, — Lord Ellenborough, C. J., asked th e plaintiff's counsel wheth er he could state any case where, if a party^aid money to another voluntaril y with afull knowledge of all t he facts of the case, he could recover it bac k again on account of his ignoranc e of the l aw '( [Xo answer being given, his Lordship~continuedT]' The case of Chatfield v. Paxton ^ is the only one I 1 That case carae before this Court on a motion for a new trial in M. 39, Geo. 3. The circumstances were so special, and there was so much of doubt in it, that it was not thought to be of any use to report it. The outline of it was this : A mercantile house in India (of which the defendant was a surviving partner residing here at the time) received a bill drawn by the plaintiff on another house in payment of a debt, which bill the 78 BILBIE V. LUMLEY. [CHAP. II, ever heard of, where Lord Kexyon at nisi prius intimated something of that sort. But when it was afterwards brought before this Court, on a motion for a new trial, there were some other circumstances of fact rehed on ; and it was so doubtful at last on what precise ground the case tunied, ,.*„^-^*-A-t o^w^ that it was not reported. Every man mu st be taken to be cognizant of the i^^^c..^^ ^ UtL^^U^^y^ ^aw ; oth erwise there is no saying to what extent the excuse of ig noi-ance ^ c V^ y o ^"i'y:^»t not be carried. It would be urged in almost every case. In Lowrie V. Bourdieu,^ money paid under a mere mistake of the law was endeavored to be recovered hack ; and there Bulleb, J., observed that ignoranlia juris lion excusat, &c. Rule absolute. defendant's house made their own by laches ; but not apprizing the plaintiff of this, they sent him back the bill protested for non-payment, and drew upon him for the same amount in favor of a mercantile house in London (some of whom, amongst others the defendant, were also partners in the house in India). The plaintitf, ignorant of the laches of the house in India, accepted the new bill ; but before payment he received some information of the laches ; yet not such particular proof of it as would have enabled him to defend himself against the demand upon his acceptance in a court feven if the house in India were to be considered the same as that in London). Therefore the plaintiff paid las acceptance, and afterwards brought this action to recover the money back from the defendant as a partner in the house in India, and obtained a verdict under the direction of Lord Kenyox. Upon the motion for the new trial, his Lordship and Ashhurst, J. were clearly of opinion that the action was maintainable ; considering as it seemed that the defendant's house in India had obtained the plaintiff's acceptance in the first in- stance by a fraudulent concealment of their laches, and that the plaintiff had not volun- tarily and with a fair knowledge of his case submitted to pay it, but had paid it ji mn t he necessity of th e thin g, and under a protest that if on Jiis arrival in India h e after- ''"' /'^*~" ^"'^ ward s found bis suspicions confirmed he should call upo n the house th^re to indemnify »-»-<- vL<- »-<ay- y . ' nient of the fiill of the general outline of his defence ; but as he was not then so conver- / '* Ct/M* -gjjj,^ Qf ^l,g particular facts now appearing as to have been able to resist the demand then rnadf on him if an action had been brought, but seemed to have had only a confused notion of them, exjx-cting twas under the command of Admiral Dacres, as such commander-in-chief, and while she continued under such his command, he, in the month of April, 1808, ordered the plaintiff (who was then captain or commander of the Arethusa, then lying otf Jamaica), to receive on board thereof $700,000 belonging to govern- ment, and proceed with the same to Portsmouth, The plaintiff in pursu- ance of and under that order received the dollars on board, and sailed to, and delivered them at Portsmouth. The Arethusa, previous to her so sailing, also received on board $1,530,000 belonging to private individuals, which the plaintiff caused to be delivered at the Bank of England, for the use and benefit of the persons to whom they were consigned, in conformity to bills of lading signed by him for such delivery. The plaintiff" on the third day of November, 1808, received through his agent, from the Bank of England, for the freight of the $1,-530,000 belonging to private indi- viduals, the sum of 7438/. 18s. bd. The plaintiff also, through his agent, on the 16th day of March, 1809, received from his majesty's treasury, for the freight of the dollars belonging to government, the sum of 850/. net, by virtue of the following warrant: "George Rex, — Our will and pleasure is, that out of any money in your hands that may be imprested to you for this service, you do issue and pay, or cause to be issued and paid, unto our trusty and well-beloved Sir Charles Brisbane, or his assigns, the sum of 850/. without deduction and without account, which we are graciously pleased to allow him for freight of specie, conveyed by him on board our ship Arethusa from Jamaica to Portsmouth ; and this shall be as well to you for making the said payment, as to the commissioners for auditing our public accounts, as all others concerned in passing your said accounts, for allowing the same thereupon, a sufficient warrant. Given at 80 BRISBANE V. DACRES. [CHAP. II. St. James's, 15 November, 1808. By his majesty's command, W. Broderick, Sp. Perceval, W. S. Bourne. To the paymaster general of guards, garrisons, and land forces. Sir C. Brisbane, 85U/., for freight on specie conveyed by him from Jamaica to Portsmouth." When an order is so given by an admiral commanding-in-chief to a captain, the latter acts under the com- mand of the admiral, and not under a separate admiralty order ; and the Arethusa was despatched on this service by Admiral Dacres, and during the whole of such service was acting under his orders. The case then stated the usage of the navy with respect to payment of freight on the carriage of bullion, previous to the year 1801, the discontinu- ance of it in that year, the correspondence between the Secretary of the Admiralty and the Secretary of the Treasury, which took place in 1807, and the orders of the Lords of the Admiralty^made thereupon, in the same terms as the same are detailed in the case of Montague v. Janverin.* The case further stated that since the making of such order the captains of his majesty's navy have constantly received the allowance therein mentioned for conveying public money, and according to the usage, had been required to pay, and had paid, as well one-third thereof, as also one-third of the freight for conveying private money, to the commander-in-chief, under whose command they were ; and that in the present case, the sum of 2500/. was on the 22d of November, 1808, paid by the prize or navy agent of the plaintiff (by whom the same had been previously received), to the late Admiral Dacres, on account, and in part payment of one-third of the freight of the money so conveyed by the Arethusa, — that is to say, the sum of 2479/. 12s. 9t/., for one-third of the freight of the private money, and the sum of 20/. 7s. 3d., residue of the 2500/., on account, and in part of one- third of the freight of the public money so conveyed by that ship, which payment was made on the behalf, and account, and with the sanction of the plaintiff, with knowledge of the circumstances before stated, but under an idea of a right in the admiral to a third of such freight, on the ground of the before-mentioned usage ; and for the recovery of which sum of 2500/., the present action was brought. The question for the opinion of the court was, whether under the circumstances stated the plaintiff was entitled to recover : if he was, the verdict was to be entered for the plaintiff, for such sum as the court should direct; and if not, the present verdict for the defendant was to sfand. Jii-s(, Serjt., fur the plaintiff. Leru*, Serjt., for the defendant. On this day the judges of the court delivered their opinions seriatim. Gimis, J., read the warrant. I read this particularly, because it has been contended that the terms of the warrant give the reward to the captains exclusively. I do not know that it is necessary for me to state the corres- ixjudence ; the sum of it is this, that the Lords of the Treasury proposed > 4 Taunt. 44G. SECT. I.] BRISBANE V. D ACRES. 81 to the Lords of the Admiralty that a certain sum should lie paid to the commanders of ships of war which sliould carry dollars; the Admiralty fell into this, and agreed that an allowance should be made to the com- manders of such ships as shall carry treasure ; the purpose of setting out these letters is, to show that the terms of them apply only to the captains commanding these ships, without any reference to the admirals. The case then states that the payment was made on the behalf and account and with the sanction of the plaintiff, but under an idea that he was bound to pay it under the practice. With respect to the freight of private dollars,! we are all agreed ; and as Captain Brisbane had no right to carry those I dollars at all, and stipulated for and received a freight to which he had no right, and afterwards, in pursuance of an understanding with Admiral Dacres, imparted a part to him in manner agreed on ; we are all of oj)inion, that this carrying of the dollars was an illegal transaction, that the whole which followed was tainted with the same illegality, and that the money paid cannot be recovered at all, inasmuch as the captain could not lawfully employ the ship and crew, which ought to be employed in the service of his majesty, in carrying bullion for individuals. I think as to the 20/., he cannot recover back the one-third of that. We must take this payment to have been made under a demand of right, and I think that where a ma n dema nds m oney of anot her as a matter of right, and that othe r, with a fu ll knowledge of the facts upon which the demand is founded, has p aid a sum, he never can recover back the sum he has so vo luntarily paid . It may be, that upon a further view he may form a different opinion of the law, and it may be, his subsequent opinion may be the correct one. If we were to hold otherwise, I think many inconveniences may arise. There are many doubtful questions of law : when they arise, the defendant has an option either to litigate the question, or to submit to the demand and pay the money. I think, that by submitting to the demand, he that pays the money gives it to the person t o whom he pays it, and makes it his, an d closes the transaction between them. He who receives it has a right to consider it as his without dispute : he spends it in confidence that it is his; and it would be most mischievous and unjust, if he who has acquiesced in the right by such voluntary payment should be at liberty, at any time within the statute of limitations, to rip up the matter, and recover back the money. He who received it is not in the same condition ; he has spent it in the confidence it was his, and perhaps has no means of repayment. I am aware cases wei'e cited at the bar, in which were dida that sums paid under a mistake of the law might be recovered back, though paid with a knowledge of the facts ; but there are none of these cases which may not be supported on a much sounder ground. In the case of Farmer v, Arundel,^ De Grey, C. J., indeed says : "When money is paid by one man to another on a mistake either of fact or of law, or by deceit, this action (of money 1 2 Bl. R. 825. X 82 BRISBANE V. DACRES. [CHAP. II, had and received) will certainly lie." Now the case did not call for this proposition so generally expressed ; and I do think, that doctrine, laid down so very widely and generally, where it is not called for by the circumstances of the case, is but little to be attended to ; at least it is not entitled to the same weight in a case where the attention of the court is not called to a distinction, as it is in a case where it is called to the distinction. Now in the very next case cited, Lowry v. Bourdieu,^ which was so early as 21 G. 3, the distinction is taken. After the otlier judges, Buller, J. says : " I am clear that the plaintitf ought not to recover, for there is no fraud on the part of the underwriters ; and in a case where there is no mistake of fact, or ignorance of fact, the money cannot be recovered back, for the rule applies, that ignorantia legis non exctisat." This distinction was thus pointedly stated in the presence of Lord Mansfield, who heard it, and whose attention must be called to it ; and he at the end of the case guards the world against the conclusion that in no case can money paid on an illegal transaction be recovered back ; for in case of extortion, he says, it may. I mention this to show, that although Lord Mansfield spoke imme- diately after Buller, J., and must havg heard and noticed his doctrine, he expresses no dissatisfaction with it. The next case is Bize v. Dickason,** jj an action brought by an insurance-broker to recover back from the assignees J of a bankrupt so much of a sum of money which the plaintiff had paid to J the assignees for a debt due to the bankrupt, as the plaintiff might have "< deducted by way of set-off by reason of losses which had accrued before ^ the bankruptcy upon policies effected by the plaintiff and subscribed by the \ bankrupt. It is most certain that the only question brought under the consideration of the court in that case was, whether the right of the broker, ^^ who had a del credere commission to make the deduction, ranged itself o under the case of Grove v. Dubois,' and Mingay declined all argument, and gave up the case. It was taken for granted without argument, that if the plaintiff would have had a right to make the deduction before payment, he might recover back the amount after payment. Lord Mansfield men- tioned in his judgment many cases where money paid could not be recovered back, although, if it had not been paid, it could not have been enforced ; and he concludes by saying, that where money is paid under a mistake, which there was no ground to claim in conscience, it may be recovered back. ^Mistake may be a mistake of law or of fact; but I cannot think Lord Mansfield said "mistake of law ;" for Lord Man.sfield had, six years before, in Lowr}' v. Bourdieu, heard it said, "money paid in ignorance of the law could not be recovered back," and had not dissented from tlie doctrine ; and Buller, J., sate by him, who had expressly stated the distinc- tion six years before in Lowry v. Bourdieu, and would not have sate by and heard the contrary stated without noticing it. Lord Mansfield's dictum is, that money paid by mistake, which could not be claimed in conscience, 1 Doug. 471. 2 1 T. R. 28.'). " 1 T. 11. 112. 6 "i.. r:> SECT. I.] BRISBANE V. DACRES. 83 might be recovered back. I have, however, considerable difficulty in saying; that there was anything unconscientious in Admiral Dacres, in req uiring this mon ey to be paid to him, or receiving it when it was paid. Ever sinc(i the date of this correspondence, it had been the practice of the admu-als to receive this ; their right to it had never been questioned at the time 1 wh en Admiral Dacres received this sum. Chattield v. Paxtou, B. R., 39 G. 3, Mich. Term. A bill had been paid by the plaintiff to the defendant's house in India, which was dishonored in consequence of the defendants having been guilty of laches, which they did not disclose. The bill was protested and sent back to England, and the plaintiff" was called on in England to pay it, certainly under an ignorance of the circumstances which had taken place in India. In consequence of this demand he accepted another bill ; and before that bill was mature, a correspondence took place, which, as I contended, informed the plaintiff of all the cir- cumstances attending the presenting of the first bill, and showed that Chatfield need not have accepted that second bill, and therefore that he need not have paid it ; but he did pay it, and I, for the defendant, contended that either he ought, relying upon that defence, not to have paid it, or that having paid it he could not recover it back. Lord Kenyon at nisi pritis commented on the letters : one said that the plaintiff was going to Bengal, where he hoped to gain a more full knowledge of the case. Lord Kenyon stated, that although the letters might amount to evidence of knowledge of the facts, they did not show an acquiescence in the loss of the money, and he thought a payment made under an ignorance of the law would enable the plaintiff to recover back the money. He also added, that perhaps the party, though he know both the law and the fact, yet if he paid both under fear of arrest, for want of evidence to maintain his case, might afterwards recover it ; to that doctrine I acceded, and still accede; but I moved for a new trial, on the misdirection of the judge upon the first point, that money paid under ignorance of the law, with knowledge of the facts, might be recovered back ; whereas, I said, if it had been paid with ignorance of the facts, but with knowledge of the law, it might be recovered. On the discussion of the rule nisi, not one of the court espoused the doctrine of Lord Kenyon or attempted to support it, but they recurred to the letters, and found those passages in them, from whence they inferred that the plaintiff" was ignorant of a part of the facts : it was a very com- plicated case. Lord Kenyon at that time, and Ashhurst, J., put it wholly on the ground of the plaintiffs not having had a knowledge of the facts. They go on to say, that where a man pays without knowledge, but only with a blind suspicion of the facts, still he may recover. Grose, J., doubts whether the plaintiff was not acquainted with the facts before he paid the bill ; but he tacitly admits that if the plaintiff did know the facts, then the money could not be recovered : so that he must be considered as being cleai'ly of opinion, that if it was paid with a knowledge of all the facts, it f- 84 BRISBANE V. DACRES. [CHAP. II. could not be recovered back : and Lawrence, J., doubted, not whether the plaiutiflf had knowledge of the law, but of the facts ; for that although the plaintift" seemed to have been apprized before he paid the bill, of the gen- eral outline of his defence, he was not then so conversant with the particu- lar facts now appearing, as to have been able to resist the demand then made on him, if an action had been brought. Here then is, I may say, the ultimate opinion of Lord Kenton, for he first directed the jury it might be recovered back if paid with a knowledge of the facts but with- out knowledge of the law, which opinion he wholly afterwards abandons. Among all the practitioners of the court of King's Bench, where questions of this sort very frequently arise on insurance transactions, we were uni- versally of this opinion, that where the money was paid with a knowledge of the facts, it could not be recovered back. One underwriter chose to pay rather than resist, another resisted and succeeded ; in all similar cases it would be very easy to say, " I paid this without a knowledge of the law, and therefore may recover it back," Our only question, then, in all cases was, whether the facts were known. This was the universal practice, till Bilbie v. Lumley,^ occurred : that case was tried at York, before Rooke, J., who ruled differently : after the report was read, Lord Ellenborough asked Wood, B., then of counsel for the plaintiff, whether he could find any case which would support it; and he cited none. Lord Ellenborough said he never heard of any, except Chatfield v. Paxton, and that it was so doubtful at last upon what precise ground that case turned that it was not reported, and the rule was made absolute for a new trial. Now this was a direct decision upon the point, certainly without argument ; but the counsel, whose learning we all know and who was never forward to give up a case which he thought he could support, abandoned it. In Herbert V. Champion,^ a distinction is clearly taken between an adjustment on a policy, and a payment on the adjustment; and Lord Ellenborough says, that if the money has been paid, it cannot be recovered back without proof of fraud. I am therefore of opinion this money cannot be recovered back. I think on p rinci ple that money which is paid to a man who cla ims it as his rig ht, with a knowledge of all the facts, cannot be recovered back . I think it on principle, and I think the weight of the authorities is so, and I think the dicta that go beyond it are not supported or called for by the facts of the cases. Bilbie v. Lumley, I think, is a decision to that effecT; and for these reasons, I am of opinion, the plaintiff is not entitled to recover. Chamuke. .T. I concur in thinking the money is not recoverable on the payment of the private freight, whether the carriage of the treasure be considered as a legal or as an illegal transaction. If illegal, the m oney clearly c annot be reco vered ; if it be legal, the rig ht to carry it must arise from the permission of government; and as tlie practice lias been uniform 1 2 Ea.st, 469. ^ i Camp. 134. SECT. I.] BRISBANE V. DACRES. 85 for the admiral to receive his third part, we must take it that it is a part oftlie pracTice, and that the whole practice has had that assent of the government. As to the freight for the carriage of the public property, I think it stands on a different ground, and that the action is maintainable. The plaintiff had a right to it, and the defendant in conscience ought not to retain it. The rule is, that when he cannot in conscience retain it ho must refund it, if there is nothing illegal in the transaction : the case is different where there is an illegality. I do not think the case of Chatfield V. Paxton applies much in this view of the question. I never heard of the several parts of that case till now, but I think there are sufficient authori- ties to say this person has paid this money in his own wrong, and that it may be recovered back. In the case of Bilbie v. Lumley there was a letter said to have been concealed, that ought to have been disclosed : this letter was shown to the underwriters, and they after reading it thought fit to pay the money. Now there the maxim volenti non Jit injuria applies : in that case all argument was prevented by a question put by the court to the counsel. I am not aware of any particular danger in extending the law in cases of this sort, for they are for the furtherance of justice; neither do I see the application of the maxim used by Buller, J., in the case of Lowry v. Bourdieu, and cited by the court in Bilbie v. Lumley, ignorantia juris non excusat ; it applies only to cases of delinquency, where an excuse is to be made : I have searched far, to see if I could find any instance of similar application of this maxim. I have a very large collection of maxims, but can find no instance in which this has been so applied. I cannot see how it applies here. In Lowry v. Bourdieu, the decision turned on the transaction being illegal, and it being illegal the maxim applied, in pari delicto potior est conditio defendentis. Moses v. Macfarlan,^ and a number of subsequent cases decide, that where the plaintiff" is entitled, ex a-qno et bono, to recover, he may recover. In Farmer v. Arundel, the opinion of De Grey is not a mere dictum, it is part of the argument, it is a main part of the argument. He there says, where money is paid under a mistake either of fact or of law or by deceit, this action will certainly lie. It seems to me a most dangerous doctrine, that a man getting possession of money, to any extent, in consequence of another party's ignorance of the law, cannot be called on to repay it. Suppose an administrator pays money per capita in misapplication of the effects of the intestate, shall it be said that he cannot recover it back] It is said, that may be remedied in equity: this is an equitable action, and it would be of bad eff"ect if it should not prevail in like cases. In the case of Bize v. Dickason, Lord Mansfield held, that if a person has paid that which in conscience he ought, but the payment of which could not be compelled, it shall not be recovered back in an action for money had and received, but that where a man has paid money under a mistake, which he was neither bound in law nor called on in conscience I 1 Bl. P.. 219. 86 BRISBANE V. DACRES. [CHAP. II. to pay, he may recover it back, js^o wjiie case against the plaintiff is not so strong as it has been stated. I do not find in the case that any dem and was ever made of him, or any question mooted, upon which he thought it better to submit than to Utigate the point. No option ever presente d itself to him, and t he maxim volenti non fit injuria does not ap ply. It appears to me that the justice of the case with respect to the freight of the public treasure is entirely with the plaintiff. As to the insurance cases that have been cited, a great deal of fabricated law has been newly created within a few years, and the courts have to decide on difficult and complex cases ; but those doctrines must not be carried into the general law, but confined to the occasions which give rise to them. I therefore think the plaintiff may recover as to the 20Z. Heath, J. There are two questions in this case. As to the question whether a payment made under ignorance of the law without ignorance of the facts will enable a man to recover his money back again, it is very difficult to say that there is any evidence of ignorance of the law here ; an officer is sent on a profitable service, the admirals are in the habit of receiving a proportion of the officer's recompense, and it is very likely the officer should acquiesce in the demand. He might not like to contest the point with his superior officer. I think a payment made with knowledge that a request would be made, is not distinguishable from the case of an actual demand. Now if money be received without expressing the use to which it is paid, it is received to the use of the payer ; but when it is expressed to what use it is paid, that presumption does not arise; here the use was distinctly expressed. Moses v. ISIacfarlan has properly been questioned in many cases, and particularly by Eyre, C. J., and in Marriott V. Hampton,^ in which the plaintiff sought to recover back the amount of a debt recovered by law from him, whereas he had paid it before ; but it -was held that the action was not maintainable. That was the case of Judicium redditum in invitum, but this is a stronger case; for the plaintiff is a judge in his own cause, and decides against himself; and he cannot be heard to repeal his own judgment. Lord Eldon, Chancellor, in Bromley V. Holland,* approves Lord Kenton's doctrine, and calls it a sound princi- ple that a payment voluntarily made is not to be recovered back. The plaintiff ought not to recover. Mansfield, C. J. I think in this case the plaintiff ought not to recover . i.f it was against his conscience to retain tliis money, accurding to the doctrine of Ixjrd Kr.NVON. !in action might be maintained to recover it back, b ut I do not see how the retaining tliis is against his conscience; for how is it claimed'? Before 1801, the captains always paid freight to themselves both for private and public treasure, before they paid over the re sidue of the dollars. At that time it was thought proper that that practice should be discontinued so far as related to tlif freight of the public treasure ; but 1 7 T. II. 209. - 7 Vcs. 23. SECT. I.] BRISBANE V. DACRES. 87 in order to make captains more attentive to their charge, the Treasury a nd Admiralty thought it would be proper to make them an allowance, and that was to be paid to the captain by a warrant from the treasury ; but so it had before been, when the captain deducted it, that was paid to the captain, and before that a practice had prevailed, one knows not how, but probably by some analogy to the practice of prize-money, that the flag officer, when only one, should be entitled to one-third ; when more than one flag oflacer, they shared it in certain proportions. In the ord er which was made for letting them thenceforth be paid by a warrant, instead of deducting the freight themselves, nothing is said about any allowance to be made to admirals ; the order is quite silent on the subject of what the cap- tain shall do with the freight when he has it, but the officers of the navy all thinking that they were to proceed as they before did, go on, the one to pay, and the ot her to receive, as they had done b e fore this alteration, Imd the ad mirals receive their share as before ; th e admiral and captain each thinking that their rights continue as before, the admiral, that he has his accustomed right ; the captain, that it is his duty to pay the accus- tomed share, the one pays and the other receives it. This then being so, the admiral doing no more than all admirals do, is it against his conscience for him to retain it % I find nothing contrai-y to cequuni et bonum, to bring it within the case of Moses v. Macfarlan, in his retaining it. So far from its being contrary to aequuvi et bomim, I think it would be most contrary to (equum et boiium if he were obliged to repay it back. For see how it is! If the sum be large, it probably alters the habits of his life; he in- creases his expenses, he has spent it over and over again ; perhaps he cannot repay it at all, or not without great distres,s : is he then, five years and eleven months after, to be called on to repay it ] The case of Farmer v. Arundel and De Grey's maxim there, is cited ; it certainly is very hard upon a judge, if a rule which he generally lays down is to be taken up and carried to its full extent. This is sometimes done by counsel, who have nothing else to rely on ; but great caution ought to be used by the court in extending such maxims to cases which the judge who uttered them never had in contemplation. If such is the use to be made of them, I ought to be very cautious how I lay down general maxims from this bench. In the case of Bize v. Dickason, the money ought conscientiously to have been repaid. There is no other case cited as an authority for the proposition. The maxim volenti nonfit injuria applies most strongly to this case. Lowry V. Bourdieu was the case of a gaming policy. A bond had been given for securing the money lent, which was the only interest intended to be insured; if the plaintiff" could have recovered on the policy, he might have recovered the money twice. The insurance was on goods, and he had no interest whatsoever in those goods, otherwise than that if the goods an-ived the owner of them would be the better able to pay his debt. The last case is Bilbie v. Lumley. Certainly it was not argued, but it is a most positive V 88 LIVESEY V. LIVESEY. [CHAP. II. decision, and the counsel was certainly a most experienced advocate and not disposed to abandon tenable points. My Brother Ciiambre put the case of an administrator paying away the assets in an undue course of administration. I know not that he could recover back money so paid : certainly if lie could, it could be only Under the principle of cequum et honum. There being therefore no case which has been argued by counsel, wherein the distinction has been taken, and in which this doctrine has been held, and as we do not feel ourselves called upon to overrule so express an authority as Bilbie v. Lumley, I am of opinion that the defendant is entitled to retain this money. We hear nothing of what is become of the assets in this case ; perhaps they may be applied among the next of kin, and dissi- pated ; but wliat would be the situation of the parties, if, at the end of five years and eleven months, they could be called on to refund in such a case ! I am therefore of opinion that there ought to be judgment for the defendant. Judgment for the defendant. LIVESEY V. LIVESEY. Before Lord Lyndhurst, C, October 30, 1827. [Reported in 3 Russell, 287.1 James Worthin'gton, by his last will, devised and bequeathed to his wife, Jane "Worthington, all his estates, real and personal, " subject to the following trusts and conditions." Then the will, after giving some direc- tions, which it is not material to mention, proceeded in the following words : " I also will and direct that my wife shall pay unto each of my daughters, Jane and Eliza, 200/. annually, by two equal half-yearly payments, out of the interest arising from my fortune. After my wife's death, I vest my property in trust, not already disposed of, to my brother- in-law, Mr. John Armstrong, and Mr. William Clark, for them to place out at interest on the best mortgage securities that may be had, or in the pur- chase of an estate or estates, with the consent of my daughters ; and that my said daughters shall receive the annual interest or profits, share and share alike, which shall not be subject to the control or debts of their husbands, V>ut to their receipts only. And my will and mind is, that my trustees shall pay to and apply for the benefit of my grandson, Edmund Woi-thington Livesey, the sum of 200/. annually, when he attains the age of twenty-one years, and before that period such part as may be judged proper out of the 200/. bequeathed to him, so as to give him a good education ; being desirous that he may be brought up in a judicious manner, to give him a degree of respectability in society equal to his fiimily and fortune, whiclj have always supported honorable and useful characters in life. As to SECT. I.] LIVESEY V. LIVESEY. 89 the principal, my mind is, that my said daughters, Jane and Eliza, shull have full power to dispose of it in such proportions as they by will sliull direct, to their children or grandchildren respectively, except that propor- tion of principal given to Eliza, and from which the interest is to arise to my grandson, viz., 4000/., which sum shall be my grandson's property ; but in case either of them should die without having lawful issue, then my will is, that the fortune of her so dying shall revert to and become the property of the surviving one, her children, or grandchildren, to be disposed of to them iu such proportions as the one departing this life shall will and di- rect ; and she shall also have the power of bequeathing unto her husband, provided she leaves one, 100/. per annum as an annuity, to be issuing from and out of the moiety so disposed of; which moiety is to be subject to the restriction, limitation, and distribution aforesaid." The testator died in 1800, leaving his widow and his two daughters, Jane and Eliza, him surviving. The widow died iu July, 1815. Edmund Wor- thington Livesey, who was the eldest son of Eliza, attained his full age in August, 1817, up to which time no part of the testator's estate bad been applied towards his maintenance or education. In November, 1817, a bill was filed by Jaue Livesey, the daughter and personal representative of the testator, and by her husband, in order to have the rights of the parties under the will declared. Edmund Worthington Livesey insisted by his answer, that he was en- titled to the annuity of 200/. from the time of the testator's death, and that, on his attaining twenty-one, the testator's widow being then dead, the 4000/. became payable to him. The other defendants submitted, that the annuity did not commence till Edmund Worthington Livesey attained the age of twenty-one, or, at all events, till the death of the testator's wudow. On the 19th of November, 1821, the cause was heard before the Master of the Rolls, and a decree was pronounced. The plaintiffs, conceiving that Edmund Worthington Livesey was entitled to the annuity for the two years which elapsed between the death of the testator's widow and his attaining the age of twenty-one, had paid it to him, and had deducted 400/. out of that moiety of the interest which was payable to Eliza. At the heaving, however, the Master of the Rolls declared it to be his opinion, that the annuity did not commence till Edmund at- tained twenty-one ; and, upon this, Eliza, after judgment was pronounced, but before the decree was drawn up, presented a petition, praying that a direction might be added for the payment to her of the 400/., which had been thus withheld. ^ On the 5th of July, 1822, the plaintiffs presented a petition, stating, that after Edmund attained his full age they had paid over to him the ' So much of the statement of facts as relates to the terms of the decree has been omitted. — En. 90 LIVESEY V. LIVESEY. [chap. II. .Ji 400/., which had been retained out of Eliza's sliare of the interest, in order to satisfy the annuity for the two .years which intervened between the death of the testator's widow and the termination of Edmund's minority. It praved that a direction might be added to the decree, to enable them to retain the iOOl. out of tiie growing payments of Edmund's annuity. Before the petition was heard, the decree was drawn up. But by an order, b earing date on the 29th of July, 1822, the M aster of the Rolls directed, th at the plain titfs "should be at liberty to deduct out of the fu t ure payment s of the annuity such sums as they had paid in respect of the annuity before E d- mund attained the age of twenty-one years. From this order, and also from the decree, Edmund Worthington Livesey appealed. The petition of appeal insisted, that the court ought to have declared that he was entitled to the annuity of 200/., or the sum of 200Z. per annum, as the interest of the 4000/., from the deatli of tlie testator, or at least from the death of the widow, Jane Worthington, till the payment of the 4000/. ; and that the 4000/. ought to have been ordered to V)e paid to him, or at least that there ought to have been a declaration that he took a vested interest in that sum, and that it should be paid to him, his execu- tors, administrators, or assigns, upon the death of his mother, Eliza Livesey. Mr. Shadwell, Mr. Preston, and Mr. Duckworth, for the appellant. Supposing that payment of the 200/. was not to commence, according to the true construction of the will, till Edmund was twenty-one years of age, yet the executrix cannot recover back from him the 400/., which she paid to him in respect of the annuity for the two years immediately preceding his attainment of his full age : for those payments were made with perfect knowledge of the facts ; and if there was any mistake, it w^as, at the utmost, merely a mistake in point of law. Brisbane v. Dacres;^ Skyring v. Greenwood.'^ Even if those payments could be recovered back, they would constitute merely an ordinary debt owing by Edmund to the executrix ; and on no principle can they be considered as a charge on the future growing payments of the annuity. Sir Charles Wetherell and Mr. Bickersteth for the children of the plaintiffs. Mr. Home and Mr. Wray for the plaintiffs. The Lord Chancellor. With respect to the order upon the petition,' it appears, that after the commencement of the suit the ainiuity was paid to Edmund Worthington Livesey for two years, the period which elapsed from the death of Jane Worthington to his attaining the age of twenty-one. The payment was made upon an erroneous supposition that he was entitled to it ; and an equal amount was deducted from the moiety of the interest pay- able to Eliza Livesey under the will. After the Master of the Bolls had given judgment in the cause, but before the decree was drawn up, a petition » 5 Taunt. U3. 2 4 b. & C. 281. ' Only so niucli of the opinion is given a.s relates to this question. — Ed. SECT. I.] M'CARTHY V. DECAIX. 91 was presente d by Eliza Livese y, praying that the sum, which had been so deducte d from h er moiety of the interest, mi^ht b e directed to be paid t o her ; and this was ordered accordingly in^ the decree. A peti tion was t hen pre- sented on the part of Jane Livesey the executrix, submitting that she was entitled to be .re paid this ^u m. and praying that she might be allowed to retain it out of the future instalments of the annuity payable to Edmixnd Worth ington Livesey. An order was made upon this petition, after the decree w as passed^ It was contended that this was irregular, and that the court had no jurisdiction to make the order. There can be n o doubt that this money ought to be repaid : and the only question, therefore, is. Whether the Mas- ter of the Rolls was justified, in point of form, in making the order in ques- tion'? This order, m ade upon the petition of Jane Livesey, does not vary the decree. The decree merely declares the rights of the parties under The will, with the exception of the direction as to the payment to Eliza Livesey. The order does not make any alteration in these particulars. It is an order consequent upon that declaration. There is no dispute as to the facts. Edmund Worthington Livesey had been paid a sum of money on account of the bequest made to him by James Worthington. The bequest was s up- posed to be more extensive than it has since proved . The construc ti on of the will was misapprehended. The order t hen merely directs that such sum, so paid, shall be considered in account with the executrix, and taken as a part-payment of the bequest as now ascertained. Such is the effect of the order. I think, therefore, that i tjiot only is in substance just, as be- tween those parties, but that it is not incorrect in point o fTorm. The appeal must consequently be dismissed.^ M'CARTHY V. DECAIX. In Chancery, before Lord Brougham, C, May 9, 1831. [Reported in 2 Russell and Mylne, 614.] This was a suit instituted by the personal representative of Robert Tuite, deceased, against the personal representative of his wife, also de- ceased, for the purpose of recovering the arrears of an annuity, to which, upon the death of the wife, and in default of her appointment, Mr. Tuite, as administrator of his wife, had become entitled, by virtue of a settlement executed on their marriage. Mrs. Tuite died in the month of February, 1807 ; her husband took out administration to her estate and effects ; and in the month of December, 1811, he died. The defence set up was, that Mr. Tuite, soon after the death of his wife, 1 Conf. Hillianl v. Fulfoid, 4 Ch. D. 389. — En. 92 M'CARTHY v. DECAIX. [chap. II. had agreed to give up, and had actually renouuced all claims that might accrue to him uuder the settlemeut or iu his marital character, for the benefit of the family of his wife, from whom the settled property had been derived. At the hearing of the cause, two questions were principally argued : first, whether the dealings and correspondence between Mr. Tuite and his wife's relations, in the years 18U7 and 1808, were of such a nature as to amount to un absolute renunciation of all his interest in their fiivor; and, secondly, if they were, whether that renunciation was made at a time when Mr. Tuite was fully apprised of the extent of his legal rights, as the surviving husband and the administrator of his wife, and of the amount and value of her property. At the hearing of the cause on the 12th of December, 1821, before Sir John Lkach, then Vice-Chancellor, his Honor referred it to the Master to inquire and state to the cou rt, whether Robert Tuite died iu the intention of reuounci ng all interest in his wife's property in favor of her family, and "whether before his death he was apprised of the circumstances which be- lim^'ed to that property, and of the amount of the claini made in respect j:)f the annuity. The plaintiff appealed against that decree. The petition of appeal was originally argued before Lord Eldon ; but his Lordship having resigned the Great Seal before disposing of the case, it now came on to be reheard. Sir E. Suyden and Mr. R. P. Jioicpell for the plaintiff. Mr. Tresluve and ]Mr. Stuart, for the defendant. The Lord Chancellor. This was a case of considerable difficulty, long pending in this court, and much considered by Lord Eldon, who went out of office before he finally decided it on the appeal. The observations and notes of that learned iudge upon the case, with which notes I have been furnished, show the great attention he gave to it, and the difficulty under which he labored with respect to the fiicts ; and in consequence of those difficulties, it has received the greatest attention from me, and I have delayed pronouncing an opinion until I could look fully into the matter. The case was this : — A person of the name of Tuite contracted a marriage in this country with an Englishwoman, — the marriage being solemnized in England, but he being himself a Dane by birth, fortune, and domicile. He afterwards removed his wife from this country, the locus contractus (with which he appears to have had no further connection), to the domin- ions of the King of Denmark, where his subsequent domicile continued to be ; and in that kingdom the marriage was dissolved by a valid Danish divorce, as far as such a divorce could dissolve it ; but which, I may observe in passing, by the law of this land could have no operation, as was fully established by the opinion of the twelve judges, who solemnly decided, after argument, that no proceedings in a foreign court could operate to dis- solve or affect a marriage celebrated in England. SECT. I.] M'CARTIIY V. DECAIX. 93 During the lifetime of Mrs. Tuite, and subsequently to the divorce, certain arrears of an annuity which she enjoyed under the marriage settle- ment accrued, or were said to have accrued, amounting at her dcatli to the sura of £7000. Prior to that event, a litigation in this court had been commenced, to which the claim to these arrears was incident. After the decease of both husband and wife, the result of the suit was to put the party representing her in possession of those arrears, and two sums were actually recovered and paid to them, amounting in the whole to £3G31 ; and the whole of the question in this cause arises with respect to those sums, it being a conflict between the respective personal represen- tatives of Mr. and Mrs. Tuite, upon the effect of a correspondence between Mr. Tuite and Mrs. Delattre, the sister of Mrs. Tuite, and her legal adviser Mr. Pinegar. Upon that correspondence the whole question in dispute appears to turn. On the death of Mrs. Tuite, letters are written by Mrs. Uelattre represent- ing her to have died in very poor circumstances ; so much so that her debts were said to amount to more than all the little property she left could satisfy, even including her wearing apparel. Mr. Tuite, in reply, writes two letters to Mrs. Delattre, and in answer to her application to that effect ; he at first refuses to execute a power of attorney to receive any funds that may become due, denying his right, because he insists it was a good divorce (nor indeed had it been decided till Lolley's case in 1812-13, that a for- eign divorce was of no effect as regards an English marriage) ; and he afterwards says, " If such a power is required, I would not have anything ; her family is most heartily welcome ; " and his language in another letter is, " I claim nothing. I would accept of nothing ; nevertheless, in case it may by the form of your law be requisite, I give Messrs. S. and L. a power to act for me." How entirely he relied upon the marriage as being in other respects at an end, is manifest from the fact, that besides giving up the claim to the property of the deceased lady, he calls her by the name of Mrs. Trefusis, which was the name she bore before she became his wife. It must, therefore, at least be admitted that in giving this, which is called his renunciation, the husband labored under two capital errors, one of law, the other of fact ; the one not superinduced by any suppression of cir- cumstances on the part of Mrs. Delattre and her agent ; whereas the other may be said to have arisen from their not disclosing fiicts, which there is every reason to believe they must have known, — the latter an error which if they did not create, they had at least, to a certain degree, a share in maintaining.^ This then is a very important error, which may have influenced Mr. Tuite in making this renunciation. And can I hold a party to be bound by an act or declaration made in ignorance of so material a fact 1 Was it not a most material ingredient in forming his judgment and influencing his inclination 1 1 A portion of the opinion discussing Lolley's case has been omitted. — Ed. 94 m'carthy v. decaix. [chap. ii. He might very well say, " I am no longer her husband ; I give up all claim to her property," when he supposed the connection of husband no longer to subsist. And yet if he had been told that he was still her hus- band ; that no power could dissolve the marriage ; that he was liable, in his person and property, for her debts ; that the tribunals of his own country would acknowledge this to be the law ; that as he undertook the relation cum onere, so also he was beneficially entitled to whatever was the property of his wife, be it small or great, — it is impossible to say that this knowledge might not have altered his intention ; for if a man does an act under ignorance, the remova l of which mightjiiave made him come to a different determination, there is an end of the matter . What he has done was done in ignorance of law, possibly of fact ; but in a case of this kind that would be one and the same thing. These considerations do not appear to have been sufficiently adverted to in the court below. I cannot help thinking, besides, that taking the case at the lowest, Mr. Tuite and Mrs. Delattre were, at the time of the sup- posed renunciation, in a state of ignorance as to some other most material facts ; and it is impossible to say, that a person shall be held to what he has done under circumstances which have been so erroneously represented to him, however innocently the representation may have been made. Who can venture to predict what might have been Mr. Tuite's course had he known how the facts really stood 1 If a man, separated and living at a distance froni his wife, receives a letter telling him that she is on her death- bed, and that she leaves no assets, — not enough to pay the costs of her funeral ; and he writes in reply, " I shall not interfere ; she is no wife of mine ; " it is impossible to say that he shall be bound by that disclaimer, made under the influence of a common error. Doubtless, if with a fnW knowledge that the wife's property might be hxrge or miglit be small, lie distinctly gave up all title to it, whateve r might turn out to be its value, his disclaimer would be good. But if he entertained a bona fide belief that she died insolvent, it would be going fa r to say that h is renunciation should bind him, or that the other party should huvi- a right to liold him to it . In Cocking v. Pratt \ where Sir John Strange had tu deal with the case of a mother contracting with her daughter as to her share of the father's personal estate, he held the transaction to be void, on the ground that the mother plainly had better information than the daughter. But even if it be assumed that Mrs. Delattre knew no more of the real facts than Mr. Tuite, Willan v. Willan ^ is an authority to show that where both parties were in a state of equal ignorance as to the facts respecting which they were dealing, the transaction will not be supported. It is unnecessary for me, however, to decide as to the law on this point, because when the evidence is narrowly scrutinized, the circumstances of the transaction relieve the case from all difficulty, showing that there is 1 1 Ves. 400. 2 16 Ves. 72. SECT. I.] DIBBS V. GOREN. 95 every reason to believe that the wife's relations, living in England, must have known, and did, in point of fact, know a great dual more than Mr. Tuite, the foreigner, living in Santa Cruz ; and bringing the case, there- fore, directly within the principle laid down by Sir John Strange in Cocking V. Pratt. [The Lord Chancellor then entered into a detailed examination of the lan^^^L^^l'J!£l^- ^ ,-^ .^U^^rr^'t tk Reported in Law Reports, 2 En§lis\/Sf Irish Appeals, 149.] ^ This was an appeal against a decretal order of the Lord Chancellor of Ireland, dated 14th of June, 1865, and made under the following circum- stances : — ^^^^^ By deed of the 12th of May, 1806, Sir Edward Crofton, for the considera- Ji^ -f^, -cc/v^>^ '"^"i-^^tions therein mentioned, conveyed the lands of Ballysadare in the county j^^,' ^ ^v ct^lz,/»*c^ *^^ ^''f^^' with t o lls and custo ms of marke ts, etc., and jthe_salniQa fishery, and all other the fis heries of the river of Ballysadare, situate_4n the same <* .t^^oA ^4^4^county, to Joshua E dward Cooper in fee. Shortly after this conveyance had been executed, Joshua Edward Cooper '^fu^ ''-~*-^^(\vho was unmarried) was declared a lunatic, and Edward Synge Cooper, V //.^7 U-*^ his (july brother, and his presumptive heir, was appointed committee of his T SECT. I.] COOPER V. PHIBBS. 97 estates. His estate in the county of Sllgo was culled the Markrcc estate. Edward Syiige Cooper had two sons, Edward Joshua Cooper and Richard Wordsworth Cooper ; Edward Joshua had been once married, but had no child by that marriage. On the 13th of February, 1827, a d eed of settle- ment was executed on his intended marriage with Miss Wynne, and to that settle ment his father, Edward Synge Co oper, and his br ot her, R ichard W ordsworth Cooper, became parties. Under that settlement Edward Synge Cooper covenanted that if the lunatic should die intestate and with- out issue, and should be at the time of his death seised in fee " of or in tiie said several towns, lands, tenements, or hereditaments in the county of Slio'o," etc., "thereinbefore and thereinafter particularly enumerated and described;" or if at any time after the decease of the lunatic, he, Edward Synge Cooper, should happen to be seised of any freehold estate " in the said several last-mentioned lands, tenements, and hereditaments, by any title derived by, through, or under " the lunatic, he, Edward Synge Cooper, would, within six months after the lunatic's death, convey to trustees " all that and those the town and lands of Ballysadare, and all the tenements, houses, and plots therein, together with the tolls and customs of the fairs and markets therein, . . . and all other estates of inheritance whereof the said [lunatic] shall die seised or possessed, or such, and so many, and all such parts of the same as shall have descended, remained, or vested in the said Edward Synge Cooper as tenant in fee simp le or fee tail in possess ion thereof, in any of the manners or ways aforesaid, together with their sev- eral sub-denominations and appurtenances, and also all houses, wastes, common, common of pasture, waters, watercourses, easement, liberties, privileges, profits, appurtenances," etc., to himself for life, remainder to his son Edward Joshua for life, remainder to his issu ^ male_in_stricLset;_ tle ment, remainder to hjs other son, Richard Wordsworth Co oper, for life, remainder to his issue male in strict settlement. The word " fishery" did not occur in the settlement. There was a similar covenant on the part of Edward Joshua Cooper and of Richard Wordsworth Cooper that if the said estate should descend to or vest in them, or either of them, from the liuia- tic, they or either of them would convey the same to the uses specified in the covenant of their father, Edward Synge Cooper. In A ugust, 1830, Edward Synge Cooper died, leaving his elder brother, th e lunatic, and hjs own two sons, Edward Joshua and Richard Wordsworth, _him survi ving . Edward Joshua from that time acte d as committee of the lunatic. In the early part of 1837 a petition for a bill had been presented to Parliament, by Edward Joshua as committee, to give the lunatic powers to improve the fishery ; but while it was passing through Parliament the lunatic died, and then in the various clauses the necessary changes were made by introdu- cing the name of Edward Joshua, who had succeeded to the propert3\. The Act, which was known as the 1 Vict. c. Ixxxix., recited that the "rivers Arrow and Owenmore rise from two large lakes in different parts of tlie 7 V 98 COOPER V. PHIBBS. [CHAP. IL county of Sligo, aud, after flowing through a large tract of country, unite their streams at about a mile above the town of Ballysadare, whence they flow into the same channel to the bay of Ballysadare, where, by one mouth they discharge their waters into the bay," and then it described how the flow of their waters was interrupted by ledges of rocks, which prevented salmon getting up the river ; aud it recited the conveyance by Sir Edward Croftou to the lunatic, "and his heirs, and assigns for ever," of the whole eastern bank of the river, " together with the salmon fishery, and all other the fisheries of the river," possessed by Sir Edward Crofton ; that the luna- tic after the conveyance, and up to the time of his death, "did uninter- ruptedly exercise and enjoy the exclusive right of taking the salmon which so as aforesaid annually congregate within the mouth of the said united rivers;" that the lunatic die d in June, 1837, "whereby all the aforesaid estates, towns, lands, and fishery, have descended to and are now vested in the said E_dward Joshua Cooper, who is the nephew and heir-at-law of" the lunatic ; that " the said Edward Joshua Cooper is desirous of con- structing canals or water cuts at his own expense " in consideration of the exclusive right of fishery being vested in him, his heirs, and assigns, — and it was therefore enacted that the powers to make the cuts and canals, etc., should be granted to him, provided that the cuts " shall be altogether sit- uated on the estate and property of the said Edward Joshua Cooper," etc. There were various other provisions, in all of which Edward Joshua Cooper was spoken of as the owner of the estate, and the title of the Act, as al- tered after the death of the lunatic, was, "An Act to enable Edward Joshua Cooper, Esq., to establish and protect a Salmon Fishery upon the Lakes and Kivers of Owenmore and Arrow, and also within the Bay of Ballysa- dare, in the County of Sligo." Edward Joshua Cooper constructed the canals and cuts, and improved the salmon fishery, as provided for by this Act, and he continued in posses- sion thereof, and of the estates to which he had succeeded, until his death. By his second marriage he had five daughters but no son. Richard Wordsworth Cooper had also married, and he died in 1850, leav- ing the appellant his eldest son and heir-at-law. In 1858 the appellant married, and on the 8th of August, 1858, a dis- entailing deed, and then a settlement, of the Slicco estates, were executed by Edward Joshua Cooper, the estates being settled as subject to the uses of the settlement of 1827. During the life of Edward Joshua Cooper, he, apparently believing that the Act 1 Vict. c. Ixxxix., vested the fee simple of the fishery in him, dis- charged from the limitations of the settlement of 1827, always spoke of himself as the absolute owner of the fishery, and, as alleged in the cause petition of the appellant, always assumed such to be the fact. In September, 1858, the appellant joined with Edward Joshua Cooper in a lease, renewable for ever, of two and a half acres of land adjoining the SECT. I.] COOPER V. rillBBS. 99 fishery, which lease was granted to a Mr. Leech, as trustee fur PZdward Joshua Cooper, who afterwards built on this land a messuage known as the Rapids Cottage, with a coach-house, and other premises. In April, 1863, Edward Joshua Cooper died intestate, leaving h is five_ daughters (but no male issue) him surviv ing. On his death the appella nt entered into possession of the estates, and on the 14th of October, 18G3, there was executed between him and Phibbs, who, under the settlement upon Edward Joshua's second marriage, acted as trustee for the daughters, an agreement f or a lease, which the appellant now sought to cancel. It was in the following terms : " W. Phibbs agrees to let, and Colonel Ed- ward Cooper agrees to take, for a term of three years, to be computed from the 1st day of November next, the salmon fishery at P>allysadare, county Sligo, together with the Rapids Cottage, coach-house, and gate-house, at the yearly rent of £550 sterling, said rent to be payable half yearly, on every 1st day of May and 1st day of November in each year. The said Edward Cooper shall, during the tenancy, keep proper books, showing the receipts and expenditure of said fishery, and weights in pounds of number of fish taken," and shall allow Phibbs to inspect the books, and to have free access to the fishery. Before the first half year's payment became due, the appellant purchased and read the Act of Parliament, 1 Vict. c. Ixxxix., and then, believing that it had not the effect which had always been attributed to it, he filed his cause petition, in the Court of Chancery in Ireland, to have the agreement set aside. To this cause petition Mr. Phibbs, and the five daughters of Ed- ward Joshua Cooper, were made defendants, and the prayer was, that the agreement of the 14th of October, 1863, might be delivered up to be can- celled, and the defendant, Mr. Phibbs, perpetually restrained from suing upon the same, the petitioner submitting to any terms which the court might impose as the condition for granting the said relief, and (after nam- ing the defendants) asking for such farther relief as "the nature of the case would admit of, and as to the court might seem fit." Affidavits in answer were put in, and witnesses examined, and the cause was heard before the Lord Chancellor of Ireland, who, on the 14th of June, 1865, made a decretal order dismissing the petition with costs, but without prejudice to any question as to the ultimate right to the fishery.-^ 1 17 Ir. Ch. Rep. 73. In the course of his judgment the Lord Chancellor said: "Tlie object of this cause petition is to relieve Edward Henrj^ Cooper from the consequences of an act done by him while in ignorance of his true position with respect to this fishery, done by him in derogation of his rights while acting under the influence of a mistake. ... No doubt, a mistake in point of law may be corrected both in this court and in a court of law. This is now perhaps sufficiently established, though it was for some time a subject of controversy in courts of law; " but his Lordship remarked that this power of correction would not be exercised except where equity and good conscience required it, and his Lordship finally came to the conclusion, that no valid ground for relief was es- tablished in this case. 100 COOPER V. PUIBBS. [CIIAP. II. The Attorney-General (Sir John Bolt), and Mr. G. M. Giffard, Q. C. (Mr. Fetherston 11. was with them), for the appellant. Mr, Lawson, Q. C. (of the Irish Bar), and Sir Eoundell Palmer, Q. C, for the respondents. May 31. Lord Cranworth : — My Lords, this is an appeal against a de- cree of the Lord Chancellor of Ireland, of the 14th of June, 18G5, dismiss- ing a cause petition which had been filed by the appellant on the 9th of April, 18G4, pursuant to the Chancery Regulation Act of 1850. The object of the petition was to be relieved from an agreement, dated on the 14th of October, 18G3, by which the petitioner agreed to become tenant to the respondent Pliibbs, for three years, of the salmon fishery of Ballysadare, in the county of Sligo. The ground of the relief asked was, that the pe- titioner had entered into an agreement in mistake as to his rights. He thought that the fishery belonged to the other respondents, for whom Phibbs acted as trustee ; but he was in truth himself the owner of the fishery as tenant thereof in tail.^ The consequence was, that the present appellant, when, after the death of his uncle, he entered into the agreement to take a lease of this property, entered into an agreement to take a lease of what was, in truth, his own property, — for, in truth, this fishery was bound by the covenant, and be- longed to him, just as much as did the lands of Ballysadare ; therefore, he says, I entered into the agreement under a common mistake, and I am entitled to be relieved from the consequence of it. In support of that proposition he relied upon a case which was decided in the time of Lord Hardwicke, not by Lord IIardwicke himself, but .by the then Master of the Rolls, Bingham v. Bingham,'^ where that relief was expressly administered. I believe that the doctrine there acted upon was perfectly correct doctrine ; but even if it had not been, that will not at all shew that this appellant is not entitled to this relief, because in this case the appellant was led into the mistake by the misinformation given to him by his uncle, who is now represented by the respondents.* It is stated by 1 So much of the opinion as relates to the question of title has been omitted. — Ed. 2 1 Ves. 127. * Snell V. Insurance Co., 98 U. S. 85 ; Jordan v. Stevens, 51 Me. 78 ; Martin v. R. R. Co., 36 N. J. Ya\. 109, accord. If the mistake of law, or as to his private right, be that of one party only to a trans- action, it may be either that the mistake was induced or encouraged by the misrepresen- tation of the other party, or that, though not so induced or encouraged, it was known to and percei%'cil bj' him, and wa.s taken advantage of, or it may be that he was not aware of the mi.stakc. Whatever may be the circumstances of the case, a court of equity may, under tlie jM-culiar eircumstanccs of the ca.se, grant relief. But if it appear that the mis- t;ike was induced or encouraged by the misrepresentation of the other party to the trans- action, or was perceived by him and taken advantage of, the court will be more disposed to grant relief than in cases where it does not appear that he was aware of the mistake. Krrr on Fraud and MixUtkc, 2 Kd. 470. — Ed. SECT. I.] COOPER V. PIIIBBS. 101 him in his cause petition, which is verified, and to which there is no con- tradiction, and in all probability it seems to be the truth, that his uncle told him, not intending to misrepresent anything, but being in fact in error, that he was entitled to this fishery as his own fee simple property ; and the appellant, his nephew, after his death acting on the belief of the truth of what his uncle had so told him, entered into the agreement in question. It appears to me, therefore, that it is impossible to say that he is not entitled to the relief which he asks, namely, to have the agreement delivered up and the rent repaid. That being so, he would be entitled to relief, but he is only entitled to this relief on certain terms, to which I will presently advert. Before I do so I must refer to an argument which was relied on very much by the respondents, namely, that the fishery conveyed in 1806 by Sir Edward Crofton was not the fishery in the estuary, but only in the rivers, and that consequently the nephew, Edward Joshua, had no right whatever in that fishery under the descent from his uncle. I cannot think that there is any foundation for this suggestion, because the Act of Parlia- ment expressly states that the fishery in the estuary and at the mouths of the rivers, had descended from the lunatic uncle upon Edward Joshua, But even if it had been so, in my opinion it would not have made the least diff"erence, for the right of fishing in rivers traversing the lands is an incident to the right of property, and that property certainly was governed by the cov enant of 182 7. The argument on the part of the respondents is, that the right to make the new cuts conferred by the Act was a new right, and that that new right was granted to Edward Joshua in fee. I do not think that that is a true construction of the Act, but if it was it would be a right which Ed- ward Joshua obtained by virtue of his right to the lands and to the fishing in the fresh waters. As to that right he stood in a fiduciary relation to those interested under the de ed of 1827. But for his right under that instru- ment he could not have obtained the powers conferred by the Act. In my opi nion the very same doc trine that is acted upon so continually, tha t a tenant for life of a renewable property, if he renews it, cannot by possib ility r enew it for his own ben efit, applies i n princ iple jto this case. If the facts had been such as the respondents contend they were, namely, that he was the owner in fee simple under the Act of Parliament, and that the prop- erty was not governed by the covenants of 1827, still, even if it was not governed by those covenants, he stood in a fiduciary character, which dis- qualified him from making any such contention as that. Therefore, qmlain- qne via, it is clear to my mind that the appellant is entitled to the relief he asks by getting rid of this agreement. Then the next question is, what are the terms upon which this relief is to be given] Now, the respondents allege that their father, Edward Joshua, in making the canals and other works necessary for establishing ^ 102 COOPER V. pniBBS. [chap. ii. the fishery, and also in purchasing up fishery rights in the bay, expended very large sums of money. First of all, he was at the expense of obtaining the Act of Parliament. It was intended that the Act of Parliament should be passed in the lunatic's lifetime, but the lunatic having died, it was treated as being from the beginning Edward Joshua's expenditure. He was at great expense in purchasing up the rights of fishery of different proprietors on the banks, and he was at very large expense in making cuts and removing obstructions, so as to make the fishery available. That, at least, is the allegation of the respondents. Now, if that is so, the question is, upon what terms ought this relief to be granted 1 It is impossible to decide the merits of this claim in the absence of the persons entitled to the corpus of the estate. On the marriage of the appellant, in 1858, the property was settled to uses, and on trusts, for the benefit of the appellant and his wife, and the issue of the marriage. The appellant, therefore, has not brought before the court all the persons interested in this question. If the respondents succeed in establishing their lien, it will be a lien aff'ect- ing the life interest of the appellant, as well as the rest of the corjms of the property, and so justice would not be done to them if we were to give re- lief to the appellant by simply setting aside the agi-eement on which they claim a lien. They have a right to have that question disposed of. I sub- mit to your Lordships, therefore, that all that we can do is to remit the case to the Court of Chancery in Ireland, with declarations which shall enable the parties to have this question properly decided. The declarations that I would suggest to your Lordships as the proper ones to be made, are these : To declare that the lands and hereditaments conveyed to Joshua Edward Cooper by the deeds of 1806 (including the fishery of Ballysadare), were comprised in the settlement of the 13th of February, 1827, and were bound by the covenant of Edward Joshua Cooper therein contained ; and that at the time of the passing of the Act of Parliament of I Vict. c. 89. the said Edward Joshua Cooper was a trus- tee of the lands, hereditaments, and fishery of Ballysadare, for the persons entitled under the trusts of the aforesaid settlement of 1827, and that thn ri 2 Black. R. 825. '' 1 T. R. 285. 3 i T. R. 112. .U-^ Ir^i^ c_ ^^i*^ Ul^ 122 CLARKE V. DUTCIIER. [CHAP. II. must be, not whether the money was paid under a misapprehension o f the law, or in ignor ance of the fact, for tliat is immaterial, but wliether the party to whom it was paid can in equity- and conscience retain it. If he cannot, if there was any mistake of any character, he shall refund. If this be so, why has this question been so frequently and elaborately discussed, not only in the English, but in our own courts; and not only in tlie courts of common law, but in courts of equity] How are the cases of liilbie V. Lumley and of Brisbane v. Dacres to be reconciled with this priia- ciple? What ground of conscience or equity had Admiral Dacres for retain- ing the money paid to him 1 He had neither incurred hazard nor rendered any labor or service in its transportation. Captain Brisbane was not his servant, nor was the ship which carried it his property. Chief Justice Mansfield, in his solicitude to avoid collision with the dida of Chief Jus- tice De Grey and Lord Mansfield, does indeed suggest a ground of equity for the defendant. He says, " So for from its being contrary to ccquum et boiium, I think it would be most contrary to cequum et honum if he were obliged to repay it ; for see how it is : If the sum be large, it probably alters the habits of his life ; he increases his expenses ; he has spent it over and over again ; perhaps he cannot pay it at all, or not without great dis- tress." If the fact of having expended the money, or of its being incon- venient to repay it, is a sufficient ground of equity to enable the party who has received it under a mistake of law to retain it, I apprehend that it will practically amount to the same thing as holding that it shall not be recov- ered back. But with great respect, I think his Lordship might better have denied those dicta to be law, as Lord Ellenborough did in Bilbie v. Lum- ley, than to have sought to evade them by this gloss. Chief Justice Marshall thought there was a distinction between a mis- take in fact and a mistake in law, when he said, in Hunt v. Rousmanier.^ "Although we do not find the naked principle that relief may be gi-anted, on account of ignorance of law, asserted in the books, we find no case in which it has been decided that a plain and acknowledged mistake in law is beyond the reach of equity." Chancellor Kent thought such a distinction existed, when he said, in Lyon v. liichmond,* " C ourts do n ot undertak e lo relieve parties from their acts and deeds fairly done, on a full knowle dge of J(^^ . ,A-^j-£jt facts, thou^di under a mistake of the law. Every man is to be charged at J . ' his peril with a knowledge of the law; there is no other principle which is jp<-*'^-*-<'^^ . y'*'-^^^ - gafe or practicable in the common inte rcourse of mankind." The principle t^«^.^"TZx-L^ l-cn-^jUi ~ \\])or\ which courts refuse to relieve aga i nst mistakes in law is, t hat in judg- Lu^ ..^ t^.^A,,,'^..^! incnt of law there is no mistake ; every man being held, for the wisest re a- l^j^j:^ ^ -iju-^>t^ son, to be cognizant of the law. The act, therefore, against which the pa rty . J e,.^ .,3 and its viilue in our currency being fixed by statute, and thercfure a ques- tion of law, if the plaintiff, on se ttling his rent at the rate of £4 14«. cur- rency fo r £2 1 0s. sterling, acted under an errone ous impression that that was its legal value, he cannot now recover back the e xcess. The rent was demand ed by the landlord as his right. By submitting to the demand, as Mr. Justice Gibbs expressed it, he gives the mon ey to the party to whom he pays it, and closes the transaction forever. The judgment of the Com- mon Pleas must be reversed. Judgment of reversal. 4 o / "^ I 7 HAVEN V. FOSTER. In the Supreme Judicial Court of Massachusetts, October Term, 1829. [Reported in 9 Pickering, 112.] Assumpsit for money had and received, and money paid. The parties stated a case. On the 19th of September, 1819, Andrew Craigie, of Cambridge in this Commonwealth, died there, intestate, seised in fee-simple of certain land in the State of New York, and of real estate of greater value in Massachusetts, leaving his niece Elizabeth, the wife of the plaintiff, and his three nephews, Andrew Foster, John Foster, and the defendant, his heirs-at-law, the niece being the child of the intestate's sister Elizabeth, and the nephews the children of his sister Mary, and all four being children of the same father, Bossenger Foster. In October, 1819, administration upon the estate of Craigie was gi-anted in this Commonwealth to his widow. No letters of administration were taken out in New York. After the death of Craigie, the plaintiff and his wife, with Andrew and John Foster and the defendant, by their joint deed of release and quitclaim, dated November 17, 1821, conveyed all their right to the greater part of the intestate's land in New York to Thomas Tufts, of Le Eoy, in that State, for the consideration in fact of $24,540, Tufts well knowing the nature of the title he acquired by this purchase. The deed was executed and acknowledged at Cambridge, and by agreement of the pai'ties was carried by the plaintiff to Albany in the State of New York, where, on December 1, 1821, Tufts executed a bond of that date to each of the grantors, for one quarter part of the consideration of the deed, payable by certain instal- ments, with interest semi-annually at the rate of seven per cent, the legal rate of interest in New York, which bonds were secured by foiu- several mortgages, each of one undivided fourth part of the lands conveyed to Tufts. The deed and bonds were placed by the plaintiff, but without lH-i HAVEN r. FOSTER. [CHAP. II. express authority from the other grantors, in the hands of J. V. Henry, a lawyer at Albany, with directions, upon the receipt of the mortgages exe- cuted and recorded, to transmit the deed to Tufts, and the bonds and mortgages to the respective obligees and mortgagees therein named. The bonds and mortgages were sent by Henry to the plaintift', who delivered them to the several parties in whose names they were taken. On the 9th of March, 1824, the whole amount of the bonds was paid to the obligees respectively, deducting from each the sum of $1,875, which was left in the hands of Tufts for the purpose of paying, and with which he undertook to pay, a debt of $7,500, due from Craigie's estate to Benjamin Lee; which debt arose out of a contract, dated April 19, 1819, between Craigie and Lee, for the loan of $15,000 by Lee to Craigie, which Craigie was to receive from Lee progressively, as stated in the contract. This contract was accompanied by a note for $15,000 made by Craigie to Lee, secured by a mortgage of part of the lands released by Craigie's heirs to Tufts. Craigie received $4,957 under this contract and the administratrix received $2,235, which sums, with interest to June 15, 1820, amounted to $7,500; and by an agreement dated July 17, 1820, the intended loan was reduced to that sum; which was to carry interest from June 15, 1820. At the time when Tufts undertook to pay this debt, Lee's right of action on the note, against the administratrix, was barred by Stat, 1791, c. 28, limit- ing suits against administrators to four years. By an arrangement between the administratrix and the heirs of Craigie, made in September, 1822, by virtue of which certain stock in this Commonwealth belonging to the intestate's estate came under the control and management of the heirs, it was stipulated, that among other claims the debt to Lee, of $7,500, should be paid out of the proceeds of the stock when sold; but the sale not having been effected at the time when Tufts proposed to make the before-recited ]>ayments to the plaintiff and John and Andrew Foster and the defendant, it was then further agreed between them and the administratrix, that the payment by them of the debt to Lee should have the same effect upon the rights of the parties in interest, as if it had been paid by her as adminis- tratrix, it not being then certain that the personal estate of the intestate would be sufficient to pay his debts. Tufts did not pay Lee any part of the debt, and in consequence of his neglect, Lee resorted to his remedy on his mortgage, and in pursuance of a decree in chancery in New York, satis- fied the debt and costs by a sale of about half of the mortgaged premises. Before Lee obtained the decree, he had agreed with the plaintiff and John and Andrew Foster and the defendant, that for the satisfaction of his debt, he would resort only to Tufts and the laud mortgaged, and would refund the interest paid on the note by the administratrix subsequently to the ])rovi«ion made for the payment of the debt through Tufts, — the plaintiff and John and Andrew Foster and the defendant agreeing that Lee might use the bond taken hy them from Tufts for the {)ayment of the debt to SECT. I.] HAVEN V. FOSTER. 125 Lee and the judgment recovered by them thereon against the surety ; which bond, and a copy of the judgment, were, about three years after the 9th of March, 1824, transmitted to Lee; and his attorney, on receiving on the bond and judgment, from the executrix of the last will of the surety, the amount of interest refunded by Lee to the estate of Craigie, and the costs of the suit on the bond, released the judgment; and Lee never made anv other use of the bond and judgment, before the same were so relea.sed. On the 9th of March, 1824, the defendant received from Tufts the sum uf $0,161.38 in full for the principal secured by his bond, and the interest thereon to the 6th of that month, and the further sum of $19.12 for compound interest thereon, making in the whole the sum of $5,180.50, after deducting $1,875, as before mentioned. The sum received has not been productive during the whole time since the 9th of March, 1824, and the defendant has received thereon for interest to the 9th of October, 1828, only $999.18. On the 29th of May, 1826, the plaintiff and his wife, with John and Andrew Foster and the defendant, by their joint deed of release and quit- claim of that date, conveyed all their right in another parcel of land in the State of New York, of which Craigie died seised in fee simple, to David Lane of Hudson in that State, a part ($950) of the consideration of which was paid on that day and divided equally between the plaintiff and John and Andrew Foster and the defendant ; one-fourth of which sum remains still in the defendant's hands. The statute of New York of February 23, 1786, regulating descents, was in force at the time of Craigie's decease, according to which the children of his two sisters took ;jer stirpes and not ^jer capita : but of this statute all the parties interested in the estate of Craigie were ignorant at the time of the transactions before recited. If upon these facts the court should be of opinion that the plaintiff was entitled to recover, judgment was to be rendered for him for such sum as the court should order ; otherwise the plaintiff was to become nonsuit. The case was argued in writing. Metcalf for the plaintiff. A. Hilliard for the defendant. The opinion of the court was drawn up by Morton, J [After stating some of the facts.] By the statute of dis- tributions of this State these heirs, standing in the same degree of relation- ship to the intestate, inherited his estate in equal proportions. But by the statute of New York, which carries the doctrine of representation ftirthcr than the law of this State, or indeed than the civil or common law, these heirs inherited per stirpes and not per capita. So that the estate in New York descended, one-half to the wife of the plaintiff, and the other half to the defendant and his two brothers; being one-sixth instead of one- quarter to each. 126 HAVEN V. FOSTER. [CIIAP. II. Of the provisions and even existence of this statute, all the heirs were entirely ignorant during the whole of the transactions stated in the case. The plaintiff, having discovered the mistake, now seeks by this action to reclaim of the defendant one-third of the amount received by him on account of the sale of the New York lands, with interest from the time of its receipt. And the question now submitted to our decision is, whether he is entitled to a repetition of the whole or any part of this amount. Had the parties been informed of their respective rights under the laws of New York, it cannot be doubted that the plaintiff would have retained one moiety of the laud in that State, or would have received to himself one-half of the consideration for which it was sold. The distribution of the avails of the sale was made by the heirs upon the confident though mistaken supposition, that they were equally entitled to them. They octed in good faith, upon a full conviction that they were equal owners of the estate. It turned out, however, to the surprise of all of them, that they owned the estate in very unequal proportions, and that the defendant and his brothers had received not only the price of their own estate, but also the price of a part of the plaintiff's estate. Equity w'ould therefore seem to require, that the defendant should restore to the plaintiff the amount received for the plaintiff's estate. It was re- ceived by mistake, and but for the mistake would not have come to the defendant's hands. If the whole estate had been owned by the plaintiff, and the defendant, having no interest in it, had received the whole consid- eration, the equitable right of repetition would have been no stronger ; it might have been more manifest. The suggestion that the provisions of the New York statute are in themselves inequitable, is no answer to this view of the case. Whether the law of descent in that State is more or less reasonable and just than ours, it is neither our province nor desire to inquire. All statutes regulating the descent and distributions of intestate estate may be considered as positive, and in some degree, arbitrary rules. And when a person, by inheritance or purchase, becomes lawfully seised of any estate without fraud or fault on his part, it would be as inconsistent with sound ethics, as with sound law, to devest him of it because the rule of law by wliich he held it was deemed unreasonable. And if, by accident or mistake, another should get possession, it is not easy to see upon what principle he would be justified in retaining it. In the case at bar, the division of the consideration money was made by the agreement of all the parties interested. The defendant received the money with the plaintiff's consent. But it was an implied, rather than express agreement. The defendant also received the monev under a claim of ricrht. The de- fendant believed himself to be legally and equitably entitled to one-quarter part of the proceeds of the sale. And under this belief he claimed it as SECT. I.] HAVEN V. FOSTER. 127 being rightfully due to him, aud the plaintifl", uuder the iullueuco ui the same belief, assented to the justice of the claim, and agreed to the equal distribution which was made. It was not however paid to the defendant by way of cumjiromise. No controversy existed between the parties. There was not even a difterence of opinion between them in relation to their respective purparties in the estate before it was sold, or to the apportionment of the avails after the sale. There was therefore no room for concession on the one side or the othti-, and nothing between them which could be the subject of compromise. N^or do the facts furnish any ground to presume that the plaintiff intended to grant anything to the defendant, or to yield any of liis legal rights. Nemo presumitur donate. And we have no reason to believe that the plaintiff intended to give away any part of his own property, or his wife's inheritance. The mistake in the distribution of the consideration money for which the land was sold, arose from the mutual ignorance of the law of descents in New York. Can this mistake be corrected and the plaintiff be restored to the rights which he had uuder this statute ? It is in the first place objected, that the plaintift''s ignorance was owing to his own negligence ; that he shall not be allowed to take advantage of his own laches ; that what a man may learn with proper diligence, he shall be presumed to know ; and that against mistakes arising from negligence, even a court of equity will not relieve. In all civil aud criminal proceedings every man is presumed to know the law of the land, and whenever it is a man's duty to acquaint himself with facts, he shall be presumed to know them. But this doctrine does not apply to the present case. It was not the duty of the plaintiff to know the laws of New York, nor does ignorance of them imply negligence. Knowledge cannot be imputed to the plaintiff, and it is expressly agreed that he, as well as the defendant, was entirely ignorant of the statute of New York. Besides, it was as much the duty of the defendant as of the plaintiff, to be acquainted with the laws of New York. And if either is guilty of negligence, both are, in this respect, in pari delicto. The objection that the title to real estate cannot be tried in this form of action, cannot avail the defendant ; because it seems to us very clear, that no title is or can be drawn in question, in the present case. The principal objection to the plaintiff's recovery, and the one most relied upon by the defendant's counsel, is, that the payment to the defend- ant was made through misapprehension of the law, and therefore that the money cannot be reclaimed. It is alleged, that to allow the plaintiff to recover in the present action, would be to disregard the common presumption of a knowledge of the law, and to violate the wholesome and necessary maxim Ignorantia juris quod quisque tenetur scire, neminem excusat. This objection has been strongly 128 HAVEN V. FOSTER. [CIIAP. II. urged by the defendant's counsel, and learnedly and elaborately discussed by the counsel on both sides. It is believed that all the authorities appli- cable to the point, from the civil as well as the common law, have been broujrht before the court. Whether money paid through ignorance of the law can be recovered back, is a question much vexed and involved in no inconsiderable perplexity. We do not court the investigation of it, and before attempting its solution, it may be well to ascertain, whether it is necessary to the decision of the case before us. That a mistake iu fact is a ground of repetition, is too clear and too well settled to require argument or authority in its support. The misapprehension or ignorance of the parties to this suit related to a statute of the State of New York. Is this, iu the present question, to be considered fact or law 1 The existence of any foreign law must be proved by evidence showing wliat it is. And there is no legal presumption that the law of a foreign state is the same as it is here. 2 Stark. Ev. (Metcalf 's Ed.) 568 ; Male v. Roberts.^ If a foreign law is unwritten, it may be proved by parol evidence ; but if written, it must be proved by documentary evidence. Kenny v. Clarkson;^ Frith v. Sprague;^ Consequa v. Willings.* The laws of other States in the union are in these respects foreign laws. Eaynham v. Canton.* The courts of this State are not presumed to know the laws of other States or foreign nations, nor can they take judicial cognizance of them, till they are legally proved before them. But when established by legal proof, they are to be construed by the same rules and to have the same effect upon all subjects coming within their operation, as the laws of this State. That the lex loci rei aitce must govern the descent of real estate, is a principle of our law with which every one is presumed to be acquainted. But what the lex loci is, the court can only learn from proof adduced before them. The parties knew, in fact, that the intestate died seised of estate situated in the State of New York. They must be presumed to know that the distribution of that estate must be governed by the laws of New York. But are they bound, on their peril, to know what the provisions of these laws are] If the judicial tribunals are not presumed to know, why should private citizens be 1, If they are to be made known to the court by proof, like other fiicts, why should not ignorance of them by private individuals have the same effect upon their acts as ignorance of other facts I Juris ignorantia est, cum jus nostrum ignoramus, and does not extend to foreign laws or the statutes of other States. We are of opinion, that in relation to the question now before us, the 1 3 Esp. 163. 2 1 Johns. 385. * 14 Ma&s. 455. ♦ Pet. C. C. 229. 6 3 Pick. 293. SECT. I.] HAVEN V. FOSTER. 129 statute of New York is to be considered as a fact, the iguorance of which may be ground of repetition. And whether ignorantia legis furnishes a similar ground of repetition, cither by the civil law, tiie law of England, or the law of this Commonwealth, it ^s^ iiot jiccessaryfor us to determine. The examination, comparison, and reconciliation of all the conflicting dicta and authorities on this much discussed question is a labor which we have neither leisure nor inclination to undertake. lu the view which we have taken of this case, it appears that the de- fendant received a part of the consideration for which the plaintiflf's estate was sold ; that it was received by mistake ; and that this mistake was in a matter of fact. He therefore has in his hands money which ex (jequo et bono he is bound to repay, and there is no principle of law which interposes to prevent the recovery of it out of his hands. The action for money had and received, which for its equitable properties is ever viewed with favor, is the proper remedy for its repetition. The mode in which the payment was originally secured by bond and mortgage forms no objection to the recovery, inasmuch as the money was in fact paid before the action was commenced. The plaintiff's remedy will extend to all the money actually received by the defendant beyond his legal proportion of the estate. Whether it shall extend further, is a question involved in some difficulty. The estate in New York, at the decease of the intestate, was under mortgage. This mortgage was satisfied from the estate itself, and the amount thus paid deducted from the consideration money. The plaintiff now contends that this incumbrance ought to have been removed by a payment from the personal estate, or if that was insufficient, from the real estate in this Commonwealth. In the consideration of this question, it must not be forgotten that the plaintiff can recover only what in equity and good conscience is due to him. What descended to the heirs in New Yorki The estate there, not free from all incumbrances, but with this mortgage upon it. Did equity require that the defendant and his brothers should advance three-fourths of the money to pay off this mortgage, that the plaintiff might have one-half the estate increased in value by this payment! The mortgagee relied entirely upon his lien on the estate ; otherwise he would have demanded payment of the administratrix, and sought a remedy against her upon the personal security of the intestate. This he omitted to do until the claim was barred by the statute of 1791, c. 28. The only sure remedy then remaining was upon his mortgage. This remedy he resorted to, and obtained from the land mortgaged satisfiiction of his debt, by a sale of part of it according to the laws of New York. It is true that before this claim against the estate was barred by the statute of limitations, the heirs agreed with the administratrix that the debt should be paid out of the proceeds of a sale of certain corporate 9 130 HAVEN V. FOSTER. [CHAP. II. Stock. But the stock was not sold so as to make the payment, and after the demand was barred the lieirs made an agreement with the purchaser of their estate in New York, that he should retain enough of the considera- tion which was then due to them to remove this incumbrance, deducting an equal amount from each bond. After the deduction of this amomit from the bonds, the balances were paid to the obligees, and thus the bonds were satisfied and discharged. The effect of this arrangement by the heirs was, to leave the estate in the hands of the purchaser in the same situation it would have been had it been sold subject to this incumbrance. It must be presumed that the heirs stipulated to remove the incumbrance or to furnish the purchaser with the means of doing it. If this was not the case, they voluntarily agreed to relinquish a part of the purchase-money. In this event it was equivalent to a reduction of the price of the estate, and the plaintiff can have no claim to any more than one-half of the price which was finally agreed upou and actually paid. If the heirs agreed to pay off this mortgage, it was a part of the agree- ment that it should be paid out of a particular fund. As this agreement was made by the plaintiff under the mistaken supposition that he owned but a quarter, when in fact he owned half of it, he claims to be relieved from its operation. If the agreement is invalid in part, it must be so in tlie whole. The plaintiff cannot be released from it and the defendant be bound by it. If the plaintiff, with a knowledge of his rights, would not have agreed to pay out of this fund ; so the other heirs, with the same knowledge, would not have agreed to pay at all. They would have relied upon their statute bar, and left the mortgagee to his remedy on the mort- gaged estate and their grantee to his remedy against his grantors or m resisting payment of his bonds. Although this agreement was founded in misapprehension, yet as it was made in good faith and has been executed, as the parties cannot be restored to the situation they were in when it was made, and as the effect of annul- ling it as to one would be manifest injustice to the other, we can see no good reason why both should not be bound by it.^ Upon a view of the whole case, it is the opinion of the court, that the plaintiff recover one-third of the whole amount received by the defendant on -account of tiie sale of lands in New York, with interest from the service of the writ. 1 A portion of the opinion not relating to the question of mistake has Leon omitted. — Ed. SECT, I.] CLAFLIN V. GODFREY. 131 JOHN CLAFLIN, Jr. v. WILLIAM GODFREY. In the Supreme Judicial Court of Massachusetts, October Term, 1838. [Reported in 21 Pickering, 1.] Assumpsit to recover the sum of $1722.77, with interest from June 17, 1833. The plaintiff proved, that on April 4, 1828, Stephen R. Parkhurst, Nathan Parkhurst, and Parmenas P. Parkhurst, copartners under the firni of Stephen R. Purkliurst & Co., made their promissory note to John Farnum, m the sum of $4500, and at the same time executed and delivered to him, as security for the note, a mortgage of real estate, by them owned, situate in Milford. Tlie real estate was then subject to two mortgages, one to D. Waldo, to secure the payment of $200, the other to R. Waldo, to secure the payment of $1000. On July 3, 1830, Stephen R. Parkhurst, in behalf of himself and Nathan and Parmenas, agreed with Farnum, in lieu of the note for $4:500, to deliver to him, within six months, 4000 yards of satinet, and to give him security therefor; and in pursuance of this agreement Stephen procured Claflin, the plaintiff, to give his note to Farnum for the satinet. Farnum thereupon transferred to the plaintiff the note for $4500, by indorsing it without recourse to himself, and at the same time assigned to the plaintiff the mortgage given as collateral security for the note. Before the 5th of November then next, Parkhurst & Co. paid the note given by the plaintiff to Farnum, and afterwards, on or before that day, delivered the same to Godfrey, the defendant. On the same 5th of November, Parkhurst & Co. and the defendant had a reference of various matters between them, the plaintiff being one of the arbitrators ; and upon the hearing before the arbitrators it was ascertained and admitted, among other things, that the defendant was then liable as surety for Parkhurst & Co. to the Mendon Bank, for the sum of $4000, on a note made by Parkfiurst & Co. as principals, and the defendant and one Ithiel Parkhurst as sureties ; and that there was due to the defendant from Parkhurst & Co. the sum of $1801.06. The defendant had other claims against Parkhurst & Co., and was under other liabilities on their account, as security for which he held two mortgages. At the heai-ing before the arbitrators, the defendant produced the note given by the plaintiff to Farnum, and it was stated by Stephen R. Parkhurst and the defendant, before the arbitrators, the plaintiff being present and hearing the statement, that the satinet with which Parkhui-st & Co. had paid Farnum, was made of wool furnished by the defendant under a certain 132 CLAFLIN V. GODFREY. [CIIAP. II. contract, dated March 6, 1830, and that therefore the defendant was to have the benefit of the mortgage made to Farnum. Stephen then agreed with the defendant, that the note given by the plaintiff to Farnum should be given np by the defendant to the plaintiff, and that the note and mort- gage for 84:500, should be assigned by the plaintiff to the defendant, to be • held by the defendant as further security on account of his claims and liabilities ; and thereupon the plaintiflf', upon receiving his note from the defendant, transferred to the defendant the note and mortgage for $4500, indorsing the note without recourse. After the arbitrators had made their award, they were requested to apportion the several claims and liabilities of the defendant, upon and among the three mortgages held by him, and in compliance with such request they directed, that he should hold the Fanuim mortgage to indem- nify him against his liability as surety on the note for $4000 to the Mendou Bank, and as security for the payment of $75 G, part of the sum found due to him on account. He thereupon agreed to hold the Farnum mortgage for that purpose and no other, and gave a bond to Stephen to that effect. On November 12, 1831, the defendant transferred the note and mortgage for $4500, to the Mendon Bank, to be held by the bank as collateral security for the payment of the note of $4000, on which the defendant was a surety. On November 12, 1831, Stephen, Nathan, and Parmenas again mort- gaged the same real estate to William Whitney, to secure the payment of all such advances and claims as he might have against Parkhurst k Co. In January, 1833, the right in eqiiity of Stephen, Nathan, and Parmenas to redeem the same real estate was taken on an execution in favor of a creditor, and the plaintiff and Lee Clafiiu and the defendant agreed to become the joint purchasers, provided they could obtain it for a certain price; and on February 25, 1833, it was sold to them for $2000, and on the same day a deed thereof was duly made to them by the officer. Among the incumbrances on the estate, subject to which the equity of redemption was sold, the Farnum mortgage was mentioned by the officer, at the sale and in his deed. He also mentioned the Whitney mortgage, and stated that the amount due thereon was less than $2000. It was a part of the agreement between the plaintiff and defendant and Lee Claflin, that the Farnum mortgage should be relieved from the claim of the Mendon Bank, by the payment of the note for §4000, and tliat the assignment to the bank, which had not been recorded, sliould be cancelled, and that tRe defendant should convey one-third of the mortgage to the plaintiff and one-third to Lee Claflin. Stephen Ft. Parkhurst, by conveyances from Nathan and Parmenas, had become the sole owner of the right to redeem from the sale on execution, au 140 CLAFLIN V. GODFREY. [CHAP. II. A if souud, applies. See Haven v. Foster.^ Here wasji to tal m isapprehension^ *" of* everything material to the subject of negotiation^ The plaintiff strive s to reclaim the^'conslHeration oFa contract which never had any legal Jbrce or effect. The general principle is well settled, tha t when the consideration totaIIyfensrwhere^thiiig"passes by the attempted transferor conveyance, the^imount paid may be recovered back. And the application of the principle^does not at all depend upon the question, whether the failure arose from ignorance of law or of fact . ^Tn'relatTon to the'payment to^Godfrey of one-third of the amount due from the Parkhursts to him, all the court are of opinion that the plaintiff is entitled to recover. This was not included in the agreement with the Parkhursts. It was a part of the consideration paid by tlie plaintiff for his part of the Famum mortgage. And as he received nothing for the money paid, and as the transaction can have no luifiworable effect upon Godfrey's claim upon his debtors, we think that he must recover this sum. And notwithstanding the many circumstances which tend to distinguish the two grounds of claim, a majority of us are of opinion, that when thoroughly sifted and placed upon their true merits, they both rest upon the same equitable basis, and are alike compatil)le with sound principles of law. There is also another short and general view of the subject, which we think fairly and clearly exhibits the substantial justice of the plaintiff's claim. The two Claflins and Godfrey engaged in a joint enterprise, in which they were equally interested. Had it proved fortunate, they would have shared equally in its advantages. It proved disastrous. Common justice therefore required that they should bear equally the common misfortune. But unless the plaintiff may recover in this action, the Claflins would not only sustain the whole loss, but Godfrey would actually be enriched, by a speculation which caused a great loss to the common concern. Godfrey had a debt due to himself, and also owed a debt as surety to the Mcndon Bank, two-thirds of both of which the Claflins have paid. As the Parkhursts were insolvent, the former would have remained unpaid and the latter must have been paid by Godfrey. Now unless he be holden to repay to the Claflins the amount paid by them to him, he will make a clear profit of the money thus received, deducting only the amount which he paid for the two equities ; while the two Claflins will not only lose the sums paid for the equities, but also the amount paid to Godfrey. This cannot be equal justice. But if Godfrey repay to the Claflins the amount received of them, then he will be in the same situation he would have been in had the Claflins paid him notliing. He will have his claim against the Parkhursts for their debt due to him, and fur the money he has been obliged to pay for them by reason of liaving Itecome their surety. 'I'he (lefciulaiit is to be defaulted and judgment is to be entered for the plaintiff for lioth sums, with interest from the time of payment. Defendaiit defaulted. ' 9 Pick. 112. SECT. I.] RAY AND TIIOKNTON V. BANK OF KENTUCKY. 141 RAY AND THORNTON v. THE BANK OF KENTUCKY. In tue Coukt of Appeals of Kentucky, May 31, 1843. [Reported in 3 B. Monroe, 510.] This is an action of assumpsit, brought by Ray and Thornton, to recover back money paid to the Bank of Kentucky, at their branch at Greensb\u-^', on a bill of exchange. Ray and Thornton, citizens of Lebanon, Ky., and traders to the South, had procured from Saunders, a wealthy gentleman of Woodville, Mississippi, as drawei-, a bill of exchange, drawn in their favor and accepted by Throckmorton of New Orleans, for $1193.58, dated the 18th of February, 1840, payable on the 1st of November next thereafter ; and having procured the names of their friends at Lebanon, David Philips, S. Spaulding & Co., and Floyd and Ray as accommodation indorsers on the bill, in July, sold, indorsed, and delivered the same to the Bank of Ken- tucky, at their branch at Greensburg. The bill was started, by mail, to New Orleans, by the cashier of the branch bank, on the 24th day of Octo- ber, and did not arrive till the 12th of November, on which day it was pro- tested for non-payment, and notices immediately inclosed, by the mail, to the cashier, and by him inclosed to the indorsers at Lebanon. It appears that Ray and Thornton were absent in the South when the notices arrived ; that the plaintiff's indorsers being uneasy and apprehending difficulty as to the effect that the protest might have upon their credit, and one of them having an accommodation in the branch bank of three thousand dollars, Finley, Ray's partner in a mercantile firm, went immediately down to Greensburg, at the request of the indorsers, as well to see about the bill as to renew a note of $1000 which he and Ray had in bank, and which they had been promised the privilege of renewing when it was discounted ; that the directors hesitated to permit a renewal on account of Ray's being under protest on the bill, and consented to permit its renewal only on the pay- ment of $500 down, and his assurance that Ray would come down and take up the bill immediately on his return from the South. Finley did not see the protest, nor did he doubt that Ray and Thornton were liable for the bill. He knew nothing about bills of exchange, and it was proved that Ray, though he had been a merchant for about twenty years, knew very little about such paper, the witness stating that he had never known him to have anything to do with but one other bill of exchange before. Ray returned in February, 1841, and went immediately down to Greens- burg and paid and lifted the bill. It is proven by the cashier that Ray, before he paid the bill, knew that it had not been protested till the 12th of November, and that it had matured on the 1st and 4th, and expressed regret and fears that he might sustain loss, on account of the bill not having 142 RAY AND THORNTON V. BANK OF KENTUCKY. [CIIAP. II. reached New Orleans in time. Tlie cashier also stated that he did not know or believe that the indorsers were released, nor did the directors, as he believed. It was also proved by the postmaster at Louisville, that ac- cording to the regulations of the mail at the time the bill was transmitted, letters mailed at Greensbiirg for the South had to pass through Louisville, and a letter mailed on the 24th October could not reach New Orleans by the 4th of November. It is further proved that a young man who was in the employment of Messrs. Henderson & Franklin, of New Orleans, had been furnished by them with funds to pay the bill, and he inquired at every bank in the city and of the proper officers of the bank, on the ith of November, when said bill matured, for it, and would have paid it, but it had not arrived or he could not find it. He instructed the officers of the bank that when it arrived Henderson & Franklin would pay it ; but when it arrived, on the 12th, it was not paid, the funds perhaps having been applied to other objects. It appears also that Throckmorton, shortly after the maturity of the bill, failed and died wholly insolvent, about the time the bill was paid to the bank. That Ray and Thornton, and all the other indorsers were legally re- leased and discharged from all responsibility upon the bill, is unquestion- able. And so also was Saunders, the drawer, unless it appeared that he had made no provision for the i)ayment of the bill, nor had any funds for its payment in the hands of the acceptor ; the contrary of which is always presumed in the absence of proof establishing a want of funds.^ That Ray knew that he and they were discharged when he paid and lifted the bill, does not appear; but the presumption may be fairly indulged that he did not know or believe it. It is certain that the fact of his discharge •was not communicated to him by the officers of the bank ; and as they did not know that the indorsers were discharged, as is proven by their cashier, whose business it was to deal in such paper, the presumption may be in- dulged that Ray, who knew but little about such paper, did not know it. And though it is proven that he knew that the bill had not reached New Orleans in time, it does not appear that he knew, or that the fact was com- municated to him, that the bill had not been mailed for that place until the 24th of October, and that, mailed at that time, it could not reach New Orleans until after its maturit3^ Nor does it appear that he knew, when he paid the bill, that had it arrived in time the funds were ready to pay it off, and that it would have been paid, and he and all the indorsers discharged from further liability. Upon the focts proven, the Circuit Court, at the instance of the coun- sel for the bank, instructed the jury, that upon the vvhole evidence the plaintiffs could not recover, and the jury having found accordingly, and a judgment rendered on their verdict, the plaintiffs have appealed to this court. 1 Chitty oil Bills, 198. SECT. I.] RAY AND THORNTON V. BANK OF KENTUCKY. 143 We are clearly of o pinioii that the court erred iu the instructiun ^iv cn. The instruction is in the natur e of a demurrer to the evidence, and shoul d not have been give n unless from the- facts proven, and every reason ahlo inference that might be deduced from them, favorable to the plaintills, by a jury, they could not have found for the plaintiffs. Giving to the evi- dence this favorable interpretation, we think that it may be assumed as proven, that Ray, when he made the payment, was ignorant of the law by which he was discharged ; ignorant of tlie laches of the officers of the bank, in not starting the bill in time ; and ignorant of the fact that funds were prepared, and had the bill arrived in proper time it would have been paid off, a nd that in consequence of the negligence o f the bank only, in failing to forward the bill in time, it was not paid, and the responsibility was thrown upon him, and his recourse upon the drawer lost ; that in ignorance of liis leon a contract. MAULE.XTTnMartindalc v. Faulknur, 2 C. B. 706, 719.— Ed. a 1 Eq. 123, § 111. "~ SECT. I.] NORTIIKOr'S EXECUTORS V. GRAVES. 149 natural justice so obvious as that a right of repetition must exist in sucli a case, and that what belongs to one man cannot be acquired by another, without the consent or the fault of the owner. But we will briefly recur to tlie cases, which, as we think, have recognized the common law on this subject, and see if the principle which we have advanced is not asserted or recognized, with more or less distinctness, in all of them. The action of indebitatus assumiysit for the recovery of money had and re- ceived, and for money paid, etc., is an action of the common law, but to a great extent an equitable action, adopted for the enforcement of many equitable as well as legal rights. And it is a fundamental principle of this action, that it lies for the recovery of money, which, ex ceqiio et bono, ought to be paid over to the plaintiff; and that the law, in case of such equity, will imply a promise to pay it.^ The principles of the action were very definitely stated by Lord Mansfield, in the leading case of Moses V. Macferlan,^ and have never since been doubted. He says, " If the defendant be under an obligation, from the ties of natural justice, to refund, the law implies a debt, and gives this action founded in the equity of the plaintiff's case, as if it were upon a contract." He particularizes, and says again : "This kind of equitable action to recover back money which ought not in justice to be kept, is very beneficial, and therefore much encour- aged." He goes on to enumerate several cases in which money paid can- not be recovered back, as, if advanced in payment of a debt barred by the statute of limitations, etc., and as a reason: "Because in all these cases the defendant may retain it with a safe conscience, though by positive law he was barred from recovering." And he refers to money paid by mistake, as an instance of the equity which will sustain the action ; making no allu- sion to a distinction between a mistake of law and a mistake of fact, — a suggestion, we believe, as applied to this action, of a much more recent date. The same principle was recognized and applied by the Court of Common Pleas, in the case of Farmer v. Arundel.^ " Whenever," says Chief Justice De Grey, " money is paid by one man to another, on a mistake either ot fact or of law, or by deceit, this action will certainly lie ; " and because the defendant had good right in conscience, in that case, to retain the money, the plaintiff failed to recover, and for that reason alone, although the money was paid under a mistake of the law. The case of Bize v. Dickason^ deserves special attention, because the force of it was attempted to be parried, by Lord Ellenborougii, in Stevens V. Lynch.^ The facts show the case to be one of a mistake of law only. The plaintift' was a broker acting under a del credere commission, for foreign correspondents, and the bankrupt had been an underwriter, who was liable for losses which the correspondents of the plaintiff' had sustained, and 1 3 Bl. Com. 163. 2 2 Burr. 1002. » 2 Black. W. 824. M T. R. 285. 5 12 East, 137. 150 N0RTHR01''S EXECUTOKS V. GRAVES. [CIIAP. II. which he had paid over to them, without having received the amount of the losses from the bankrupt. The plaintiff' being indebted on other ac- counts to the bankrupt, in a still larger sum, paid the whole to the assign- ees of the bankrupt under a mistake, and without knowing that he had a legal right to sut oti' against the claims of tlie bankrupt the amount of the losses he had paid. When he discovered, from the decision of the court, in the case of Grove v. Dubois,^ that he had such right, he brought his action against the assignees of the bankrupt, to recover back the amount of the money which he had paid to them, which by law he had a right to have set off. ^o mistake of focts existed, and none was adverted to by Lord Mansfield, discussing the plaintiff's right to recover. He refers only to money paid under mistakes of law, and applies the principle he had before so very distinctly stated, in the case of Moses v. ^lacferlan, and which had again been recognized, in explicit terms, by Chief Justice De Grey ; and without reference to any possible distinction between mistakes of law and of fact, he concludes : " But where money is paid under a mis- take, which there was no ground to claim in conscience, the party may recover it back again, by this kind of action." And it may be remarked that this case was decided after the case of Lowry v. Bourdieu, ^ in which BuLLER, J., applied the maxim, Ignorantia legis non excusat, to money paid as the premium on an illegal gaming policy. The next case we refer to is Brisbane v. Dacres, Executrix.' This case has been much noticed, and efforts made to press it into the service of those who have attempted to sustain the doctrines of this defence ; but with what propriety, will be seen by an examination of it. Mansfield, C. J., and Chambre, J., expressly admit the principle we advance ; and it is neither denied nor doubted, as we can see, by Gibbs and Heath, JJ. The plaintiff was the commander of a king's ship in the British navy, on the Jamaica station ; and Lord Dacres was the admiral there. The plaintiff, by order of Lord Dacres, the admiral, took on board his vessel a large amount of specie belonging to the government, and transported it to Eng- land, for which service he received from the treasury a considerable sum as freight. It had been a long established usage in the navy for commanders of vessels, in like cases, to pay over one-third of the freight to the superior officer, under whose orders they acted ; although, at the time this money was paid over by the plaintiff, he was not bound by law to pay it over, and the admiral had no legal right to demand it ; but it was paid upon the demand of the admiral, as his right. The action was brought against the executrix of Admiral Dacres, to recover back the money so paid. Chambre, J., in a very conclusive argument, maintained the right of the plaintiff to recover the money. He says : " The j)laintiff had a right to it, and the (iefeudant in conscience ought not to retain it. The rule is, that when he cannot in conscience retain it, he must refund it, if there is nothing illegal ' 1 T. i;. 112. 2 Doug. 468. 3 5 Taunt. 144. SECT. I.] NOIiTIIKOr's EXECUTOKS V. GKAVES. 151 iu the transactiou." Mansfield, C. J., admits the rule as stated by Chambre, J., saying, " If it was against his conscience to retain this money, according to the doctrine of Lord Kenyon, an action may be maintained to recover it back." But because the money was paid and received under the former usages of the navy, he considered it entirely proper and conscien- tious for the executrix to retain it; and for this reason alone, he opposed a recovery. Gibbs, J., founded his opinion in the defendant's favor upon the fact that the money was demanded as a matter of right, and was paid upon such a demand ; and this being submitted to, and not resisted at the time, must be considered as a voluntary payment, and indeed, as a gift ! — a controlling feature in the case, entirely unlike the present, and if true, proving very clearly that the money might be very honestly received and retained. Heath, J., takes still a different ground ; that there was neither ignorance nor mistake in the case, but that the plaintiff" intended, in fact, to make a vohuitary payment to his admiral. But what is most material to our purpose is, that neither Gibbs nor Heath refers to the conscience of the case, and therefore are not at issue with their brethren, nor with us, upon this turning-point of the whole matter. The Vice-Chancelloi', in the case of Naylor v. Winch, ^ remarks, that " If a party, acting in ignorance of a plain and settled principle of law, is induced to give up a portion of his indisputable property, under the name compro- mise, a court of equity will relieve." Here, our doctrine is quite distinctly recognized : the case supposed treats the retention of the money as uncon- scientious and wrong, and therefore the relief will be given. Approved text-writers recognize the law to be as we have stated. Broome, in his treatise on Law-maxims, and under the maxim, '■'•Ignorantia jtiris non excusat,''' says, " It is therefore a rule, that money paid with full knowledge of the facts, but through ignorance of the law, is not recoverable, if there be nothing unconscientious in the retainer of it ; " and in support of this rule, the case of Brisbane v. Dacres is cited ; and of that case it is said that the plaintiff" did not recover, because it was not against conscience for the executrix to retain the money. And so, under the maxim, " Volenti non fit injuria,'''' the author states the law thus : " But where money is paid under a mistake, which there was no ground to claim in conscience, the party may recover it back again, as money had and received." And the same views of the law on this subject are expressed by Stevens, in his Nisi Prius, vol. 1, p. 349, whether the mistake be one of law or fact. The case of Bilbie v. Lumley ^ has been sometimes cited in opposition to the rule as laid down in the preceding authorities. That case was not argued ; was decided instanter ; and w^hetber the insured could, or could not in foro conscientvf; retain the money, does not appear, and was not a circumstance alluded to by the court. And we say, in reply to Lord Ellenborough's reference to the maxim, Ignorantia legis non excusat, 1 1 Sim. & St. 555. 2 2 East, 469. 152 NORTHROr'S EXECUTORS V. GRAVES. [CIIAr. II. -^ that although the plaintiff's ignorance of the law may not furnish a good excuse for his paying the money, it does not follow that it furnishes a good excuse to the defendants to retain it, against the suggestions of equity and conscience. The case of Elliott v. Swartwout ^ does not conflict with our views. The money there was paid over by the importer to the collector, as duties, upon a demand and claim of right, and without protest. The defendant received it in good faith, and in the same good faith had paid it over to the treasury of the United States. The case of Stevens v. Lynch,^ to which allusion has been made, was not an action to recover back money paid, but upon a promise to pay, made under a mistake of the law. The defendant was the drawer of a bill of exchange, and as such, had been legally, and was still equitably, bound to pay the money^nameJ i n it ; bu t jbeing ignoran^thaFlils~Iegal liability was dis- /charged, by r eason tb at^the holder had given time to the acceptor, yet he had prornised^to^ayJtTand wasjioHfinJiable^ ^Tbis^wias the case of a mere mistake of law, with the equity and conscience of the case all against him who acted under the mistake, and not in his favor, as in the case before us. It was like the case of money paid in ignorance of the legal defence of the statute of limitations, infancy, usury, etc. AVe have seen but one case in which the doctrine we adopt has been directly denied by any court ; it is Clarke v. Dutcher.^ We need not re- view it, because we believe every authority referred to in that case, in sup- port of the opinion of the court, has been now noticed by us ; and we are led by them to a very different conclusion. The reasons advanced by the court there are not satisfsictory to us, if we understand them. They are, that, if the equities of the case — the moral rights and duties of the parties — are to have influence in the decision, it will spoil or mar the maxim, that "every man is bound and presumed to know the law," as well as tlie maxim, Volenti non fit injuria ; and also, that thereby the practical dis- tinction between a mistake of fact and a mistake of law, will be destroyed ; both of which assumptions we respectfully deny. That a party may not urge his ignorance of the law as an excuse or palliation of a crime, or even of a fault, we may admit ; that he may not, by reason of such ignorance or mistake, obtain any right or advantage over another, we may admit ; but we do not admit that such other may obtain or secure an unjust advantage over him, by reason of liis ignorance or mistake, even of the law. "NVe agree that nwii should not complain of the consequences of their delib- erate and voluntary acts ; but we do not agree that acts performed under the influence of essential and controlling mistakes are voluntary, within the meaning of the maxim referred to. And we say that neither max- injs of law nor fictions of law should be so applied as to wo rk manifest injustice. 1 10 Pet. 138. 2 12 East, 37. ^ 9 Cow. 674. SECT. I.] CULBREATII V. CULBREATII. 153 We conclude, therefore, with entire unanimity, that the charge of the court, in this resi^ect, ought to be sanctioned. Another question is suggested by this motion, and was mentioned iu argument, — that if this money was paid by the plaintiffs, in their capacity of executors of Northrop's estate, from the funds of his estate, under a mis- taken construction of the will, and thus under a mistake of law, whether it could not be recovered back, for the benefit of the estate, whatever the law might be, if the plaintift's had acted merely on their own individual account, as we have here treated it 1 This is, certainly, a question worthy of consideration ; but the opinion already expressed by us renders a deci- sion of it unnecessary. The defendant also claimed, in his defence, that as the legacy was, by the will of the testator, payable to Mrs. Graves, the defendant's wife, and was intended, as he supposed, for her sole benefit, and was actually paid to her, he was not liable. But we think, that in legal effect the money was received by the defendant ; although delivered into the hands of the wife, it was done in his presence, with his consent, and with his subsequent approval, and became subject to his disposal. The jury were instructed to allow inter est on the sum paid, f rom the ^,<_^__t-, J^-z:^ timelFwas received by the defendantToiTthe groundjbh at it wa s receivec F^/ by Tiiminrhis^owir^i^gT^n^d' should have, been immediately restored. But a majority of the court think differently ; and that no interest could accrue, under tEe"circumstances, until demand of repayment was made. This excess of interest, therefore,^lowed by the jury, must be remitted ; and the court wTIl not ^rect a new trial. In considering the legal questions in this case, we are necessarily confintil to the facts apparent on the record, and may not indulge in any specula- tions into circumstances connected with the settlement of David Northrop's '-'-"--'^ • estate, and from which the defendant might have considered himself, as he probably did, fairly entitled to retain the money thus received by him. In this opinion the other judges concurred. Part of interest to he remitted. New trial not to he granted. WILLIAM CULBREATH, Plaintiff in error v. JAMES M. and DAJNIEL G. CULBREATH, Defendants. In the Supreme Court of Georgia, July Term, 1849. SJleiportcd in 7 Georgia Rejmrts, 64.] Obadiah M. Culbreath died intestate, leaving neither wife nor children. His nearest of kin were seven surviving brothers and sisters, and the children of a deceased sister. William Culbreath, the administrator, under a mis- L-C<:^- ., /^ 154 CULBKEATH V. CULBREATII. [CIIAP. II. apprehension of the hiw, diviiled the estate equally between the seven brothers and sisters, to the exclusion of the children of the deceased sister. Subsequently, these children instituted suit against the administrator and recovered the one-eighth of tlie estate. The present action was by William Culbreath against two of the dis- tributees, to recover back the amount overpaid on account of this mistake. Upon an agreed statement of the facts in the court below, the presiding judge awarded a nonsuit against the plaintiff, who appealed to this court. J/. J. Crawford for plaintiff in error. £. Ji. Brou'ii for defendant in error. By the Court, — Nisbet, J., delivering the opinion. 1. The judgment of nonsuit was awarded by the court below in this case, upon the following state of {\\cts, agreed upon by the parties : " The actions were founded upon a voluntary payment made to each of the defendants by the plaintiff, as ad- ministrator of Obadiah M. Culbreath, deceased, of one-seventh part of said in- testate's estate, as part of their distributive iihares of said estate, in ignorance of the law of distribution of estates. After the payments, the children of a deceased sister of the intestate and also of the defendants, in being at the time of the payments, and known and recognized as such children of a deceased sister of the intestate and of the defendants, brought suit against the plaintiff, as administrator aforesaid, to recover their distributive share of the estate of said intestate, it being one-eighth of said estate, and did recover. The suits now pending were brought by the plaintiff to recover of defendants their proportion of the over-payment to them." Upon the hearing, the presiding judge nonsuited the plaintiff, with leave to move at the next term, to set aside the nonsuit and reinstate the cases. Which motion being made, was refused, and to that decision the plaintiff excepted. Upon the hearing before this court, it was conceded on both sides, that with a knowledge of all the facts the plaintiff acted upon a mistake of the law. That was considered as proven. Believing that the defendants were entitled to the whole of the estate of his intestate, to the exclusion of the children of his deceased sister, through a mistake as to the law he paid to tliem tlie share which was rightfully due to those children. They having sued and recovered of him their distributive share, he brings these actions to recover of the defendants the money so paid to them, through a mistake of the law. The (piestion is, can a party recover back money paid, with a knowledge of all the facts, through mistake of the law 1 We are fully aware that the authorities upon this question are in conflict, as well in England as in this country. Great names and courts of emi- nent authority are arrayed on cither side. It is not one of those questions upon which the mind promiitly and satisfactorily arrives at a conclusion. This is true in reference both to principle and authority. It is not sur- prising, therefore, that .Judge Alexander and this court should differ. I SECT. I.] CULBREATII V. CULBREATII. 155 think, and I shall try to prove, that the weight of authority is with us. If it were so — if authorities were balanced — we feel justified in kicking the beam, and ruling according to that naked and changeless equity which for- bids that one man should retain the money of his neighbor, for which he paid nothing, and for which his neighbor received nothing ; an equity which is natural, which savages understand, which cultivated reason approves, and which Christianity not only sanctions but in a thousand forms has ordained. In ruling in favor of these actions, we aim at no visionary moral perfectibility. We feel the necessity of practicable rules, by which rights are to be protected and wrongs redressed. We know the necessity, too, of general rules, and how absurd would be that attempt, which seeks to admin- ister the ecjuity which springs from each and every case. The insufficiency which marks all lawgivers, laws, and tribunals of justice, makes that a hopeless thing. Still, where neither positive law nor a well settled train of decisions impose upon courts a prohibition, they are at liberty, nay, bound to respect the authority of natural equity and sound morality. Where these are found on one side of a doubtful question, they ought to cast the scale. Moreover, we believe that the rule we are about to lay down may be so guarded, as in its application to be both practicable and politic. It is difficult to say that an action for the recovery of money paid by mistake of the law will not lie, upon those principles which govern the action of assumpsit for money had and received. Those principles are well settled since the great case of Moses v. Macfarlan, in 2 Burrow, 1005. The grounds upon which that necessary and most benign remedy goes, are there laid down by Lord Mansfield. This claim falls within the principles there settled, and cannot be distinguished from cases which have been ruled to fall within them, but by an arbitrary exclusion. I am not now using the case of Moses v. Macfarlan as the authority of a judgment upon the precise question made in this record ; although Lord Mansfield there held, that money paid by mistake could be recovered back in this action, without dis- tinguishing between mistake of law and foct. I refer to it, to demonstrate what are the principles upon which the action is founded. It is not founded upon the idea of a contract. In answer to the objection, that assumpsit would lie only upon a contract, express or implied. Lord Mansfield said, " If the defendant be under an obligation, from the ties of natural justice, to refund, the law implies a debt, and gives this action, founded in the equity of the plaintiff's case, as if it were upon contract." Again : " One great benefit derived to a suitor from the nature of this action is, that he need not state the special circumstances from which he concludes that ex cBquo et bono the money received by the defendant ought to be deemed belonging to him." "The defendant," says his Lordship, farther, "may defend himself by everything which shows that the plaintiff, ex cequo et bono, is not entitled 156 CULBREATH V. CULBREATH. [CHAP. II. to the whole of his demand, or to any part of it." His summary is in the followintr words : " In one word, the gist of this action is, that the defend- ant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money." In the language of the civilians, from whom Lord Mansfield borrowed many valuable principles, "Hoc natiira y the judges pronouncing the opinion of the Supreme Court of New York, in Clarke v. Di\tcher : " Although there are a few dirta of eminent judges to the contrary, I consider the current and weight 1 Bate. Com. L. 2(>. 2 i Story E(i. Jur. § 140, 3 12 East, 38 ; 2 East, 469 ; 5 Taunt. 144 ; 8 Wheat. 215 ; 2 Johns. 51 ; 9 Cow. 674 ; 1 Weii.l. 355; 10 Pet. 138. * 7 Oa. 64. J SECT. I.] AllNOLD & DUBOSE V. GEO. RR. AND BANKING CO. 167 of authorities as clearly establishing the position, that where money is paid with a full knowledge of all the facts and circumstances upon which it is demanded, or with the means of such knowledge, it cannot be recovered back upon the ground that the party supposed he was bound in law to pay it, when in truth he was not. He shall not be permitted to allege his ignorance of the law ; and it shall be considered a voluntary payment : " ^ This, then, being the law of this case, although the court below erred on the question of jurisdiction, we are constrained to affirm the general judgment, as the verdict must necessarily, under the evidence, have been what it was, and this is in accordance with numerous decisions of this court. - Judgment affirmed. HEMPHILL V. MOODY. In the Supreme Court of Alabama, December Term, 1879. [Reported in 64 Alabama Reports, 468.] Appeal from the Chancery Court of Tuskaloosa. Heard before the Hon. Charles Turner, The bill in this case was filed on the 24th May, 1879, by Frank S. Moody, as the administrator de bonis non with the will annexed of the estate of Edward Sims, deceased, against Felix F. Hemphill and his wife, Mary J., who was a daughter of said Sims ; and against the personal rep- resentative and distributees of the estate of Jerusha Ready, deceased, who was also a daughter of said Sims, and the wife of Aaron Ready, deceased ; and against several other persons, not necessary to be named, who were legatees under the will of said Sims and distributees of his estate. It sought to remove the settlement of the estate of Sims, from the Probate Court of Tuskaloosa, in which it had been begun, into the Chancery Court ; to establish an equitable set-ofF against the disti-ibutees of the estate of Jerusha Ready, on account of the payment of $2000, which the complain- ant had wrongfully made to the personal representative of her husband, said Aaron Ready, and of which, as the bill alleged, said distributees had received the benefit on the settlement and distribution of his estate ; and to enforce an equitable estoppel against said Hemphill and wife, in regard to this wrongful payment, on the ground that Hemphill had agreed and assented to said payment at the time it was made. The testator, Sims, died in Tuskaloosa, where he resided, in 1838 ; and his last will and testa- ment was there duly admitted to probate. By said will, a copy of which was made an exhibit to the bill, the testator devised and bequeathed to his wife, during her life or widowhood, certain lands with slaves and other 1 9 Cow. 681. 2 41 Ga. 16 ; 42 Ga. 244. 1G8 HEMPHILL V. MOODY. [CHAP. IL property, adding, "But, if she should marry, or die, then, and in that case, it is my will that all the property I have left her should be sold, on one, two, and three years' credit, with interest after one year, except the ne- «Toes," etc. He also devised other lands to his several children, and added a residuary clause in these words : " The balance of rny property, which is not given away in this will, I wish sold to the highest bidder, on a credit of one, two, three, four, five, or six years, with interest from day of sale ; the purchaser giving bond and good securities, and not to have titles to lands nor lots till all the purchase-money is paid, and then to be equally divided between my above-named children." The part of the will contain- intr the foregoing provisions was dated February 2, 1838; but another part was added, dated February 5, 1838, as follows: "Being still in my proper senses, and on a further consideration of all the matters and things, I have thought proper to alter a part of the first part of my will : that is, in case my beloved wife never marries, I wish for her to have $5000 worth of property left her, her lifetime or widowhood, she having the choice of it, to be hers forever, to do as she may think proper with ; and further, by Mr. Aaron Pteady putting in what I have given him hereto- fore, and his having rendered services which the others could not do, I give him, extra, $2000. Now, in explanation of this will, as it is done just on my starting to New York, and in a hurry, my will is, that the $5000 may be taken out of what I give my beloved wife, and the $2000 extra which I give Aaron Ready; the balance of my property, money, and everj-thing, I leave, to be equally divided among my chil- dren," etc. It appears that Aaron Ready first administered on the testator's estate, and that ]Mrs. Sims, the widow, survived until 1874- ; but neither of these facts is stated in the bill. Letters of administration de bonis non, on said testator's estate, were granted to the complainant on the 9th November, 1874; and the lands which were devised to the widow for life, and di- rected to be sold on her death, having been sold, as directed, and the pur- chase-money received by the said administrator, he paid $2000, a part of said sum of money, on the 20th May, 187G, to E. A. Graham, as the ad- ministrator of the estate of Aaron Ready, in satisfaction of the said legacy of $2000, which was supposed to be due and unpaid. On final settlement of tlie complainant's accounts as administrator, in the Probate Court of Tuskaloosa, in April, 1877, he claimed a credit for this payment, and it was alloweil by the Probate Court, against the objections of said Hemphill and wife, who duly excepted to the ruling and decision of the court, and brought the case to this court by appeal ; and this court re- versed the decree of the Probate Court, and remanded the cause, as shown by the report of the case. Hemphill v. Moody.^ The complainant there- upon filed his bill in this case, asking a removal of the settlement into the ' 02 Ab. 510. SECT. I.] HEMPHILL V. MOODY. 1G9 Chancery Court, and seeking to get the benefit of this paj'ment, on his final settlement, as against Hemphill and wife, and also against the chil- dren of Jerusha Ready, the wife of said Aaron Ready, who were alleged to be the distributees of her estate, and also the distributees of said Aaron Ready's estate. In reference to this payment to Ready, the bill, as amended, contained the following allegations: "That the said sum of $2000 was paid by him, in discharge of said legacy to Aaron Ready, under a mistake of law and fact, in this : that the will of said Sims had been in- terpreted for the legatees therein named, by John J. Ormond, a man learned in the law, and formerly one of the justices of the Supreme Court of Alabama, who gave it as his opinion, as your orator is informed and be- lieves, and so states, that said legacy was not payable until after the death of said testator's widow ; and that this opinion was accepted and acted upon by the legatees aforesaid ; and furthermore, that said payment was made by your orator under the belief and supposition that the interpreta- tion put upon said will by said Ormond was a proper construction of said will, and had been accepted and concurred in by all the legatees under said will, and especially by said Ready and said Hemphill, and under the be- lief that said legatee had never been paid ; and furthermore, that when said legacy was paid by complainant, and previous thereto, he was informed and believed that his predecessors in the administration of said estate, and the legatees under said will, and the original executors of said will, unin- terruptedly admitted that said legacy had never been paid, and concurred in the desire that the same should be recognized and paid, as a valid and existing legacy under the will of said Sims." The bill alleged that Hemp- hill and his wife were married in 1846, and the complainant insisted that they were concluded by the payment, and ought not to be allowed to charge him with a devastavit on account of it, because Hemphill had as- sented to the payment at the time it was made, and had acquiesced in the construction placed on the will. As to the distributees of Jerusha Ready's estate, it was alleged that they were also the distributees of the estate of Aaron Ready, and had received from his administrator the $2000 paid to him by the complainant, less the expenses of administration ; that they were insolvent ; that Aaron and Jerusha Ready had both been dead many years, and their estates had been finally settled and distributed ; that let- ters of administration on the estate of the former had been granted to Graham, for the sole purpose of enabling him to collect and distribute the said $2000 ; that the estate of Jerusha owed no debts, and letters of ad- ministration on it had been granted to one of the defendants, only for the purpose of coercing payment a second time of their distributive portion of said sum of $2000, which was alleged to be less than they had received from Graham. As to these distributees, on these facts, the complainant asked that he be allowed to retain as an equitable set-off, out of their pro- portionate share of said $2000, and out of other moneys in his hands 170 IIEMnilLL V. MOODY. [CHAP. II. decreed to them on the former settlement, so much as they had received from Graham out of the money paid to him by the complainant. Hemphill and wife answered the bill, and incorporated in their answer a demurrer for want of equity, specially assigning the following (with other) causes of demurrer: 1st, that the complainant was concluded by the de- cree of the Probate Court; 2d, that he made the payment in his own ■wrong, and could have no relief against it, either at law, or in equity ; 3d, that the facts stated did not establish an equitable estopjiel ; 4th, that the bill showed no sufficient reason for removing the settlement into the Chan- cer}' Court ; 5th, that the facts alleged did not show any right to an equi- table set-oflf ; 6th, that the complainant's remedy, if he had any at all, was by action at law against the administrator of Aaron lleady's estate. The administrator and children of Jerusha Ready also answered, and demurred to the bill, assigning specially the same causes of demurrer. The Chan- cellor overruled the demurrer on these grounds, and held that the bill con- tained equity. The .appeal is sued out in the name of Hemphill and wife et «Z., and the overruling of their demurrer to the bill is assigned as error. A, C. Hargrove, for appellants. /. J/. Martin, and //. ^[. Somerville, for appellee. Stone, J.^ It is a maxim, born of necessity, that all men are conclu- sively presumed to know the law. Without this, legal accountability could not be enforced, and judicial administi-ation would be embarrassed at every step. The necessity of this rule is more felt and acknowledged in criminal accountability, than in mere civil obligations. As a corollary, there has grown up another maxim, that courts will not reform or redress those acts of parties, which are the result of pure mistake of law. Jones v. Watkins ;^ Trustees v. Keller ; ^ Haden v. Ware ; * Dill v. Shahan ; ^ Town Council of Cahaba v. Burnett ; ® Lesslie v. Itichardson.' But, in civil proceedings, this rule, owing to its hardship, has been treated as one stricti juris ; and if there was intermixed with the mistake of law any mistake of fact, courts have willingly seized upon it, and made it the ground of relief. There is a class of cases, hard to distinguish from mistakes of law, where, through mistake, a written agreement contains substantially more or less than the parties intended, or where, from ignorance or want of skill in the draughts- man, the object and intention of the parties, as contemplated by the agree- ment, is not expressed in the written instrument, by reason of the use of inapt expressions ; in which the Court of Chancery, on clear and satisfac- tory proof of the mistake, will reform such agreement, and make it conform to the true intention of the contracting parties.** The principle on which courts relieve, in cases falling within this class, is tliat through ignorance ^ Only so much of tlie opinion is given as relates to the second cause of denuirrer. — Eu. 2 1 Stew. 81. 8 1 Ala. 406. « 15 Ala. 149. » 25 Ala. 694. « 34 Ala. 400. ^ 60 Ala. 563. 8 ] Brick. Dig. 681, §§ 606, 610. SECT. I.] IIEMnilLL V. MOODY. 171 or misapprehension of the legal effect of the terras agreed npon, the parties have made a contract variant in legal construction from the one intended. Trapp V. Moore ;^ Larkins v. Eiddle.^ We refer to this class of cases, not becanse they shed any direct light on the case in hand, but because they show that courts seize upon small circumstances, to relieve parties of a hard, though necessary rule. And there are other cases in which this rule is relaxed. Hardigree v. Mitchum.^ In the present case, Moody, the administrator of Sims, paid to the ad- ministrator of Aaron Ready $2000, the sum of a pecuniary legacy be- queathed by the will of Sims, In the case of Hemphill v. Moody, we held this payment was unauthorized, and that Moody was not entitled to a credit for it in his settlement as administrator of Sims. One purpose of the present bill is to have that payment applied to the extinguishment of the distributive interest of Aaron Ready's children in said estate. The averments of the bill are, that the children of Aaron Ready and the chil- dren of Jerusha Ready, his wife, daughter and legatee of testator Sims, are the same ; that they ai'e insolvent ; that the $2000 paid by mistake to Aaron Ready's administrator, were distributed and paid, less expenses of administration, to said children of Aaron and Jerusha Ready ; that in this way they, the children — distributees alike of Aaron and Jerusha Ready — • have received of the moneys of complainant more than their share of the undistributed assets of the estate of testator Sims, and that it is contrary to equity and good conscience that they should again receive payment out of the private pui'se of complainant Moody. The answer, if we were allowed to look to it, denies that the children of Aaron Ready and the children of Jerusha Ready, are entirely the same; sets up, that after the death of Jerusha Ready, Aaron married a second time, and left issue by the second marriage, who shared in the distribution of the $2000 paid to Ready's administrator. In the present state of the record, and on the present ap- peal, we cannot know or inquire how this question stands. Only the aver- ments of the hill are before us. Taking those averments as a guide, the share of the undistributed assets of testator's estate to which Mrs. Ready's administratrix is entitled, is $1100 or $1200. There is no averment in the bill showing the amount of the $2000 distributed and paid to the distributees of Aaron Ready, which went to the distributees of Jerusha Ready. Guided, however, by the bill, the sum distributed and paid to them exceeds the distributive share of Jerusha Ready's estate in the undis- tributed assets. The bill avers that Jerusha Ready died many years ago ; that her estate owes no debts, and that the only function and duty her administratrix will be required to perform, is the distribution of her intes- tate's distributive share among her distributees, next of kin. We do not think this case, so far as it seeks relief against Jerusha Ready's distributees, stands on the naked principle of a suit to recover back 1 21 Ala. 693. 2 2] Ala. 252. ^ 51 Ala. 151. 172 WEBB V. THE CITY COUNCIL OF ALEXANDRIA. [CIIAP. II. inonev paid under a mistake of law. The bill makes no effort to recover tlie money back. Its object is, to have a payment, actually made, applied in extinguishment or reduction of a debt or liability actually due and ow- ing. Guided, as we have said, by the averments of the bill. Moody, the complainant, was liable to pay — was indebted — to Jerusha Ready's estate, to be distributed and paid to her next of kin, $1100 or §1200; no more. He has paid, and they have received a larger sum than that, to which they had no other rightful claim. They cannot demand a second payment, on the technical ground that, when the payment was made, it was erroneously supi»t.)sed to be due on another account. Payment discharges a debt, no matter when, or by whom made. The decree of the Chancellor is reversed, and a decree here rendered, sus- taining the demurrer to every feature of the bill, except that which seeks re- lief against the personal representative and distributees of Jerusha Keady ; and to that extent, the bill is retained. The injunction against proceeding with the settlement in the Probate Court is dissolved. Let the costs of appeal in this court, and in the court below, be paid by the appellee. WEBB V. CITY COUNCIL OF ALEXANDRIA. In the Supreme Court of Appeals of Virginia, April 15, 1880. [Reported in 33 Gratlan, 168.] This was a suit in equity in the corporation court of Norfolk, brought by the City Council of Alexandria against Lewis W. AVebb, to compel the said Webb to return to the plaintiff four bonds, each for $500, which had been issued by the plaintiff to Webb. There was a decree in favor of the plaintifl', and Webb obtained an appeal to tliis court. The case is fully stated in the opinion of the court delivered by Judge Christian. Judge Burroughs for the appellant. Charles E. Stuart for the appellee. Christian, J., delivered the opinion of the court. This case is before us on appeal from a decree of the corporation court of the city of Norfolk. The case is a sequel to the suit of Fairfax against the City Council of Alexandria, reported in 28 Gratt. 1 G. The facts disclosed by the record, so far as they are necessary to be noticed in this opinion, are as follows : Dr. Orlando Fairfax was the owner, prior to the 4th day of May, 18G4, of certain registered bonds, or certifi- cates of stock, issued by the city of Alexandria for the sum of $8700. On the 4th day of May, 18G4, by a decree of the district court of the United States for the eastern district of Virginia, this stock or debt was confiscated and cniKlrmnc'd, and a writ vaiditiom exj)onas was awarded by SECT. I.] WEBB V. CITY COUNCIL OF ALEXANDRIA. 173 said court. At the sale made under that writ, the appelhvut became the purchaser of $2000 of said stock, and on the 1st day of August, 18G4, at his request, the United States marshal made a transfer of the same on the books of the appellee ; and, thereupon, also at his request, two certificates of stock, of $1000 each, were issued to the appellant. By an act of the general assembly, approved February 14, 1872 (see Acts of 1871-72, p. 73), the city of Alexandria was authorized to call in all the evidences of indebtedness of said city in the form of stocks, bonds, and certificates theretofore issued, and to issue in their place a like amount of registered coupon bonds, bearing six per cent interest, payable semi- annually, the bonds payable thirty years after date, the coupons of which were declared to be receivable in payment of the city taxes and of any other indebtedness due to the said city. When the certificates of stock, transferred to the appellant by order of the United States marshal under the proceedings of the confiscation sale in 1864, became due, he by letter and in person demanded their payment, and threatened suit thereon unless payment was made. He did not, however, institute his suit, but accepted from the City Coun- cil of Alexandria, in lieu of said certificates of stock for $2000, four coupon bonds for the sum of $500 each, issued under the aforesaid act, bearing date 1st of July, 1872, and payable thirty years after date. At the time of the confiscation proceedings in the district court of the United States, the certificates of stock owned by Orlando Fairfax were in his possession, and in February, 1874, all of them having previously fallen due, he commenced suit thereon against the city of Alexandria. The cir- cuit court of said city gave a judgment against Fairfax and in favor of the said city. On a writ of error to that judgment this court reversed the same, and rendered a judgment against said city of Alexandria and in favor of said Fairfax for the sum of $8700 with interest and cost. The case was then carried by writ of error to the Supreme Court of the United States, where the decision of this court was affirmed. It is further shown by the record that immediately after the rendition of the judgment of this court the City Council of Alexandria directed its ofiicers not to transfer any bond held by the appellant, nor to pay nor receive any of the interest coupons detached therefrom. And a few days after the de- cision of the Supreme Court of the United States affirming the judgment of this court, the City Council of Alexandria filed their bill praying that the bonds and coupons held by the appellant and which represented the stock purchased by him at the " confiscation sale of Fairfax's property," might be delivered up for cancellation ; and that the interest on said stock and bonds paid by the appellee to the appellant might be decreed to be paid back ; and that the defendant might be restrained by injunction from selling, hypothecating, or otherwise disposing of the bonds Nos. 209, 210, 211, and 212, or the coupons annexed thereto, or detached therefrom, these being 174 WEBB V. CITY COUNCIL OF ALEXANDKIA. [CIIAP. II. the coupon bonds issued to the appellant in lieu of the certificates of stock purchased by him at the confiscation sale. This bill was presented to the judge of the corporation court of the city of Norfolk, who awarded an injunction in accordance with the prayer of the bill. Upon the hearing, the injunction was perpetuated, and a decree was entered ordering the bonds and coupons in the hands of the appellant to be delivered up and cancelled, and directing that the appellant pay to the appellee the sum of $540, with interest from the date of the institution of the suit, and costs. From this decree an appeal was allowed by one of the judges of this court. The court is of opinion there is no error in the decree of the said corpor- ation court. First. It has been definitely declared and established both by this court and the Supreme Court of the United States, that the decree of confisca- tion entered by the district court of the United States, against Orlando Fairfax, directiug a sale of the certificates of stock issued to him by the city of Alexandria, was a mere nullity and absolutely void. This court based its judgment on two grounds : First, that the district court had no jurisdiction of the case, for the reason that there was no proper seizure of the stock ; and secojid, that by reason of a rule of that court denying to "traitors" and "rebels" (so-called by said court) the right to appear and make defence in such cases, Orlando Fairfax was in efi"ect not a party to the proceedings. The Supreme Court of the United States based its judgment solely upon the ground that there was no proper seizure of the stock, because the pro- cess was not served upon a proper ofiicer of the corporation, as required by the statute law of Virginia. But it was adjudged by both courts, that the confiscation sale was a mere nullity, and that the purchaser acquired no title by his purchase at said sale. There can be no doubt that the appellee issued and the appellant ac- cepted the two certificates of $1000 each under the erroneous belief that by virtue of the decree of confiscation, the debt due to Orlando Fairfax had been forfeited and his title thereto extinguished, and that the appellant, as purchaser, under the writ of venditioni exponas issued under that decree, had become the rightful owner of $2000 thereof. It is also equally free from doubt that the coupon bonds were given and accepted in exchange for those certificates under the same erroneous convic- tion. In point of fact, the coupon bonds were issued for the original claim of the appellant. There was no new contract and no new consideration. If the appellant acquired no title by his purchase at the confiscation sale, to the certificates of stock sold at such sale, which has been declared by this court and the Supremo Court of the United States void, ho could SECT. I.] WEBB V. CITY COUNCIL OF ALEXANDRIA. 175 acquire no better title by accepting without any new or further considera- tion the coupon bonds issued for the same indebtedness. When the four coupon bonds of $500 each were issued to the appclhint under the act of 1872, the appellee was funding its whole debt of nearly a million of dollars by issuing similar bonds to all its creditors. At that time there was no controversy between the appellant and appellee as to the title to the said certificates of stock, and there had been no adjudication of the validity of the confiscation sale. But on the contrary, the corpora- tion found on its books this stock transferred by order of the United States marshal to the appellant at his request, and they issued to him as tho apparent owner on their books, the four coupon bonds in the place of the two certificates of stock. The corporation did not know and could not know at that time that the confiscation sale was void. It was only years afterwards, when Orlando Fairfax brought his suit, that they had any notice that the validity of that sale would be contested. All that the corporation knew or could know at that time, was the fact that a court of competent jurisdiction had decreed a sale of the certificates of stock due to Fairfax, and that at that sale the appellant had become the purchaser, and that at his request the marshal making the sale had had the stock to the amount of $2000 transferred to the appellant. It was not for the corporation to question the validity of that sale. Its duty was to direct the payment of said stock to the real owner, and, according to the decree of the district court of the United States, the appellant was the owner. To him they issued the four coupon bonds in place of the stock purchased by hiui. It is plain that the issuance of said bonds created no new liability. They rep- resented the same debt and for them there was no new consideration. It is clear, therefore, that if the appellant had no title to the stock he had none to the coupon bonds issued in its place. The claim of the appellant is based upon two grounds : First, that the appellee is not entitled to relief in a court of equity, because it is estopped by its conduct from denying the defendant's title to the coupon bonds and the coupons due thereon ; and second, because if the said certificates of stock were transferred and the said coupon bonds issued in their place were so transferred and issued by mistake as to the rights of the parties, that mistake is one of law ; and in equity as well as at law the maxim igno- rantia juris neminem excusat must prevail. We will briefly notice both of these objections.^ The court is further of opinion that the rule invoked by the appellant, ignorantia juris non excusat, does not apply in this case. While it is a general rule that mistake in matter of law cannot be ad- mitted as ground of relief, it is not a rule of universal application, especially in courts of equity. It is not an absolute and inflexible rule, but has its exceptions, though such exceptions, in the language of Judge Story, are ^ Only so much of the opinion is given as rehites to the second objection. — Ed. 176 VTEBB V. CITY COUNCIL OF ALEXANDRIA. [CIIAP. n. few, aud generally stand upou some very urgent pressure of circumstances. If the rnaxim is used in the sense of denoting general law, the ordinary law of the country, no exception can be admitted to its general application ; but it is otherwise wlien the word Jus is used in the sense of denoting a private right. If a man, through misapprehension or mistake of the law, parts with or gives up a private right of property, or assumes obligations upon grounds upon which he would not have acted but for such misapprehension, a court of equity may grant relief, if under the general circumstances of the case it is satisfied that the party benefited by the mistake cannot in con- science retain the benefit or advantage so acquired. It has also been held in numerous cases that where the law is confessedly doubtful and about which ignorance may well be supposed to exist, a per- son acting under a misapprehension of the law w'ill not forfeit any of his legal rights by reason of such mistake. See Kerr on Fraud aud Mistake, 398-401, and cases there cited. Exceptions to the general rule that mistake of law furnishes no ground of relief are fully recognized by this court in the cases of Zollmau v. Moore ; ^ and Brown v. Rice's adm'r.'^ Now it is to be remarked that the appellant's claim was based upon his purchase at a confiscation sale made under an act of Congress which was in itself a war measure, and not an ordinary general law, but was an extra- ordinary enactment for a specific purpose and amid exigencies arising out of civil war. This act of Congress, at the time of the transfer of stock above men- tioned and the substitution of the coupon bonds in their place, had not been construed by courts, nor the mode of its operation and execution determined. It would be vain to say, in such a case, that the City Council of Alexan- dria knew, or ought to have known, how such a law, new and extraordinary in its nature, would be construed by the courts, and whether seizure and confiscation under it would be declared regular and valid, or irregular and invalid, according to the mode in which the process was executed, or other proceedings had thereunder. But was the mistake here a mere mistake of law 1 It is true the district court of the United States had jurisdiction under the confiscation act, and ot this no one can be presumed to be ignorant. But in the case of confisca- tion of Fairfax's stock the jurisdiction of the court did not attach because the stock was not properly seized by the marshal. The mode of seizure was prescribed by the attorney-general to the dis- trict attorney ; and whilst these instructions had the force of law, they could not be regarded as constituting a part of the general law of which every man is presumed to be cognizant. And, so also, it may be said that tlie rule adopted by the district court of the United States, denying to 1 21 Gratt. 313. » 26 Gratt. 4C7. SECT. I.] WEBB V. THE CITY COUNCIL OF ALEXANDRIA. 177 rebels and traitors the right to appear and make defence in confiscation suits, so far from being a part of the general law, was against law and void. So that the two grounds upon which this court and the Supreme Court of the United States based their decisions in declaring the confiscation sale to be void were founded upon questions of fact as well as questions of law. It cannot, therefore, be said that the appellee is seeking relief upon the ground of mistake in law. But apart from all this the peculiar circum- stances of this case, taken in connection with the proceedings in the confis- cation case above referred to, and the decisions of both this court and of the Supreme Court of the United States in reference to the same, it is a case strongly appealing to a court of equity for relief. The rule laid down by Mr. Kerr, and for which he cites numerous author- ities, that " If a man through misapprehension or mistake of law parts with or gives up a private right of property, or assumes obligations upon grounds upon which he would not have acted but for such misapprehension, a court of equity may grant relief, if, under the general circumstances of the case, it is satisfied that the party benefited by the mistake cannot in conscience retain the benefit or advantage so acquired," has peculiar application to this case. Under the decision of this court affirmed by the Supreme Court of the United States, the City Council of Alexandria is compelled to pay over to Orlando Fairfax the sum of $8700, the stock issued to him, and if the claim of the appellant be allowed, the appellee must pay him also the sum of $2000 of the same stock which he acquired by purchase at a sale declared to be utterly void. And it also appears by this record that for this stock thus purchased he paid only the sum of $400, upon which he has received in the shape of interest the sum of $1699.60. To hold the city of Alexandria responsible under such circumstances would be grossly inequitable and unjust. We think it is plain upon the whole case, that the appellee is entitled in equity to the relief prayed for. And of this the appellant has no just cause for complaint, but on the contrary is most fortunate, for though a purchaser at a sale declared to be void, he has realized a large sum in interest and dividends, which amply reimburse him for the outlay of money which he made. The court is therefore of opinion that there is no error in the decree of the corporation court of the city of Norfolk, and that the same must be affirmed. Decree affirmed. 12 178 ROGERS V. WALSH & PUTNAM. [CUAP. II. SARAH ROGERS, rLAixxiFF in Error v. WALSH k PUTNAM, Defendants in Error. In the Supreme Court of Nebraska, November Term, 1881. \Re-poned in 12 A^ebraska Reports, 28.] Error to tlie district court for Lancaster county. Heard there before Pound, J., on demurrer to the petition. Demurrer sustained and cause dismissed. IT. J. Lamb for plaintiff in error. 3faso7i (L- WJiedon, for defendants in error, cited Lambert v. Heath ; i Otis V. CuUumj^ Loan Association v. Topeka;^ Charter v. Hopkins.* Most of the cases cited by the plaintiff relate to forged paper. They rest on a different principle than the one at bar. In those cases, the purchasers did not get what they intended to buy, and did buy. They got forged paper, and not true and genuine. In the case at bar the plaintiff in error got exactly what she intended to buy and did buy. The commissioners record of York county, in respect to these warrants, was open for her inspection and examination, and it was a question of law whether these warrants were ultra vires and not of fact, and it is too well established that money paid under a mistake of law cannot be recovered back, to need citation of au- thorities in this court for its support. Here was no bad faith, no liability ex delicto, no claim or pretence of that kind. And here is a full performance of everything that the law implies ex contractu, that the warrants belonged to the defendants in error, that they were not forgeries. It is admitted that the warrants sold were not forgeries ; it is admitted that they belonged to Walsh & Putnam, that there was no warranty or guaranty. There was no express stipulation, there was no liability beyond the implied guaranty that Walsh & Putnam were the owners of these warrants, and where there is no express stipulation there is no liability. Lake, J. The warrants in question, having been issued by the commis- sioners of York county without authority of law, were void. We have presented to us, therefore, the single question, whether, under the circum- stances of their sale, they were a good consideration for the money which the plaintiff paid for them. It is averred in the petition that at the time of this purchase and the payment of the money, there were genuine valid county warrants in the market where these were bought, and that the plaintiff supposed those in question to be such, until long after she received them. Indeed, from the facts alleged, there can be no doubt that the purchase was made with the full belief on her part, and probably on the part of the defendants, that what was obtained by it were the genuine warrants of York county. Such » 15 M. & W. 486. 2 91 ij. s. 447. « 20 Wall. 665. * 4 M. & W. 399. SECT. I.] ROGERS V. WALSH & PUTNAM. 179 being the case, but for tbe seeming confidence of the defendants' counsel in the strength of tlieir position, we would not suppose a doubt could have existed that there was an entire want of consideration for the payment of the money, and that the j)laintiff was entitled to a return of the price paid for what had proved to be wholly worthless. The defence here made rests chiefly upon the authority of two cases cited, one English and the other American, viz. Lambert v. Heath, ^ and Otis V. Cullum.^ But the facts of those cases were so dificrent in character from those of the one at bar, that the governing principle in them is inap- plicable here. In those cases the purchasers actually obtained just what they had contracted to buy, and the decisions were put upon that ground alone, there being no express warranty. Here, however, the purchase was of the warrants of York county, while in fact what were received as such were not the warrants of that county at all, but only things in their simili- tude. Having been issued by the commissioners without authority of law, they can no more be considered the obligations of that county, than if signed by any other of her citizens. They are merely valueless pieces of paper, resembling York county warrants, nothing more. The principle that should govern here was applied in the case of Young V. Cole, reported in 32 Eng. Com. Law, 334, and cited in Benj. on Sales, Sec. 607. The sale there considered was of certain Guatemala bonds, ■which, because unstamped, had been repudiated by the government of that state, and were therefore valueless, of which facts both seller and purchaser were at the time ignorant, and it was held that the defendant should restore the price he had received. In commenting upon the facts of that case TiNDAL, C. J., said, that the contract was for real Gautemala bonds, and the question was not one of warranty, but whether the defendant had not delivered something which, though resembling the article contracted to be sold, was of no value. On the facts alleged in the petition we are of opinion that the pretended warrants were not a valid consideration for the price paid therefor, and that the plaintiff should recover. The judgment is therefore reversed, and the cause remanded to the court below for further proceedings. Reversed and Remanded. WAPLES V. UNITED STATES. ,-^, In the Supreme Court of the United States, March 3, 1884. {Reported in 110 United States Reports, 630.] Mr. C. W. Hornor and Mr. Mason Day for appellant. Mr. Solicitor-General for appellee submitted the case on his brief. Mr. Justice Field delivered the opinion of the court. 1 15 M. & W. 484. 2 91 u. g. 447. / 180 WAPLES V. UNITED STATES. [CHAP. 11. In March, 1SG5, the plaintiff purchased for the sum of $7400 certain real property in New Orleans at a sale upon a decree rendered by the district court of the United States in proceedings for its confiscation under the Act of July 17, 1862, and subsequently obtained a deed of the property from the marshal. The proceedings were instituted in the usual form by a libel of information filed on the 7th of August, 1802, by the district attorney of the Eastern District of Louisiana on behalf of the United States, against ten lots of ground alleged to be the property of Chillies M. Conrad. The libel sets forth that the marshal of the district, under authority froni the district attorney, given pursuant to instructions of the Attorney-General, had seized the lots of ground, which are fully described, as forfeited to the United States; that they were owned by Conrad then, and on the 17th of July, 1862, and previously; that after that date he had acted as an officer of the army or navy of the rebels in arms against the government of the United States, or as a member of Con- •i-ress, or as a judge of a court, or as a cabinet officer, or as a foreign minis- ter, or as a commissioner, or as a consul of the so-called Confederate States. Indeed, many other official positions he is charged in the alternative with holding, the district attorney evidently regarding him as a person of so much consequence that he must have been called to some official position by the Confederate government, in which he gave aid and comfort to the enemies of the United States, and therefore his right, title, and estate in the property was forfeited, and ought to be condemned. Publication of monition followed, and no one appearing to answer, judgment by default was entered, declaring that the lots of land, the property of Conrad, were condemned as forfeited to the United States, and a decree for their sale was entered. In the writ issued to the marshal and in his deed of sale, the lots are described as the property of Conrad. Under the Act of Con- gress no other interest than that of Conrad was forfeited, and no other interest was sold. It was for his alleged offences that the libel was filed and the forfeiture sought. It was undoubtedly in the power of Congress to provide for the confiscation of the entire property as being within the enemy's country, without restricting it to the estate of the defendant, but Congress did not see fit to so enact ; and, as we said in speaking of the pro- ceedings in this case : " The court cannot enlarge the operations of the st.-ingent provisions of the statute. The plainti ff had notice of the charac- tei and legal effect of the decree of condemnation when he purchased , and js~thereforc presumed to have known that if the alleged offender p ossessed ^ . 'ite in the premises a t the time of thei r seizure, nothing passed to the I', States by the decree or to him by his purchase. " Burbank v. Co iileg** 5elie* /o>ild be true with reference to any layman who might have been th ' -baser, but with special force may it be applied to the plaintiff, wlio > 96 U. S. 291. SECT. I.] WAPLES V. UNITED STATES. 181 as the district attorney directed the seizure and conducted the proceedings to the decree. It turned out in other litigation that at the time of the seizure Conrad possessed no estate in the premises! He had transferred the property by a public act of sale before a notary, on the 31st of May, 1862, before the con- fiscation statute was passed, which applied only to the property of persons thereafter guilty of acts of disloyalty and treason. In express terms it ■withheld from its application the property of persons who before its passage may have offended in those respects. Conrad's power of disposition when he made his sale to his sons was not impaired by anything he may previ- ously have done. This was expressly adjudged by this court in the case of Conrad, the son, against the plaintiff.^ But because of the general language used in the description of the prop- erty in the libel of information and in the deed of the marshal, it is con- tended that something more than the estate of the offender Conrad was warranted by the United States to the purchaser, and the warranty having failed, that he is entitled to a return of the purchase money; but this position is without even plausible foundation. As already stated, the plaintiff w as presu med to kno w the law on the subject, and that by his purchase under the decree he could only acquire such an estate as the alleged oflFendcr possessed, to hold during the offender's life ; and that i f the offender had no estate none was forfeited to the United States, or sold i mder the decree of the court. So no false ass urance could have been made to the purchaser which could be suggested as a possible ground for the return of the money ; nor could there have been any m istake of fact which would be recognized as a g round for relief even in equity, for the fact suggested as having been misunderstood was declared by the law. j^esides , the title to the p roperty sold under judicial process is not war- ranted by the party obtaining the judgment of the court. What ever title the law gives, the purchaser takes, no more and no less ; and he must gov- ern himself accordingly. Any different rule prevailing on this subject in Louisiana or any other State by statute cannot change the position of the United States with respect to judicial sales in proceedings instituted by them. Nor is this position at all affected by the doctrine that upon the reversal of a judgment under which a sale has been had, the purchaser is ent- led to a return of his money. There has been no reversal of the judgmeirt in the confiscation proceedings against Conrad. On the contrary, it has 'heen affirmed. - Judgment o^^ 1 1 96 U. S. 279. 182 MARTIN v. SITWELL. [CIIAP. II. (6.) Mistake may he as to the Creation of a Contract. MARTIN V. SITWELL. In the King's Bench, Easter Term, 1692. [Reported in 1 Shower, 156.] Indebitatus assumpsit for five pounds received by the defendant to the plaintiff's use, non assumpsit pleaded. Upon evidence it appeared that one Barksdale had made a policy of assurance upon account for five pounds premium in the plaintiff's name, and that he had paid the said premium to the defendant, and that Barks- dale had no goods then on board, and so the policy was void, and the money to be returned by the custom of merchants. At the trial I urged these two points. First, That the action ought to have been brought in Barksdale's name, for the money was his, we received it from him, and if the policy had been good it would have been to his advantage ; and upon no account could it be said to be received to Martin's use, it never being his money. Besides, here may be a great fraud upon all insurers, in this, that an insurance may be in another man's name, and if a loss happen then the insurer shall pay, for tliat some cestui que trust had goods on board ; if the ship arrive, then the nominal trustee shall bring a general indebitatus for the premium, as having no goods on board. To all which Holt, Chief Justice, answered, that the policy being i n Martin's name, the premium was paid in his name and as his money , and he must bring the action upon a loss, and so upon avoidance of the po l i cy for to recover back the premium. And as to the inconveniences, it would be the same whosoever was to bring the action, and therefore the insurers ought with caution to look to that beforehand. Then, secondly, I urged that it ought to have been a special action of the case upon the custom of merchants, for this money was once well paid, and then by the custom it is to be returned upon matter happening ex post facto. I argued if the first payment were made void, then the law will construe it to be to the plaintiff's use, and so an indebitatus assumpsit will I lie. But when a special custom appoints a return of the premium, an in- debitatus lies not, as for money received to the plaintifl''s use, but a special action of the case upon that particular custom. To which Holt, Chief Justice, answered me with the case adjudged by Waijiiam Wynduam, of money deposited upon a wager concerning a race, that the [»arty winning the race might bring an indebitatus for money re- SECT. I.] KILGOUR V. FINLYSON. 183 ceived to his use, for now by this subsequent matter it is become as such. And as to our case the money is not only to be returned by tlie custom, but the policy is made originally void7~tlie party for whose use it was made having no goods on board ; so that by^this discovery tlT?niroiit'y was re- ceived without any reason, occasion, or consideration, and consequently it was originally received to the plaint iff's lisa And so judgment was for the plaintiff against my client. KILGOUR V. FINLYSON, GALBREATH & HARPER. In the Common Pleas, February 11, 1789. [Reported in 1 Henry Blackntone, 155.] Indorsee against the ostensible indorsers, who also appeared to be the drawers of a bill of exchange. Money paid, money had and received, account stated. Verdict for the plaintiff. The circumstances of this case were as follows : — The plaintiff was a warehouseman and factor, the defendants were also warehousemen and factors in partnership, from Midsummer 1785, to the 28th of July, 1787, when the partnership was dissolved, and notice of the dissolution given in the Gazette as under, — Notice is hereby given, that the copartnership between Thomas Finlyson, Thomas Galbreath, and Henry William Harper, of Bow church- yard, wareliouseman, under the firm of Finlyson, Galbreath, and Harper, and also at Glasgow, under the firm of Henry William Harper and company, was by mutual consent dissolved this day ; all demands upon the above firm will be paid by Thomas Finlyson of Bow church-yard, who is impowered to receive and discharge all debts due to the said copartnership. Witness our hands, this 28th day of July, 1787, Thomas Finlyson, Thomas Galbreath, Henry William Harper. At the time of the above dissolution one Scott was indebted to the part- nership in 758/. and the partnership indebted to Sterling Douglas & Co. in 890/. On the 21st of September, 1787, Finlyson drew the bill in ques- tion in the name of the late partnership, on Scott, payable on the 23d of November following, for 304/. 2s., which Scott accepted. On the 9th of October, Finlyson indorsed it, in the name of the partnership, to the plain- tiff, who discounted it, by giving his own promissory note for 304/. 3s. M. payable on the 25th of November (the difference of Is. 6c/. being on ac- count of the note being due two days later than the bill). This note of 184 KILGOUK V. FINLYSOX. [CIIAr. II. the plaintiff's was indorsed by Finlyson to Sterling Douglas & Co., who discounted it, and received the money they had advanced by so discount- ing the note, back again from Finlyson, in part of payment of the debt owing to them from the partnership. When the note became due the plaintiff paid it to Sterling Douglas & Co. Two days before Scott's bill became due Finlyson took it up, and gave in lieu of it another bill to the plaintiff, accepted by Lee, Strachan, & Co., but did not take back Scott's bill. Afterwards Lee, Strachan, & Co.'s bill not being paid, and Finlyson having become a bankrupt, the plaintiff brought this action against all the partners on Scott's bill, which remained in his hands, and obtained a verdict. A rule being granted to show cause why this verdict should not be set aside, and a new trial granted, Adair and Bond, Serjts., showed cause. They acknowledged that the action on the bill could not be supported, but contended that the plaintiff was entitled to retain his verdict, having paid money to the use of the defendants, at the special instance and request of a person authorized by them to receive and pay their debts. Le Blanc and Lam-ence, Serjts., for the rule argued, that it ought to have been shown, that the money was actually paid in discharge of a partner- ship debt ; if it were paid when Finlyson had no right to pledge the credit of the partnership, it was not paid to the use of the ])artnership. But admitting that it was paid for a partnership debt, yet being paid without the knowledge and request of the defendants it could not be sufficient to raise an assumpsit. Finlyson had no authority to borrow money to pay their debt, or to contract for them without their consent. This case must be considered as already decided by Lord Kexyon ^ in the King's Bench. Adair replied, that in the case cited it was only holden that an action could not be maintained on the bill of exchange. The reason of which was, that the bill, being negotiable, and going into the hands of persons who might not know the consideration for which it was given, must be binding when given, or not at all. The authority of the drawer must be indepen- dent of any application of the money. But no such inconvenience could arise from the action for money paid. It is admitted that Finlyson paid the money of the plaintiff in discharge of a partnership debt ; he had full authority from the otiicr defendants to receive and pay : he therefore ap- plied to the plaintiff for his note at their special instance and request. Lord LoLGiiiJOHOUfui. I was of opinion at the trial, that there was an equity in favnr of the plaintiff, the money arising from his note being de facto applied for the benefit of the partnership, and the authority from the 1 In a case lietwecn the Bank of England, iilaintilFs, and tlie same defendants, in wliicli the circumstances were the same as the present, there was a demun-er to the evidence which was not argued in court, but Lord Kknvon at the trial gave it as his opinion, that the action on tlie hill could not he maintained. SECT. I.] TAYLOR V. HARE. 185 other partners giving him power to discharge their debts. But I am now convinced that I was mistaken. Consider the nature of this transaction : Finlyson applies to Kilgoiir to discount the bill accepted by Scott, ami in \ part of the discount takes a promissory note from him ; Kilgour, before Scott's bill became due, changes it with Finlyson for another, accepted by Lee, Strachau, & Co., returns that, and takes Scott's bill back again. Now all this was carried on without any idea of the former partners being bound by it. On the 10th of October, long before the plaintiff's note was due, the defendant applied to Sterling Douglas & Co. to discount it, who accord- ingly did discount it, but received the money back again in part of pay- ment of their debt owing from the partnership. When this note became due the plaintiff paid it to Sterling Douglas & Co., but at that time no debt was owing to them from the partnership ; the payment therefore of the plaintiff was not a payment to the use of the partnership. Though the money raised by discounting his note before it was due was in fact paid in discha rge of a partnership delyt, yet he cannot follow the money through all the applications of it made by Finlyson. Heath and Wilson, i Justices, of the same opinion. Rule absolute for a new trial. J#HN VICKRIS TAYLOR (surviving Partner of FREEMAN j HARTFORD, deceased) v. RICHARD HARE. In the Common Pleas, May 20, 1805. [Reported in 1 Bosanqnet Sf Puller, New Reports, 260.] This was an action for money had and received, which came on to be tried before the Lord Chief Justice at the sittings after last Hilary term, when a verdict was found for the plaintiff for 425^., subject to the opinion of the court upon the following case. On the 12th of September, 1791, the defendant took out a patent for the invention of an apparatus for preserving the essential oil of hops in brew- ing. By articles of agreement, dated 5th of November, 1792 (which were set out at length at the end of the case), and made between the defendant of the one part, and the plaintiff and his said late partner of the other part, reciting the defendant's patent, and that it gave him the sole power, privi- lege, and authority of using, exercising, and vending his said invention for the term of fourteen years, the defendant granted to the plaintif f and his said late partner the privilege of making, using, and exercising the sa i d invention for the residue of the said term of fourteen years, and in consid - eration thereof the plaintiff and his partner covenan ted that t he y would ' Mr. Justice Gould being absent. I'U i^^^iiv.;^ 'k- tt^ Uo '^ U V^V^Yvir^hL (A WUAAXiA^^ /«k.t-*vo |»>>^'K^ 186 TAYLOR V. HARE. [CIIAP. II. secure to be paid to the dcfeudunt during the said term an annuity of 100/., and would give their bond for that purpose, and a bond was accordingly give n, conditioned for the pa yment of the said annuity . The plaintiff and his said late partner used the apparatus (for the making and preparmg of which they paid a distinct price) from the date of the said agreement until the 25th day of March, 1797, and during all that time regularly paid the said annuity to the said defendant. The defendant was not the inv entor of the invention for which he obtained his patent. The invention was not new as to the public use and service thereof in England, but it was the In- veution of one Thomas Sutton Wood, and had been pul)licly used in Eng- land by said Wood and others before the defendant obtained his patent. But the patent had never been repealed. The amount of the annuity which they had paid was 425Z. If the court should be of opinion that the plain- tiff was entitled to recover back the money which was paid on the bond, the verdict was to stand. If the court should be of a contrary opinion, a nonsuit was to be entered. Bayley, Serjt, for the plaintiff. To support the present action it is not necessary to prove that any Imposition has been practised. If it appear that the plaintiff has received nothing in return for the money which he has paid, he is entitled to recover back his money in this form of action. He was induced to pay his money upon the supposition that the defendant had the power of communicating some privilege. But as it now appears that the defendant's invention was not new, and that the patent was there- fore void, the consideration upon which the plaintiff paid his money has wholly failed, and the plaintiff has derived no benefit whatever. Where an estate is conveyed, the vendor professes to convey nothing but his title to that estate. But here the thing itself which was the subject of the agi-ee- ment had no existence. It was the understanding of all parties that the defendant was entitled to a patent-right ; but it now turns out that they were mistaken ; the plaintiff therefore is entitled to recover the money which he has paid under a mistake. He had a right to make use of the invention without paying anything for it. The defendant has no right to the annuity, and indeed he has already failed in an action on the bond in which the validity of the patent was put in issue. Sir James Mansfield, C. J. (stopping CocJcell, Serjt., for the defendant). It is not pretended that any action like the present has ever been known. In this case two persons equally innocent make a bargain about the use of a ])atent, the defendant supposing himself to be in possession of a valuable patent-right, and the plaintill' supposing the same thing. Under these cir- cumstances the latter agrees to pay the former for the use of the invention, and he has the use of it ; non constat what advantage he made of it ; for anything that appears he may have made considerable profit. These per- sons may be considered in some measure as partners in the benefit of this invention. In consideration of a certain sum of money the defendant per- SECT. I.] FEISE V. PARKINSON. 187 mits the plaintiff to make use of this invention, Avhich lie would never have thought of using had not the privilege been transferred to him. How then can we say that the plaintiff ought to recover back all that he has paid ] I think that there must be judgment for the defendant. Heath, J. There never has been a case and there never will be, i n which a plaintiff, having received benefit from a thing w hich has afterward s bee n reco ve red from him, has been allowed to m aintain an action for the consideration originally paid. We cannot take an account here of the profits. It might as well be said, that if a man lease land, and the lessee pay rent, and afterwards be evicted, that he shall recover back the rent, though he has taken the fruits of the land. RooKE, J. I am of the same opinion. Chambre, J. The plaintiff has had the enjoyment of what he stipulated for, and in this action the court ought not to interfere, unless there be something ex aequo et bono which shows that the defendant ought to refund. Here both parties have been mistaken ; the defendant has thrown away his moneyin obtaining a patent for his own invention ; not so the plaintiff', for he has had the use of another pers on's inven ti on for his money. In the case of Arkwright's patent, which was not overturned till very near the period at which it would have expired, very large sums of money had been paid ; and though something certainly was paid for the use of the machines, yet the main part was paid for the privilege of using the patent-right, but no money ever was recovered back which had been paid for the use of that patent. I am therefore of opinion that judgment of nonsuit should be entered. Judgment of nonsuit. FEISE V. PARKINSON. In the Common Pleas, November 18, 1812. [Reported in 4 Taunton, 640.] This was an action upon a policy, at and from Hamburgh, or any port or ports in the Elbe, to London, or any other port or ports of the United Kingdom. Upon the trial of this cause at Guildhall, at the sittings after the last Michaelmas term before Mansfield, C. J., the plaintiff proved the subscription, loss, and interest ; and the defendant rest ed ji is case upon a misrep resentation m ade to the first underwriter at the time of effecting the policy, to whom, as it was sworn by the broker, the plaintiff had stated that the_shrp^had_jx)th an Englisli li cence and a French imperial licence , whereas the fact was, that the sh ip had an English licence, and a Frenc h pass from Cuxhaven^ which enabled her to come down the Elbe from Hamburgh, and put to sea without molestation at Cuxhaven, but by no means operated as 188 . m'cullocii v. royal exchange assurance co. [chap. ii. a licence to her to trade with England ; and it was sworn that the circum- stauce of having a Frencli imj^erial licence made a considerable ditfere nce in the a mount of th e premium of insuring such a voyage at the time wlien this policy was effected. The jur^^ found a verdict for the defendant. S/i^j)herJ, Scrjt., for the plaintiff. Lens, Serjt., for the defendant. GiBBS, J. A Vhere the re is a fraud there is no return of premium , but upon a mere misrepresentation without fraud, where the risk never at- tached, there must be a return of premium. This business is conducted on the part of the assureds, with the utmost imprudence ; these transac- tions are done by parol between the plaintiff and defendant, the broker only present, and on which side his interest leans, if he be dishonest, all know ; as long as it is the law, we must admit it ; but this is one, among other proofs, of the mischievous tendency of admitting parol evidence of what passes at the time of making written instruments, to control them. It is clear that the plaintiff is not entitled to a new trial on the first ground. I think it equally clear that the plaintiff is entitled to enter his verdict on the count for money had and received for the premium, but as the return of premium was not claimed at the trial, that cannot be done without the defendant's consent. Upon the other counts the verdict must be for the defendant ; if the defendant will not consent, the court must grant a new trial generally. On the following day, Lens, after consulting his clients, consented to the plaintiffs taking a verdict for the premium ; and that branch of the rule was therefore made absolute. M'CULLOCH V. EOYAL EXCHANGE ASSURANCE COMPANY. At Nisi Prius. Before Lord Ellenborough, C. J., June 14, 1813. [Reported in 3 Campbell, 406.] This was an action of debt for money had and received, to recover the sum of 12G0/. as a return of premium upon a policy of insurance executed by the defendants. The case came on upon admissions, which stated : — "That on the 21st of August, 1812, a policy of insurance was effected ]jy Messrs. Amyand, Cornwall, & Co. with the defendants, by the order and ^ -^-^-^C»«^ except as to the said sum of £6 7s., parcel, etc., payment ; thirdly, as to ccJ^ ^-i^jUJi^ the sum of £6 7s., parcel, etc., payment into court of that sum, and min- j , • / quanx indehitatiis ultra. The replication took issue on the first plea, denied ^'d^cr^ i,^.c^^ ^^ payment alleged in the second, and accepted the £6 7s., in satisfaction %.*^ cx^i.c-^'L^c/,^ ^'^ to so much of the debt demanded. , ^ / At the trial before Gurnet, B., at the Middlesex sittings in Michaelmas *^'^'*'^^'*'*^ terra, 1841, it appeared that the plaintiff was a butcher, and the defendant *^ iCr--^ u^e the widow of James Ilbery, who left England for China in May, 1839, and r-o-u^ /lo jxy<^_wa8 lost in the outward voyage, on the 14th October, 1839. The news of t^l -i ^^ death arrived in England on the 13th of March, 1840. The plaintiff / J ■ bfid supplied meat to the family before Mr. Ilbery sailed, and during his t^-i^ voyage, and the supply continued down to the time of the news of his ^r.^u<^.^^U j^j^^jj^ ^^^ gy^^j afterwards. Upon the 14th October, 1839, the day of -^^^ tr ^ ; u^ 7 ^^Lr-?-/C t^ ,Ljl<. ^j tt^ j^Jr^L^ SECT. I.] SMOUT l\ ILBERY. 191 Mr. Ilbcry's death, the ainouut of the debt was £52 1.3s. \\d. Between that day aud the arrival of the news of the death, meat had been sup[)Ued to the amount of £19 9s. ; and after that, the supply amounted to £G 7s. This action was brought for these two sums (together) £25 IGs. The defendant paid <£6 7s. into court, and relied on a payment of £20, as dis- charging her from the plaintiti's claim for meat supplied after the date of her husband's deatli ; and the counsel for the defendant gave in evidence the following receipt signed by the plaintiff, dated the 30th March, 1840 : " Received of Mrs. Ilbery, £20." The plaintiff insisted that the £20 had been paid generally on account, and must be applied as a payment by the executors in part satisfaction of the debt of the husband ; and called Mr. Dollman, the executor. From his evidence it appeared, that Mr. Ilbery had left the management of his affairs in his hands, aud whenever Mrs. Ilbery wanted money, she had it from him. Dollman and Mrs. Ilbery were, by Ilbery's will, appointed executor and executrix ; but he alone proved the will, on the 21st March, 1840, power being reserved in the usual way for her to prove also. On the 28th March, Mr. Dollman gave Mrs. Ilbery five or six cheques, and among others, one for £20, payable to the plaintiff. This cheque she paid to the plaintiff, and took his receipt as above mentioned. At that time it was supposed that Ilbery's estate was solvent. It turned out to be otherwise ; and Dollman, who was engaged with him in the adventure to China, had become bankrupt. The question, left to the jury was, whether the £20 was paid on the ex- ecutorship account, or on the account of Mrs. Ilbery onl}', and in discharge of that debt which (on both sides, as well as in the learned judge's opinion) was taken to have been due from her. The jury found that it was paid on the executorship account, and gave their verdict for the plaintiff for £19 9s., the price of the meat supplied between the day of Mr. Ilbery's death and the arrival of the intelligence of it. A rule having been obtained in Michaelmas term to show cause ■why that verdict should not be set aside, and a new trial had, on the ground that the defendant was not liable for the meat supplied after, but before she had any knowledge of, her husband's death.* Ilindmarch.^ The defendant having accepted the meat supplied to her, and used it, there is a contract implied by law on the part of some person to pay the price of the meat ; and as the husband was dead, and she had no authority to bind his executors, a contract must be implied on her part to pay for the meat supplied to her after her husband's death ; and she is not to be allowed to get rid of her liability by saying, that at the time she gave the orders or accepted the goods, she thought her husband was alive, * This point was not made at the trial, and therefore there could be no motion for a nonsuit. 2 A portion of the argument relating to questions of agency has been omitted. — En. 192 SMOUT V. ILBERY. [CHAP. II. and that she was contracting on his behalf. In Thomson v. Davenport,^ where, at the time of making a contract of sale, the party buying the goods represented that he was buying them on account of persons resident in Scotland, but did not mention their names, and the seller did not inquire who they were, but afterwards debited the party who purchased tlie goods ; it was held that the seller might afterwards sue the principals for the price. There the vendor actually credited the agent, and yet the principal was held liable. The general principle is, that the law creates an implied con- tract from the receipt of the goods. [Alderson, B. — Here each party thought tlie husband was responsible.] That can make no difference, for it is clear that there could be no contract between the plaintiff and the dead man ; and there was no contract by the executor with the plaintiff. There is a fallacy on the other side, in assuming that there was a prior continuing contract between the husband and the plaintiff, respecting the supply of goods to the wife. An action for goods sold and delivered is not necessarily founded upon a contract antecedent to the delivery of the goods ; it may be, and generally is, founded upon the implied contract that the party will pay the price or value of the goods delivered and accepted by him ; and there are as many implied contracts as there are parcels of goods delivered and accepted. If there was no prior contract at all in the present case (which it is clear there was not), then the moment each parcel of goods was delivered and accepted, the law implied a contract by the defendant, who received and accepted them, to pay the price. Erie, in support of the rule. — The contract in this case was a continuing contract, which the parties, in Blades v. Free, failed to make out. This was a course of dealing which was continued in consequence of, and as part of, the former contract. An agent ought not to be held liable where he enters into a contract as agent, bona fide supposing himself to have authority, when it turns out that he had none, through an event which had happened, but of which he was not cognizant, and had no means of knowing. The evidence here was, that goods were supplied by the plaintiff to the husband during his residence here, and were afterwards continued to be supplied to his wife after he left this country ; there is clearly no implied contract arising from this state of things, that she would pay for them. Suppose the case of the husband and wife having both gone abroad, and having left a housekeeper in charge of the house and the children, and meat is supplied to the house, and the husband and wife are both drowned, is the house- keeper to be liable, because she ordered the meat for the use of the housed [Alder-son, B. — In the same way it may be said, if a bachelor leaves a housekeeper in possession of his house, and goes abroad, and dies, is the housekeeper to be liable 1] In Polhill v. Walter, there was the making of a representation which the party making it knew to be untrue. If lUiery had not died, he would have been clearly liable, and the account was in his 1 9 B. & C. 78 ; 4 Man. & W. 110. SECT. I.] SMOUT V. ILBEKY. ^ 193 name. As to the argument of there being an inipUed contract, that merely amounts to this, that a party to whom goods are delivered is liable for them ; but that is where there is nothing to show tliat any other person was responsible. The case of Blades v. Free has nothing to do with the present. Cur. adv. vult. The judgment of the Court was now delivered by Alderson, B. This case was argued at the sittings after last Hilary term, before my Brothers Gurnet, Rolfe, and myself. The facts were shortly these. The defendant was the widow of a Mr. Ilbory, who died abroad ; and the plaintiff, during the husband's lifetime, had supplied, and after bis death had continued to supply, goods for the use of the family in England. The husband left England for China in March, 1839, and died on the 14th day of October, in that yeai% The news of his death first arrived in England on the 13th day of March, 1840 ; and the only question now remaining for the decision of the court is, whether the defendant was liable for the goods supplied after her husband's death, and before it was possible that the knowledge of that fact could be communicated to her. There was no doubt that such knowledge was communicated to her as soon as it was possible ; and that the defendant had paid into court sufficient to cover all the goods supplied to the family by the plaintiff subsequently to the 13th March, 1840. We took time to consider this question, and to examine the authorities on this subject, which is one of some difficulty. The point, how for an agent is personally liable who, having in fact no authority, professes to bind his principal, has on various occasions been discussed. Th ere is no doubt ■T ^^^^ ^" ^^ ^^ ^^^^ ^^ ^ fraudulent misrepresentation of his authority, wn tb 4^i;_an intention to deceive, the agent would be personally responsible. But independently of this, which is perfectly free from doubt, there seem to be still two other classes of cases, in which an age nt wh o without actual aut hority makes a contract in the name of his princi pal, is personally lia- ble. even where no proof of such fraudulent intention can be given. First, wher e he has_jno_authority, and kn ows it, but neverthe less makes the con- jtract^s having such autho rity. Jn_that case, on the plainest principles of justice, he is liable. For he induces the other party to enter into the contract on what amounts to a misrepresentation of a fact peculiarly within his own knowledge ; and it is but just, that he who does so should be con- sidered as holding himself out as one having competent authority to con- tract, and as guaranteeing the consequences arising from any want of such authority. But there is a third class, in which the courts have held, that where a party making the contract as agent bona fide believes that such ^" afuth ority is vested in him, but h as i n fact no such authority, he is still "^^ pers onally liable. In these cases it is true, the agent is not actuated by any fraudulent motives ; nor has he made any statement which he knows "^^^^po be untrue. But still his liability depends on the same principles as 13 k^ 194 SMOUT V. ILBERY. [CHAP. II. before. It is a wrong, differing ouly in degree, but not-inJt^ essence, from the former case, to state as true what the individual making such statement does not know to be true, even though he does not know it to be false, but believes, without sufficient grounds, that the statement will ultimately turn out to be correct. And if that wrong produces injury to a third person, who is wholly ignorant of the grounds on which such belief of the supposed agent is founded, and who has relied on the correctness of his assertion, it is equally just that he who makes such assertion should be personally liable for its consequences. On examination of the authorities, we are satisfied that all the cases in which the agent has been held personally responsible, will be found to ar- range themselves under one or other of these three classes. In all of them it will be found, that he has either been guilty of some fraud, has made some statement which he knew to be false, or has stated as true what he did not know to be true, omitting at the same time to give such information to the other contracting party, as would enable him equally with himself to judge as to the authority under which he proposed to act. Of the first, it is not necessary to cite any instance. Polhill v. Walter ^ is an instance of the second; and the cases where the agent never had any authority to contract at all, but believed that he had, as when he acted on a forged warrant of attorney, which he thought to be genuine, and the like, are instances of the third class. To these may be added those cited by Mr. Justice Story, in his book on Agency, p. 226, note 3. The present case seems to us to be distinguishable from all these authorities. Here the agent had in fact full authority originally to contract, and did contract in the name of the principal. There is no ground for saying, that in rep- resenting her authority as continuing, she did any wrong whatever. There was no mala fides on her part, no w^ant of due diligence in acqu iring knowledge of the revocation, no omission to state any fact within her knowledge relating to it ; and the revocation itself was by the act of God. The continuance of the life of the principal was, under these circumstan ces. a fact equally within the knowledge of both contracting pa rties. If, then, the true principle derivable from the cases is, that there must be some wrong or omission of right on the part of the agent, in order to make him personally liable on a contract made in the name of his principal, it will follow tliat the agent is not responsible in such a case as the present. And to this conclusion we have come. We were, in the course of the argument, pressed with the difficulty, that if the defendant be not personally liable, there is no one liable on this contract at all ; for Blades v. Free "^ has de- cided, that in such a case the executors of the husband are not liable. This may be so : but we do not think that if it be so, it affords to us a sufficient ground for holding the defendant liable. In the ordinary case of a wife who makes a contract in her husband's lifetime, for which the husband 1 Z I}. & A.l. 114. 2 9 B. & C. 107 ; 4 Man. & R. 282. SECT. I.] HIGGS V. SCOTT. 195 is uot liable, the same consequence follows. In that case, as here, no one is liable upon the contract so made. Our judgment, on the present occasion, is founded on general principles applicable to all agents ; but we think it right also to advert to the circum- stance, that this is the case of a married woman, whose situation as a con- tracting party is of a peculiar nature. A person who contracts with an ordinary agent contracts with one capable of contracting in his own name ; but he who contracts with a married woman knows that she is in general incapable of making any contract by which she is personally bound. The contract, therefore, made with the husband by her instrumentality, may be considered as equivalent to one made by the husband exclusively of the agent. Now, if a contract w ere made on the terms, that the agent, having a determinable aut hority, bou n d his principal, but exp ressly stipulated that he should not be personally liable himse lf, it seems quite reas onable that, in the a bsence of all mala fides on the part of the agent, no responsibility should rest upon him ; and, as it appears to us, a married woman, situated as the defendant was in this case, may fairly^ be considefed^as liil agent so stimulating for herself; and on this limited ground, therefore, we think she would not be liable under such circumstances as these. For these reasons, we are of opinion that the rule for a new trial must be absolute ; but as the point was not taken at Nisi Prius, we think the costs should abide the event of the new trial. Rule absolute accordingly. HIGGS V. SCOTT. In the Common Pleas, January IC, 1849. [Reported in 7 Common Bench Reports, 63.] The plaintiff held premises as tenant from year to year to the defendant. After the commencement of the tenancy, the defendant mortgaged her term in the premises to a Mrs. Hardy. The interest being in arrear, the mort- gagee, in the beginning of the year 1848, gave the plaintiff notice not to pay his rent to the defendant. Upon receipt of this notice, the plaintiff went with one Hawkins, who collected the defendant's rents, to one Hodg- kiuson, whom Hawkins represented to be the defendant's attorney, and gave him notice of Mrs. Hardy's claim. In consequence of what passed upon that occasion, the plaintiff, on the 18th of February, 1848, paid Hawkins the amount of two quarters' rent, less the property-tax. After this, a dis- tress was put in upon the plaintiff's premises, under which the plaintiffi was compelled to pay the two quarters' rent over again to Mrs. Hardy, the mortgagee. The present action was brought to recover back the money 196 IIIGGS V. SCOTT. [CIIAP. II. 80 paid, —the first cou nt being founded upo n an indemnity gi ven by Hodgkinson Tn the defendant's name , the s econd for money had and received. fn support of his case under the first count, the plaintiff called Hodg- kinson ; but the Lord Chief Justice, before whom the cause was tried, said he would allow the plaintiff to prove notice given of Mrs. Hardy's claim to Hodgkinson, but not that he had given the indemnity. The plaintiff then relied upon the facts above stated, as entitling him to recover back as money had and received, the two quarters' rent he had paid to the defend- ant after the date of the notice. On the part of the defendant, it was objected, first, that this was, in effect, an attempt to try a question of title in an action for money had and received ; secondly, that the payment having been voluntarily made, with full knowledge of the facts, the plaintiff could not recover it back. I A verdict having been found for the defendant, with leave to the plain- tiff to move to enter a verdict for 19^. 2s. 6d., if the court should be of opinion that the evidence as to the indemnity was improperly rejected, or that the plaintiff was entitled to recover under the second count. Bi/les, Serjt., for the plaintiff. Cresswell, J. I am of opinion that there is no ground for impeaching the decision of the Lord Chief Justice as to the rejection of Hodgkinson's evidence. Seeing the purpose for which it was tendered, viz., to prove a contract, to make which there was no evidence of Hodgkinson's authority, it was properly rejected. Then, as to the other point, — the plaintiff, when he paid the money, knew all the facts. He was informed of them ; and there was nothing to show he had not received correct information. When a party is told that certain deeds have been executed, he knows the fact, although he does not see the deeds. The whole ca se on the par t of the plaintiff was, t hat he knew the fact of the mortgagee's claim ; and therefore he a s ked for an in- dem nity^Though he "did~no t runfortunately for him, get an "effectual one. He paid the rent as a thing he was bou^^^Jo^pay,Jndicat[ng^io^mtention to reclaim it. There was no misrepresentation of the facts, no frau d on_ the part of the d efendant in recei v ing the money, a nd consequently_no ground u pon which the plaintiff can be entitled to recover it back. V. WiLLiAMS,"~J. I am of the same opinion. I am nbt~drsposed to throw any doubt upon the case of Kelly v. Solari, confirmed, as it is, by IJell V. Gardiner. Vmt I think the present case falls within the ordinary rule, that money paid with full knowledge of all the circumstances cannot be recovered back in an action for money had and received. Maule, J. I am of the same opinion. That the payment was made with full knowledge of all the facts on both sides, was, I think, strongly evidenced by the receipt that was given. Wilde, C. J. The general result of the evidence in this case, is, that SECT. I.] VAN DEUSEN V. BLUM. 197 the defendant has received from the plaintiff a sum of money which sho was not entitled to receive : and, in such a case, one would look very anx- iously to see if the law would not warrant his recovering it back. But it is of infinitely more importance that general principles should be adhered to. I must confess I can see no foundation for the plaintift's claim. The recovery back of money once parted with, is always attended with difficulty. With respect to the evidence, — what passed with Hodgkinson was ad- mitted down to the point at which it tended to prove a contract. It was then objected that Hodgkinson* had no authority from his client to enter into a contract of indemnity for her. Upon that, the question for my de- cision was, whether or not there was evidence of any authority in him to contract for the defendant. I think there was not. I As to the other part of the case, it was an extremely simple one. The plaintiff is tenant to the defendant. A third person gives notice of a claim advers e to the defendant, stati ng the grounds of her claim minutely and correctly, viz., that the premis es have been assigned to her by way of mort- ^age, aiid that the i nterest is in arrear. The landlady insists that she is entitled to the rent. Of what is the plaintiff ignorant 1 It does not appear that any misreprese ntation of fact was made by the defendant. The plain- tiff yields to the defendant's claim of right, and pays her the money. It is, ^therefore, the simple case of a notice of adverse claim^jtojone of which the plai ntiff^lects to give the preference. The case, therefore, clearly falls withinjhe^eneral principle, — t hat money paid with full knowledge of al l the facts, cannot be recovered back. Rule refused. ABRAHAM VAN DEUSEN et al. v. JAMES BLUM et al. In the Supreme Judicial Court of Massachusetts, September Term, 1836. [Reported in 18 Pickering, 229.] tL This was an action of debt. The declaration contained two counts upon a special contract under seal, a third upon a quantum meruit for labor per- formed, and a fourth upon a quatitum valebant for materials furnished. The defendant Blum was defaulted ; the other defendant, Thouvenin, appeared, and to the first two counts he pleaded 7ion est factum, and to the third and fourth, nil debet. At the trial, before Morton, J., the plaintiffs produced the contract, purporting to be between themselves of the one part, and Blum and Thouvenin of the other part. Blum and Thouvenin were partners, and were so described in the contract. The plaintiffs had duly executed the 198 VAN DEUSEN V. BLUM. [CIIAP. II. contract, and Blum also had executed it by siguinq: the company name "J. C. Thouveuin & Co.," and annexing a seal. There was no evidence that he had any authority to execute the contract in behalf of Thouvenin, or that Thouvenin was present at the execution or ever ratified it. The judge ruled, that the instrument could not go in evidence to the jury as the deed of Thouvenin. The contract was for building a dam by the plaintiffs for Blum and Thouvenin, across the Housatonic River ; which was a purpose within the scope of the partnership business. The plaintiffs offered to prove that they built the dam and furnished the materials therefor, and they claimed against Thouvenin, under the third and fourth counts, what their work and materials were worth, Thouvenin objected to the admission of this evidence, and contended that there being an express contract executed by the plaintiffs and Blum, and that contract being in force and binding upon Blum, the plaintiffs' remedy was on that instrument alone. But the judge ruled, that the plaintiffs might, notwithstanding that con- tract, recover under the third and fourth counts, upon an implied promise, for all the materials furnished and labor performed before the dissolution of the partnership. Thouveuin and Blum dissolved partnership on the 10th of November, 1832, and all the partnership property was conveyed to Blum, and he agreed to pay all the partnership debts. The dam was not finished until after the 10th of November, and for the work done previously to that day the jury found a verdict against Thouvenin. The questions arising upon these facts were reserved for the consideration of the whole court, Dioight, Byington, and Tucker, for the defendant. Bishop and Sumner, for the plaintiff. Morton, J., delivered the opinion of the Court, Debt, as we ll as assump - sit, will lie on a guantuvi meruit or a quantum valeban t} Union Cotton Manufactory v. Lobdell.^ Hence these counts may well be joined with counts upon a specialty. Smith v. First Congr. Meetinghouse in Lowell.' It was long doubted, whether a man, who performed work in consequence of a special contract, but not in conformity to it, could recover for the services rendered and materials found. There are many and conflicting authorities on the subject. They have all been carefully examined and compared, and the rule established by our court, as we think, according to the princijjles of justice and the weight of authority. He who gains the labor and acquires the property of another, must make reasonable compen- sation for the same. Hay ward v. Leonard;* Smith v. First Congr, Meeting- house in Lowell;* Munroe v. Perkins;' Brewer v. Tyringham.' 1 1 Cliit. PI. 107 ; 2 Wins's Saun.l, 117 h, note. ^ 13 Jolms. 462, 8 8 Pick. 178. * 1 Pick. 181. * 3 Pick. 178. « 9 Pick. 298. 1 12 Pick. .147. SECT. I.] BOND V. AITKIN. 199 The general authority deri ved from the relation of partnership does not empo we r one partner to seal for the company or_tq_biud them by deed. It recpiires special power for this purpose. See Cady v. Shepherd,^ and the cases there cited. Here was no evidence of any previous authority or sub- sequent ratification. The sealed instrument executed by one partner in the nam e of the firm mightbind him,nBut could not be obligatory upon the company. And although the plaintiBsloaight haveTiad a remedy upon tHe contract against the party who executed it, yet they were not bound to rely upo n him alone. The services never were rendered either in conformity to or under such an agreement. The plaintiffs undertook to execute a contract between themselves and the company. But there being no' such contract in exist- ence, they are left to resort to their equitable claim for their labor and materials. So far as these benefited the company, the plaintiff's are entitled to recover against them. Judgment on the verdict. BOND V. AITKIN. In the Supreme Court of Pennsylvania, December Term, 1843. [Reported in 6 Watts ^~ Sergeant, 165.] Error to the Common Pleas of Delaware county. This was an action of debt brought by Charles Bond against John Aitkin and James Aitkin, trading under the firm of John & James Aitkin, on the following note : — Six months after date we promise to pay to Charles Bond or order four hundred dollars, with five per cent interest, without defalcation, for value received. Witness our hands and seals, this 1st day of October, 1836. John & James Aitkin, [l. s.] Thejjlai ntiff's decl ared_i n one count against jhejdefendantg^ as partners jnj i sealed instrunaentalleged to have been exec uted by them, and i n an- other against them as partners for money lent. James Aitkin pleaded paymeiiy^ itineaYg Tetc. a nd non est 'factum, to the first cou nt. Judgm ent by default was entered against Joh n. The plaintiff' called a witness, who testified that he called on James Aitkin, and presented to him the note in suit for payment. Witness asked him if he had signed it. He replied that he had not, that John had signed it ; that he did not know it at the time, but if he had, he would have been perfectly satisfied ; the money was got for the firm and went into the firm. Witness then asked him for his individual note, which he refused, saying 1 11 Pick. 400. 200 BOND V. AITKIN. [CIIAP. 11. lie preferred it should be sued out as a partnership claim, that the neigh- bors might know it was not his foult. He said he could not pay the amount of the note at that time, but if he could make collections, it should be paid by the 1st of October: he had left his brother to settle the books and thought he had paid it. Witness told him he thought he would h£\ve to pay the note, when he replied he thought the note as good as if he gave his individual note. He admitted that he and John had been partners. Another witness proved that the body of the note and signature were in the handwriting of John Aitkin. That the defendants were in partnership for several years, John being the active partner. The partnership was dissolved about the year 1839, On the dissolution the property remained with John, who was to pay the debts of the firm. Bell, President, charged the jury as follows : — The plaintiff declares in two counts, one on a bill single alleged to be executed by John and James Aitkin, dated October 1, 1836, to secure the payment of 8400. To this the defendant, James Aitkin, pleads 71071 est factum ; and this plea raises the question whether the obligation is in truth the deed of John and James, as the plaintiff argues. It appears the bill obligatory was signed by John alone, and although he used the name of his partner as one of a firm, it is not binding on James ; Jor^_generally speaking, one partner cannot bind another by specialty or instrument un- der s eal, sealed instruments not being such as are used in_trausacting partnership_affiiirs^ The plaintiff cannot, therefore, recover on his first count, for he has failed to prove the bill single declared on is the deed of the defendants. But the plaintiff, in a second count, declares against John and James Aitkin, as partners, for money loaned to them. On the evidence, the jury can entertain little or no doubt that the money sought to be recovered was borrowed from the plaintiff on the partnership account and applied to i)art- nership purposes, and so became the joint debt of both the partners, though actually borrowed but by one of them. Prima fade, therefore, both would be liable in this action. But in answer to this statement of the plaintiff's claim, the defendants set up the bill single given in evidence by the plaintiff under his first coimt, as a bar to his recovery on the second. Tin s bill single must _hotakcn as executed by John Aitkin alone ; for thou gh signed jn_th c nameof the fimT, it is good against him , acidlmn alone. But it is the undoubted rule in Pennsylvania , that if the creditor of a^m ac cept the ^obligation of one_of the partn ers for Jthe firm debt, the original cl aim is merged and extinguis hed in the new^ ecvuity, and tp Vreditor jajmQt,afLergaxdsJbaye_ j-ecoiu-s e to the first lia bility, as is attempted h^re^_ ' B'-t>ief the doctrine of Price v. Neal seems in that case to be wholly repudiated " / J by the court. Fenn v. Harrison^ was there cited, and my Lord Chief Jus- ^\viAAA.^-\.AAJA- 'r^tice says, "It is true that if he who negotiates a bill does not indorse it, \^ yjU/i ^ % IviA^ he docs not subject himself to that responsibility which the indorsement ,, / /' , J / would bring on him, viz., to an action to be brought against him as indorser, I ¥/J*'-^^Y)^t Ije does not get rid of that responsibility which arises from his passing '^ yiAi,^ytru<, ip^ /q{jp j^„ instrument of no value, and receiving value for it ; " and he compared yyfiJt -p I / it to the case of paying away forged bank notes. My Brother Heath there /^ ' ''^r**'^^''\dverts to what is said by Lord Kenyon, that the person paying under such iytin V/yl/^t\ /7 y circumstances is entitled to recover back the money, and he refers to Cripps /li/V tT ^ Reade;^ and my Brother Dallas refers to the same case, and concurs i)h CL i^-^^^ ^'^^^ *^6 ^^^^ °^ ^^ court. Bruce v. Bruce is a still stronger case. There the bill was actually paid, but the court said they could not distinguish it from the case before decided. It is said in this case the negligence varies it ; what was the negligence % How perfect the forgery was, we do not know. .Some forgeries will deceive the party whose name is forged. Did the plaintiffs omit any degree of reasonable diligence which lay within their power? Evans, when the bill was sent to him, could not be deceived; he must know ; he detected the forgery, and gave immediate notice ; where then is the negligence % The bill had done its office, had ceased to be ne- gotiated. It is not like bills which have to go further in circulation. I cannot therefore think this was a case of gross negligence in the plaintiffs. The situation of the plaintiffs is extremely material. They are no parties to this bill, neither drawers, acceptors, or payees. They are not purchasers of the bill ; they never had any property in it ; they are mere servants and agents of the payees ; it is, as to them, a payment under a supposed authority, which does not exist. It falls within the general principle. My opinion therefore is, that the plaintiffs are entitled to recover. Heath, J. I am of opinion that a nonsuit ought to be entered. I agree that this is a case of money paid without consideration, and I agree in the general principle, that money paid without consideration upon an instrument which proves to be of no value, may be recovered back ; but there are 1 3 T. R. 757. 2 6 t. R. 606. SECT. I.] SMITH V. MERCER. 219 particular circumstances in this case which materially alter, and take thi.s case out of the general principle. If Evans had paid the bill, it is clear he wou ld have been bo und. Can an agent be in a better situation than his principal 1 As between Evans and the agent, it may be a question whether the l atter kept within the scope of his authority ; but as to the rest of the world, it is the same thing whether it be the act of Evan s or of his agent . It would be strange, if in an action by Evans himself he ought to be nonsuited, and that if the action be by the agent, he should recover. The situation of bankers is most pecidiar ; they are bound to know the handwriting of their customers. If the law were otherwise, merchants making their bills payable at their bankers would have this extraordinary advantage, that if a forgery be imposed on their bankers, the principal would not be the sufferer by it ; whereas, if it were imposed on themselves, they must bear the loss, and so would exempt themselves from that liability which w^ould rest on them if they themselves transacted their own business. GiBBS, C, J. I concur in opinion with my Brothers Heath and Dallas. A narrow and particular ground is with me conclusive on this case. If the acceptance had been genuine, and the plaintiffs had refused payment, the defendants had their remedy against the supposed acceptor ; or if they failed to obtain the amount from him, they had their remedy against the prior parties on the bill. The acceptance car ried with it an order on the bankers of the supposed accepto r to pay the money ; it purported to be an order of Evans, whose bankers the plaintiffs were. It w as incumbent on them to see to the reality of that order before they obeyed it ; an d if, by o beying it, they are suffe r ers, they ought not to throw on another a lo ss accru ing witho u t fault of his. Se e the circumstances ! The defendants present the bill for payment, and it is paid to them. The money remained in their hands without demand made on them for it, from the 23d of April to the 30th of April ; the forgery being then discovered, the plaintiffs demand it back from the defendants. If the plaintiffs had originally refused to pay this money, the holder would immediately have given notice to the drawer and to the immediate indorser, which would have been transmitted to the first indorser and drawer. In consequence of the bill being paid, the defendants continued to have the money in their hands till the 30th of April. I think it was then too late for the defendants to give notice to the prior parties ; and by not having given such notice, they lost their remedy against those parties. If a person liable on a bill does not receive notice within a reasonable time, he is discharged for want of such notice. Here Temple was discharged ; by whose default 1 By the plaintiffs' ! The defendants, while the bill continued paid, could not have given notice to him ; for the bill was not then dishonored ; and as the defendants have lost that o pportunity by the negligence of the plaintiffs, the latter cannot recover back the money from the former. I have put the case on the express point that by the acts of the plaintiffs the defendants are put in a s. 220 AYILKIXSOX V. JOHNSTON. [CHAP. IL worse situation ; but I do not mean thereby to express my dissent from the larger ground on which the case has been put by my Brotliers Heath and Dallas ; but I thinli the gi'ound on which I have put it is alone a sufficient answer to all the arguments that have been used, and is sufficient to warrant us in giving Judgment of nonsuit. AVILKIXSOX AND Others v. JOHNSTON and Others. Ix the King's Bench, November 27, 1824. [Reported in 3 Barnewall Sf Cresswell, 428.] Assumpsit brouglit by the plaintiffs to recover back the sum of 589/. 6s. 8c/., paid by them as they alleged in mistake on three bills of exchange. At the trial before Abbott, C. J., at the London sittings before Michaelmas term 4 G. 4., a verdict was found for the plaintiffs, subject to the opinion of the court upon the following case. About eleven o'clock on the morning of Monday, the 3d of February, 1823, a notary public, who had been em- ployed by Messrs. Smith, Payne e hands of Mr. Campbell, a notary, who presented it for payment at the American Exchange Bank (the drawees) ; the teller of which refused payment for want of funds of the drawer. The plaintiffs, Goddard & St. John, were the correspondents in Xew York of the Canal Bank at Cleveland ; and on Monday morning, Goddard called at the oftice of the notary where the draft was, and left his check for the amonnt, but did not then see the draft, in consequence of the absence of the notary. Ou the following day, Goddard, on seeing the draft pronounced it a forgery. Notice was immediately given to the de- fendants, and repayment of the money demanded, which they refused. The circumstances attending the payment of the draft, and affecting the question of negligence on the part of the plaintiffs, are sufficiently detailed in the opinion of Bronsox, J. The plaintiffs recovered in the Superior Court, and the defendants ap- pealed to this court. B. W. Bonney for appellants. H. E. Davies for respondent. Bronson, C. J., delivered the opinion of the court. The drawee of a bill is held bou nd to know the handwriting of his cor- respondent, the drawer ; and if he acc epts or pays a bill in the hands o f a bo7ia fide holder for value, he is concluded by the act, although the b ill turns out to be a forgery. If he has accepted, he must pay ; and if he has paid, he ca nnot recover the money back. This is an ex ception to th e general rule, that money paid under a mistake of fact may be recovered back. The exception is fully estalolished ; but I do not see that it applies to this case. As the plaintiffs intervened and paid the bill for the honor of the supposed drawers, I do not doubt that the exception would have ap- i^c>~.cL K,^A /un I plied to them, as well as to the drawees, had they seen the bill before they L'tf L ff II P''^^*^^^ wi th their money ; but they had not seen it. They had had no opportunity of judging whether the bill was in the handwriting of their correspondents, the drawers, or not ; and consequently the argument which concludes the drawee when he pays after sight of the bill proves nothing against the plaintiffs. Their case is out of the exception, and within the general rule ; and I see no reason why they should not recover. But it is said that the plaintiffs are chargeable with negligence, in pay- ing the draft before they had seen it ; also that they prevented the service of notices of protest on Monday the 20th of September, the last day for giving notice ; and consequently they cannot recover. How are the facts? 'I'he plaintiffs were informed on the ^fonday morning in question that there was a draft for $1000 drawn 1)y their correspondents, the Canal Bank of Cleveland, on the American Exchange Bank ; that it had been pnjtested on Saturday, and was then in the hands of Notary Campbell. This infor- SECT. I.] GODDARD V. THE MERCHANTS' BANIC. 241 mation they got from the teller of the Aincriciiu Exchange Bank, the teller of the Merchants' Bank, and from ]\Ir. Kiker, another notary, who occupied the same office with Mr. Campbell, and who received papers and answered questions for Mr. Campbell when he was absent from the ofHce, as he was when Coddard, one of the plaintiffs, called to take up the draft. On this information Goddard acted ; and supposing that the Canal Bank had by / mistake drawn on the Exchange Bank, with which it had just before kejit an account, instead of drawing on the plaintiffs, and wishing to protect the credit of the drawers, he left a check with Mr. Riker for the amount of the draft and notary's fees, for the purpose of taking up the draft, and re- quested to have it sent to the plaintiffs' office on that day, which Mr. Eikcr said would be done, or that he would tell Mr. Campbell that the plaintiffs ' wanted the draft sent down. Eiker delivered the check and did the er- ' rand when Campbell came in. Campbell took the check and paid the i money to the defendants ; but instead of sending the draft to the plaintiffs, he put it in his trunk and kept it until Tuesday morning, when Goddard called and inquired for it. On seeing the draft Goddard immediately pro-' nouuced it a forgery, and thereupon went to the defendants' bank and de- manded back the money. Now in all this I am unable to see anything like culpable negligence on the part of Goddard. He was told that there was such a draft, — importing, of course, that it was a genuine draft. He got the information from the defendants' teller, and also from Mr. Riker, who received papers and answered questions for Mr. Campbell, to whose hands the defendants had intrusted the draft. But it is not necessary to connect the defendants with the information. When Goddard went to the notary's office, he told Mr. Riker he had been informed — not by the sup- posed drawers, but by pei'sons in New York — that jNIr. Campbell had a draft in his hands drawn by the Canal Bank of Cleveland ; and he left a check to take up such a draft, — meaning of course a genuine draft. Neither Campbell nor his principals, the defendants, had any right to the check, except for the purpose of taking up a genuine draft ; and when Campbell receive d the check and paid it over to the defendants, both he and t hey tacitly affir med that the draft was genuine. Independently of the implied obligation to send the draft to the plaintiffs on that da}^ it woidd have been an act of prudence on the part of the defendants, or their agent the notary, to send it. But when we take into consideration the request that the draft should be sent, which was communicated to the notary when he received the check, it is clear that whatever of negligence there was in the transaction was all on the other side, and not on the side of the plaintiffs. It is true that if the plaintiffs had not intervened, the notices would have been sent off on IMonday, which was in time, instead of Tuesday, which was too late. But it is also true that had the notary performed the im- plied condition on which he received the check, and sent the draft to the 16 n; 242 GODDARD V. THE MERCHANTS* BANK. [CIIAr. II. plaintiffs on that day, he wonld either have learned that the draft was a forgery in time to give legal notice, or the plaintiffs would have concluded themselves by holding the draft, without declaring the forgery, until it was too late to give legal notice. There was in truth no use in giving notice of the dishonor of the bill, with the view of charging any pcarty to it. The defendants only had it for collection, and wanted no recourse. Notice to the supposed drawers could serve no purpose, because the bill was a forgery : and Moore, the payee, who forged the bill, was answerable to the Bank of Rutland, which he had defrauded, without notice. It is said that early notice would have increased the probability of catch- ing the felon. Let us examine that suggestion. If the plaintiffs had not intervened, notice would have been sent on Monday ; but it would have been notice of protest, and not of the forgery. The Bank of Rutland would have heard nothing about a forgery, until it should have got a response from the notice of protest sent to the Canal Bank in Ohio. There would have been a delay of a week at the least. Whereas as the case was, notice of the forgery, as well as of protest, was sent off the next day, both to the Bank of Rutland and the Canal Bank. From this view of the case it seems reasonable to believe, that what was in fact done was more likely to prove beneficial to the Bank of Rutland, which owned the bill, than the thing which would have happened if the plaintiffs had done nothing. But whatever may be the probability, or whoever else may be in fault, I think the plaintiffs have neither done any wrong, nor neglected any duty ; and am of opinion that the judgment should be affirmed. RuGGLES, J., dissenting. Acceptance or payment of a bill of exchange or check by the drawee is an admission of the drawer's signature, which the drawee is not at liberty afterwards to contradict, as against a bo7ia fide holder of the bill. The drawer is supposed to be the drawee's correspond- ent and acquaintance, with whose signature he is familiar, and negligence is therefore imputed to the drawee when he pays a bill to which the diaw- er's name is forged. The duty of ascertaining whetlier the drawer's signa- tore is genuine before acceptance or payment by the drawee, is imposed on him for the l)cnefit and safety of the holder, who is entitled to know with- out delay after the presentment of the bill, whether it is accepted, or if payable at sight, whether it is paid. This knowledge is necessary to en- able the holder to take immediate measures against tlie previous indorsers and drawer, who are liable if the bill be dishonored. It being the duty of the drawee to satisfy himself of the genuineness of the bill before he accepts or pays, and it being imj)ortant to the holder and other previous parties that he should do so, it is settled that he accepts or pays at his peril. If he accepts he is bound to pay, although the drawer's signature turn out to be forged ; and if he pays he cannot recover back his money, unless the forgery is discovered and notice given immediately, or SECT. I.] GODDARD V. THE MERCHANTS' BANK. 243 within such time as to give the holder the same advantage of procccdin" against the party from whom he received the bill, as if it had been dis- honored. Price V. Neal ; ^ Smith v. Chester ; ^ Smith v. Mercer ; * Wil- kinson V. Johnston ; * Cocks v. Masterman.^ The latter case seems to enforce the rule with too much rigor, because in case of the payment of a forged bill, it requires the discovery of the forgery to be made and notice given on the same day, so as to give to the holder even curlier information of the forgery than he would have been entitled to upon the protest of the bill for non-payment. The drawee is entitled to see the bill, and to have an opportunity to ex- amine and inspect it, and if necessary to inquire as to the drawer's signa- tin-e, before he is bound to accept or pay, and it is his duty to exercise a due and proper caution, not only for his own sake but for the sake of the holder, who is not supposed to have the same means of detecting a forgery in the drawer's name, as are possessed by the drawee. It is not unreasona- ble to require the drawee to ascertain at his peril whether the bill is genu- ine before he accepts or pays. He incurs no respoiTsibility to the drawer by refusing to accept, where there is reasonable ground of doubt ; while by accepting or paying under such circumstances, the holder is induced to release his vigilance against the party from whom he took the bill, and may thereby lose the opportunity of compelling payment from him in case the bill should turn out a forgery. The rule, therefore, which requires that the drawee should by all the means in his power satisfy himself as to the drawer's signature before he accepts or pays, being reasonable and necessary, should not be departed from, or frittered away by exceptions resting on slight grounds. The plaintiffs were not the drawees of the bill, but they were the friends and correspondents of the supposed drawers, and paid the bill for their honor. They stand in no better position in regard to the point in ques- tion, than if they had been the drawee ; they were equally bound to see and examine the bill, and to decide at their peril as to its being genuine. See cases above referred to. They were no more entitled than the drawees to put the holder's right in danger, by negligent payment of a forged bill. When Ml-. Goddard paid the bill he knew that the account between the Canal Bank of Cleveland and the American Exchange Bank had been closed. This appears from a passage in his letter to the Canal Bank, of the 21st of September. The fact that the draft purported to be drawn on a bank with which the drawees had discontinued their dealings, ought, it seems to me, to have awakened the suspicions of Mr. Goddard in relation to the draft, so far at least as to have induced him to look at it before he paid the money. Instead of that, however, he paid it without having seen it, and as it seems to me, without the excuse of a want of opportunity to 1 3 Burr. 1354. 2 j t. R. 6.54. » 6 Taunt. 76. * 3 B. & C. 428. 6 9 B. & C. 902. 244 GODDAED V. THE MERCHANTS' BANK. [CHAP. II. see it. The draft was presented at the Auicricau Exchange Buuk fur pay- ment ou Saturday, the 18th of SeptemVier, wheu payaieut was refused. Having heard of the draft from the teller of the Merchants' Exchange Bank, and ascertained that it was in the hands of the notary, he called at the notary's office on ]\Iouday morning before the notary had come in, for the purpose of paying the draft, and made known his business to Mr. Riker, whom he found there. He was requested to wait a few minutes until the notary came, but declined doing .so, and left his check with Mr. Hiker to behandedjbojh g notary for the paym ent of the draft, j\n]jiest ing that the notices of protest which had been prepared should no t be sent ou t, and they werdvIthhelcTaccordingly. The plaintiff might without any difficulty have~seen~the bill^ ItTwas not withheld by the notary. The plaintiff might have obtained it during the day by calling or sending to the notary's office, in season to have discovered the forgery and to have despatched the notices to the previous parties. It is true the notary was requested to send the bill to the plaintiff's office, and that tliis was not done ; but this ■was a request addressed to the courtesy of the notary, and not a demand ■which he had a right to make, or with which the notary was bound to com- ply. If Mr. Goddard's business made it inconvenient for him to call for the bill, it might be equally inconvenient for the notary to send it. Tliere was no obligation on the part of the notary to send it. Riker, who was in the notary's office, does not swear that he promised to send it, or told him it would be sent. He thinks he said that the draft would be .sent down, or that he would tell the notary that Goddard wanted it sent down. This is no proof of a promise to send it; and Mr. Goddard, in his letter to the Bank at Cleveland, states that he requested it to be sent, but does not pre- tend that Riker undertook to send it or held out any expectation that it would be sent. The evidence forms, in my opinion, no excuse to the plaintiffs for not having exercised the usual and necessary caution of look- ing at the bill before they paid the money. The plaintiff's counsel insist that negligence in paying the draft unseen, is not imputable to the plaintiffs, because payment ■was made on the de- fendants' representation through their agent, the notary, that there was a draft of the Canal Bank in existence when in fact there was not. But this reason is unsound. The holder of an indorsed draft, as we have before seen, has not the means of knowing whether the drawer's signature is genu- ine or not ; but the drawee has. The holder looks to the drawee for in- formation on that point, and the drawee does not look to the holder. Tlie drawee, on accepting or paying, answers that inquiry at his peril. There was in fact, in this case, no representation that the draft was genuine. 'J'ho presentment of a draft is not such a representation. If it were so, it would always excuse payment without sight of the paper, and would sub- vert the rule on this subject which has been long settled and rests on the soundest reasons. SECT. l] GODDAKU V. THE MERCHANTS' HANK. 245 Wliat were the consequences of the negligence of the phxintiffs, in paying the bill without having seen the bill 1 The forgery was discovered on the next day, as soon as Mr. Goddard inspected the bill, and it would have Ijcen detected on Monday, before payment, if he had acted with the ordinary caution, of seeing the bill on that day, as he might, without any dillicultv, have done. In that case, it would have been the notary's duty to have informed the Bank of Kutlaud of the forgery, by letter of the same day, and this we are to presume would have been done. But the plaintilfs, on Monday, paid the bill without having seen it, and thus stopped the notice of the forgery ; and the Bank of Rutland lost the advantage of a day's time in taking measures to compel the repayment of the money from Moore. The delay of a day is as effectual to discharge the holder of a bill under such circumstances, as the delay of a month or a year. It is only in those cases in which the drawee pays the bill without fiuilt oji his part, that the failure to give strict notice is excused. Such was the case in The Canal Bank v. The Bank of Albany. The indorser's name was in that case forged, and the drawee had no better opportunity to know or to ascertain this than the holders. Both stood in respect to the exercise of vigilance, on the same footing. And so in the case of The Bank of Commerce v. The Union Bank, decided at the last term, whei-e the body of the bill had been altered, but the signature was genuine, it was held that negligence was not imputable to the drawee in paying the bill, because, although he was bound to know or ascertain the verity of the signature, it was not so as to the body of the bill, as to which it was no more incumbent upon him than upon the holder, to discover the forgery. Neither of those cases excuses neglect on the part of the drawee, in taking the usual care and precaution against paying a forged bill. Both those decisions rest on the ground that there was no negligence or fault to be imputed to the drawees, and in that re- spect they diflfer entirely from the present. This is a case of money paid by mistake ; but by a mistake which hajjpened through the negligence of the party who paid it ; a mistake which in cases of this nature, must jeop- ardize the rights of the holder of the bill, and which for that reason ought not, on grounds of public policy, to be made the foundation of a claim to have the money restored. Mistake by the drawee in paying a forged bill, without negligence on his part, excuses the want of notice until the forgery is discovered. But mistake arising from the drawee's carelessness in paj-ing a forged bill without sight, when the sight of the bill would have disclosed the forgery, is no excuse for the want of notice or the delay in giving it. In the present case, it is evident, that if Mr. Goddard had looked at the bill on Monday, the 20th of September, the forgery would have been dis- covered on that day ; and the Rutland Bank would have had notice in time to have caused the arrest of Moore at Cleveland. The letter which the Rutland Bank sent to the bank at Cleveland, describing his person, arrived there, notwithstanding the delay in the notice of the forgery, on 246 McKLEROY V. SOUTHERN BANK OF KENTUCKY. [CIIAP. II. the same day that a person answering to that description had offered a forged certificate of deposit at that bank, but who could not be found after tlie arrival of the letter. Although it is not necessary in the present case to show that the Bank of Rutland sustained actual damage by the delay, this circumstance exemplifies the propriety of the rule which requires vigi- lance on the part of the drawee, for the benefit and safety of the prior parties to the bill. This is perhaps a hard case upon the plaintiffs ; but I am of opinion that they cannot be permitted to recover, without overthrowing valuable and well-settled principles of commercial law. Jewett, J., concurred with Ruggles, J. And thereupon the judgment of the Superior Court was afi&rmed. I ^ c^c^ Cj i- - ' >- 1^ I -ft ' ^ McKLEROY v. SOUTHERN BANK OF KENTUCKY. fdUu^sJU 0^ f.yiXM^ '\^ lUJ-l^ The Supreme Court of Louisiana, May, 1859. (u^-'-'^-'^J-^-^^t^ i^ AM^ (LC'C^yi.A^- ^ri^XyxM' ' \Renorted in 14 Louisiana Annual Reports, 458.] / Appeal from the Fourth District Court of New Orleans, Price, J. Clark (t Bayne for plaintiffs and appellants. Tlwmas Ilunton for defendants. Land, J. The evidence in this case establishes the following facts, viz. : The plaintiffs were the factors of James Smith, a cotton planter, residing in the State of Arkansas. One John Zimmer, who had for a few months been a private tutor in Smith's family, assuming the name of John Bel- mont, forged a draft on the plaintiffs, in the name of Smith, as follows : — ^986, Homestead, November 5th, 1857. On the 15th December, 1857, pay to the order of John Belmont nine hundred and eighty-six dollars, value received, and charge the same to the • account of Jas. Smith. To Messus. McKlekoy & Bradford, New Orleans, La. Zimmer also forged a letter of introduction, in tlie name of Smith, to Shotwell it Son, of Louisville, Kentucky, as follows : — II(jM]:.sTEAr), Nov. 5, 1857. MKS.SR.S. Shotwell & Sov. Gentlemen : — 1 introduce to you Mr. John Belmont, a gentleman who resided in my family as our tutor. Having been sick, he is now travelling to improve his healtli. 1 gave him a draft on McKleroy & Bradford, my commission house in New Orleans, which he is desirous to get cashed in SECT. I.] McKLEKOY V. SOUTIIEUN li.VNK OK KENTUCKY. 247 your city. If you can give Mr. Belmont any assistance, by perhaps recom- mending my draft, as Mr. Belmont is a stranger in your city, and not yet fully recovered, you will greatly oblige me. I am, gentlemen, yours respectfully, James Smith. The house of Shotwell & Son had been in correspondence with James Smith for about twelve years ; and being deceived by the forger, indorsed the draft for the purpose of enabling the holder to negotiate it. The draft, bearing the indorsements of John Belmont and of Shotwell & Son, was pre- sented for discount at the Branch of the Southern Bank of Kentucky, and being considered good, was purchased by the bank. The draft was remitted to the Louisiana State Bank, with the following additional indorsement upon it, — " Pay to R. J. Palfrey, cashier, J. B. Alexander, cashier." The draft thus indorsed was presented to plaintiffs for acceptance by the Louis- iana State Bank, and was accepted on the last of November, or first of December, and was paid at maturity, on the eighteenth of December, 1857, by the plaintiffs to the agent of the Southern Bank of Kentucky. In Jan- uary, 1858, James Smith, being in the city, made known to the plaintiffs, upon an examination of his account with them, that the draft was a for- gery. Mr. Shotwell, of the house of Shotwell & Son, was in this city at the time, and was immediately sent for, and the fact of forgery communi- cated to him. On the 9th of January, 1858, the plaiutifis gave formal notice by letter, of the forgery, to A. L. Shotwell & Son, to the Southern Bank of Kentucky, and also the Louisiana State Bank. This suit was instituted by the plaintiffs to recover back the money paid on the draft, on the ground of payment in error. There was judgment for the defendant, and the plaintiffs have appealed. The District Judge held, that the acceptance of a bill of exchange admits the genuineness of the drawer's signature, and that where an acceptor has paid to a bona fide holder of a forged draft or bill, having no notice of the forgery, he cannot recover back the money paid, although the forgery is established by the most conclusive evidence. And where one of two innocent persons must suffer, he who has misled the other, or has omitted his duty, must bear the loss. These principles of law are well established, and admit, perhaps, of neither doubt nor controversy, and if applicable to this case, must deter- mine the rights of the parties. The defendant became the holder of the draft before it was accepted by the plaintiffs, and before they had any knowledge of its existence, and con- sequently before the defendant had any right of action against them for its recovery. The plaintiffs, therefore, had done no act which induced the defendant to believe the signature of the drawer to be genuine, at the time the bill was purchased. How, then, can it be said that the defendant pur- 248 McKLEROY V. SOUTIIEKN BANK OF KENTUCKY. [ciIAP. II, chased the bill on the faith of the plaintiffs' acceptance, or on their guaran- tee of the genuineness of the drawer's signature ? Or how can it be said tliat the plaintiffs misled the defendant at the time of the purchase of the bill, or was then guilt}' of the omission of any duty toward the defendant as the purchaser of the bill ? If the defendant had pui-chased the bill on the faith of the acceptance of plaintifts, or had sustained any loss in consequence of their negligence, we would have no difficulty in affirming the judgment of the lower court; but such are not the f\^cts made known to us by the record. The defendant purchased the bill on the faith of the indorsement of Shotwell ifc Son, wliich was a warranty of the genuineness of the drawer's signature to the bank ; and there is no good reason, why the accidental payment made by the plaintiffs should inure to the benefit of the defendant. Mr. Chitty says on this subject, " If he [the holder] thought fit to rely on the bare representation of the party from whom he took it [the bill], there is no reason that he should profit by the accidental payment, when the loss had already attached upon himself, and why he should be allowed to retain the money, when, by an immediate notice of the forgery, he is enabled to proceed against all other parties, precisely the same as if the payment had not been made, and consequently, the payment to him has not in the least altered his situation, or occasioned any delay or prejudice. It seems that, of late, upon questions of this nature, these latter considei-a- tions have influenced the court in determining whether, or not, the money shall be recoverable back ; and it will be found, on examining the older cases, that there were facts affording a distinction, and that upon attempt- ing to reconcile them they are not so contradictory as might on first view have been supposed." ^ The facts in this case afford the distinction to which Mr. Chitty refers, and takes the case out of the general rule, which prevents the acceptor of a bill of exchange from recovering back the money paid in cases of forgery of the drawer's signature. The loss had already attached before the bill was either accepted or paid, and the acceptors gave immediate notice to the defendant, and Shotwell & Son, after ascertaining for the first time, from James Smith, in whose name the bill was drawn, the fact of forgery. The evidence shows that plaintiffs accepted tiie bill, in the language of the witness, "chiefly through the respectability of the channels through which it came." It is, therefore, difficult to conceive upon what principle of equity or right the defendant can be .permitted to retain the money paid in error by the plaintiffs, upon the facts of this case. No authority appli- cable to the particular circumstances of this case has been cited by the J Cliitty on liill.s, 464. SECT. I.] HOFFMAN & CO. V. BANK OF MILWAUKEE. 249 defendant's counsel, and we have no hesitation in reversing the judgment upon the authority of Mr. C'hitty, above quoted. In a case like the present, the acceptor is not estopped from proving the forgery of the bill. It is, therefore, ordered, adjudged, and decreed, that the judgment of the lower court be avoided and reversed ; and it is now ordered, adjudged, and decreed, that the plaintiffs do have and recover of the defendant the sum of nine hundred and eighty-six dollars, with five per cent per annum interest, from the 18th day of December, 1857, with costs in both courts. HOFFMAN & CO. v. BANK OF MILWAUKEE. In the Supreme Court of the United States, December, 1870. [Reported in 12 Wallace, 181.] Error to the Circuit Court for the District of "Wisconsin ; the case being thus : — Chapin & Miles, a forwarding and commission firm in Milwaukee, were engaged in moving produce to Hoffman & Co., of Philadelphia, for sale there. The course of their business was thus : They first shipped the produce, obtaining a bill of lading therefor, to which they attached a draft drawn by them on their consignee for about the value of the grain, and then negotiated the draft with bill of lading attached, to some bank in Milwaukee, and obtained the money. It was understood that the draft was drawn upon the credit of the property called for by the bill of lading, and would be paid by the consignee upon receipt of the bill of lading ; and — with perhaps a single exception where the bills of lading, not being obtained during bank hours, were sent otherwise than with the draft — the drafts were accompanied by such bills. The Philadelphia firm, however, rarely knew what flour belonged to any particular bill of lading ; not being obliged by the railroad clerks at Philadelphia, where they were known, to exhibit any bill of lading in order to get the flour, and their custom being, on getting notice from the railroad office that flour had arrived for them, to pay the charges, give receipts, and send their drayman for it, and bring it away. It was the practice of the Milwaukee firm to advise their Phila- delphia correspondents by letter of shipments made and drafts drawn, which advisements were acknowledged with a promise " to" honor the drafts." When flour was " slow " in going forward they corresponded with the Mil- waukee house about it, but did not on that account refuse acceptance or payment of any bill. Having been thus dealing for about sixteen months, Chapin & Miles drew three drafts on Hoffman & Co., in the ordinary way, and attaching to them 250 HOFFMAN & CO. V. BANK OF MILWAUKEE. [CIIAT. II. bills of lading which they had forged, negotiated, in the ordinary course of business, the drafts, with the forged bills of lading attached, to the City Bank of Milwaukee, getting the money for them. The bank knew nothing of the forgery of the bills of lading. The ordinary correspondence between the two houses took place. That in regard to one draft will exhibit its character. Milwaukee, February 26th, 1869. Messrs. Hoffman & Co., Puiladelpiiia. Dear Sirs, — "We ship to you to-day 200 bbls. " Prairie Flour," and draw at s't for $1100, which please honor. Will draw for $5 only when we can, but must crowd $5^ part of the time. Yours, truly, CuAPiN & Miles. Puiladelpiiia, March 2d, 1869. Messrs. Ciiapin & Miles. Gentlemen, — Yours 26th ult. here. Your draft $1100 will be paid, but we think you should try to keep them down to $5 per barrel. We advise sale of 100 Prairie, at .$7, and 54, at $7.25. Yours, respectfully, Hoffman & Co. No flour was forwarded. The Milwaukee bank forwarded the drafts, however, with the forged bills of lading attached, to their correspondent, the Park Bank in New York, for collection. The Park Bank forwarded the same to its correspondent, the Commonwealth Bank of Philadelphia, for the same purpose, and the latter bank presented the draft and bill of lading to the drawees, Hoffman & Co., who, knowing the drafts to be genuine, and not supposing that the bills of lading were otherwise, paid the drafts to the Philadelphia Bank, which remitted the money back to the Park Bank to the credit of the Bank of Milwaukee. No flour coming forward, Hoff"man & Co. discovered that the bills of lading were forged, and Miles & Chapin being insolvent, they sued the Bank of Milwaukee to recover the amount paid, as above stated. The declaration in the case contained the common counts in assumpsit, with a notice attached to tlie defendant, " that the action was brought to recover .*."3100, money paid l)y the plaintift^, under mistake of fact, upon drafts and bills of lading (of which copies were annexed), the mistake being that the plaintifts ])aid the money upon the belief that tiie said bills of lading were genuine instruments ; whereas, in fact, they were forged ; the amount of money paid being the amount called for by the drafts, which was paid upon the credit and inducement of the bills of lading." Neither the name of the defendant, the Milwaukee Bank, nor of any of its officers or agents, appeared in or upon the bills of lading in question, SECT. I.] HOFFMAN & CO. V. BANK OF MILWAUKEE. 251 and had it not been for extrinsic evidence, it could not have been told from those bills that the bank had had anything to do with tlicm. Nor had tlio bank had any dealings or correspondence of any kind with the Philadclithia house, relative to the shipments of -flour by Chapiu & Miles, or relative to the drafts drawn by them. On this case the court below directed the jury to find for the bank, defendant in the case, and the plaintiffs brought the case here. Mr. M. H. Carpenter, for the plaintiff" in error. Mr. J. W. Gary, for the defendant in error. Mr. Justice Clifford delivered the opinion of the court. Acceptors of a bill of exchange, by the act of acceptance admit the genuineness of the signatures of the drawers, and the competency of the drawers to assume that responsibility. Such an act imports an engagement, on the part of the acceptor, to the payee or other lawful holder of the bill, to pay the same, if duly presented, when it becomes due, according to the tenor of the acceptance. He engages to pay the holder, whether payee or indorsee, the full amount of the bill at maturity, and if he does not, the holder has a right of action against him, and he may also have one against the drawer. Drawers of bills of exchange, however, are not liable to the holder, under such circumstances, until it appears that the bill was duly presented, and that the acceptor refused or neglected to pay the same according to the tenor of the instrument, as their liability is contingent and subject to those conditions precedent. Three bills of exchange, as exhibited in the record, were drawn by Chapin, Miles & Co., payable to the order of the defendants, and the record shows that they, the defendants, received and discounted the three bills at the request of the drawers. Attached to each bill of exchange was a bill of lading for 200 barrels of flour, shipped, as therein represented, by the drawers of the bills of exchange, and consigned to the plaintiffs ; and the record also shows that the drawers, in each case, sent a letter of advice to the consignees apprising them of the shipment, and that they would draw on them as such consignees for the respective amounts specified in the several bills of exchange. Prompt reply in each case was communicated by the plaintiffs, acknowledging the receipt of the letter of advice sent by the shippers, and promising to honor the bills of exchange, as therein requested. Evidence was also introduced by the plaintiffs showing that the defendants indorsed the bills of exchange and forwarded the same, with the bills of lading attached, to the National Park Bank of the City of New York, their regular correspondent ; that the same were subsequently in- dorsed by the latter bank, and forwarded to the Commonwealth Bank of Philadelphia for collection ; that the Commonwealth Bank presented the bills of exchange, with the bills of lading attached, to the plaintiffs, as the acceptors, and that they paid the respective amounts as they had previously promised to do, and that the Commonwealth Bank remitted the proceeds 252 HOFFMAN & CO. V. BANK OF MILWAUKEE. [CIIAP. 11. in each case to tlie Xatioual Park Bank, where the respective amounts were credited to the defendants. Proof was also introduced by the pUxintiffs showing that each of the bills of lading was a forgery, and that the plaintiffs, before the commencement of the suit, tendered the same and the bills of exchange to the defendants, and that they demanded of the defendants, at the same time, the respective amounts so paid by them to the Common- wealth Bank. Payment as demanded being refused, the plaintiffs brought an action of assumpsit against the defendants for money had and received, claiming to recover back the several amounts so paid as money paid by mistake, but the verdict and judgment were for the defendants, and the plaintiffs sued out a writ of error, and removed the cause into this court. Testimony was also introduced by the defendants tending to show that the shippers were millers ; that they made an arrangement with the plaintiffs to ship flour to them at Philadelphia for sale in that market, the plaintiffs agreeing that they, the shippers, might draw on them for advances on the flour, to be reimbursed out of the pi'oceeds of the sales ; that for more than a year they had been in the habit of shipping flour to the plaintiffs under that arrangement and of negotiating drafts on the ])laintiffs to the banks in that city, accompanied by bills of lading in form like those given in evidence in this case ; that the drafts, with the bills of lading attached, were sent forward by the banks, where the same were discounted, and that the same wei-e paid by the plaintiffs; that the drawers of the drafts in every case notified the plaintifls of the same, and that the plaintiffs, as in this case, answered the letter of advice and promised to pa}' the amount. They also proved that the drawers of the drafts in this case informed their cashier that the same would always be drawn upon property, and that the bills of lading would accompany the drafts, and that they had no knowledge or intimation that the bills of lading were not genuine. Instructions were requested by the plaintiffs, that if the jury found that the respective bills of lading were not genuine, they were entitled to recover the several amounts paid to the Commonwealth Bank, with interest ; but the court refused to give the instruction as prayed, and instructed the jury that if they found the facts as shown by the defendants, the plaintiffs could not recover in the case, even though they should find that the several bills of lading were a forgery. Money paid under a mistake of facts, it is said, may be recovered back as having been paid without consideration, but the decisive answer to that suggestion, as applied to the case before the court, is that money paid, as in tliis case, by the acceptor of a bill of exchange to the i)ayec of the same, or to a subsequent indorsee, in discharge of his legal obligation as such, is not a payment b}' mistake nor without consideration, unless it be shown that the instrument was fratidulent in its inception, or that the considera- tion was illegal, or that the facts and circumstances which impeach the transaction, as between the acccjjtor and the drawer, were known to the SECT. I.] HOFFMAN & CO. V. BANK OF MILWAUKEE. 253 payee or subsequent indorsee at the time he became the holder of the instrument.^ Such an instrument, as between the payee and the acceptor, imports a sufficient consideration, and in a suit by the former against the latter the defence of prior equities, as between the acceptor and the drawer, is not open unless it be shown that the payee, at the time he became the holder of the instrument, had knowledge of those facts and circumstances. Attempt is made in argument to show that the plaintiffs accepted the bills of exchange upon the faith and security of the bills of lading attached to the same at the time the bills of exchange were discounted by the de- fendants. Suppose it was so, which is not satisfactorily proved, still it is not perceived that the concession, if made, would benefit the plaintiffs, as the bills of exchange are in the usual form and contain no reference what- ever to the bills of lading, and it is not pretended that the defendants had any knowledge or intimation that the bills of lading were not genuine, nor is it pretended that they made any representation upon the subject to induce the plaintiffs to contract any such liability. They received the bills of exchange in the usual course of their business as a bank of discount and paid the full amount of the net proceeds of the same to the drawers, and it is not even suggested that any act of the defendants, except the indorse- ment of the bills of exchange in the usual course of their business, operated to the prejudice of the plaintiffs or prevented them from making an earlier discovery of the true character of the transaction. On the contrary, it distinctly appears that the drawers of the bills of exchange were the regu- lar correspondents of the plaintiffs, and that they became the acceptors of the bills of exchange at the request of the drawers of the same, and upon their representations that the flour mentioned in the bills of lading had been shipped to their firm for sale under the arrangement before described. Beyond doubt tht, bills of lading gave some credit to the bills of exchange beyond what was created by the pecuniary standing of the parties to the same, but it is clear that they are not a part of those instruments, nor are they refeiTcd to either in the body of the bills or in the acceptance, and they cannot be regarded in any more favorable light for the plaintiffs than as collateral security accompanying the bills of exchange. Sent forward, as the bills of lading were, with the bills of exchange, it IS beyond question that the property in the same passed to the acceptors when they paid the several amounts therein specified, as the lien, if any, in favor of the defendants was then displaced and the plaintiffs became entitled to the instruments as the muniments of title to the flour shipped to them for sale, and as security for the money which they had advanced under the arrangement between them and the drawers of the bills of cx- 1 Fitch V. Jones, 5 El. & Bl. 238 ; Arbouiii v. Anderson, 1 Ad. & E. N. s. 498 ; Smith v. Braine, 16 Q. B. 244 ; Hall v. Featheistone, 3 II. & N. 287. 254 HOFFMAN & CO. V. BANK OF MILWAUKEE. [CIIAP. II. change. Proof, therefore, tliat the bills of lading were forgeries conld not operate to discharge the liability of the plaintitis, as acceptors, to pay the amounts to the payees or their indorsees, as the payees were innocent holders, havinLj paid value for the same in the usual course of business.^ Different rules apply between the immediate parties to a bill of exchange as between the drawer and the aece]>tor, or between the payee and the drawer as the only consideration as between those parties is that which moves from the plaintiff to the defendant ; and the rule is, if that consid- eration fails, proof of that fact is a good defence to the action. But the rule is otherwise between the remote parties to the bill, as, for example, between the payee and the acceptor, or between the indorsee and the acceptor, as two distinct considerations come in question in every such case, where the payee or indorsee became the holder of the bill before it was overdue and without any knowledge of the facts and circumstances which impeach the title as between the immediate parties to the instrument. Those two considerations are as follows : First, that which the defendant received for his liability, and, secondly, that which the plaintiff gave for his title, and the rule is well settled that the action between the remote parties to the bill will not be defeated unless there be an absence or failure of both these considerations.^ Unless both considerations f\\il in a suit by the payee against the acceptor, it is clear that the action may be maintained, and many decided cases affirm the rule, where the suit is in the name of a remote indorsee against the acceptor, that if any intermediate holder between the defendant and the plaintiff gave value for tlie bill, such an intervening consideration will sustain the title of the plaintiff.'^ Where it was arranged between a drawer and his correspondent that the latter would accept his bills in consideration of produce to be shipped or transported to the acceptor for sale, the Supreme Court of Pennsylvania held," that the acceptor was bound to the payee by his general acceptance of a bill, although it turned out that the bill of lading forwarded at the same time with the bill of exchange was fraudulent, it not being shown that the payee of the bill was privy to the fraud. Evidence was introduced in that case showing that the payee knew what the terms of the arrangement between the drawer and the payee were, but the court held that mere knowledge of that fact was not sufficient to constitute a defence, as the payee was not a party to the arrangement, and was not in any respect a surety for the good faith and fair dealing of the shipper. » Lpiitlicr V. Simpson, L. R. 11 Eq. 398. 2 Koliinson v. Ki-ynolds, 2 Q. B. 202 ; Same v. Same, in error, 2 Q. B. 210 ; Bylcs on Bills (5th Am. Ed.), 124 ; Thiedemann v. Goldschmidt, 1 De G. F. & J. 10. 8 Hunter v. Wilson, 4 Exch. 489; Boyd v. McCann, 10 Me. 118; Howell i;. Crano, 12 La. Ann. 126 ; Wat.son v. Flana<,'an, 14 Tex. 354. * Craig V. Sibbett el al., 15 Pa. 240. SECT. I.] HOFFMAN & CO. V. BANK OF MILWAUKEE. 255 Failure of consideration, as between tlie drawer and acceptor of a bill of exchange, is no defence to an action brought by the paj'ee against the acceptor, if the acceptance was \mconditional in its terms, and it appears that the plaintiff paid value for the bill, eveu though the acceptor was defrauded by the drawer, unless it be shown that the payee hud knowledge of the fraudulent acts of the drawer before he paid such value and became tlie holder of the instruiueut.^ Testimony to show that tlie jjayees were not bona fide holders of the bills would be admissible in a suit by them against the acceptors, and would constitute, if believed, a good defence, but the evidence in this case does not show that they did anything that is not entirely sanctioned by conmiei'- cial usage. They discounted these bills and they had a right to present them for acceptance, and having obtained the acceptance they have an im- doubted right to apply the proceeds collected from the acceptors to their own indemnity."^ Forgery of the bills of lading would be a good defence to an action on the bills if the defendants in this case had been the drawers, but they were payees and holders for value in the regular course of business, and the case last referred to, which was decided in the Exchequer Chamber, shows that such an acceptance binds the acceptor conclusively as between them and every hona fide holder for value. Very many cases decide that the drawee of a bill of exchange is bound to know the handwriting of his correspondent, the drawer, and that if he accepts or pays a bill in the hands of a bona fide holder for value, he is concluded by the act, although the bill turns out to be a forgery. If he has accepted he must pay, and if he has paid he cannot recover the money back, as the money, in such a case, is paid in pursuance of a legal obligation as understood in the commercial law.^ Dijficulty sometimes arises in determining whether the plaintiff, in an action on a bill of exchange, is the immediate promisee of the defendant, or whether he is to be regarded as a remote party, but it is settled law that the payee, where he discounts the bill at the request of the drawer, is regarded as a stranger to the acceptor in respect to the consideration for the acceptance ; consequently, if the acceptance is absolute in its terms and the bill is received in good faith and for value, it is no answer to an action by him that the defendant received no consideration for his acceptance or that the consideration therefor has failed ; and it is immaterial in tliat behalf whether the bill was accepted while in the hands of the drawer and 1 United States v. Bank of Metropolis, 15 Pet. 393. 2 Thiedemann v. Goldschmidt et al., 1 De G. F. & J. 10 ; Eobinson v. Reynolds, 2 Q. B. 211. ^ Goddard v. Merchants' Bank, 4 Conist. 149 ; Bank of Commerce v. Union Bank, 3 Comst. 234 ; Bank of the United States v. Bank of Georgia, 10 Wheat. 348 ; Price v. Noal, 3 Burr. 1355. 25G NATIONAL BANK OF NORTH AMERICA V. BANGS. [CIIAP. II. A at his request, or whether it had passed into the hauds of the payee before acceptance and was accepted at his request.^ Certain other defences, such as that the payments were voluntarily made, and that the title to the bills at the time the payments were made was in the National Park Bank, were also set up by the defendants, but the court does not find it necessary to examine those matters, as they are of the opinion that the payments, if made to the payees of the bills, as contended by the plaintills, were made in pursuance of a legal obligation and that the money cannot be recovered back.^ Judgment affirmed. ^X-^C^ iC^ c^, f Cirulx,t. ■ X-Jo uu^^tw. I J I i U NATIONAL BANK OF NORTH AMERICA OF BOSTON v. EDWARD D. BANGS and Another. In the Supreme Judicial Court of Massachusetts, March, 1871. [Reported in 106 Massachusetts Reports, 441.] Contract against the members of the firm of E. D. & G. W. Bangs & ?/6 Company, to recover back money pa id by the plaintiffs on a forged check ; submitted to the judgmen t of the court o n these facts agreed: — "The defendants, on September 21, 1869, took of some person (whom they do not remember, and did not remember when they were first notified of the alleged forgery, and could not then tell whether he was a stranger to them or a person known to them) in good faith and for full value, in pay- ment for gold sold by them in the usual course of their business, a check payable to their order, of which the following is a copy : — "$1,308.63. National Bank of North America. Boston, Sept. 21, 1869. Pay to the order of E. D. & G. W. Bangs & Co., Thirteen hundred eight dollars and sixty-three cents. "No. 932. William D. Bickford. /U.^. "On said September 21, the defendants deposited this check, with others, and with their other moneys, in the Maverick National Bank of Boston, where they kept their deposits ; and before depositing it, for the purpose of enabling the Maverick National Bank to collect the check from the National Bank of North America, and in accordance with the usage of depositors of :;hecks payable to order, they indorsed it in blank by writing on the back A it ' E. D. & G. W. Bangs & Co.' The Maverick National Bank the next 1 Parson#on Bills, 179 ; Munroe v. Bordier, 8 C. B. 862. 2 Young et al. v. Lehman ct al., 63 Ala. 519; First National Bank of Detroit v. Biiihhani, 32 Mich. 323 accord. See also Goetz v. Bank of Kansas City, 119 U. S. 55L — Ed. SECT. I.] NATIONAL BANK OF NORTH AMERICA V. BANGS. 257 day presented the check at the clearing-house, wlien it was allowed and paid to the Maverick National Bank by the National Bank of North America in the usual manner of settling the daily balances of banks at the clearing-house. "The Maverick National Bank, on the day of deposit, credited the de- fendants with the amount of the check in its account with them ; and the National Bank of North America on September 22, debited William I). Bickford, in whose name the check purported to have been drawn, and wlio was a customer of and a depositor in the National Bank of North America, and had funds on deposit there, with the amount of the check. 'J'hecheck was retained by the National Bank of North America until the 1st or 2d of October, 18G9, when it was sent with other checks, by the National Bank of North America, to William D. Bickford, with the monthly statement of his account, according to the usage of banks. Bickford, afte r examining the checks, pronounced this a forgery, and on the 4th of October informed the bank of it ; and on the same day the defendants were notified by the National Bank of Nor th America that the check was forged, which was the first intimation or suspicion they had that the check was forged. For the purposes of the hearing on this statement of facts, it is admitted that the check was a forgery." Both banks were members of the Boston Clearing-House Association at the time of these transactions, and the constitution and by-laws of that association during the time were made a part of the statement, so far as they should be found material and competent. The substance of the rules of the clearing-house, so far as they are material, appears in the opinion. " It was the usage for each bank belonging to the Clearing-House Asso- ciation, each morning, at ten o'clock, to have at the clearing-house, for the purpose of effecting settlements with the other banks, all the checks and other demands, such as bills, etc., it had received against all the other banks during the preceding day ; making them up into separate bundles for each bank, with a ticket containing the items and aggregate of the con- tents of each bundle. The settlement was made at the clearing-house upon the footings of these tickets, without regard to the fact whether the con- tents of the bundle were correctly tic keted, or formed good cl aims against the bank charged with the contents of the bundle as per ticket ; and in from ten to fifteen minutes past ten o'clock the messenger from each bank was able to receive and take to his bank all the claims of the other banks against it. On the ret urn of th e messenger to his bank, the messenger delive rs to the payi ng teller the various bundles of demands against the bank ; and it was the usage for th e payin g teller, or some other officer of the bank charged with that duty, to immediately proceed to open and exam ine the contents of these bundles, ascertaining whether the contents of each bundle corresponded with the ticket, and whether each check was properly signed, drawn, and indorsed, and whether the drawers of the chock 17 258 NATIONAL BANK OF NORTH AMERICA V. BANGS. [CIIAP. II. had funds deposited sufficient to meet the amounts drawn ; and all this is completed before one o'clock of the same day ; and a^l checks not then returned to the banks from~which they were received are then charged to the drawers, in the samemanner as iTthey had been presented and pa id at the count er of the bank. " It is agreed that the Bank of Noi-th America acted in good faith in the premises." H. C. Ilutchins and H. E. Cturrier for the plaintiffs. W. A. Field for the defendants. Wells, J. This suit is brought to recover money paid upon a check purporting to be drawn by one Bickford upon the plaintiff bank, to the order of the defendants, indorsed by them, deposited with their banker, and collected through the clearing-house. The signature of the drawer proved to be a forgery. As the discoveiy of the forgery was not made in time to enable the plaintiff to return the check, as of absolute right, under the rules of the clearing-house, we think the case must stand as if the pay- ment had been made directly at the plaintiff's counter, in the ordinary mode. The right of return, secured by the rules of the clearing-house, is a spe- cial provision, in compensation for payment without inspection. Instead thereof, the rules give opportunity for subsequent inspection. When that has been had, the special rules cease to govern ; and the rights of the pay- ing bank rest upon the general principles of law. Boylston National Bank V. Richardson.^ But, in applying those general principles, it was held in Merchants' National Bank v. National Eagle Bank,^ that the drawee of a check, who paid it without inspection, under the provisions of the clearing- house rules, might recover back the money, if there had been no actual laches on the part of the drawee, and no change of position on the part of the holder; notwithstanding "the failure of the bank to return a check by one o'clock," as allowed by the rules. The failure in that case was by accident, and involved no neglect. In this case, the money was paid to the use of the defendants. In mak- ing up and returning the monthly account of its depositor, the forgery was discovered, and made known to the plaintiff, and notice thereof was imme- diately given to the defendants. In this respect the case shows no lache s on the part of ttie plaintiff, and no change of situation on the part of the defendan ts, which can defeat a recovery, if any right of recovery ever' existed, or could arise from the payment in the manner stated. Merriani V. Wolcott ; " Canal Bank v. Bank of Albany.'* If the suit were between the bank, or drawee, and a party who took the check in the usual course of business, finding it in circulation, or even by first indorsement from the payee, the loss would fall upon the bank ; be- cause, having greater means and opportunity to become familiar with the 1 101 Mass. 287. ^ iqI Muss. 281. ^ 3 Allen, 258. * 1 Hill, 287. SECT. I.] NATIONAL BANK OF NORTH AMERICA V. BANGS. 259 handwriting of their correspondents or depositors, the law presumes that drawees will know their signatures and be able to detect forgeries. From this presumption arises what is often called an obligation or responsibility on the part of the drawee of a bill or check, which prevents him from recov- ering back money paid upon it on the ground of a mistake of fiict. Price V. Neal ; ^ Levy v. Bank of the United States ; ^ Bank of St. Albans v. Far- mers' & Mechanics' Bank.^ But this responsibility, based upon presump- tion alone, is decisive only when the party receiving the money has in no way contributed to the success of the fraud, or to the mistake of fact under which the payment was made. " If the loss can be traced to the fault or negligence of either party, it shall be fixed upon him." Gloucester Bank v. Salem Bank.* In the absence of actual fault or negligence o n the part of the drawee, his constructive fault, in not? knowing the signature of the drawer and detecting the forgery, will not preclude his recovery from ono who has recei ved the money with knowledge of the forgery, or who took the check, vinder circumstances of suspicion, without proper precautions, or whose conduct has been such as to mislead the drawee, or to induce h i m to pay the check without the usual scr utiny or other precautions agamst mistake or fraud. ^ These exceptions are implied by the very terms in which the general rule is ordinarily stated. The case of Ellis v. Ohio Insurance & Trust Co.® is an express decision to that effect, and contains an able and thorough discussion of the subject. We are aware of no case in which the principle that the drawee is bound to know the signature of the drawer of a bill or check, which he undertakes to pay, has been held to be decisive in favor of a payee of a forged bill or check to which he has himself given creckit by his indorsement. In the present case, the check had not gone into circulation, and could not get into circulation until it was indorsed by the defendants. Their indorsement would certify to the public, that is, to every one who should take it, the genuineness of the drawer's signature. AVitliout it, the check could not properly be paid by the plaintiff. Their indorsement tended to divert the plaintiff from inquiry and scrutiny, as it gave to the check the .appearance of a genuine transaction, to the inception of which the defend - ants were parties. Their names upon the check were appare ntly inconsist- ent wit h any susj)icion of a forgery of the dra wer's n ame. But to the defendan ts the presentation, by a stranger or third party, of a check purporting to be drawn to their own orde r, which such third party propos ed to negotiate to them for value, was a transaction which should have^roused their suspicions. It ought to have put them upon inquiry' for explanations ; and if inquiry had been properly made it would have dis- closed the fraud and prevented its success. The case finds that they acted V A-i—p 1^ %.\A.- -2 111. K. 824. 2 2 A. & F.. i:J3 n. ^ 15 jj^.. jj. SECT. I.] CARPENTER V. NORTIIBOROUGII NATIONAL RANK. 2G3 paid cannot be recovered back have been exceptions to the rule, by reason of peculiar circumstances attending tlic particular payments. The case most resembling this, but less favorable to the plaintiffs, is that of Canal Bank v. Bank of Albany.^ That was the case of the acceptor of a draft in ftxvor of one Bentley ; the name of Bentley was forged ; subsequently the draft was indorsed by several innocent parties ; and it came into the hands of the defendant bank for collection on account of another bank. Upon notice, the acceptor paid the draft to the defendant bank, which did not disclose the fact of its agency, which bank paid the amount over to its principal. Several weeks afterwards it was discovered that the name of Bentley was forged, too late to give notice to the indorsers, and after pay- ment to the principal. It was held that the money could be recovered back of the defendant, notwithstanding the defendant had paid it over without notice, and notwithstanding that the indorsers could not be noti- fied of the refusal or the failure of the acceptor to pay. It was said that, inasmuch as each subsequent indorser had paid for the draft under a mis- take of fact, supposing it to be a genuine instead of a forged indorsement, he could recover the amount which he paid of the person to whom he paid it. It is not necessary for us to consider whether or not the rule thus laid down is sound, for the reasons, first, that no such question arises in the present aspect of the case, nor can it arise in this case, inasmuch as Abra- ham Jackson, the assumed forger of the indorsement, was the only indorser of the note against whom any claim could arise as indorser ; and neither law nor equity could require that notice should be given to Jackson, to fix his liability upon a note which he had passed by his own forgery of an indorsement. Inasmuch, th erefore, as in this case there are none of the elements which have been held to bring a case within the exceptions to the g eneral rule,^Jiii examination of the exce ptions to the rule is unnecessary. This is simply tlie payment of a note to a party who has no legal and no equitable inter- est in the promise of the maker, whatever its rights may be as against Jackson, whose name is upon the same paper. The money having bee n paid by mistake to a person who had no right to demand it, the ca se is within the general rule, and the party paying may recover back the amount thus paid. This principle has been recognized in various decisions in this Commonwealth. See Merriam v. Wolcott ; '^ Merchants' National Bank v. National Eagle Bank ; * Boylston National Bank v. Eichardson ; * National Bank of North America v. Bangs.^ Verdict set aside. 1 1 Hill, 287. 2 3 Allen, 258. 3 loi Mass. 281. * 101 Mass. 287. ^ 106 Mass. 441. ^ 264 WELCH V. GOODWIN. [CIIAP. II. THOMAS J. WELCH v. WILLIAM H. GOODWIN. In the Supreme Judicial Court of Massachusetts, July 3, 1877. [Reported in 123 Massachusetts Reports, 71] Contract for money had and received. The declaration also alleged that the defendant was the holder of a certain promissory note purporting to be signed by the plaintiff, and payable to the order of and indorsed by Abraham Jackson, for the sum of .f 2000 ; that on July 8, 1875, the plain- tiff, supposing the not e to be genuine, a nd the signature of the maker upon it to be his own signature, at^the request o f the defenda nt and before the note was due, paid the defendant the full amount of the note, with interest thereon, namely, the sum of 82053 ; that_the_note w as not genuin e ; that h o never signed or executed it ; that his name signed thereto was a for- gery, and not made by him or with his knowledge or consent ; that, imm e- diately upon bis disco very of this fact, he notified the defendant and demanded repayment of the sum so paid. Annexed to the declaration was a copy of the note, as follows : — $2000.00. Charlestowx, March 1, 1873. For value received, I, Thomas J. Welch, promise to pay to Abraham Jackson or order the sum of two thousand dollars in three years from this date, with interest to be paid semi-annually at the rate of eight per centum per annum. Thomas J. W^elcii. In presence of Wm. T. Cakavan. Indorsed, Abraham Jackson. Trial in the Superior Court, before Gardner, J., who reported the case for the determination of this court in substance as follows : — It appeared that in March, 1873, the plaintiff borrowed of Abraham Jackson the sum of $2000, and gave therefor to Jackson his note, a copy of which is annexed to the declaration, and, as security therefor, a mortgage upon a certain parcel of real estate owned by him, which mortgage was recorded on April 1, 1873; that prior to February, 1875, Jackson was largely indebted to the Eliot National Bank, of Boston, of which the de- fendant then was and ever since has been the president ; that, among other indebtedness, the bank held a note for $4500 of Jackson's and of the American Steam Safe Company, and others, upon which note the loait of $1500 had been made by the bank ; that this note became due in Febru- ary, 1875, was unpaid, and was protested for non-payment; that shortly after, the bank received from Jackson, in payment of the past-due time SKCT. I.] WELCH V. GOODWIN. 265 note, a new note (the old note being retained by the bank), witli Jackson's name alone on it, for the snm of $4500 on demand made by Jackson, pay- able to the bank, and, together therewith, certain collateral security, — the demand note, with the collateral, being received as a substitute for the old security ; that the collateral consisted of three mortgage notes, together , -with the assignmen t s of tlio mortgages, one of which notes and ass ignments ~ was a note, a copy of which is annexed to the declaration, and an assign- mcnt o f the mortgage of the plaintiff to~Jackson ; thatThe assignment of the mortgage was not m ade upon the original mortgage deed, but was a separate i nstrument, and was from Jackson to the defendant by name " as trustee," but the nature of the trust was not set forth in the mstrument ,; that this assignment was executed on February 23, 1875, and recorded at the Registry of Deeds in Middlesex, Southern district, on February 23, 1875, and in the Suffolk Registry of Deeds, on March 10, 1875 ; and that, at the time that these notes and assigimients were received by the bank, it was agi-eed between the bank and Jackson, that, in case the bank sliould receive upon the collateral more than sufficient to satisfy the $4500 demand note, the balance sliould be retained and credited towards satisfying what- ever other indebtedness there might remain from Jackson to the bank. It also appeared that the bank realized upon the whole of the collateral security, and obtained therefrom, including the $2053 hereafter mentioned, paid by the plaintiff, more than enough to pay the $4500 demand note, with interest, and that the balance was duly credited towards satisfying the remaining indebtedness of Jackson ; that Jackson was still a large debtor to the bank; and that, in case the bank should x'epay the $2053 paid by the plaintiff, the amount realized from the whole of the collateral would not be enough to satisfy and pay the $4500 demand note. This evidence was objected to as immaterial ; but by agreement of counsel it was admitted de bene, and the judge reserved the matters of law arising thereon for the determination of this coxirt. It was not admitted as bear- ing upon any of the qiiestions submitted to the jury. It also appeared, and was uncontested, that a petition in bankruptcy was filed against Jackson on May 28, 1875, and that he was duly adjudicated a bankrupt thereon. The plaintiff proved that prior to February, 1875, and on March 18, 1873, Jackson made an assigiunent of the i)laintiff's mortgage to the Franklin Insurance Company, and therewith a note, a copy of which is annexed to the declaration ; that this assignment was not upon the original mortgage deed, but was a separate instrument, and that said assignment was not recorded until April 23, 1875 ; that, in the spring of 1875, hearing that Jackson had committed forgeries, the plaintiff desired to know what had become of his mortgage note ; that he thereupon went to the registry of deeds at Cambridge, and got the register to look at the records, and was told by him that the mortgage had been assigned to William II. Goodwin ; 266 WELCH V. GOODWIN. [CILVr. II. and he testified that nothing was said to him by the register about the word " trustee ; " that he thereupon called upon the defendant at the bank, and had several interviews at the bank with him, which resulted on July 8, 1875, which was more than seven months before his note became due, in his paying to Goodwin the sum of $2053, being the amount of his mortgage note, and the interest due thereon and unpaid ; that the paper purporting to be his mortgage note, being the one received from Jackson by the bank, was thereupon surrendered up to him, and that thereupon a friend who was with him, and in his presence and in the presence of the president and cashier of the bank, scratched with pen and ink the name " Thomas J. "Welch " signed to the note ; that he directly went with the defendant to the reo-istry of deeds, where the defendant, by a deed as trustee, released to him the mortgage made to Jackson, and that the release was thereupon immediately recorded at the said registry ; that he thereafter, and on the same day, in conversation with friends and at their suggestion, tore the name of " Thomas J. Welch " off from the note, and destroyed that portion of the paper upon which it was written ; that about July 26, 1875, he was led to suspect that the Franklin Insurance Company held a note purporting to be his mortgage note, and an assignment of the mortgage ; that he called at the office of the company, and was there shown a note passed by Jackson to that company, which he then and there recognized to be the genuine mortgage note, and was also shown an assignment of the mortgage ; that he never made but one note in his life ; that he immediately consulted counsel, who, on July 28, 1875, gave to the defendant the notice, a copy W which is printed in the margin ; ^ that, at the time he paid the $2053, he supposed and understood the note he then took up to be his genuine note, and always so supposed until he saw the note held by the Franklin Insurance Company ; that the defendant never notified him that he was icting in the transaction other than personally, and that he did not know ;hat it was a bank transaction ; and that, after his first call upon the de- fendant, he received two letters, which he had since lost, requesting him to call again ; that he could not swear certainly, but was very positive that these letters were signed in the defendant's name, and that there was noth- ing contained therein indicative of the matter being an attair of the bank. A witness called by the plaintiff, who came with him to the bank when tlic money was paid, testified that it was paid into the defendant's hands. 1 Boston, .Inly 28, 1875. AVm. M. CnODWiN, Esq. Dkak .Siu, — We are instructed by Mr. Thomas J. Welch to inrorm you that he finds his si<,'i)ature on tlie note for .$2000, dated March 12, 1873, and paid to you July 8, to have been forged, and tliat tlie genuine mortgage note is held by the Franklin Insur- ance Company. Accordingly he requests you to repay the amount of his payment, viz., ^2053. Respectfully yours, Mouse, Stone & Gueenougii. SECT. I.] WELCH V. GOODWIN. 267 The defendant introduced evidence that the $2053 was paid by tlic plaintiff into the hands of tlie cashier of the bank, and not into his hands • that the defendant never wrote to the plaintiff, but that the two letters received by the plaintiff were written upon paper upon the top of which was printed " Eliot National Bank. W. H. Goodwin, president ; R. B. Conant, cashier; " and that both letters were written by the cashier, signed by him in his name, with the word "cashier" added, and that they referred to the matter as an affair of the bank, and stated that the bank held the assi'm- ment. The defendant proved that the money paid by the plaintiff was i immediately credited to Jackson's account on the books of the bank, and 1 was immediately placed with the other funds of the bank ; that the note j paid by the plaintiff" was always kept by the bank together with its other securities, and was in charge of the cashier ; that when the plaintiff paid the money, the defendant had no knowledge or suspicion of this note being a forgery, and no knowledge or suspicion of the existence of another note or of another assignment of the mortgage, and never had any knowledge or suspicion of either of these things. The defendant also testified that he did not recollect distinctly, but thought that at one of the interviews with the plaintiff, before the money was paid him, he exhibited to him the assignment from Jackson to himself as " trustee," whicli, however, the plaintiff denied, and said that he did not suppose that he had personally anything to do with the matter, but considered it a bank transaction, and that in all that he did he was acting in his capacity as president of the bank; that neither of the two letters received by the plaintiff mentioned the fact that the bank held the assignment, and that his object in the begin- ning in having the plaintiff call was to pay the interest due on the note. The plaintiff introduced evidence tending to show that the note paid by ' him, and purporting to be witnessed by a clerk of Jackson, was a forgery, | and that it was forged by Jackson ; and that the note held by the Franklin I Insurance Company was a genuine note. There was no other evidence in the case which was material. At the conclusion of the evidence, the de- fendant asked the judge to rule that the plaintiff" could not maintain this action. The defenda nt contended that the action, if maintainable against anybody, s hould have been brought against the Eliot JNatidnal Bank : fKat~ ~ the acti on, if other wise maintainable against the defendant, could not be maintai ned merely on proof of the note paid by the plaintiff being a forgery. and on proof of the notice of July 28, 1875, and on proof that he gave that notice within a day after going to the Franklin Insm-ance Company's office ; that, as it appeared that the transaction of the bank with Jackson was bona fide, Jackson had thus parted with a title good as to the Franklin Insurance Company and the plaintiff", and that thus the bank was damaged by the release to the plaintiff of this mortgage ; and that the notice of July 28, 1875, was not seasonable. The judge declined so to rule, but stated that all the questions of law 268 WELCH V. GOODWIN. [CHAP. II. arisiuj ^ / in the case should be reported to this court, aud fully iustructed the jury that if the pkiutiff jjroved the facts stated iu his declaration, he ^ was entitled to recover ; that the first question was whether the note was a forged note ; that if the jury found it to be a forged note, the plaintiff waa entitled to recover, provided that he was not informed of the forgery of the note until the day or day before he went to counsel, and that iu such case the notice of July 28, 1875, would be seasonable notice, and provided that the defendant did not disclose to him the fact that he was not acting as principal in the transaction, and the plaintiff did not know at the time of the payment of the money to the defendant that the defendant was acting for the bank. The jury returned a verdict for the plaintiff for 82053; and the judge reported the case for the determination of this court. If the court should find upon this report that the action was maintaina- ble, if at all, only against the bank, or that the notice was not seasonable so as to entitle the plaintiff to recover, or that the plaintiff could not, under the circumstances herein stated, maintain his action on proof of the note being a forgery and the note held by the Franklin Insurance Company genuine, and proof that the defendant did not disclose to the plaintiff the fact that he was acting as principal in the transaction, judgment was to be entered for the defendant ; and in case the court should not so find in either particular as matter of law, but should find that the instructions to the jury were not conformable to the requirements of the case, the verdict was to be set aside and a new trial ordered. B. B. Bishop and F. Goodwin for the defendant. B. M. Morse, Jr., and C. P. Greenomjh for the plaintiff. Lord, J. This case differs from that of Carpenter v. Northborough National Bank,^ in two particulars only. The payment was received by the defendant in this case as the agent of another party. The instructions of the presiding judge on that subject were correct. One who acts as the agent of an undisclosed principal may be treated as principal by the party with whom he deals. The other particular, in which the casQ differs from that of Carpenter v. Northborough National Bank, is that the forgery, by means of which Jack- son accomplished the fraud, was that of the name of the plaintiff himself; and the only question is, whether that fiict of itself is an absolute bar to the right of the plaintiff to recover. We do not undersfaiHl that any other (piestion than this was presented to the mind of the judge who pre- sided at the trial. If any other questions were presented, it is to be pre- sumed that projjer instructions were given in reference thereto, and that the jury were required to make the proper distinction and discrimination between the payment upon a note, the forged signature to which was that of the payer, aud not that of another party to the contract. 1 123 Mass. C6. SECT. I.] WELCH V. GOODWIN. 269 It may well be held that a banking corporation, which issues notes as currency, upon such plates and with such securities as it deems sufficient may be, from reasons of public policy, estopped to deny the genuineness of notes which it has redeemed as its own, while such considerations would have no bearing upon the question whether an individual should be per- mitted to show that a signature which he had treated as his own was, in fact, a forgery. Nor is it necessary in this case to go so far as to say, as was held by a majority of the court in National Bank of North America v. Baugs,^ that a bank may recover money paid upon the forged check of cne of its depositors. In both those classes of cases, entirely ditierent consid- erations may properly enter. The question which we are called upon to decide is, whether, under any circumstances, a party may recover back money paid upon a security bear- ing a forged signature of himself, supposing it, at the time of payment, to be his own genuine signature. We can have no doubt th at he may. This i s entirely clear in case he was induced to make the pa yment by fraud or "misr epresentation. Nor is it necessary that fraud or misrepresentation should exist. An^ijnocen^ mi stake, whether_a rising from nat ural or tem- porary infirmity or_otherwise,_inade jwithout fault upon his part, entitles hiinfaT the^a me ^elief. How far this right would be afFected~by~negIect upon his part to give prompt notice of the mistake, or by any change af- fecting the situation or rights of the person to whom the payment is made, we are not called upon to consider. Here notice was given immediately ugon_discoyering_th e forg ery. Whatever securities were given up by the defendant, in consideration of the receipt of the forged note, had been given up before the payment was made. The discharge of the mortgage by Goodwin was the release of no substantial_right. If Goodwin received any title_to_thejnortga ge or moi ;tgaged^ premises by r eason of the lassignment ' jo_him^J]j_ rec^iyed_it_i n trust f or another, and in no event for his own benefit His discharge of it was therefore no injury in law to him. By the facts as they appear in the report, his discharge of the mortgage effected nothing except what by law or in equity he would be compelled to do. There is no reason, therefore, why the plaintilf should not recover; and there must be Judgment on the verdict.^ \ 1 106 Mass. 441. 2 Lewis V. White's Bank of Buffalo, 27 Hun, 396, contra. Conf. Bank of the United States V. Bank of Georgia, 10 Wheat. 333 ; Cook et al. v. United States, 91 U. S. 389- 396, 7. — Ed. 270 CORN EXCHANGE BANK V. NASSAU BANK. [CIIAP. II. THE CORN EXCHANGE BANK, Respondent, v. THE NASSAU BANK, Appellant. In the Court of Appeals of New York, January 16, 1883. [Reported in 91 New York Reports, 74.] Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made October 28, 1881, which affirmed a judgment in favor of plaintiff, entered upon a verdict. It appears from the complaint that on the 9th of November, 1874, Messrs. Kunhardt & Co. were depositors with the plaintiff, and on that day made their check upon it, payable to the order of William Ives and John Waters, for the sum of $19,000. On the next day it was presented, and then, pur- porting to be indorsed by the payees, was paid to the defendant and charged to the drawer's account. On the 23d of March, 1876, Kunhardt & Co. notified the plaintiff that the indorsement was forged, and com- menced suit for the recovery of the moneys withheld from them on account of said check, and obtained judgment therefor, with costs. Notice of this suit was at its commencement given to the defendant, and after payment of the judgment the plaintiff demanded repayment of the amount so paid, and offered to return the check to it ; being refused, it brought this action. Issue was taken by answer on the question of forgery, and it also set up that the clieck was received by the defendant from one B., its depositor, in the regular course of business, for collection, and after collection credited to him and so became subject to his check ; that his account continued and was good for an amount exceeding the check during the greater por- tion of the time from its date up to and including March, 1876; that it was retained by the plaintiff until December 3, 1874, when it returned it to Kunhardt & Co. ; that no steps were in the mean time taken by it to ascertain the genuineness of the indorsement, nor by Kunhardt & Co., until March 23, 1876; that the defendant's depositor, B. became insol- vent, and by reason of the omission of the plaintiff and Kunhardt & Co. to discover the forgery and notifv' the defendant, its position had been altered to its injury. Upon the trial it was conceded that the signature of the payees of the check was forged, and it was proven that neither the j)laintiif nor Kunhardt & Co. took any measures to ascertain its genuineness until the time above mentioned. There was also evidence from which it was apparent that if it had been otherwise the forgery would have been dis- covered and the defendant, if notified thereof, might have protected itself from loss by calling upon its dei)ositor, B. Various exceptions were taken during the trial, and at its close the defendant asked to go to the jury; first, upon the question " whether the defendant has not shown that it was SECT. I.] CORN EXCHANGE BANK V. NASSAU BANK. 271 injured to the full extent of the $19,000 and interest, or to some part thereof, by the plaintiff's negligence or laches in failing to give notice of the alleged mistake ; " second, whether it has not proved a loss suffered by- it in consequence of the mistake committed by the plaintiff", to the full extent of the check and interest; third, whether, in consequence of the recognition by the plaintiff' of the check in question, the defendant did not pay out to its depositor, B., the moneys held on deposit for him on that and subsequent days, or some part thereof. This was denied. Thereupon the court directed a verdict for the plaintiff", for $27,553.43, made up, tirst, of the amount of the judgment recovered against the plaintiff" by Kunhardt «fe Co. ; second, of plaintiff"'s expenses in defending that action ; third, in- terest on the judgment. To the allowance of each item the defemlaut excepted. After verdict, in pursuance of this direction, the defendant moved upon the minutes for a new trial. It was denied. An appeal was taken from the judgment and the order denying a new trial, to the Ceu- eral Term, where both were affirmed, and from its decision the defendant appeals to this court. Joseph H. Choate for appellant. John M. Bowers for respondent. Danforth, J. The general question involved is answered by a series of decisions by this court, in favor of the respondent. There is no imputation on the defendant with regard to the way in which it took the check of Kunhardt & Co., or the use made of it, but the plaintiff" was thereby in- duced to part with its money without consideration, and the defendant, who received it, is bound to make restitution, unless the plaintiff", by some act or omission of its own, has lost the right to demand or sue for it. White V. Continental Nat. Bank,^ and cases there cited by Allen, J.^ The appellant contends that it was the plaintiff's duty to examine and ascertain the genuineness of the payee's indorsement before paying the check, and that in default of doing so, it is as against the defendant es- topped from denying its genuineness ; but the authorities are the other way. Canal Bank v. Bank of Albany;^ Whitney v. Nat. Bank of Potsdam ;* Holt V. Ross ; ^ The Union Nat. Bank of Troy v. Sixth Nat. Bank of N. Y. ; « White V. Continental Nat. Bank ;'' Graves v. Am. Exch. Bank.** The recovery, however, should have been limited to the amount of money received by the defendant from the plaintiff", with simple interest to the time of the rendition of the verdict. The plaintiff" paid the check of Kunhardt & Co. at its own risk and without authority, and could have no defence to their action. Hall v. Fuller ; ^ Morgan v. The Bank of the State of N. Y.i° There was no privity between Kunhardt & Co. and this defend- 1 64 N. Y. 316. 2 21 Am. Rep. 612. 3 1 Hill, 287. * 45 N. Y. 303. 5 54 n. Y. 472. c 43 N. Y. 452. 7 64 N. Y. 316. 8 17 n. Y. 205. 9 5 B. & C. 750. " 11 N. Y. 404. 272 COKN EXCHANGE BANK V. NASSAU BANK. [CHAP, II. ant. The money received by it was not their money, and it was not liable to them. Their money was still on deposit with the plaintiff, and the plaintiff owed them for it. The cases cited by the plaintiff are not analogous. El wood v. Deifendorf ^ and Thompson v. Taylor'^ stand upon the technical relation of principal and surety, and even then the right to indemnity was held not to extend to expenses incurred in defending against the just claim of the creditor. In Delaware Bank v. Jarvis' the defendant was the vendor of the note in question, and had received from the plaintiff the agreed price thereof The costs in controversy were incurred in an action which failed because the note was void for usury taken by the vendor, and the recovery for costs allowed in that action was upheld upon the ground that the vendor of a chose in action impliedly warrants its soundness and validity, so far at least as he had been connected with its origin. In the other cases cited by the respondent, the plaintiff had become liable to costs in actions in which he had a remedy over against the then defendant, but in none of them did it appear that the action in which the costs were incurred was caused in whole or in part by the wrongful act or omission of duty on the part of the origi- nal defendant. No case I think can be found in which the right to costs of defending an action so caused has been upheld, and that is precisely the position of the plaintiff here. It did not buy or propose to buy the check of the defendants ; it assumed to pay it as the obligation of Kunhardt &, Co., and when informed by them that the condition — indorsement by payee — on which alone they authorized payment, had not been performed, they took the risk of defeat by joining issue with their principals, and with- held their money until it could be determined. It w\as the business of the plaintiff as between itself and its depositors, to see to it that their money should not be expended except as they directed (Weisserv. Denison ;* Mor- gan V. Bank of State of N. Y. ; ^ Graves v. Am. Exch. Bank ; ® Welsh v. German Am. Bank ''), and having failed to do so, cannot charge the expense of an action caused by such default upon a third party. The defendant's liability in the present action stands upon a different and entirely distinct ground, — the receipt of money paid under a mistake and without considera- tion.^ The same principle forbids rests in the computation of interest upon the amount paid.^ All concur, except Rapallo, J., absent. Judgment accordingly. 1 5 Barb. 398. ^ 72 N. Y. 32. 8 OQ N. Y. 226. « 10 N. Y. 68. 6 11 N. Y. 404. « 17 jj. y. 205. 7 73 N. Y. 424. 8 Cmif. Star Ins. Co. v. New Haniden Bank, 60 N. II. 442. —Ed. 3 A portion of the opinion relating to the admissibility of evidence has been omitted. — Ed. SECT. I.J DE HAIIN V. HARTLEY. 273 DE HAHN V. HARTLEY. In the King's Bench, June 30, 1786. [Reported in 1 Term Reports, 343.] This was an action upon promises brought by the plaintiff (an under- writer) to recover back the amount of a loss which he had paid upou a pohcy of insurance. Plea the general issue. The cause was tried before Buller, J., at the sittings after last Easter term at Guildhall, when the jury found a special verdict which stated — That the defendant, on the 14th June, 1779, at London, gave to one Alexander Anderson, then being an insurance broker, certain instructions in writing to cause an insurance to be made on a certain ship or vessel called the Juno, which were in the words and figures following : " Please get X2000 insured on goods as interest may appear ; slaves valued at £30 per head ; comwood £40 per ton ; ivory £20 per hundred weight ; gum copal £5 per pound ; at and from Africa to her discharging port or ports in the British West Indies ; warranted copper-sheathed, and sailed from Liverpool with 14 six-pounders (exclusive of swivels, &c.), 50 hands or upwards, at 12, not exceeding 15 guineas. Juno — Beaver. S. Hartley & Co., June 14th 1779." That the said Alexander Anderson, in consequence of the said written in- structions from the said defendant on the said 14th June, 1779, at London aforesaid, etc., did cause a certain writing or policy of assurance to be made on the said ship or vessel called the Juno in the words and figures following (re- citing the policy); which was upon any kind of goods and merchandises, and also upon the body, tackle, apparel, etc., of and in the ship Juno, at and from Africa to her port or ports of discharge in the British West Indies, at and after the rate of £15 per cent. The verdict, after reciting two memoranda, which are not matei'ial, then proceeded to state, that in the margin of the said policy were written the words and figures following, " Sailed from Liverpool with 14 six-pounders, swivels, small arms, and 50 hands or upwards ; copper sheathed." That on the said 14th June, 1779, and not before, at London aforesaid, etc., the plaintiff underwrote the said policy for the sum of £200, and re- ceived a premium af £31 10s. Od. as the consideration thereof That the said ship or vessel called the Juno, sail ed fro m Liverpoo l afore- said, on the 13th October, 1778, havin g then only 46 hands on board lier, and arrived at Beaumaris, in the isle of Anglesea, in six hours after her sailing from Liverpool as aforesaid, with the pilot from Liverpool on board her, who did pilot her to Beaumaris on her said voyage ; and that at Beau- 18 274 DE IIAIIN V. HARTLEY, [CIIAI'. II. maris aforesaid the said ship or vessel took in six hands more, and then had, and during the said voyage until the capture thereof hereinafter mentioned, continued to have, 52 hands on board her. That the said ship or vessel in the said voyage from Liverpool aforesaid to Beaumaris aforesaid, until and when she took in the said six additional hands, was equally safe as if she had had 50 hands on board her for that part of the said voyage. That divers goods, wares, and merchandises of the said defendant of great value, were laden and put on board the said ship or vessel, and remained on board her until and at the time of the capture thereof hereinafter mentioned. And that on the 14th March, 1779, the said_shipjor_vessel, while she remained on the coast of Africa, and before her sailing for her port of discharge in the British West India Islands, was, upon the high seas, with the said goods, wares, and merchandises on board her as aforesaid, met with by certain enemies of our Jo rd the now king, and captured by them, etc., and thereby all the said goods, wares, and merchandises of the said defendant, so laden on board her as aforesaid, were wholly lost to him. That when the said plaintiff received an account of the said loss of the said ship or vessel, ho paid t o the said defendant the said sum o f £200 so insured by him as aforesaid, not having then had any notice tha t jth^ said ship or vessel had only 46 hands on board her when she sailed from Liver- pool as aforesaid. But whether upon the whole matter, etc. Law for the plaintiff. Wood for the defendant. Lord Mansfield, C. J. There is a mater ial distinction between a warranty and a represen tation. A representation may be equitably and substantially answered ; but a warranty must be strictly complied w ith. Supposing a warranty to sail on the 1st of August, and the ship did not sail till the 2d, the warranty would not be complied with. A warrant y in a policy of insurance is a condition or a contingency, and unless that be per- f oHTied there is no contract . It is perfectly immaterial ^or what purpose a wa rranty is i ntroduced ; but, being inser ted , the co nt ract does not exist unless it be literally compl ied with. Now in the present case, the condition was the sailing of the ship with a certain number of men ; which not be ing complied with, the policy is void. AsiiHURST, J. The very meaning of a warranty is to preclude all ques- tions whether it has been substantially complied with ; it must be liter- ally so. Bui.LER, J. It is impossible to divide the words written in the margin in the manner which has been attempted ; that that part of it which relates to the copper sheathing should be a warranty, and not the remaining part. But the wliole forms one entire contract, and must be complied with throughout.^ • Judgment for the 2ilank V. Ayers ; ''■ Porter v. Judson.' The note, therefore, was not dishonored, and the plaintiffs were discharged from all liability as indorsers. Thoy paid it under the supposition that it had been dishonored, and that their liability had been fixed. They had received notice that it had been dis- 1 9 Mass. 403. ^ ](; j-j^.k. 392. 8 j Gray, 175. SECT. I.] MALCOLM V. FULLAllTON. 287 honored, signed by the notary, and forwarded to them by the defendant bank. They had the right to rely on this notice, thus forwarded, as true, and the payment made by them in consc(]uenco was a payment made under a mistake of fact on their part, and they are entitled to recover the amount paid in this action. ' Garland v. Salem Bank.^ Interest on the amount paid by the plaintiffs is recoverable only as dam- ages for the wrongful detention of the money by the defendant. Nothing ill the facts agreed shows that the plaintiSs made any demand for the money before bringing suit. Under these circumstances, interest should be computed from the date of the writ only. Ordway v. Colcord.^ Judgment for the p[ai7it>Jfs accordingly/. MALCOLM AND Another, Assignees op MAYNE and GRAHAM, Bankrupts, v. FULLARTON. In the King's Bench, November 8, 1788. [Reported in 2 Term Reports, 646.] Upon a rule to show cause why the award wliich had been made in this cause should not be set aside, it appeared that there had been accounts between the bankrupts and the defendant, and that the latter had paid 1500/. after the bankruptcy to the plaintiffs as assignees, which was only a part of the sum they demanded. The present action had been brought to recover a further sum claimed as due from the defendant to the bankrupts' estate ; to which the general issue only had been pleaded ; and pending the suit, it was agreed to refer all matters in difference between the parties in the cause to the determination of an arbitrator, who, upon examination of all the accounts between the parties, awarded the sum of 700/. to be paid by the plaintiffs to the defendant on a particular day. Bearcroft, Garrow, and Park, for the plaintiffs. Erskine and Adam for the defendant. Lord Kenyon, C. J. The first objection which has been raised against this award, namely, that the arbitrator has exceeded his authority, would, if it were well founded, be destructive of it. But that is answered by reading the terms of the reference ; by which it appears that " all matters in difference between the parties in the cause" were referred. "The parties in the cause " is merely a description of the persons, and not of the subject matter in dispute. And indeed this is the constant form of these submis- sions to awards, which are intended to include all matters in dispute between the parties. AVith respect to the latter objection, that the arbitrator has awarded a particular sum to be paid in solido on a certain day, instead of 1 9 Mass. 408. '^ 14 Allen, 59. 288 MALCOLM V. FULLARTON. [CILVr. IL directing him to go before the commissiouers to prove this debt ; if this liad been a debt due from the bankrupt to the defendant, the objection would have holdeu ; but this debt was not contracted before the bankruptcy, for the defendant inadvertently paid a sum of money to the assignees after the bankruptcy, which it now appears was not due to them. That sum therefore could not be proved under the commission ; and tlie arbitrator could only award that the sum which was overpaid to the assignees should be repaid by them to the defendant in solido. AsHHURST, J. I cannot conceive that any injustice has been done to the parties in this cause. The award recites that there was an account between the parties, consisting of items on both sides, and that a gross sum was paid by the defendant to the assignees. And it now appears that part of that sum was paid on a mistake ; therefore that money was received by the assignees in their own wrong ; it never constituted a part of the bankrupt's estate. The defendant is of course entitled to receive that sum in gross ; and if the arbitrator had awarded otherwise, he would have done great injustice. BuLLER, J. The first question which has been made in this case, is of very general importance, because it extends to all references, and must settle the meaning of the terms of a general reference. This question came before the court in the case of Bridgewater v. Gandersequi,^ where the words in the rule of reference were similar to the present. Erskine then contended that those words only included the matters in dispute in that cause ; and that the arbitrator had exceeded his authority, in taking into consideration any other matters in difference between the parties. Howarth, in answer, insisted that the terms of the reference were descriptive of the parties in the cause, and not of the particular cause between the parties ; and of that opinion was the court. Here therefore is an express determi- nation on the point. On inquiry I find that the difference in practice, where the parties intend to refer only the cause, or all matters in differ- ence between the parties, consists in transposing the words ; in the first instance the words in the rule of reference are, "all matters in difference in this cause between the parties ; " and in the latter, " all matters in difference between the parties in this cause ; " as in the present case. An argument has been drawn at the bar from the subsequent words, by which it is agreed that the costs should abide the event of the cause ; from which it was contended that only the matters in that particular cause were in- tended to be refen-ed. But I do not think that those words will \^'arrant the conclusion which has been drawn from them ; for it is well known that the costs are subject to the will of the parties ; and sometimes they are referred in one form, and sometimes in another. The next question is, whether the arbitrator, by his award, has infringed on the policy of the bankrupt laws, and altered the disU'ibution of the bankrupt's eflects. I 1 Tr. 22 Geo. 3, B. K. SECT. I.] IliVING V. KIGIIAUDSON. 9^9 am clearly of opiuioii that this award docs not interfere with the bankrupt laws. The sum awarded to be paid by the assignees to the defendant was never paid into the bankrupt's liand.s ; it was part of a sum paid after the bankruptcy, and tlio defendant could never have proved it under the com- mission. Then it stands thus : money has been paid into the hands of the plaintiffs which was not due ; and oidy so much of it as was due at the time to be considered as part of the baid_v >tvA-^«^ */.vi*7 of which cannot entitle the plaintiffs to recover it back. ^ t-c-^^J^tcyliLrx^-Ci^^.^ Alderson, B. This is money paid, not under a mistake, but under & j^^^^ ^^ , bargain. True, it turns out to be a bad bargain ; but that will not affect . - , ; / its validity. But further, the money is paid to the sheriff for the purpose ^^"^^ */ / "~^ of being paid over to the execution creditor, subject only to the plaintiffs' '-^^*t^ '^■' 't,^^ ^ Otr^- supposed right under the deed. By the delivery of the writ to the sheriff .i'<»-. the goods are bound, and the property in them cannot afterwards be trans- ferred by t he debtor, except subject to the interest of the execution cred- itor. There can be no doubt that the delivery to the deputy in London is a delivery to the sheriff; the deputy is appointed for that vei-y purpose. The plaintiffs were wrong, and the sheriff right, at the time of the payment,/ and it was the duty of the sheriff to pay over the money to the execution!// creditor. Can it be argued, that after such paymeiit over, he can be com- pelled to refund it % I think not. I am of opinion, therefore, that the rule ought to be discharged. GuRNEY, B., and Maule, B., concurred. Rule discharged. AIKEN, Public Officer, etc. v. ELIZABETH SHORT, Executrix OF FliANCIS SHOUT. In the Exchequer, June 7, 185G. [Iiej)orted in 1 Hiuistone ^- Norman, 210.] Action for money had and received. Plea never indebted. At the trial before Platt, B., at the Middlesex sittings, in last Hilary term, the following facts were proved : The defendant was the widow and sole executrix of Francis Short, who died in 1853. One Edwin Carter had made a will, dated February 184G, by which he gave his property equally 20 306 • AIKEN V. SIIOKT. [CHAP. ll amougst his eight brothers and sisters, of whom George Carter was one. This will was proved after his death, which took place in 1847, by John Carter the younger. George Carter being largely indebted to Stuckey's IJanking Company, by deed dated the 15th Januar}-, 1855, conveyed to the banking company his one-eighth share in the property of Edwin Car- ter, to which he professed to be entitled under this will, subject to the charges upon it. George Carter was at that time indebted to the defend- ant, as executrix of Francis Short, in the sum of 200/., which was secured by an equitable mortgage of the property devised to him by Edwin Carter's will, and by the joint and several bond of George Carter, John Carter, and Charles Carter, dated October, 1850. The equitable charge was recited in the deed of the 15th January, and at the time of the execution of that deed it was agreed, as between George Carter and the bank, that the bank should pay off this sum of 200/. and interest. lu May, 1855, the bank made arrangements to sell the property. Before the execution of the con- veyance one Itichardson, acting as attorney for the defendant, applied to the bank for payment of the 200/., and interest, stating that he had applied to George Carter, who had referred him to the bank. The bank accord- ingly, through their attorney, paid to the defendant the sum of 22G/. 1G«. 6f/. The bond and instrument of mortgage were handed over by the de- fendant to the bank, and they took a receipt for the money due on the bond and mortgage. In August, 1855, John Carter produced a will of Edwin Carter, dated April, 1846, which appeared to be the true last will of Edwin Carter. This will, the existence of which had been kept secret by the Carters, had been prepared in the office of Francis Short, the defend- ant's testator, and was attested by him. Under this will George Carter took only an annuity of 100/., which ceased upon his making any assign- ment. The bank then applied to the defendant to refund the 22G/. 16«. 6(/. previously paid by them to her, and on her refusal to repay the money brought the present action to recover it back. Upon these facts, the learned judge directed a verdict for the plaintiff, reserving leave to the de- fendant to move to enter a verdict for him. Montague Smith in the same term obtained a rule 7iisi accordingly^ against w^hich Knoivles and Field now showed cause. M. Smith and G^-ay in support of the rule. Pollock, C. B. ^Ve are all of opinion that the rule must be absolute. The case, when examined, is quite clear, and the facts lie in a narrow com- pass. The defendant's testator. Short, had a claim on Carter, — a bond and a security on property which (,'arter afterwards mortgaged to the bank. The defendant, who was the executrix of Short, applied to Carter for payment. lie referred her to the bank, who, conceiving that the de- fendant had a good equitable charge, paid the debt, as they reasonably might do, to get rid of the charge affecting their interest. In consequence SECT. I.] AIKEN V. SHORT. 307 of the discovery of a later will of Edwin Carter, it turned out that the de- fendant had no title. The bank had paid the money in one sense without S any consideration, but the defendant had a perfect right to receive tlic ) money from Carter, and the bankers paid for him. Tliey should have taken / care not to have paid over the money to get a valueless security ; but the defendant has nothing to do with their mistake. Sjjp]>ose it was announced that there was to be a dividend on the estate of a trader, and persons to 'whom he'was imiebted weiil to an office ^n^^receTvecT instalments of the 'debts due _to them , could the party p aying recover back the money if it . ' * ' ^"^<-*-r. t jirned out that he was wro iigjn supposing that liTTiM~^fuird"s~ln~Iraiid1 '^ '^•^'It^, The money was, in fact, paid by the bank, as the~agents of Carter. '^^ A. , J^^ct^^ Platt, B. I am of the same opinion. The action for money had and / y ^^ j» ^ received lies only for money which the defendant ought to refund ex oequo \ ' ^'^-^-a et bono. Was there any obligation here to refund 1 There was a debt due [ ''^^'^'^•''- yi^j to Short, secured by a bond and a supposed equitable charge by way of / y i^cx, "i^, collateral secui-ity. The property on which Short had the charge was con- 1 ^ veyed by Carter to the bank. Short having died, the defendant, his execu- trix, applied to George Carter for payment of the debt due to her husband, the testator. Carter referred her to the bank, who paid the debt, and the bond was satisfied. The money which the defendant got from her debtor \ was actually due to her, and there can be no obligation to refund it. ( Bramwell, B. My brother Martin, before he left the court, desired me to say that he was of the same opinion, and so am I. In order to entitle a person to recover back money paid under a mistake of fact, the mistake must be as to a fact which, if true, would make the person paying liable to pay the money ; not where, if true, it would merely make it desirable that he should pay the money. ^ Here, if the fact was true, the bankers were at liberty to pay or not, as they pleased. But relying on the belief that the defendant had a valid security, they, having a subsequent legal mortgage, chose to pay off the defendant's charge. It is impossible to say that this case falls within the rule. The mistake of fact was, that the bank thought that they could sell the estate for a better price. It is true that if the plaintiff could recover back this money from the defendant, there would be no difficulty in the way of the defendant suing Carter. In Pritchard v. Hitchcock ^ a creditor was held to be at liberty to sue upon a guarantee of bills, though the bills had been in fact paid, but the money afterwards recovered back by the assignees of the acceptor, as having been paid by way of fraudulent preference. But that does not show that the plaiutills can maintain this action, and I am of opinion they cannot, having volunta- rily parted with their money to purchase that which the defendant had to sell, though no doubt it turned out to be different to, and of less value than, what they expected. Rule absolute. 1 See Wilson v. Thombury, L. R. 10 Ch. 239. 2 g m. & G. 151. 308 CHAMBERS V. MILLER. [CHAP. II CHAMBERS v. MILLER and Othbbs. In the Common Pleas, November, 20, 1862. [Reported ("n 13 Common Bench Reports, New Series, 125 ] This was an action for an assault and false imprisonment. The defend- ants justified the assault under the circumstances hereinafter stated. The cause was tried before Ehle, C. J., at the sittings in London after the last term. The facts which appeared in evidence were as follows: — The plaintiff, who was clerk to a merchant at Sundei'land, went to the banking-house of Woods & Co. at that place (the defendants), and presented to one of the cashiers named Armstrong a check for 15U. 10s. 6cZ., drawn upon the Ijankers by one of their customers. Armstrong — who had been absent a few weeks fi-om the bank, and therefore was not aware that the drawer's account was insufficient to meet the check — received the check, and took the amount from the till in notes, gold, and silver, and placed it on the coiuiter and went away. The plaintiff drew the money towards him, counted it over, and was in the act of counting it a second time, when the cashier (who had in the mean time ascertained on inquiry that the account of the drawer was very considerably overdrawn) returned and said that the check could not be paid. The plaintiff, however, having possession of the money, put it in his pocket ; whereupon the cashier detained him until he returned the money, imder a threat of giving himTnto custody on a ch arge of s tealing it, and restored the check uncancelled, which was afterwards presented to the drawer and paid by him. Upon these facts, Tiis Lordship ruled that the property in the money %. had passed to the bearer of the check, and consequently that the defend- ants' justification failed. The jury returned a verdict for the plaintiff, damages 20/. Bovill, Q. C, on a former day in this term, pursuant to leave reserved to him at the trial, obtained a rule nisi to enter a verdict for the defendants. He suljmitted, that, as the plaintiff was still counting the money at the time the payment was recalled, there had been no complete acceptance on his part to vest the property in him ; and that, at all events, the money was recoverable back, as having been paid under a mistake of fact, upon the principle laid down in the cases cited in the notes to Man-iot v. Tlampton.* Overend, Q. C, and Lervers now showed cause. Bovill, Q. C, Manist;/, Q. C, and T. Jones, in support of the rule. Erle, C. J. I am of opinion that this rule sliould be discharged. This 1 7 T. R. 269 ; 2 Sinitli's L. (". 5th VA., :556, et scq. SECT. I.] CHAMBERS V. MILLER. 309 is an action for a trespass committed by the defendants, in assaulting and imprisoning the phiintiff under a plea that certain money whicli was in the pocket of the plaintiff was the property of the defendants, and that the latter had a right to detain him and take it from him. The question reserved for our consideration ^ and upon which we are called upon to decide both as judge anil jury — is, whether, under the circumstances proved at the trial, the money had passed to the plaintiff or still remained the property of the defemlants. The ordinary rule of law is, that the property in a chattel passes according to the intention of the parties. In un ordinary transaction of sale, where the proposed seller says to the pro- posed buyer, "I will sell you such and such goods at such a price," the assent of the buyer signified by the word " done " is enough to fix the right of property. In the case of a gift, the property passes by delivery. And so ^dth all the ordinary transactions of life. With regard to checks, the well-known course of business is this, — When a clieck is presented at the counter of a banker, the banker has authority o n the part of his cus- tomcr to pay t he amount therein specified on his account . The money in the banker's hands is his own money. On pre sentment of the check, it is for t he ban ker to consider whether the state of the ac count between him and h is customer will justify him in passing the property in the money to the holder of th e check. In th is case, the banker's cler k "TTad-gone througlT " tFat process, and so far as in him lay, did that which would pass the prop-"^^ crty in the mon ey to the plai ntiff. He counted out the notes and gold and placed them on the counter for the plaintiff to take up. It no longer remained a matter of choice or discretion with him whether he would pay the check or not. The plaintiff had taken possession of the money, counted it once, and was in the act of counting it again, when the clerk, who had gone from the counter, finding that there was a mistake, not as between him and the bearer of the check, but as between him and the customer, returne d and claimed to revo ke the act of p ayment which on hisjpart was already comple t e, and claimed to hav e the mon ey back. Now, the banker s had partedjvith the money, and the plaintiff had accepted it . It is true he had not finished counting it, and that, if he had found a note too much or a note short, there was still time to I'ectify the mistake. But, according to the intention of the parties, and the course of business, the money had ceased to be the money of the bankers, and had become that of the party presenting the check. It was th e cle ar opinion of th e jury that the prop- erty passed : and equally clear am I, if it was a question of law for mo , | t^^^h?_]2Hl!i£L^_^'1^2_2lL^'^'^*' which took place, p ass the pi-opcity in the | /-- money to the holder of the check. On that grouTid I am of opinion that I the plaintiff is entitled to retain his verdict. That which passed amounted to payment of the check ; and the plaintiff was entitled to retain the money. Some of the cases which were cited might be applicable if tlie customer had obtained by mistake from the banker UKMiey to wiiich he was not 310 CHAMBERS V. MILLER. [CIIAP. IL entitled. lu Kelly v. Solari,^ the administratrix was not entitled to receive the money. The policy under which the payment had been made to her was a lapsed policy, and the money was paid under a mistake of fact. That beintr so, and it being against all equity and good conscience that she should retain it, the money was held to be recoverable back. But, as between the parties here, there was no manner of mistake. The banker's clerk chose to pay the check ; and the moment the person presenting the check put his hand upon the money it became irrevocably his. Williams, J. I am entirely of the same opinion. Drawing the inference which is fairly deducible from the facts proved, it seems to me that the person who acted as cashier of the bank upon the occasion in question meant to part with the money, and that the person who presented the check meant to receive it and did receive it. There was a complete and absolute transfer of the money under the authority of the drawer of the check. It is said that the transaction was not complete, because the plain- tiff had not finished counting the money, and therefore that he did not consider that the matter had come to an end. I cannot by any means < fl assent to that. The recipient had a right to count the money or he might if he pleased have taken it off the counter without counting it. I see no ground whatever for saying that the transaction was incomplete. There was no evidence that anything farther remained to be done to complete it. The act of counting was no indication on the part of the plaintiff that he had not accepted the money. That argument was founded upon a mistaken view of the mode in which the question arises. Where money is paid, not in performance of a promise, at the precise day on which it ought to have been paid, but in satisfaction of a breach of promise, there must be not only payment but acceptance in satisfaction. That, however, is not so where the payment is made in performance of an agreement on the precise day, or where the creation of the right to receive the money and the act of payment are simultaneous. In these cases, where the money finds its way into the hands of the person to whom the payment is to be made, the transaction is complete. If, in this case, after the money had been placed bv the cashier upon the counter, and drawn towards him by the plaintiff, a thief had come in and stolen it whilst he was in the act of counting it, the loss would clearly have fallen upon the plaintiff, and the bankers would not have been luuler any obligation to pay the amoimt over again. Then it is said, that, the money having been paid under a mistake of fact, money \vii\ and received would lie to recover it Vtack, and therefore that the de- fendants were justified in seizing the plaintiff and forcibly regaining pos- session of it. It is quite unnecessary to consider that. There was no mistake of fixct within the meaning of the rule on the subject. One acting as the cashier of the bank, with the authority of the bankers, transfers the possession of the money to the })laintiff under an impression that he is the > <• M. &. W. r.L LU SECT. I.] CIIAMRERS V. MILLER. 311 bearer of a genuine check, and takes the check from him in the ordinary way. All the facts are precisely as the cashier a2){)reheiulcd them. Tlicre is no mistake. It may be, that, if the cashier had at the time been aware of the state of the customer's account, he would not have paid the check. But, if we were to go into all the remote considerations by which parties may be influenced, it would be opening a very wide field of conjecture, and would lead to infinite confusion and annoyance. Byles, J. I am of the same opinion. The property in the money passed to the recipient, and the check was paid. It is true that the money re- mained upon the banker's counter. But a banker's counter is no more than a table which is provided by the banker for the more convenient carrying on cash transactions between him and his customers and those who come to pay and receive money there ; and the same rule must be applied whether the payment is made from one side of the counter or the other. Here, the check was received by the cashier, and the money handed over to the person presenting it. The latter had counted the money once, and was in the act of counting it again, when the cashier claimed a right to recall it. I must confess that I should be inclined to hold, as matter of law, that, so soon as the money was laid upon the counter for the holder of the check to take, it became the money of the latter. It has been sug- gested that it was still competent to the party to object to one of the notes, — for instance, that it was forged. What then % The only consequence would be that he would have a right to demand another note in place of it. His right to rescind the transaction so far would not prevent the prop- erty in the rest from vesting in him. The only point upon which I have felt any hesitation, is, whether there could be any retractation of the pay- ment. I think, however, it would be exti-emely dangerous, and would create a great sensation in the city of London, if it were to be held in Westminster Hall, that, after a check had been regularly handed over the banker's counter and the money received for it, and in the act of being counted, the banker might treat the check as unpaid, because he has subsequently to his taking the check and handing over the amount ascertained that the state of the customer's account was unfavorable. If it were so held, it certainly would be so for the first time. This was not a payment made imder any mistake of facts. The bankers (or their agent, the cashier) had full notice in writing of all the facts. And, even if this had been a pay- ment made under such a mistake of facts as would have entitled the bankers to recover back the money from the holder of tiic check, by an action for money had and received, T must entirely withhold my assent from the proposition that they could justify the act of seizing the pei'son to whom they had voluntarily paid the money, and picking his pocket. I am quite aware that a question has lately arisen, as to whether or not a party (or his servants) whose property is wrongfully in another's possession may by retaking it administer summary redress to himself But, be that 312 MEKCHANTS' NAT. BANK V. NAT. EAGLE BANK. [ciIAP. II. as it may, when the subject-matter in question is money, the possession and the property in which are inseparable, T entertain no doubt whatever that he could do nothing of the sort. For these reasons, it appears to mo that there has been no failure of justice here, and that the plaintiff is entitled to retain his verdict. Keating, J. I also am of opinion, upon the facts proved in this case, that the verdict should stand. I cannot for a moment doubt that the delivery of the money by the cashier to the holder of the check was com- plete, and that the property in it vested in the latter. The cashier counted out tlie money, and placed it on the counter for the purpose and with the clear intention of putting it under the control of the person who presented the check. This was no conditional payment, — as if the cashier had said to the party, " I hand you this money in payment of the check, on condi- tion of your counting it, and assenting to its correctness." Suppose the plaiutiflFhad been content to take up the money without stopping to count it, — could anybody doubt that the property would have passed 1 It does not the less pass because the recipient chooses to count it before he puts it into his pocket. If, then, the property passed, the other question does not arise. IS'o case has ever yet held that a party has a right to retake by force property which has already passed and vested in another. Mr. Manisty has suggested, that, even if the property passed by the act of payment, it only passed in a qualified and limited manner, leaving the banker at liberty to revoke the payment on discovering that the customer had not sufficient effijcts in his hands. I cannot assent to that proposition. Having once parted with the money animo solvendi, it was out of his power to recall it. The plaintiff is clearly entitled to retain his verdict. Ride discharged.* MERCHANTS' NATIONAL BANK v. NATIONAL EAGLE BANK. In the Supreme Judicial Court of Massachusetts, March, 1869. [Reported in 101 ^fassachusetls Reports, 281.] (JoNTRACT to recover the amount of a check drawn on the jjlaintiffs by .lohn R. Williams, payable to the order of Hubbard lirothors, and by thcin iny the eleventh section it was provided that " the hour for making the exchanges at the Clearing Houso shall be ten o'clock before noon, each day ; " " at twelve o'clock, noon, the debtor banks shall pay to the manager at the Clearing House the balances due from them respectively;" and "at half jmst twelve o'clock after noon the creditor banks shall receive from the manager, at the same place, the balances due to them respectively, provided all the balances due from the debtor banks shall then have been paid to him." The thirteenth section provided that "errors in the exchanges, and claims arising from the returns of checks or other cause, are to be adjusted directly between the banks which are parties therein, and not through the Clearing House ; " and a subsequent section was as follows : " Whenever checks are se nt throug h the Clearing Hous e which are not go od, the y shall be retu r ned, by the bank s receiving the same, to the banks from whic h th ey were receiv ed, as soon as it shall be found that said checks are not good ; and in no casQ shall they be re tained after one o'clock." It was the usage for each bank "each morning, at ten o'clock, to have at the Clearing House, for the purpose of effecting settlements with other banks, all the checks and other demands, such as bills, etc., it had x-eceivcd against all the other banks during the preceding day, making them up into separate bundles for each bank, with a ticket containing the items and aggregate of the contents of each bundle ; tlie settlement was made at the Clearing House upon the footings of these tickets, without regard to the fact whether the contents of the bundle were correctly ticketed, or formed good claims against the bank charged with the contents of the bundle as per ticket; and in from ten to fifteen minutes past ten o'clock the messenger from each bank was able to receive and take to his bank all the claims of the other banks against it." Each bank was known at the Clearing House by a particular number. The plaintiffs' evidence showed that Hubbard Brothers deposited the check with the defendants on Saturday, June 15, 1867, but, as the banks were all closed on Monday, the 17th, it was not, and could not be, sent to the Clearing House until Tuesday, June 18. In the forenoon of the last named day the defendants sent it to the Clearing House in their bundle of demands against the plaintiff bank, and the amoimt of it was allowed to them in their settlement with the Clearing House later in the day. At about quarter past ten o'clock, the plaintiffs' messenger returned from the Clearing House and delivered to their paying teller the various bundles of demands against them ; and the teller, with an assistant, proceeded to open and examine them in the regular course of business of the plaintiffs ; as- certaining whether the contents of each bundle corresponded with the 314 merchants' NAT. BANK V. NAT. EAGLE BANK. [CHAP. II. ticket, and whether each check was in fact drawn upon the plaintiffs and was properly signed and indorsed ; marking the checks with the respective numbers of the banks which sent them to the Clearing House ; and tinally assorting them into three piles, and giving each pile to a bookkeeper to examine whether the drawers of the checks contained in it had funds deposited to meet the amounts drawn for. It was nearly twelve o'clock, when the teller finished his examination so far as to deliver the piles of checks to the bookkeepers ; and at half past twelve, the check in (juestion, with three others, each drawn l)y Williams, and sent to the Clearing House from four different banks, were returned to him by the bookkeepers as not good, there being no funds to meet them. At a quarter before one o'clock, and " as soon as he could in the performance of his other duties," the teller handed the four checks to the messenger, with directions to return them to the banks, with whose numbers they were marked, as not good, and to collect the amounts of them from those banks. The messenger made a mistake as to the number on one of the checks, went to the wrong bank with it, and was obliged to return to the plaintiffs' banking-house in order I to ascertain the true number. In consequence of this mi stake, it w as from five to seven minutes after one o'clock when he presented the check in questioir at~tlie defendants' banking-boiisc, where p:iyiuuiiL of iL was refused by the~defendauts on the ground that it had not been presented be fore one o'clock. The defendants asked the judge to rule that the plaintiffs could not maintain their action, " upon the ground that, on the plaintiffs' own show- ing, the check was not presented to the defendants until after one o'clock of the day upon which it was left at the Clearing House, and by the articles of association the defendants were not liable to refund the amount of a check not good, unless it was presented to them at or before one o'clock of the day when it was sent to the Clearing House ; and that the requirements in regard to the return of checks were to be availed of by the depositing bank as well for the protection of its depositors as for itself." But the judge ruled " that the Clearing House Association was an agi-eement between the banks for their own benefit and guidance ; that, if the plaintiffs delivered the check to a messenger before one o'clock, to be returned to the bank depositing it, in the usual course of their business, and with time sufficient, in the absence of any accident or mistake, to reach the depositing bank by one o'clock, it would be a compliance with the vote, especially in view of the language of tlie vote that the bank should not retain the checks after one; but that, irrespective of th is peculiar wording of the vote , the failure of the bank to return a check by one o'clock could l)e a defence to the depositing bank only to the extent that such bank was injured by such_ delay ; and that, if the bank c ould show thnt it hnd chantrod its positjoa after one, i n conse(|uence of the noii-return of said check, the vote of the Clearing House would protect it." SECT. I.] merchants' NAT. BANK V. NAT. EAGLE BANK. 315 Under these rulings, the defendants declined to offer evidence ; and a verdict was taken for the plaintiffs, and the case reported for the revision of this court. C. B. Goodrich for the defendants. *S'. Bartlett and D. Thaxter for the plaintiffs. Colt, J. This action is brought by the plaintiffs to recover the amount of a check drawn upon them and paid by them through the agency of the Boston Clearing House, there being no funds of the drawer in tlieir hands at the time of the payment. It is well settled by recent decisions that money paid to the h older of a check or draft drawn without funds may be recovered back, if paid by the ^ ^awe e unde r a mist a ke of fact. A nd thou^gh tlie rule was origmaily subject to the limitation that it must be shown that the party seeking to recover back had been guilty of no negligence, it is now held that the plaintiff in such case is not precluded from recovery by laches in not availing himself of the means of knowledge in his power. It is otlierwise if the money is inten- tionally paid without reference to the truth or falsehood of the fact, and with the intention that the payee shall have the money at all events. Appleton Bank v. McGilvray ; ^ Kelly v. Solari;'^ Townsend v. Crowdy.^ This right to recover back the money, however, will in no case be permitted to prejudice the payee who has suffered any damage or changed his situation in respect to his debtor by reason of the laches of the plaintiff", or his failure to return the check within a reasonable time. It is plain, in the case here presented, that if the plaintiffs had paid this check at their own counter under a mistake of fact, they could have main- tained this action to recover it back. Is there anything in the manner in which the payment was in fact made, or in the relation of the parties to each other as members of the Clearing House Association, which prejudicially affects this right ] It is declared by the articles, which were signed by the plaintiff and de- fendant banks, to be the object of the association to effect at one time and place the daily exchanges between the several associated banks, and the payment of the balances resulting from such exchanges. An early hour is fixed for making these exchanges, and a later time in the day for the re- ceipt and payment of balances from tlie debtor and creditor banks. These settlements are made, not from an examination in detail of the vouchers presented, but from memoranda and tickets accompanying them. And any mistakes resulting from this mode of settlement are to be adjusted directly between the banks which are parties therein. It is further provided that "whenever checks are sent through the Clearing House whicli are not good, they shall be returned, by the banks receiving the same, to the banks from ■which they were received, as soon as it shall be found that said checks are not good ; and in no case shall they be retained after one o'clock." Under 1 4 Gray, 520. 2 9 m. & \v. 54. 3 g q. 15. N. s. 177. 7 nngfl be retained after one o'clock. If it were necessar}' to save a penalty or a jbrteitu re, it might be held that the delivery of it to a messenger before one -o'clock, to be returned to the bank depositing it, with sufKcient time, in the absence of any accident or mistake, to reach the bank before that hour, would be a compliance with its terms, although it was not in fac t^ ^elJYer cd until sonieminutes after. Judgment on iJie va-dict for the plainti/Fs. SECT. I.] BOYLSTON NATIONAL BANK V. EICIIAKDSON. 317 BOYLSTON NATIONAL BANK v. HENRY L. RICHARDSON AND Others. In tue Supreme Judicial Court of Massachusetts, March, 18G9. [Reported in 101 Massachusetts Reports, 287.] Contract for mouey had aud received to the phxintiffs' use. Trial in the Superior Court, without a jury, before Putnam, J., who gave judgment for the plaintift's, and reported the case to this court as follows : — "The court fouud the following facts: On November 26, 18G3, Jamea Dennie borrowed $1000 of the defendants, and gave them therefor a check" in the usual form, drawn by himself on the plaintiffs' bank for that sum, dated November 25, 1863, and payable to the beai'er, " It was agreed between the parties at that time, that the check wa s not to be deposi ted immediately, but that th e defendants should let Dennie know a day or two before they wanted the money. About ten days afterwards, the defendants notified Dennie that they should want the money on the next day, and should deposit the check ; to which Dennie replied that there were no funds in the bank to meet it, but that he would see them again about it in a few days. No mention was made about the check by either party after that time, nor was any demand made on Dennie for the payment of it. "On Saturday, December 30, 1865, the defendants, without the knowl- edge of Dennie, deposited the check in the ordinary way in the Atlas Bank, with which they did business, together with other checks and cash, amount- ing in all to the sum of .$5530.74, and this amount was, on the same day, entered to their credit in their account as kept on the books of that bank ; but, by a usage known to the defendants, they were not entitled to draw out the amount of the check until after one o'clock on the Monday following, and not then unless it was collected by the Atlas Bank of the Boylston Bank in settlement through the Clearing House. "On Monday, January 1, 1866, the messenger of the Atlas Bank, in accordance with the usual course of business among Boston banks and with the rules of the Clearing House Association, of which both banks were members, too k the check to the Clearing House for collection i n the ordinary way, and there delivered it to the messenger of the Boylston Bank, w ho carried it to the bank and handed it to the paying teller, whose duty it was to receive it; which teller, supposing that Dennie had suflicient funds to meet it, passed it to the bookkeeper as good, and he entered iton his books to the account of Dennie. All this was done in accordance with the usual course of business at the bank in such case. Denni e at tha t time had not in fact the funds to meet the check, whicli fact was overlooked 318 BOYLSTON NATIONAL BANK V. RICIIAKDSON. [CHAP. II. or uot noticed by the teller. A copy of Deunie's accouut with the bank at that time was as follows : — Dr. BoYLSTON National Bank in acc't with James Dennie. Cr. Oct. 23, 1865 . . . SS81.45 Nov. 18, " ... 146.16 Bal. Oct. 2, 1865 . . $122.28 " 23, " . 870 Nov. 17, " . . 500 Dec. 29, " . 125 Bal. overdrawn 796 §2413.28 " 23, *' . . . 25 " 30, " ... 314.67 Dec. 1, " . . . 31 " 19, " ... 15 Jan. 1, 1866 . . . 1000 $2413.28 " It is a usage among the Boston banks, and a rule of the Clearing House, that, if a check passed through that House to the bank on which it is drawn is not good, it shall be returned to the bank from which it came, on or before one o'clock of the same day, otherwise no claim can be made upon that bank for the amount of the check. No notice was given to the Atlas Bank in conformity with this rule; the fact of the overdraft not being discovered until after that hour. On the Wednesday following, the paying teller of the Boylston Bank, having discovered that the check was not good, took it to the defendants, told them it was not good, that Dennie had no funds at the bank to meet it at the time they received it, and demanded of them the return of the money, which they declined to pay. It is a custom of the banks not to pay checks unless the whole amount of the check is on deposit at the time it is presented. " Upon the foregoing facts, I find that the money was paid by the plain- tiffs by mistake, and that they are entitled to recover back the amount, with interest, and order judgment for the plaintiflfs for that sum; to which finding the defendants except." W. Gaston and G. Morrill for the plaintiffs. T. K. Lothrop and R. R. Bishop, for the defendants, were stopped by the court. Wells, J. The plaintiffs and defendants were principals in the transac- tion out of which this suit arises. The agency of the Atlas Bank does not affect their relations, or their rights and obligations towards each other. The Clearing House re gulations do not preclude recovery . They m ay_ bear upon the question of laches as a question of fact, but are not conclusive u7jon that questlom Merchants' National Bank v. National Eagle Bank.^ Money paid under mistake of fact may be recovered back, if there has been no lache s^ and the situation of the other party remains unchanged ^ What constitutes such a mistake of facts as will entitle a party to re- cover is a question of law. The court below found generally that "the money was paid by the plaintiff by mistake," and that the plaintiff was 1 101 Mass. 281. SECT. I.] SOUTHWICK V. FIRST NATIONAL BANK OF MEMPHIS. 319 entitled to recover the whole amount of the check. The report does nut indicate whether the mistake upon which judgment was rendered related to the character of the check, or to the condition of Denuie's account at the plaintiffs' bank. The finding of the court is therefore not conclusive of the facts, in either aspect, except so far as they are stated in the report. 1. As to the character of the check ; in form it was adapted to the use that was made of it. It contained nothing to restrict its use in that mode. The parol agreement, giving it full effect according to the terms stat ed, does not appear_to J:he court to restrict the check from its ordinary use as a check. It provided ouly_tb at its use should be delay e d, and that the re should beliotice to Dennie a day or two be fore they wanted th e money; in both^^of w hich respects the agreemen t was con iplied with. Its deposit afterwards in no way contravened the agreement under which it was re- ceived. The Boylst on Bank paid it righ tfully, and Dennie cannot complainu of its use by the defendants, or it s payment by the plaintiffs. The payment may have been contrary to Dennie's intention, and in that sense a mistake ; but it was not a mistake of any fact which disentitled the defendants to receive the money in that mode. 2. The only mistake in regard to the state of Dennie's account appears to be, that the amount on deposit was not sufficient. It does not appear that th e plaintif fs' teller was misled in any way, or had any reason to sup- pose that the account was othe rwise than it was. No con siderable amount had recently been withdrawn. The amount to Dennie's credit had not Teen reduced during the preceding month. No expected credit had failed to be received. It was simply that the teller saw fit jto j)ay the check without taking the pr ecaution to hiform^himself of the state o f thjj,ccount. We see nothing in the transaction which bears the character of a mistake of facTs, ui a legal sense, but only that ofTaches. IFThere are any tacts, not stated m the report, which led the mind of the judge, who heard the case, to the conclusion at which he arrived, they will avail upon another hearing. But upon this statement we think the judgment cannot be supported. Exceptions sustained. JOHN C. SOUTHWICK, Respondent, v. THE FIRST NATIONAL BANK OF MEMPHIS, Appellant. In the Court of Appeals op New York, March 8, 1881. [Reported in 84 New Yo7-k Reports, 420.] Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, in favor of plaintiff, entered upon an order 320 SOUTinVICK v. FIKST NATION.VL bank of MEMnilS. [chap. II. made the first Monday of January, 1880, overruling defendant's exceptions, and directing judgment upon a verdict.^ The nature of the action and the material facts are set forth in the opinion. Francis C. Barlotv for appellant. John E. Burrill for respondent. Earl, J. The defendant claims that the plaintiff failed upon the trial to establish by proof the cause of action alleged in his complaint. To de- termine whether this claim is well founded, we will first see what facts were proved, and thus ascertain for what cause of action the recovery was had, and then see if such cause of action is fairly embraced within the facts alleged in the complaint. The material facts, as proved, are as follows : Southwick, Thayer & Co. were a firm doing business in Memphis, Tenn., and J. N. Men-iam k Son were a firm doing business in Boston. On the 13th day of March, 187 3, George H. Thayer, a member of the Mempliis fir m, drew a draft upon that Irm, which was accepted by them, for $2500, payable in ^Memphis in forty days, to the order of the Boston firm. The latter firm indorsed the draft to F. P. Merriam, who became the owner and hold^er thereof, and he sent the draft to Memphis for collection. Shortly prior to the maturity of that draft A. X. Merriam, of the Boston firm, being at Memphis, was notified by the Memphis firm that probably they would not be able to pay the draft at maturity, and was asked if, in that case, they might draw on the Boston firm a new draft, the proceeds of which should be used to take up the old draft. This request was asse nted to on condition that they sh ould not draw the new draft without special authority. Early in May the ^lemphis firm notified the Boston firm that they would not be able to take up the old draft, and requested permission to draw. Whereupon, on the fifth day of May, the Boston firm sent them a telegram, as follows : " You may draw upon us at sight for $2500, to pay draft in our favor." On the next day the ^Memphis firm drew upon the Boston firm a sight draft for $2500, pay- able to their own order and indorsed by them ; and their book kee])cr, "NViggs, on their behalf, tflok it to the defendant's b ank, with which they had had previous dealings and an account, and asked de fendant's ca shier jf. he would discount it a nd let his firm check out the proceeds. This the cashier refused, but he said he would take the draft and pl acejt^to^tho credit of the drawers on over checks owing by them to the bank. Wiggs then consulted the drawers, and on the same day, with their assent, de- livered the draft to the bank to be discounted, the proceeds to be credite d to them in account, and they were thus credited. At that time the drawers were indebted to the bank in a much larger sum than the amount -/^ \ f of the draft. The bank had no knowledge of the telegram authorizing the drawing of the draft, or of the purpose for which the drawers were author- 1 Reported in 20 Hun, 349. SECT. I.] SOUTHWICK V. FIRST NATIONAL BANK OF MFMIMIIS. 321 ized to draw. The bank thus beca,me a &o?«a jWe holder of tli o d ruft for value, but not for value pa rted with at the time. Several days subse- quently the Memphis firm drew a check on the defendant to pay the old draft, and it refused to pay the check, on the ground that their account was not then good. After receiving the new draft and crediting its proceeds to the account of the drawers, the defendant sent it to its corresponding bank in Boston for collection. That bank presented it to the drawees for acceptance audi" payment, and it was accepted May 1 0th and paid May 13th, and the pro- 1 ceeds were credited by the Boston bank to the defendant, and were by itl subsequently checked out in the course of its business. jl The Memphis fi rm was n^, at the time of the negotiation of the new draft , known to be insolvent, but th ey became openly insolvent in the latter part of June or the fore part of July, 1873, and were subsequently put into bankruptcy. This suit was not commenced earlier than tlie 29th day of July. At th^^latter date the Boston firm and F. P. M erriam as- signed all their claims against the defen dant to t he plainti ff. Upon these facts the court directed a verdict for the plaintiff, and its ^ decision was probably based upon the theory that the defendant could be charged with a wrongful conversion of the draft, or upon the theory that the drawees paid the draft under a mistake of facts. In the opinion pronounced at the General Term, the judgment entered upon the verdict was sustained upon the latter theory, and the learned counsel for the plaintiff, in his ar- gument before us, attempted to sustain it upon both theories. It is entirely clear that no cause of action for a conversion of the draft, y>v to recover back money paid by mistake, is alleged in the complaint. On the contrary, the facts alleged show that there was no wrongful conversion of the draft, and that the money was paid under no mistake of any exist- ing facts, and no mistake is in any way alleged or to be inferred from the language used. The complaint first alleges the making of the old draft, and that the same was owned and held by F. P. Merriam ; that it had matured and be- come payable and had been forwarded to Memphis for collection ; that the Boston firm authorized the new draft to be drawn upon them in order to provide funds necessary to pay the old draft, and agreed to pay such draft upon condition that the proceeds should be used for that purpose only ; that the new draft w\as thereupon drawn and delivered to the defendant , whichjwas^ notified o f the obj ect and purpose for which the draft was au- thorized to be drawn, and for which the same was drawn, and that it re- fifiived the drnft nnd un dertook and agreed to collect the same for the purpose a foresaid, and that the proceeds thereof, when col lected, should b e applied to the payment thereof; that the draft was accepted and paid for the object and piirpose and upon the condition aforesaid, but that the de- fendant neglected and refused to apply the amount paid upon the old 21 ^ .J X ^ 322 SOUTH WICK V. FIRST NATIONAL BANK OF MEMPHIS. [CHAP. II. draft, although requested so to do ; that the draft remains unpaid and that J. N. Metriam & Co. and F. P. Merriam have sold and transferred the same and the moneys paid thereon to the plaintiff, together with all claim and cause of action against the defendant upon or by reason thereof, or by reason of the premises and the matters before alleged ; and judgment is demanded for .^2500, and interest from ISIay G, 1873. It is thus see n that the only cause of action alleged in the co mplaint ia based upon the promise of the defenda nt to take the draft, co llect it, an d apply t he proceeds upontheold^ draft . This is plainly and explicitly set out. T he proof entirely failed to establish such a cause of action, and th e objection that it did so fail was plainly and pointedly, several times, taken a. t the trial. The Code requires that the complaint must contain a plain and concise statement of the facts constituting the cause of action, and that the plead- ings must be libei'ally construed with a view to substantial justice between the parties ; and in section 723 ample power is conferred upon the court to amend pleadings at any stage of the action, and where the amendment docs not change substantially the claim or defence, to conform the plead- ings to the facts proved. Here, although the defect in the complaint was pointed out in due time upon the trial, no amendment was asked for or ordered. This is not a case where the pleadings can after the trial be con- formed to the proof, as such an amendment would change substantially the claim of the plaintiff as alleged. This is not a case of mere variance or mere defect, but a case of failure to prove the cause of action alleged in its entire scope. Pleadings and a distinct issue are essential in every system of jurisprudence, and there can be no orderly administration of justice with- out them. If a party can allege one cause of action and then recover upon another, his complaint will serve no useful purpose, but rather to ensnare and mislead his adversary. Here the defendant was brought into court to answer a complaint that he had violated his promise to apply the proceeds of the draft, and he took issue upon the alleged promise, and when he came to trial he was held liable, not for any breach of {jromise but for the money paid by the Boston firm on the ground of a conversion of the draft, or the mistake of facts which induced the payment of the money. The cause of action alleged was one held by the plaintiff, as assignee of F. P. Merriam, for the breach of the promise to pay the old draft owned by him. The cause of action for which the recovery was had was one which the plaintiff held as assignee of J. N. Merriam & Co., for the recovery of the money paid by them upon the new draft. It is no answer to this objectioH that the defendant was probably not misled in its defence. A defendant may learn outside of the complaint what he is sued for, and thus may be ready to meet plaintiff's claim upon the trial. He may even know precisely what he is sued for when the sum- mons alone is served upon him. Yet it is his right to have a complaint, to SECT. 1.] SOUTHWICK V. FIRST NATIONAL BANK OF MEMl'lIIS. 323 learn from that what he is sued for, and to insist that that shall state the cause of action which he is called upon to answer, and when a plaintilY fails j to establish the cause of action alleged the defendant is not to be deprived 1 of his objection to a recovery by any assumption or upon any speculation that he has not been injured. ' But passing this point the defendant further contends that the plaintiff ought to have proved a demand upon it for the draft, or the money paid thereon, before commencement of the suit ; but that he failed to prove such demand. It is not disputed by the plaintiff' that such a demand was necessary unless it was in some way waived by the defendant, or unless it was in some way estopped from insisting upon a demand. Whether t he action bo treated as one for the conversion of the draft, or of the money paid thereon, or for" tLe ~recovery^'of~mo1aey^ardn5y "m istake, a demand was a prerequisite to the maintenan ce of the action agai nst the defendant, who lawfully and innocently received the draft and the money paid thereon. The obligation of a party to refund money voluntarily paid by mistake can arise only after the notification of the mistake and a demand of payment. Powers v. Bass- ford ; ^ Sluyter v. Williams ; ^ Stephens v. Board of Education ; ^ Stacy v. Graham ; * Freeman v. Jeffries.^ Here the requisite demand was not only not proved, but was not alleged in the complaint. The only demand alleged was a request to apply the proceeds of the new draft upon the old one in pursuance of the alleged promise of the defendant. No demand to pay the money to the plaintiff or his assignors is alleged, and none was proved to have been made before the commencement of the action. There w^as no proof that, before the com- , mencement of the action, defendant had any knowledge of the telegram of May 6th, or of the purpose for which the drawers were authorized to draw the new draft, or of any claim that the drawees had paid the draft under any mistake, or that they claimed that the money paid should be refunded I to them. There is no proof even that it had any knowledge that the , draft or its proceeds had been improperly diverted.' It is shown that it 1 refused to pay a check drawn to take up the old draft and declined to pay jthat di'aft when presented, but it is not shown that they were, at the time I when the check and draft were presented for payment, or at any other time before the commencement of the suit, informed of the circumstances now relied upon by the plaintiff, connecting that draft with the new one. The plaintiff, at the trial, attempted to show a demand or an excuse for not making one by two letters, and unless such demand or excuse is found in these letters, it is not found in the case. The first letter is dated May 13, 1873, and was addressed by the Boston firm to W. W. Thacher, cashier of the defendant at Memphis. It is as follows : — ^ 19 How. Pr. 309. 2 37 How. Pr. 109. 8 3 Hun, 712. * 14 N. Y. 492. 6 L. R. 4 Ex. 189, 200, 201. 324 souTinviCK v. first national bank of Memphis, [chap. ii. Sir — We arc much surprised at the communication we have received this day from S. T. ik Co., relating to the position you have taken about the draft on us, viz. : not honoring their checks and allowing them to pay their draft in our favor. You had our explicit authority to draw on us (purpose specified also), and you have never yet had occasion rightly to doubt our honor and ability to pay all we contracted to, to the utmost farthing. We, of course, recog- nize your right to decline to cash their draft ; that must be as your own judgment dictates. But to obtain their obligations and retain the funds for two weeks, thus putting us to annoj'ance and inconvenience without just cause, is not in accord with our New England ideas of honorable business deahng. All through this unfortunate afi'air we have tried to act toward yoii in a perfectly frank and honorable manner. We showed our hand to Mr. Davis, and offered him every thing we could and certainly don't " back water " now ; but we can't submit to transactions of this kind. We wonM like to hear why you seem to have lost confidence in us. By letting S. T. & Co. pay our draft you don't hurt your case. Answer. YourS, etc., J. M. Merriam & Son. Here is no intimation that the new draft or the money paid thereon had been diverted or wrongfully converted, and there is no notice of any mis- take inducing the payment of the draft, and no demand of any kind. To this letter Thacher replied under date of May 20, as follows : — Gentlemen — Your favor of the 1 3th is before me and I do not exactly understand it. Messrs. S. T. & Co. were overdrawn on our books, say $G800 ; they de- posited with me a sight draft on you for $2500, which was placed to their credit, and they were informed at the time that no check would be allowed against it, but it must go to reduce their overdraft. I had no intention of taking the draft, except to reduce their account. If you understand the transaction different, I would be pleased to hear from you and we will compare notes regarding it. Respectful 1}', W. W. Thacher, Cashier. This was a perfectly frank and fair letter, explaining the situation, saying that he did not exactly imderstand the prior letter, Avhich was certainly ob- scure and confusing, and asking for information in case the writers of the prior letter understood the facts differently from what he stated them. This letter contained no refusal to comply with any demand if one had been made, and no position was taken therein which excused a demand, or precluded the defendant from insisting upon one. This, so far as appears, ended the correspondence between the parties, and the suit fillowefl. It SECT. I.] SOUTHWICK V. FIRST NATIONAL BANK OF MEMPHIS. 325 matters not that it is quite probable that tlie defendant would not have complied with a demand if one had been made, for that does not dispense with the necessity of making one. When ji dem and is n ecessa ry it is no t excused by showing that the defendant would not jn-obably have complied ifon"e'lia d"17c en~made. A nd it matters not that the defendant has, upon the trial, contested the plaintiff's right to recover. That has occurred since the commencement of the action, and the plaintiff's right of action must have been perfect when the suit was commenced. The objection that no demand was made was distinctly taken on the trial, when the plaintiff offered in evidence the first letter, and in defend- ant's motion to nonsuit the plaintiff at the close of plaintiff's evidence, and again at the close of all the evidence. We are therefore of opinion that the point we have just considered was ■well taken. But upon the assumption that the complaint is sufficient and that a proper demand was made we are of opinion that the facts proved did not warrant the verdict ordered. Here there was no conversion of the draft by the defendant. It was de- livered to it by the only persons at the time liable thereon. If the tele- gram of the drawees be regarded as an unconditional promise in writing to accept the draft it did not bind them as acceptors because the defendant did not receive the draft "upon the faith" of the telegram. 1 R. S. 769, i § 8 ; Greele v. Parker ; ^ Bank of Michigan v. Ely ; ^ Barney v. Worthing- ton ; ' Johnson v. Clark.* After the defendant received the draft from the drawe rs it could hold it^against them as drawers and indorsers th ereof, and no one coul d control their dominion over it. The drawees could not have then sued it for the conversion or for the possession of the draft, or to re- strain any use which it might choose to make of it. After the defendant obtained the draft all it did with it was to present it for acceptance and payment to the drawees, and after payment it delivered the draft, as we must presume, to them. It thus parted with the possession of the draft to them, and there was no wrongful conversion of it of which they could complain. And so this case is unlike the case of Comstock v. Hier,^ which is very much relied on by the learned counsel for the plaintiff. In that case Comstock was the indorser of the note which it was claimed Hier had wrongfully converted, and it was held that Comstock was in such relation to the note that he could sue for a wrongful conversion thereof, or for the proceeds received upon the wrongful conversion thereof The recovery was there iipheld on the theory of a wrongful conversion of the note. But this recovery cannot be upheld upon that theory. The only other theory suggested for the maintenance of this action is | , that of mistake, and much can be plausibly and forcibly said in favor of / | \ this theory. It is certainly true that if the drawees had known what they 1 5 Wend. 414. 17 Wend. 508. « 37 N. Y. 112. < 39 N. Y. 216. 5 73 ]sr. Y. 269. >. 326 SOUTHWICK V. FIEST NATIONAL BANK OF MEMPHIS. [CHAP. II. now know, or if they had known that the proceeds of the draft were to be apphed otherwise than npon the old draft, they would not have accepted or paid the draft. But were they so mistaken that they can reclaim the money voluntarily paid by them 1 It is not every mistake that will lay the groundwork for relief. It must be a mistake as to some existing fact, not as to something to happen or to be done in the future. It must be a mistake as to some fact not remotely, but directly, bearing upon the act against which relief is sought. Dambmann v. Schulting.^ If it were the rule to relieve against mistakes as to remote or what are sometimes called extrinsic facts, great uncci'taiuty and confusion would attend business transactions. Here the draft was genuine, addressed to the drawees, who had authorized it to be drawn, and it was held by the defendant, which ^conld lawfully receive payment thereof There was n o mistake as to the intrinsic facts. The facts that the drawei's had not acted in good faith with the drawees, or bad placed the draft and its proceeds beyond their co ntrol, so th at the old draft might not be paid, were too remote. The mistake of the drawees was rather as to the application of the money paid by them — a future fact. If the defendant had received this money and applied it upon the old draft the precise expectation of the drawees would have been met and there would have been no ground of complaint. It is believed that no case can be found which holds that a party paying money, under the circumstances existing here, has been allowed to reclaim it upon the ground of mistake. The defendant's case may rest upon principles decided in the cases of Justh v. The National Bank of the Commonwealth,- and Stephens v. The Board of Education.^ In the Justh case one Gray bor- rowed plaintiff's checks for $40,000 upon forged collaterals. He took the checks and had them certified to be good by the drawee bank, and then de- posited them with the defendant, which received the money upon them. In that case the plaintiffs clearly parted with their checks nnder a mistake as to the genuineness of the collaterals. If they had known that they were forgeries they would not have parted with the checks. But upon the assumption that the defendant had parted with no value for the checks, or upon the faith of the checks, this court held that the i>laintiflfs could not recover the amount of the checks, treating them as money paid to the de- fendant. The decision was also put upon the ground that the defendant had parted with value for the checks, and thus rests upon both grounds. In the Stephens case one Gill obtained of the j)laintift' a sum of money upon the security of a forged mortgage, and paid the money to the defend- ant upon an antecedent debt ; and it was held that the plaintift" could not reclaim tiie money. Tliese decisions and others like them do not rest, as has been sometimes supposed, on the ground that money has no earmark, but upon grounds of public policy. As said by Judge Andrews in the Stephens case : " It would introduce gi*eat confusion into conmiercial deal- ' 75 N. Y. 55. ■- 50 N. Y. 178. 8 79 n. Y. 183. SECT. I.] SOUTHWICK V. FIRST NATIONAL BANK OF MEMnilS. 327 ings, if the creditor who receives money in payment of a debt is subject to the risk of accounting therefor to a third person who may be able to show that the debtor obtained it from him by felony or fraud," and if the plain- tiff in that case had shown that the very money he had loaned to Gill had been delivered to the defendant, the decision must have been the same. In the case of Gammon v. Butler^ the plaintiff gave her husband $100 in bills, to be by him carried and delivered to her children, and he paid the same money to the defendant upon an antecedent debt, and it was held that, in an action for money had and received, she could not recover, and the decision was based upon the same principles laid down in the cases of Justh and Stephens. A large share of the business of the world is carried on by means of bills of exchange drawn upon persons liable to pay or for the accommodation of the drawers willing to pay them. They pass from hand to hand by indorsement or mere delivery, and are generally payable at places distant from the places where they are drawn. The " protection and encouragement of trade and commerce," as said in the Maine case, and "considerations of public j^olicy and convenience," aud " the security and certainty in business transactions," as said in the Stephens case, require that when such a bill is paid to one who holds it in good faith and for value, he should not be called upon afterward to account for the money paid, perhaps, at a distant time or place after the accounts with the drawers have been settled and closed, upon proof that in transactions between the drawees and drawers, of which the holder has no knowledge or means of knowledge, there has been some fraud, or wrong, or mistake to the injury of the drawees. If this money can be reclaimed, public policy is just as much contravened as it would be if the money had been drawn from the drawees by the drawers and by them paid to the defendant. If the draw- ers had received this money from the drawees to pay the old draft and had used it to pay their antecedent debt to the defendant, it is conceded that the drawees could not have reclaimed it. How can it make any difference in principle that the money was paid to the defendant directly by the drawees upon the order of the drawers 1 Whether the money was paid in the one way or the other, the principles of public policy and convenience lead to the same conclusion. It matters not that the defendant, not being a holder for value parted with when it took the draft, could not have enforced it against the drawees even after acceptance. That was true m the case of the check in the Justh case. If the defendant in that case had parted with no value at the time it took the checks from Gray, it could not have sued tlie plaintiffs there as drawers. Yet after the plaintiffs, through the drawee bank, had paid the checks, it could not reclaim the money paid. Here the drawees could ha ve refused to accept the draft, and they might have refused to pay after ac- "^ceptance, and might probably have successfully defended an action upon 1 48 Me. 344. "A 328 SOUTHWICK V. FIRST NATIONAL BANK OF MEMPHIS. [CHAP. II. the draft. But having paid the draft, they must now look to the drawers who made an improp er use of the same, and wlio m law perpetrated a fraud u^on them, and they cannot visit the consequences of that fraud upon the innocent de fendan t. It is undoubtedly the rule in this State that one who signs commercial paper for the accommodation of another, for a particular purpose, can de- fend, when sued upon the paper by a person who took it as security for, or to apply upon an antecedent debt without parting with value at the time, by showing that the paper has been diverted from the purpose intended. This rule is an exception from the general rule of commercial law which protects one taking such paper in good faith and for value against the equities or defences of all prior parties to the paper.^ While this exception has been much assailed in other jurisdictions and is not recognized in England, or in the Federal courts, or in the courts of many of the States of the Union, it is believed that it more frequently than otherwise tends to just results. The holder of the paper in such cases is generally soon made aware of the defence, and can take measures to protect himself from harm. But it is carrying the exception one step further to hold that the accommodation signer of such paper can pay it, and then, at any time before the statute of limitations has barred his right, and after time has complicated or changed the relations of the parties, sue to recover back the money thus paid. The facts seem to disclose_another ground of defence to this action. The draft was of value to the defendant. It had the right in any event to hold it and enforce it against the drawers, and the drawees could not reclaim the money paid and at the same time retain the draft. They should, be- fore the c ommencement of the action, have demanded the money, fi nd tendered back the draft, and it is possible that a tender at the trial would be sufficient. As t his point was not rnade on behalf of the defendant, we will notice it no further and give it no weight in our decision. In this discussion we have assumed that the defendant took this draft without notice of the purpose for which the drawees authorized it to be drawn. We are justified in this assumption by the undisputed evidence. If the case had been submitted to the jury, and they had found that the defendant had such notice, the verdict would have been so ftir against tlie evidence that it would have been the duty of the court, ui)on application, to set it aside. Our conclusion, therefore, is that this recovery cannut be upheld, and the judgment should be reversed and a new trial granted. All concur, except Miller, J., dissenting ; Folger, C. J., and Andrews, J., concurring in result. Judgment reversed. 1 1 Par. N. & B. 218. SECT. I.] merchants' n. bank v. n. bank of commonwe.vltii. 329 MEECHANTS' NATIONAL BANK v. NATIONAL BANK OF THE COMMONWEALTH. In the Supreme Judicial Court of Massachusetts, June 23, 1885. [Reported in 139 Massachusetts Reports, 513.] Contract to recover $15,000, the amount of a check, dated September 3,| 1883, drawn on the plaintiff by Benjamin F. Burgess & Sons, in favor of] the Massachusetts Loan and Trust Company, and by it deposited, on Sep- tember 3, with the defendant. Trial in this court, before C. Allen, J.,i who reported the case for the consideration of the full court, in substance, as follows : — The plaintiff and defendant banks are members of an unincorporated association called the Boston Clearing House Association, whose rules and course of business are the same as set forth in the cases of Merchants' Bank v. Eagle Bank,^ and Exchange Bank v. Bank of North America,*^ to which reference is to be made. Benjamin F. Burgess & Sons were depositors with the plaintiff bank and kept a bank account with it, and Benjamin F. Burgess was one of the plain- tiff's directors. They were indebted to the plaintiff in the sum of $83,000 on three notes, payable on demand, with a pledge of warehouse receipts for 1270 hogsheads of sugar as collateral security, and in the further sura of $129,500 on three other notes, payable on demand, with a pledge of United States bonds and other securities as collateral. Demand was made for the payment of the notes for $83,000 on the 23d or 24th of August, 1883, and, within two days after the demand, Burgess told the plaintiff's president that he had sold or bargained to sell 217 hogsheads of the sugar; and the warehouse receipts were thereupon entrusted to Burgess, as agent of the bank, to enable him to deliver the sugar so sold, with the under- standing that the money received for the sugar should be brought to the bank and applied on the debt. The sugar was sold on August 23, to Nash, Spaulding & Co., who gave their check for $7500, dated September 1, and payable to Benjamin F. Burgess & Sons. This check was deposited with the plaintiff by that firm, on September 1, to the ci-edit of Benjamin F'. Burgess & Sons, and the same was entered to their credit in their bank account, the plaintiff not knowing at the time, nor until September 5, that it came from the sale of the sugar. Prior to that time, when Burgess t Sons had been allowed to dispose of goods pledged by them as collateral security to the plaintiff bank, they had usually deposited the money or check received upon the sale thereof, and then given their own check for the same amount to pay to the bank the amount received from the sale of 1 101 Mass. 281. 2 132 Jiass. 147. ~K ^ X A 330 MEECIIANTS' N. B-\>'K V. N. BANK OF COMMONWEALTH. [CIIAP. II. the collateral security. There was uo evidence of any prior instance in which they had failed, in this or in some other way, to return to the bank the proceeds of such sale, to be applied upon the debt. On the morning of September 4, there was an apparent balance of S17,U5.5G to the credit of the firm of Burgess & Sons, the item of $7500 being included as an item to their credit, entered on September 1, as above stated. During the forenoon of September 4, three checks of Benjamin F. Burgess & Sons, of 81000, $225, and $200, respectively, were paid over the counter by the plaintiff. On the same day the check in controversy in this action came from the defendant bank to the plaintiff bank through the Clearing House, where it had been provisionally paid, in accordance with the usual course of business in the Clearing House. This check was received by the plaintiff at about noon, and was in the first instance entered to the debit of Benjamin F. Burgess & Sons on the plaintiff's books ; but at about one o'clock the president of the plaintiff received the following communication, signed by tlie agent of J. S. Morgan &. Co. : — " Please take notice that any and all property and merchandise in your hands, pledged to you by Benjamin Burgess & Sons, and the proceeds of any such property and merchandise, is, and the same are, so far as not required for the purposes of such pledge, the property of, and must be accounted for, and paid over to, J. S. Morgan & Co." This led the president to think that Burgess & Sons were in financial trouble, and he then discovered that no payment from the avails of the sugar had been made upon the indebtedness for which the sugar had been pledged as collateral security. He looked at the condition of their bank account, and immediately gave directions to send back the check of $15,000 to the defendant, and to demand the re- payment of the money, as the check was not good ; and the entry of it in the account of Burgess & Sons was erased. At the same time, by the direction of the president, there was debited to the account of Burgess & Sons $29,500, which was the amount of one of the notes held by the plaintiff bank against them, for which other collateral was held as security, and this was afterwards, on the same day, corrected by substituting $23,000, the balance of one of the notes for which the sugar was held as collateral, upon which demand had been made. The messenger started from the Merchants' Bank with the check at two or three minutes after one o' clock, and demand was accordingly made upon the defendant at fi-om seven to twelve minutes after one o'clock , on September 4, on the ground that the check was not good ; and repayment was refused . The defendant had entered the check of $15,000 to tlie credit of the Massachusetts Loan and Trust Company on tlje day of its deposit, and the defendant did not change its position towards .said company in the interval lietwecn one o'clock and the time when the plaint itt"'s demand was made as aforesaid. Where there is not enough money on deposit to pay a check in full, the ordinary custom is to return the check as not good. SECT. I.] merchants' N. BANK V. N. BANK OF COMMONWEALTH. 331 The plaintiff held no surplus of security upon cither branch of the indebtedness of Burgess & Sons which could be applied to make good the $7500. The president of the plaintiff bank, who was the only principal officer testifying, and who gave the directions for the return of the check, had no knowledge on September 4 that the sugar pledged as collateral security was not sufficient to secure all of the notes of Burgess & Sons held by the bank for which the collateral was given. Burgess & Sons borrowed from the plaintiff' upon memorandum checks, $2000 on August 29, and $6000 on August 31, which sums were placed to their credit on those respective dates, Burgess handed the checks of his firm for these amounts to the teller of the plaintiff bank, asking that his firm might be credited with the amounts thereof, and the checks "held over and charged in the next day." These checks were not at the time entered in the account upon the plaintiff's books to the debit of Burgess & Sons, but were merely kept in the drawer as memorandum checks. Burgess was desirous of getting this transaction out of the books of the bank. On September 1, after making the deposit of $7500 received from the sale of the sugar, Burgess, directed the teller to charge the two memorandum checks in the account, which was accordingly done, and these two charges are shown by the items of $6000 and $2000 in the statement of account as checks charged on that day. In this w^ay he returned and repaid the money credited in the two checks to Burgess & Sons. Burgess & Sons were not entitled to the credit obtained on September 1 by the deposit of the check for $7500. The defendant contended that the remedy of the plaintiff, if any, was not against the defendant, but against the Massachusetts Loan and Trust Company ; that the plaintiff got the benefit of the sale of the sugar by applying the proceeds on another loan ; and that for the above reason, and also in any view of the case, there was no such mistake of fact as would entitle it to recover. S. Bartlett and R. D. Smith for the plaintiff. H. D. Hyde and S. Lincoln for the defendant. Devens, J. The rules and course o^ business of the unincorporated association called the Boston Clearing House Association have been so set forth in the recent decisions of this court that they do not require to be here fully restated. They were adopted solely for the purpose of facilitating exchanges and the adju stme nt of accounts between the banks. By a con- tract between them, an association is formed, whicli is their common banker. To this association each bank, which is indebted by reason tliat more checks, etc., are presented, as drawn upon it, than it presents, as drawn against the other banks who are members, pays the balance found due from it to the association, while each bank that shows a balance in its favor receives from the association the amount by its check. Mistakes that may be made in this computation, because checks are not good, are not settled by the 332 merchants' n. bank v. n. bank of commonwealth, [chap. II. association, but between the banks themselves ; and such checks are to be returned by the banks receiving the same to the banks from which they ^are received as soon as it shall be found that they are not good, "and in no case are they to be retained after one o'clock." To the regulations of this association, the customers of the banks are not parties, and, whatsoever effect is to be given to them as between the banks, their customers are not in a situation to claim the benefit of them, nor are they liable to be injuri- ously affected by them. Merchants' Bank v. Eagle Bank ; ^ Bank of ]S'orth America v. Bangs ; ^ Manufacturers' Bank v. Thompson ; ^ Exchange Bank V. Bank of North America.* By these regulations, it was, in substance, agreed in the case at bar, that, if Burgess & Sons had to their credit a sum sufficient to meet the check for which they were entitled to draw, the amount of which is here demanded, the provisional allowance of it at the Clearing House should stand ; but that, if it appeared on investigation that they were not entitled to draw for any such sum, the check should not be retained by the plaintiff bank after one o'clock. The bank which had sent the check to the Clearing House would then be notified that it was not good, and that repayment of the amount of it would be expected by the bank on which it was drawn. The check was not returned to the defendant bank until after one o'clock. It is not disputed by the plaintiff, that if, in consequence of this, the defendant had changed its position, as if it had paid over the amount of the check to the owner, who had deposited it with the bank for collection, the bank should not suffer ; but it contends that when, by a mistake as to a matter of fact, it has delayed the return of the check until after one N: jj o\Jock,-this cannot be taken advantage of by the bank oh belialf of the owner of the check, there having been no change in its~position~ln the interval between one o'clocTc and the actual return of the check. The case of Merchants' Bank v. Eagle Bank,^ goes far to decide the case at bar. It was there held that the manifest purpose of the provision in the Clearing House rules was to fix a time at which the creditor bank was authorized to treat the check as paid, and so deal with it in its relations with others. The court declined to adopt the theory that a failure to return a bad check before one o'clock to the bank sending it through the Clearing House would work a forfeiture of the right to return it, or, of itself, con- stitute a bar to an action to recover its amount ; and held that a failure to comply with the stipulation as to returning the check would leave the parties in the same position as when a payment is made under a mistake of fact in the ordinary way. This case has been since cited with approval. Manufacturers' Bank v. Thompson,^ and Exchange Bank v. Bank of North America.* In Preston v. Canadian Bank of Commerce,^ it was held otherwise, and 1 101 Mass. 281. - 106 Mass. 441. ^ i29 Mass. 438. * 132 Ma.ss. 147. ^ 23 F.-.l. lie],. 179. SECT. I.] MERCHANTS' N. BANK V. N. BANK OF COMMONWEALTH. 333 there decided that a mistake discovered after lialf-past one o'clock, wliich was there the hour I'ur returning checks, could not be corrected by the bank making it, nor the check then returned. It is said by Judge Blodgett, referring to the case of Merchants' Bank v. Eagle Bank,^ "The Massachusetts court puts its decision on the ground that you may correct a mistake of tiiis kind at any time after it is discovered, if it places the party to whom the check is returned in no worse condition than it would have been in if it had been returned within the stipulated time ; thus overlooking the rule that parties may agi-ee that they shall not have the right to correct mistakes unless done within a limited time." But we have not overlooked the right of parties to make such agreement as they choose. The question is as to the interpretation of the rule which they, as members of the Clearing House, have adopted. The rule is, " Whenever checks which are not good are sent through the Clearing House, they shall be returned by the banks receiving the same to the banks from which they were received as soon as it shall be found that said checks are not good : and in no case shall they be retained after one o'clock." If it were intended that mistakes should never be cor- rected unless discovered by one o'clock, this should in terms explicitly appear. As it does not, it seems to us the more correct interpretation to hold that the rule authorizes the bank receiving the check, after one o'clock arrives and the check is not returned, to treat it in all transactions as if it were good. If, therefore, the bank changes its position, it will suffer no loss by reason of it. On the other hand, if the mistake is discovered afte r i one o'clock, and the bank receiving the check has not changed its position j by reason of the expiration of the time, it should rectify the mistake when TV reasonable care has been exercised by the b a nY7)"n~which it wai drawn . The defendant also relies much on the case of Merchants' Ins. Co. v. Abbott,^ as establishing a somewhat different principle from the case of Merchants' Bank v. Eagle Bank. The latter case is not there cited, but we do not find any intention to impugn its authority. It appears to us quite distinguishable from the case here presented. Denny, Rice & Co. held a valid debt due from Abbott, whose premises had been insured by the plain- tiff company, and had been destroyed by fire. Abbott assigned to Denny, Eice & Co. his claim against the plaintiff, which, at Abbott's request, paid the amount of the loss, as adjusted between itself and Abbott, to Denny, Rice & Co. There was no question of the validity or genuineness of the assignment, and, by the payment made by the plaintiff, the debt which Abbott owed Denny, Rice & Co. was discharged and satisfied, and this might have been so pleaded by Abbott had he been sued thereon. Tuckerman v. Sleeper.^ A year later, the plaintiff discovered that the fire had been caused by Abbott, and that his proofs of loss were false and fraudulent, and, six months afterwards, brought an action against Abbott and Denny, Rice & Co. It was conceded that Denny, Rice & Co. had no knowledge of any fraud. 1 101 Mass. 281. 2 13;! jjass. 397. » 9 Cusli. 177. ^ 334 merchants' n. bank v. n. bank of commonwealth, [chap. II. As to Abbott, it was not doubted that the plaintiff might recover. If the money had been paid to him, it could have been recovered as money paid under a mistake of fact ; and the payment by the plaintiff, at his request, in discharge of his debt to Denny, Rice . of tlic tliird part; and it was therein witnessed that the said Edward Boddington, Thomas Walker, and Phihp Williams, at the request of Joseph Johnson (the plaintilF), and the said J. W. and Lucy his wife, and S. W. and Elizabeth his wife, assigned to J. B. as trustee for Joseph Johnson (tlie plaintift) the remainder of the term of 1900 years in the house and premises in Rugby. This deed was executed by E. B. and P. W., two of the trustees, but by no other person. On the 17th of April, 1792, a meeting of the legatees was holden, at which the plaintiff and Philip Williams, one of the trustees, attended, and the purchase-money was then divided amon<' the legatees according to their respective shares. The defendant received his share, amounting to 29/., and signed a paper acknowledging his receipt from the four trustees of his share, and discharging them and the estate. At the Lent assizes, 1797, at Warwick, a Mrs. Sutton, who was the aunt and next of kin of the testator's son, Thomas Johnson, recovered from the plaintiff the house and premises situate in Rugby, by ejectment, and after- wards obtained a verdict for the mesne profits thereof, amounting to 74/. 5s. Upon this event taking place, eighteen out of the twenty-four legatees paid back to th e plaintiff thei r several propo rtions of the nioney receivedlbyihem on the sale o f the house and premises to the plaintiff; but the defendant and five others refusin g t o do the same, the present action was commenced i n order to det ermine tl ie^question^l''he plaintiff is still in possession of the plot of land in Rugby fields (upon which he has expended a considerable sum of money in building, drainage, and other improvements), being part of the premises purchased for the said sum of 1000/., under the aforesaid agreement entered into between him and the other trustees, and receives annually the rents and profits thereof, amounting to 35/. 14s., to his own use ; and on application made to him on the part of the defendant, refuses to relinquish the purchase of the plot of land, and to resell the same for the parties interested under the testator's will. The question for the opinion of the court was. Whether an action for money had and received was maintainable by the plaintiff against the defendant under the above circumstances? If so, then a verdict to be entered for the plaintiff; but if the court should be of a contrary opinion, then a verdict to be entered for the defendant. Vaughan, Serjt., for the plaintiff. Bayley, Serjt., for the defendant. The plaintiff is not entitled to recover back the money which he has paid, from any person ; but if he be entitled to recover it back, still he cannot recover it from the present defendant, nor in this form of action. There is no fraud in this case, and therefore the rule of caveat emptor must prevail as laid down in Bree v. Holbech. Indeed the proper remedy for the plaintiff to adopt is to sue the three trustees, who by the article entered into in 1791 covenanted to convey. [Lord Alvanley, C. J. ' If he were to sue on that article he would recover ^ C/C^ i f-^^^t.1. y^ /^/. 'V / > X -7 *? A- x 342 JOHNSON V. JOHNSON. [CHAP. II. il.";. damages in a court of law, and a court of equity would not compel the trustees to convey that to which they had no title.] The case of Cripps v. Head is distinguishable from the present, because there the action was brought against the very party who had sold the property as well as received the money, and the sale rested merely on a parol undertaking, and not as in this case on an article executed by those in whom the right to convey was supposed to be. But at all events the present defendant is not liable to be sued, for the contract of sale and the covenant to convey was made by the trustees with the plaintiff, and the defendant was no party to that contract. The rule therefore applies that where an express contract between the plaintiff and other parties is proved, the court will not imply a contract between the plaintiff and defendant respecting the same subject-matter. Indeed the only way in which the legatees were concerned in the transaction was in giving their consent to what the trustees thought fit to do. Nor is this the proper form of action to recover the money which has been paid, for the special contract is not rescinded, and till that is done the action for money had and received cannot be sustained. That the contract is not rescinded appears from the plaintiff still retaining part of his purchase ; now as the sale of the whole was entire, the plaintiff is not at liberty to rescind the contract in part and consider it as still subsisting as to the remainder. Had this property been sold in parcels and by two distinct contracts, possibly a very different price would have been demanded and paid. The action is altogether novel, being an attempt to sue legatees in a court of law, and to recover part of the money paid under a special con- tract, by treating that contract as rescinded in part. The opinion of the court was this day delivered by Lord Alvaxley, C. J., who after stating the case proceeded thus : — The premises out of which the present dispute arises were, together with the plot of land in Rugby field, purchased by the plaintiff for the gross sum of 1000/. ; but it is to be remembered that the house in Rugby and the plot of land in Rugby field were each distinctly valued, the former at the sum of 300/. and the latter at the sum of 700/.; and upon those distinct valuations that contract was entered into which was afterwards reduced into the form of an agreement, and that deed of agreement was prepared which was executed by two only of the trustees, and by no other person. The contract having been thus far carried into execution, it was discovered that the 1 i m i tatiou to the rep resentativ es of tlie settl or in the deed of 1761 wa s too remote, in consequence of which an ejectment was bi'ought b y tlie person entitled, and the plaintiff, who had paid the money, but to whom no le gal conveyance had been made, was evicted from the ])Osscssion. The flaw therefore being discovered before the purchase was completed, there is no pretence to say that the plaintiff had bought the estate, and that having obtained the title for which he contracted, he must abide by the consequences. The plaintill", upon being evicted, was obliged to refund the rents and profits, SECT. I.] JOHNSON V. JOHNSON. 343 and several of the persous interested consented to rei^ay their proportions of the purchase-money ; but some (among whom is the present defendant) have refused ; and the question now is, whether under these circumstances the plaintiir be entitled to recover against the defendant in an action for money had and received? My Brother Heath nonsuited the plaintiff" at the trial, on the idea that the object of the action was to call upon a legatee to refund a legacy ; a mutter which he thought could only be agitated in a court of equity. It turns out however that this is not an action for rcpay- ment of a legacy. If such had been the object of the action, I agree that it could not have be en maintained. I f an executor, thinking that he has settled the affairs of his testator, pay the legacies, I have no difficulty in saying that a court of common law would not entertain an action for money had and received against a legatee, since such a court cannot take into consideration, as a court of equity would do, the mode in which the funds might have been applied. In the case of Moses v. Macferlan,-' some princi- ples were laid down, which are certainly too large, and which I do not mean to rely on; such as that, wherever one man has money which another ought to have, an action for money had and received may be maintained ; or that wherever a man has an equitable claim he has also a legal action. I agree with the opinion of my Lord Chancellor in the case of Cooth v. Jackson,'^ where he expresses his doubt whether the courts of law have not gone too far in the discussion of equitable rights, since they cannot administer equity in the same way as courts of equity do ; and shows that great injustice may arise from suffering a plaintiff" to prevail in a court of law, whereas, if he were obliged to seek his remedy in a court of equity, much would also be provided in the defendant's favor. No man therefore is more dis- posed to be cautious in admitting equitable mutters to be agitated in a court of law than myself. B ut as this is not a case between an executo r _a nd a legatee , , in which the former seeks to recover the amount of any legacy paid to the latter, but bet ween the purchaser and vendor ot an estate, my difficulty has been how far the agreement is to be con sidered as one coiitract for the purchase of both sets of premises, and how far the party can recover so much as he has paid by way of consideration tor the part of which the^"titre has failed, and retaiiTTHe other ^ixn bf Ihii bufgalii . This for a time occasioned doubts in my mind ; for if the latter question were involved in this case it would be a question for a court of equity. If the question were how fur the particular part, of which the title has failed, formed an essential ingredient of the bargain, the grossest injustice would ensue if a party were sufl'ered in a court of law to say that he would retain all of which the title was good, and recover a proportionable part of the purchase-money for the rest. Possibly the part which he retains might not have been sold unless the other part had been taken at the same time, and ought not to be valued in proportion to its extent, but according to 1 2 Burr. 1005. 2 q Ves. Jun. 39. V 344 YOUNG V. COLE. [ciIAr. II. the various circumstances conuected with it. But a court of equity may- inquire into all the circumstances, and may ascertain how far one part of the bargain formed a material ground for the rest, and may award a com- pensation according to the real state of the transaction. In this case liowever no such question arises ; for it appears to me that althou gh bot h pieces of ground were bargained fof~at the same time, we must consider the baro'ain as consisting of two distinct contracts ; and that the one part was sol d for 300/. and the other for 700^. It has not been suggested that they were necessary to the occupation of each other. It amounts therefore to no more than this : that the plai ntift', being one of the execut ors who were about to sell the house, and also to sell the land, to both of wh ich the legatees undertook to make a good title, advanced his money to the Tegatecs on^e purclTase of those two lots, and now seeks to recover back t he money for one of them, because the title to that has proved defective. \Ve b}'^ no means wish to be understood to intimate that where under a contract of sale a vendor does legally convey all the title which is in him, and that title turns out to be defective, the purchaser can sue the vendor in an action for money had and received. E very purchaser may protect hi s pui -chase by p ro per covenants ; w her e the vendor's title is a ct- ually conveyed to the purchaser the rule of caveat emptor applies. In the present case the plaintiff never has had any title conveyed tojiun, and therefore, we are of opinion, notwithstanding the party sued is a legatee, that the plaintiff has paid his money under a mistake, consequently the rule adopted in courts of law in such cases applies to him, and entit les hi m to recover that money from the party to whom it has been paid, in an action for money had and received. Judgment for the plaintiff. YOUNG V. COLE.i In the Common Pleas, April 29, 1837. [Reported in 3 Bingham's New Cases, 724.] Action for money paid by the plaintiff to the use of the defendant, and for money had and received by the defendant to the use of the plaintiff. The plaintiff, a stockbroker, was employed by the defendant in April, 1830, to sell for him four (Juatemala bonds, of 254/. each. The plaintiff, in three or four days, sold them to Briant for 300/., and deducting 1/. Bs. for his commission, paid the defendant 298/. 15s. Ijriant, who was conversant with the usages of the Stock Exchange, kept the bonds two days, and flun sold tliem ;iL;;iin. ^ This ("ase should li.ivc hccn inscrtcil in tlic .sulidivision iiiniK'diritcly following. — Ed. SECT. I.] YOUNG V. COLE. 345 The bonds in qnestion were not stamped. But, In 1829 the Gucatemala government had issued an order, wliich was advertised in the London newspapers, requiring the holders of such bonds to produce tliem, and have them stamped by an agent of that government within a certain time ; in default of which they would not be recognized by the state. Evidence of the advertisement was offered and rejected ; but it was proved that since that time, unstamped Guatemala bonds were not a marketable commodity on the Stock Exchange. Upon that ground, Briant's vendee soon returned the bonds in question. Briant, representing the matter to the plaintiff, the plaintiff, without com- municating with the defendant or returning the bonds, refunded whati Briant had paid him, and now sought to recover the amount which he had ' himself paid over to the defendant. The defendant, upon being applied to, wrote to say that he was agent only as to a part of the bonds ; but that, if the payment had been made for his own part, he would desire his clerk to reimburse the plaintiff. At the trial he did not show that all the bonds were not his. The plaintiff could find no one in this country who had authority now to stamp the bonds ; but one witness said he had procured a stamp to bonds of the same description. Both parties, at the time of the transaction, were ignorant that a stamp was necessary. It was proved that brokers on the Stock Exchange do business as principals, in dealing with foreign stock, and are liable to be expelled if they do not make good their differences. The defendant's name was not mentioned by the plaintiff to Briant. On behalf of the defendant, it was objected at the trial before Tindal, C. J., that under these circumstances the plaintiff could not recover on the decla- ration for money paid or money had and received ; but should have de- clared specially on the implied warranty by the defendant that the bonds he offered for sale were marketable bonds. Whereupon, A verdict was taken for the plaintiff for the amount the defendant had received from him ; with leave for the defendant to move to set the verdict aside and enter a nonsuit instead. Sir F. Pollock accordingly moved the court to that effect, urging, that after Briant had kept the bonds for a length of time sufficient to enable him to decide whether he would make them his own or not, and had act- ually sold them to a third person, the plaintiff had no right to call on the defendant for. a payment which the plaintiff was not compellable to make; at all events, not unless he had apprised the defendant of what he was about to do, and had returned the bonds so as to have afforded the defend- ant the opportunity of replacing them with stamped instruments. In Street V. Blay 1 it was held, that a person who had purchased a horse warranted sound, sold it again, and then repurchased it, could not, on discovering 1 2 B. & Ad. 456. ^ of the I was s 346 YOUNG V. COLE. [CIIAP. II. that tlie horse was unsound wheu first sold, require the original vendor to take it back again ; nor could he by reason of the unsoundness, resist an action by such vendor for the price. Wilde, Serjt., and Offle showed cause. F. Robimon in support of the rule. TiNDAL, C. J. It appears to me, that the sum for which the verdict has been given is pr^p^rlJ^l'llliL'i "l""""! rpppivpd^by.JJ'^-^Jgfc:"'^^"^' ^" ^^^^ "se of the pfaintiff. The money which the plaintiff delivered to the defendant is own money, for he had sold the bonds as a principal to Briant, and subject to all the responsibilities of a principal. He delivered the money to ttie defendant on an understanding that the bonds he had re- ceived from the defendant were real Guatemala bonds, such as were sal- able on the Stock Exchange. It seems, therefore, that the consideration on which the plaintiff paid his money has failed as completely as if the defendant had contracted to sell foreign gold coin and had handed over counters instead. It is not a question of warranty ; but whether the de - fendant has not delivered something which, though resembling the arti cle contracted to be sold, is of no value. The reniaining question is, whether the plaintiff had a right to rescind the contract he had entered into with Briant. It is to be observed that in that contract the defendant's name was never used ; there was no contract between him and Briant ; the plaintiff was the only person known to Briant. But stopping short of tha t, the universal custom of the Stock E xchange would authorize the pla intiff to rescind the contract witho u t consultin g the def endanF;~and the defendant has been in no respect damaged by what the pla inti ff has done. There is, however, another ground on which the verdict stands clear of objection ; that is, that after the defendant was aware of all that had bee n done, he wrot e To say~that if the bonds were his own, he w ould send bis clerk to pay th e plaintiff the amount. Having omitted at the trial to show that he held them in the capacity of agent, as he had asserted, his le tter is a ratifica tioiTof what the plaintiff had done, and the verdict ought no t to be distu rbed. Park, J., concurred. BosANQUET. J. I agree in the principle of the cases which have been cited as to breach of warranty, but this is not a case of that description. Here, no consideration has been given for the money received by the defendant : the bonds he delivered to the plaintiff were not (Juateniala bonds, but, on the Stock Exchange, worthless paper; and the payment made by the plaijitiff to Briant was not voluntary. According to the prin- ciple established by Child v. Morley, the defendant was bound to reimburse the plaintiff what he was thus compelled to pay. For it appeared to be the custom of the Stock Exchange, that in these cases the broker is treated as principal, and liable to be expelled if he does not make good his differ- SECT. I.] MOULEY V. ATTENBOKOUGII. 347 euces. Upon eithcrj)f_ tlic counts, therefore, the pla intitf may sustain tliis actioiv. And even upon the defendant's letter, unless he showed tlie TToiuIs" not to have been his own, the plaintiff" is entitled to retain the verdict. CoLTMAN, J. I am of the same opinion. The first question is, whether the plaintiff" was entitled to rescind the contract with Briant ; and I am of opinion he was. The bonds which he had sold at the defendant's re- quest were not Guatemala bonds, in the sense of the Stock Exchange. Therefore, even considering the plaintiff" only as agent, when he received authority from the defendant to sell the bonds he received an implied authority to act as all brokers do upon similar occasions ; that is, to re- scind the contract if the article delivered turns out not to be the article sold. Rule discharged. 7 MORLEY V. ATTENBOROUGH. In the Exchequer, February 17, 1849. [^Reported in 3 Exchequer Reports, 500.] Assumpsit. The first count of the declaration stated, that in considera- tion that the plaintiff" would buy of the defendant a harp for \bl. 15s., the defendant promised that he had lawful right and title to sell it to the plaintiff, that the plaintiff' bought the harp and paid for the same. Breach, that the defendant had not lawful right or title to sell the harp. There was also a count for money had and received to the plaintiff''s use. Plea, non assumpsit. At the trial, before Platt, B., at the Middlesex sittings after Easter term, 1847, the following facts appeared : — In the year 1839, a person of the name of Poley, having hired a harp of Messrs. Chappell, music-sellers, pledged it with the defendant, a pawnbroker, for 15/. 15s., on the term s that, if the sum advanced were not repaid within six months, the defendant should be at liberty to sell iT The defendant had no knowledge tliat the harp did not belong to the party pledging it. The harp not having been redeemed at the stipulated time, the defendant, in the year 1845, sent it with other articles to be sold by public auction. The auctioneers were accustomed to have quarterly sales of unredeemed pledges, of which the present sale was one, and on those occasions were in the habit uf putting other lots into the sale. The sale extended over several days, and a gen- eral catalogue^ comprising the articles to l)e sold on each day, stated on the titlepage, that the goods for sale consisted of " a collection of for- feited property, reserved, agreeably to Act of Parliament, for quarterly sale,* pledged prior to May, 1844," with certain pawnbrokers (naming them, and 1 See 39 & 40 Geo. 3, c. 99, § 18. . 348 MORLEY V. ATTENBOROUGIL [CILVP. II. amongst others the defendant), and that the lots without numbers were "other efteets." Catalogues were also printed, applicable to each day's sale. The harp, which was numbered in the catalogue, was knocked down to the plaintiif for 15/. lbs., but no warranty of title was given . The Messrs. ChappelX having afterwards discovered that the harp was in the plaintitf's possession, commenced an action against him for its recovery, whereupon the plaintiff gave up the harp to them, and paid the costs, for which, together with the price of the harp, the present action was brought. On behalf of the defendant it was objected, that there was no warranty of title, either express or implied, and that the plaintiff ought to be nonsuited. The learned judge directed a verdict for the plaintiff', reserving leave for the defendant to move to enter a nonsuit. Martin having obtained a rule nisi accordingly, Uumx>hrey and Bovill showed cause in last Easter term (May 11). The question is, whether, on the sale of a personal chattel, the law implies a warranty by the vendor that he has good title to the thing sold. Some authorities certainly appear to militate against that proposition. Sprigwell V. Allen ^ was " an action upon the case, for falsely and fraudulently selling a horse to the plaintiff, as the proper horse of the defendant, uhi revera it was the horse of Sir J. L., because the plaintiff could not prove that the defendant knew it not to be his own horse (for the declaration must be that he did it fraudulently or knowing. it to be not his own horse); for the defendant bought the horse in Smithfield, but not legally tolled ; the plaintiff was nonsuit." ^ Also, it is said,^ " If I take the horse of another man, and sell him, and the owner take him again, I may have an action of debt for the money ; for the bargain was perfect by the de- livery of the horse, and caveat emptor.''' Chandelor v. Lopus * was an " ac- tion upon the case, whereas the defendant, being a goldsmith, and having skill in jewels and precious stones, had a stone which he affirmed to Lopus to be a bezar stone, and sold it to him for 100/., uhi revera it was not a bezar stone. The defendant pleaded not guilty, and verdict was given and judgment entered for the plaintiff in the King's Bench. But error was thcre. 478. « 4 Bing. 66. ■J 5 Taunt. G57. * Cro. Jac. 474. SECT. I.] MORLEY V. ATTENBOROUGII. 351 which were not his own, but affirming them to be his goods, knowing them to be a stranger's, is the offence and cause of action." In 2 Bl. Com. 451, it is said, " By the civil law an implied warranty was annexed to every sale, in respect to the title of the vendor ; and so too, in our law, the purchaser of goods and chattels may have a satisfaction from the seller, if he sells them as his own, and the title proves deficient, without any express war- ranty for that ])urpose." In Allen v. Hopkins,^ Pollock, C. B., in deliver- ing the judgment of the court, says, " It was put in the course of the argument upon the ground of caveat emptor. I certainly can find no au- thority, and I have no recollection of ever hearing that doctrine applied to this case, that the buyer is bound to take care that the seller has a good title to the goods, and that, if it turn out that the seller has not a good title, the buyer of the goods should have taken care of that before he made the contract, and therefore is bound by the contract, notwithstanding he is able to prove that the seller has no title. The doctrine of caveat emptor applies not at all, as 1 apprehend, to the title of the seller, but to the con- dition of the goods." [Parke, B. That is only a dictum. Pollock, C. B. The case, when examined, will be found to have no bearing on the present point ; a judgment must be taken secundum subjectam materiem.'j In Smith's Mercantile Law,^ it is said not to be quite clear whether the war- ranty of title is express or implied. [Parke, B., refeiTed to Addison on Contracts, Ch. 6, s. 3.] The offering goods for sale is evidence for a jury that the party affirms the title to be good. [They also cited Robinson v. Anderton,^ and Walker v. Mellor.*] Martin and Petersdorff, contra. The law will not imply any warranty of title on the sale of a pei'sonal chattel. It is unfortunate that the words caveat emptor should have been used as a maxim. Their real meaning is this, that since, in the transfer of property, circumstances will inevitably occur by which one of the parties must be a loser, the loss, whether arising , from defect of title or of quality, must fall on the purchaser, unless a deceit ' has been practised or a warranty given. That rule of the common law originates in a desire of peace ; for if the rule were otherwise, there would be numerous actions by successive purchasers against their respective sellers, before the party in fault could be discovered. The passage from Co. Litt. 102 a., which is the earliest authority on the subject, is strictly applicable to title. Noy's Maxims, c. 42, Walker's case,^ and Ormrod v. Huth,® are express authorities in the defendant's favor. In Crosse v. Gardi- ner' there was an affirmation by the seller that the goods were his own. The case of Medina v. Stoughton, as reported in Lord Kaymond, 593, was merely assumpsit on a warranty, and what Lord Holt there says is, "Where a man is in possession of a thing, which is color of title, an action will lie 1 13 M. & W. 94. 2 Page 462, Tiote, 4th Ed. ^ Peake, 129. * 17 L. J. Q. B. 103. 5 3 Rep. 22a. M4 M. & W. 664. T Carth. 90. "v. ^ 352 MORLEY V. ATTENBOEOUGII. [CIIAP. II. upon a bare affirmation that the goods sold are his own. For in such a case it amounts to a warranty, and so it was adjudged in this court, Mich, term, 1 Will. & M., B. R., between Crosse and Gardiner." Chandelor v. Lopus,^ and Furnis v. Leicester,^ show that on the simple sale of goods without warranty, the vendee must stand the loss. The note to Williamson V. Allison « supports that view. Peto v. VAadcs * has no bearing on the pres- ent point ; and the language of Pollock, C. B., in Allen v. Hopkins,^ was not material for the decision of the case. In Ross on Vendors and Pur- chasers,^ it is said, " When the vendor has not affirmed the goods to be his, nor expressly warranted them, the vendee is without remedy, for the com- mon law will not imply a warranty ; and in such case the maxim is caveat emptor." [They also cited I Roll. xVbr. tit. "Action sur Case" (P), pi. 8; Power V. Barham.''] Cur. adv. vult. The judgment of the Court was now delivered by Parke, B. This case was argued some time ago before my Lord Chief Baron, my Brothers Rolfe, Platt, and myself, and stood over for our con- sideration. The plaintiff brought an action of assumpsit, stating, that in consideration that the plaintiff would buy a harp for a certain sum, the defendant promised that he, the defendant, had lawful right to sell it, and the breach assigned was that he had not. It appeared on the trial before my Brother Platt, that the defendant, who was a pawnbroker, had the harp pledged with him in the way of his business, and, the time having elapsed for its redemption, and the pledge being unredeemed, offered it for sale through certain auctioneers, who sold it to the plaintiff. It turned out that the harp had been pledged to the defendant by a person who had no title to it, and the real owner obliged the plaintiff to give it up, after it had been delivered to him by the defendant. But, of the want of title of the pawner to it the de- fendant was ignorant, and there was no express warranty. My Brother Platt directed a verdict for the plaintiff, reserving leave to move to enter a nonsuit. On showing cause, the case was fully argued, and every authority cited and commented upon on both sides, bearing on the question, whether there is an implied warranty of title in the contract of sale of an article, or under what circumstances there is a liability on the part of the vendor to make good a loss by defect of title. It is very remarkable that there should be any doubt, as that, certainly, is a question so likely to be of common occurrence, especially in this com- mercial country. Such a point, one would have thought, would not have admitted of any doubt. Tlie bargain and sale of a specific chattel, by our law (which differs in that respect from the civil law), undoubtedly transfers 1 Cio. .liic. 4. 2 Cro. Jac. 474. ^ 2 Kast, 448. ■• T) Taunt. &f>7. ^ 13 .M. & W. 94. 6 282, 1st Ed.; 3.35, 2a Eii. ' 4 A. & E. 473. SECT. I.] MORLEY V. ATTENBOKOUGII. all the property the vendor has, where nothing further remains to be done according to the intent of the pai'ties to pass it. But it is made a question, whether there is annexed by law to such a contract, which operates as a conveyance of the property, an implied agreement (ni the part of the vendor, that he has the ability to convey. With respect to executor)/ contracts of purchase and sale, where the subject is nnascertained, and is afterwards to be conveyed, it would probably be implied that both parties meant that a good title to that subject should be transferred, in the same manner as it would be implied, under similar circumstances, that a merchantable article was to be supplied. Unless goods, which the party could enjoy as his own, and make full use of, were delivered, the contract would not be performed. The purchaser could not be bound to accept if he discovered the defect of title before delivery, and if he did, and the goods were recovered from him, he would not be bound to pay, or, having paid, he would be entitled to recover back the price, as on a consideration which had failed. But when there is a bargain and sale o f a specific ascertained chattel, which operates to transmit the property, and nothing is said about title, what is the lega l effect of that contract 1 Does the contract necessarily import, unless the contrary be expressed, that the vendor has a good title 1 or has it mei-ely the effect of transferring such title as the vendor has 1 According to the Roman law,^ and in France,^ and Scotland, and partially in America,^ there is always an implied contract that the vendor has the right to dispose of the subject which he sells ; * but the result of the older authorities is, that { there is by the law of England no warranty of title in the actual contract of sale, any more than there is of quality. The rule of caveat emptor ap- plies to both ; but if the vendor knew that he had no title, and concealed that fact, he was always held responsible to the purchaser as for a frau d, in the same way that he is if he knew of the defective quality. This rule will be found in Co. Litt, 102 a. ; 3 Rep. 22 a; Noy, Max. 42 ; Fitz. Nat. Brev. 94 c, in Springwell v. Allen,^ cited by Littledale, J., in Early v. Gar- rett,® and in Williamson v. Allison,'^ referred to in the argument. The same principle applies to transfer by deed. Lord Hale says, "Though the words ' assign, set over, and transfer,' do not amount to a covenant against an eign title, yet, as against the convenantor himself, it will amount to a covenant against all claiming under him : " (Deering v. Farrington,^ which was an assignment of a chose in action.) It may be, that as in the earlier times the chief transactions of purchase and sale were in markets and fairs, where the bona fide purchaser without notice obtained a good title as against all except the Crown (and afterwards a prosecutor, to whom restitution is ordered by the 21 Hen. 8, c. II), the 1 Vide Domat, Book 1. tit. 2, § 2, art. 3. 2 Code Civil, c. 4, § 1, art. 1603. * 1 Johns. Rep. 274; Broom's Maxims, 628, where this .subject is well discussed. * Bell on Sale, 94. 6 Aleyn, 91. 6 9 B. & C. 932. ^ 2 East, 449. » 3 Keb. 304. 23 t<^ ..^/' 354 MORLEY V. ATTENBOROUGH. [CHAP. II. common law did not annex a warranty to any contract of sale. Be that as it may, the older authorities are strong to show that there is no such •warranty implied by law from the mere sale. Tn recent times a different notion appea rs to have been gaining ground ( see note of the learned editor to 3 Rep. 22 a) ; and Mr. Justice Blackstone says, " In contracts for sale it is constantly understood that the seller undertakes that the commodity he sells is his own ; " and Mr. Wooddeson, in his Lectures,^ goes so far as to assert that the rule of caveat eviptor is exploded altogether, which no authority warrants. At all times, however, the vendor was liable if there was a warranty in fact; and at an early period, the affirming those goods to be his own by a vendor in possession, appears to have been deemed equivalent to a war- ranty. Lord Holt, in Medina v. Stoughton,^ says, that " where one in pos. session of a personal chattel sells it, the bare affirming it to be his own amounts to a warranty ; " and Mr. Justice Euller, in Pasley v. Freeman,' disclaims any distinction between the affect of an affirmation, when the vendor is in possession or not, treating it as equivalent to a warranty in both cases. Some of the text writers drop the expression of " warranty " or " affirma- tion," and lay down in general terms, that if a man sells goods as his own, and the title is deficient, he is liable to make good the loss ; ^ the commen- tator cites, for that position, Cro. Jac. 474, and 1 Eoll. Abr. 70, in both which cases there was an allegation that the vendor affirmed that he had a title, and therefore it would seem that the learned author treated the expression, "selling as his own," as equivalent to an affirmation or war- ranty. So Chancellor Kent, in 2 Com. 478, says, "that in every sale of a chattel, if the possession be in another, and there be no covenant or war- ranty of title, the rule of caveat emptor applies, and the party buys at his peril ; but if the seller has possession of the article, and he sell's it at his oivn, and for a fair price, he is understood to warrant the title." From the authorities in our law, to which may be added the opinion of the late Lord Chief Justice Tindal, in Ormrod v. Huth,^ it would seem that there is no implied warranty of title on the sale of goods, and that if there be no fraud, a vendor is not liable for a bad title, unless there is an express war- ranty, or an equivalent to it, by declarations or conduct; and the question in each case, where there i» no warranty in express terms, will be, whether there are such circumstances as to be equivalent to such a warranty. Usage of trade, if proved as a matter of fact, would, of course, be sufficient to raise an inference of such an engagement ; and without proof of such usage, the very nature of the trade may be enough to lead to the conclu- sion, that the person carrying it on must be understood to engage that tlio purchaser shall enjoy that wliich he buys, as against all persons. It is, 1 Vol. 2, p. 415. 2 1 Sjiik. 210 ; Ld. Raym. 593. 8 3 T. K. 57. ■» 2 IJlack. Com. 451. ^ U M. & \V. 664. SECT. I.] MORLEY V. ATTENBOIIOUGII. 355 perhaps, with refercuce to sucli sales, or to executory contracts, that Bhick- stone makes tlie statement above referred to. Similar questions occur in cases as to the quality of goods, in which it is clear there is, by law, no implied warranty ; yet, if goods are or. dered of a tradesman, in the way of his trade, for a particular purpose, he may be considered as engaging that the goods supplied are reasonably fit for that purpose. We do not suppose that there would be any doubt, if the articles are bought in a shop professedly carried on for the sale of goods, that the shopkeeper must be considered as warranting that those who pm'chase will have a good title to keep the goods purchased. In such a case the vendor sells " as his own," and that is what is equivalent to a warranty of title. But in the case now under consideration, the defendant can be made responsible only as on a sale of a forfeited pledge eo nomine. Though the harp may not have been distinctly stated in the auctioneer's catalogue to be a forfeited pledge, yet the auctioneer had no authority from the defendant to sell it except as such. The defendant, therefore, cannot be taken to have sold it with a more extensive liability than such 1 a sale would have imposed upon him ; and the question is, whether, on I such a sale, accompanied with possession, there is any assertion of an ab- j solute title to sell, or only an assertion that the article has been pledged I with him, and the time allowed for redemption has passed. On this ques- tion we are without any light from decided cases. ! In o ur judgment, it appears unreasonable to consider the pawnbroker, I from the nature of his occupation, as undertaking anything more than that the subject of sale is a ple dge and irredeemable, and that h e is not cognizant of any defe ct of title to it. . By the statute law,i he gains no better t itle b ya pledge than the pawner had ; aiid a^ the rule _of the common law is, that there is no implied warran ty from the mere con- t ract of sale itself, we think, that where it is to be implied fro m the nature of th e trade car ried on, the mode of carrying on the trade s hould be such as clearly to raise that inference. In this case we think it does not. The vendor must be considered as selling merely the right to the pledge which he himself had ; and therefore we think the rule must be j absolute. Since the argument, we find that there was a count for money had and received, as well as the count on the warranty, in the declaration. But jthe attention of the judge at the trial was not drawn to this count, nor was it noticed on tlie argument in court. It may be, that though there is no implied warranty of title, so that the vendor would not be liable for a breach of it to unliquidated damages, yet the purchaser may recover back the purchase-money, as on a consideration jthat failed, if it could be shown that it was the understanding of botli par- jties that the bargain should be put an end to if the purchaser should not 1 See 1 Jac. 1, c. 21. y 356 STRICKLAND V. TURNER. [CHAP. II. have a good title. But if there is no implied warranty of title, some cir- cumstances must be shown to enable the plaintiff to recover for money had and received. This case was not made at the trial, and the only question is, whether there is an implied warranty. Rule absolute. STRICKLxVND v. SARAH TURNER, Executrix of E. H. LANE.^ In the Court op Exchequer, January 31, 1852. [Reported in 7 Exchequer Reports, 208.] Assumpsit for money had and received by the defendant, as executrix of Edward Henry Lane, deceased. Plea, non-assumpsit, and issue thereon. By mutual consent and by a judge's order, a case, of which the fuUowing are the material facts, was stated for the opinion of this court. The action was brought to recover the sum of 973/. lis. under the ful- lowing circumstances : Edward Henry Lane, of Sydney, New South Wales (the testator), was entitled for his life to an annuity of 100/. per annum, payable lialf yearly, on the 30th of March and the 30th of September, be- queathed to him under the will of a Mrs. Way. The plaintiff was one of the executors, and the residuary legatee, of Mrs. Way. On the 4th of June, 1847, Mr. Lane, then residing at Sydney, transferred the annuity by deed to Arthur Daintrey and Adrian Daintrey, who resided in England, to dispose of as his trustees and for his benefit. In November, 1847, a correspondence was entered into between the Messrs. Daintrey and a Mr. Cookney, the attorney and agent of the plain- tiff, upon the subject of the purchase of the annuity by the plaintiff. After much correspondence on the subject, the following letters passed between Mr. Cookney and Mr. Adrian Daintrey : — 16th December, 1848. Dear Sir, — I shall be extremely obliged by an early and definitive answer on the subject ; for if Mr. Strickland does not purchase, there are other persons ready to treat. I am, etc., A. Daintrbt. J. T. Cockney, E.sq. 21st Deccmbpr, 1848. Dear Sir, — I fear if you can get a purchaser for much, if anything, be- yond 1000/. after April next (as at that time another half-year's annuity will be due less a year's duty), that Mr. Strickland will decline treating for 1 This case should have been inserted in the .subdivision ininiediatdy following.- E"- SECT. I.] STRICKLAND V. TURNER. 357 it. My view is, that a purchaser ought to buy the annuity to pay G per cent at least, and to insure the life would cost nearly 3 per cent, and that would be 9 per cent for the purchase money. This would make the out- side value 1100/., 11 times 9 being 99, and the expense of purchase would far exceed another \L per annum. Supposing Mr. Lane to be dead when you sell, how do you propose securing the purchaser against this contin- gency ? for, unless the insurance office would undertake to pay the money, a purchaser cannot be advised to part with his. Most probably you have considered these matters, and will favor me with your sentiments thereon. I am, eta, J. T. COOKXEY. A. Daintrey, Esq. 22d December, 1848. Dear Sir, — Assuming that Mr. Strickland will purchase, I am in a condition immediately to convey, as I have a discretion to sell as low as lOOOZ. I will do so if Mr. Strickland will agree to purchase at that sum. This agreement to purchase would of course be conditional on my showing a good title to convey. My brother is in practice as a solicitor in Sydney, and he is concerned for Mr. Lane, who, when I last heard from my brother a short time since, was as well as ever. A. Daintrey. J. T. Cookney, Esq. After a few other letters, the following letters passed between the same parties : — 26tli January, 1849. Dear Sir, — I have heard from Mr. Strickland, and although his full object will not be accomplished, he is willing to give 1000/. for the annuity; and looking, as you say, to the loose mode of the bequest, I think the offer a liberal one. If accepted, then the only point to be considered is, how the sale is to be completed in the absence of proof of Mr. Lane being alive. Yours, etc., J. T. Cookney. 27th January, 1849. Dear Sir, — I accept Mr. Strickland's offer of 1000/. for this annuity on the following conditions : 1st, That he take an assignment of the annuity from myself and my brother Adrian, under the assignment to us, a copy of which I inclose. 2dly, That the purchase be completed within one month from this day. 3dly, That Mr. Lane be at no expense about showing a title to the annuity, and that no deductions be made on account of legacy- duty remaining unpaid. 4thly, That the annuity, or a proportion of it, be paid up to the day of completion. Probably the signature of Mr. Lane to the original assignment may be known to yourself or Mr. Strickland. 358 STRICKLAND V. TURNER. [CHAr. II. If the conditions are acceded to, I will come to town and settle as soon as you are prepared. My brother Adrian is resident there. I shall be much obliged by despatch. Proof of Mr. Lane's being alive will not of course be at all necessary. I am, etc., A. Daintrey. 31st January, 1849. Dear Sir, — The offer I made had reference to my letter of the 21st of December last, viz. the purchase of an annuity of 100/., to be completed next April after the half year's annuity was paid and the duty satisfied, and having the balance of duty 18/. 2s. Ad. allowed out of his purchase money. This my client will be prepared to do on the 30th of next April,* unless the money is an object before, and in that case my client will be content to take 51. per cent upon his purchase money to the 30th of April,' and give credit for the annuity, subject to the deduction for legacy duty, thus : — £ s. d. Say Purchase Money 1000 Half Year's Annuity to 30tli April 50 1050 A Year's Interest on 18/. 2s. 4c/., Fourth Year's Duty . . . . 18 1050 18 Deduct 3d Year's Duty ^18 2 4 4th ditto 18 2 4 2 Months' Interest from 28th of February to 30th of April ou 1000/ 8 6 8 44 11 4 ^1006 6 8 If you are content with this arrangement I will proceed to raise the money, and let you have the draft assignment in a few days. I am, etc., J. T. Cockney. 1st February, 1849. Dear Sir, — If your letter of 31st of January is to be read in connec- tion with that of the 21st of December, the latter certainly favors the offer I have made ; for it informs me that Mr. Strickland would not give more than 1000/. after April, when of course the instalment of annuity and duty would have been paid. I am sure that upon reference to this letter you will see that this is the fair construction of it, and I think, therefore, that the conditions of my last letter ought to be acceded to. I am, etc.. A. Daintuet. 1 Sic. '^ Sic. SECT. I.] STRICKLAND V. TURNER. 359 3d February, 1849. Dear Sir, — I only referred you to my letter of the 2l8t of December, as evidence of what I thought the value of an amiuity of 100/., and that it was the object in view. Mr. Strickland does not, and did not, entertain my views, but considers the oflFer made in my last letter very fair and liberal. Mr. S. will be glad to know if the offer will be accepted, and particularly if the money is to be paid this month. Yours, etc., J. T. COOKNEY. 5tli February, 1849. Dear Sir, — If Mr. Strickland will not give more than you say, / must accept the offer. I assume of course that the last half year's annuity has been paid. I should like to have the draft assignment as soon as possible, and to complete with all despatch, as Sir C. F.'s son is going out in about ten days, and will take charge of my letters to my brother. I am, etc., A. Daintrey. 19tli February, 1849. Dear Sir, — I have been expecting the draft assignment as promised in a few days by your letter of the 31st ult. I hope to receive it without delay. I am, etc., A. Daintrey. 20tli February, 1849. Dear Sir, — I send you draft assignment and release. I think that the consideration liable to cid valorem duty will be 973/. lis. 0(/., if the money is paid on the 28th iust, instead of the 30th April next : what say you 1 I am, etc., J. T. CooKNEY. £ s. d. Amount of nominal Consideration 1000 Less 4th Year's duty ^18 2 4 and Interest on prompt Payment 8 6 8 26 9 Net Consideration .€973 11 23d February, 1849. Dear Sir, — I i-eturn you draft approved, with some slight alterations. I propose to settle at your office on Wednesday the 28th inst, at 10 o'clock, unless I hear from you to the contrary by return, and have made an ap- pointment with my brother to that effect. I dare say you will favor mo with a line by return at all events. I am, etc., A. Daintrey. 360 STRICKLAND V. TUKNER. [CIIAP. II. 24tb February, 1849. Dear Sir, — I conclude the assignment to you is stamped ; if not, you will of course get it done. The time you mention will suit very well. Yours truly, J. T. COOKNEY. 25th February, 1849. Dear Sir, — The assignment to myself and brother is not stamped, nor I believe is a stamp necessary, etc. Be pleased to let me hear from you by return, and let me have the engrossment here by return, or at etc., on Tuesday evening by seven o'clock. My brother will attend there to exe- cute, and it is probable he will be obliged to leave London on Wednesday morning. I am, etc., A. Daintrey. 26tli February, 1849. Dear Sir, - - 1 am sorry to differ with you about the stamp duty. I am quite satisfied you could not compel a purchaser to take to the title with- out a 35s. on the assignment to you, and the Office would stamp it. I should like to see the deed of assignment to you, which my clerk can do when he attends at etc. to-morrow, to see your brother execute the pro- posed deed of sale to Mr. Strickland. I am yours truly, J. T. Cookney. By indenture, bearing date the 28th of February, 1849, and then made between the said Arthur and Adrian Daintrey of the one part, and the plaintiff of the other part, after reciting that the said E. H. Lane was en- titled to the said annuity, etc., for his life, and also reciting (inter alia) the said assignment of the 4th of June, 1847 ; and that the i)laiutiff, as such residuary legatee as aforesaid, had duly paid the said annuity for the use of the said E. H. Lane up to the 30th day of March next ; and also recit- ing the said indenture of the 4th day of June, 1847, and that the said Messrs. Daintrey had contracted with the plaintiff for the absolute sale, etc., to him of the said annuity, and all growing and future payments thereof, for the price of 973/. lis., it was witnessed that, in ])ur.suaiice of the said coiitiiict, and in consideration of the sum of 973/. Us., the said Messrs. Daintrey did grant, bargain, sell, etc., unto the plaintiff, his heirs, etc., all the said annuity or sum of 100/., and all growing and future payments thereof. To have and to hold the said annuity unto the plaintiff, his heirs, etc., from henceforth during all the residue of the life of the said E. H. Lane, to the end and intent that the plaintiff, his heirs, etc., might be en- titled to receive and retain the same for liis and their own use and benefit. The consideration money, amounting (exclusively of the arrears of the SECT. I.] STRICKLAND V. TURNER. 361 said annuity) to 973/. lis. was paid on behalf of plaintiff to the said Arthur Daintrey. And the following receipt was then signed by the said Artliur Daintrey, the sum of 86/. 19s. therein mentioned having been paid on the same day : — Re Edward Lane's Annuity. 28tli of Febraary, 1849. Eeceived balance of one year's annuity to the 30th March next, viz., the sum of 86/. 19s., after giving credit for legacy duty payable in respect of the said annuity. (Signed) A. Daintrey (For Self & Co. — trustee). Annuity JlOO Deduction 13 1 ^86 19 The transaction was perfectly bona fide. It was subsequently ascertained, that the said E. H. Lane died at Syd- ney on the 6th of February, 1849, having previously made his will, and having appointed the defendant sole executrix thereof. The said sum of 973/. \\s. Od. was paid by the said Arthur Daintrey into the Banli of Aus- tralasia, to the account of the said E. H. Lane, before the news of his death reached this country. It was admitted, that the same was, with the plain- tiff's concurrence, received by the defendant as executrix of the said E. H. Lane after his death, subject to be refunded to the plaintiff, if, under the circumstances, the plaintiff should be so entitled. The court were to be at liberty to draw any such inference from the facts of the case as a jury would be warranted in drawing. The question for the opinion of the court was, whether, under the fore- going circumstances, the plaintiff was entitled to recover from the defend- ant as executrix of E. H. Lane the said sum of 973/. lis. so paid; and judgment was to be entered in accordance with the opinion of the court. Croivder {Raymond with him) for the plaintiff. Bramwell {Rew with him) for the defendant. Car. adv. vult. The judgment of the Court was now delivered by Pollock, C. B. — The question in this case, which the coni-t took time to consider, lies in a very narrow compass. The plaintiff brought his ac- tion against the defendant to recover back money paid by him for the pur- chase of an annuity bequeathed to Edward Henry Lane, of Sydney, New South Wales, by the will of Mrs. Elizabeth Way. That annuity had been assigned by Edward Henry Lane, who was still residing in Sydney, to Ar- thur Daintrey and Adrian Dainti'ey, in order that they, as his trustees, might dispose of it in England for his benefit. They accordingly entered 362 STRICKLAND V. TUKNER. [CIIAP. II. into a negotiation with the plaintiff, who was the residuary legatee under Mrs. Way's will, for the purchase of this annuity. The question between the parties is this, — whether the purchase took effect during the existence of tlie annuity. If it did, though but for an instant, the plaintiff' is not entitled to succeed ; for he purchased the annuity, and cannot complain that in so doing he has made a bad bargain, as the events have turned out. liut if, on the contrary, the annuity had ceased to exist before his purchase, then he has got nothing for his purchase money, and is entitled to recover it back from the defendant, the executrix of Lane, who has received it from the trustees. The question therefore is, what was the bargain, and when did it take effect. If the annuity was sold upon the 5th of February, 1849, by the acceptance contained in the letter of that date, the subsequent death of the annuitant at Sydney on the 6th of February, 1849, will defeat the plaintiff's claim. If, on the other hand, the agreement was for a future sale, to be effected by assignment of the annuity, which took place on the 28th of February, the previous death of the annuitant will entitle the plaintiff to recover. We must therefore examine carefully the different letters and documents, to see which of these two views of the case we ought to adopt as the fair result of the whole correspondence. There is no doubt, that, if the pur- chase had been completed, that is to say, if there had been an agreement that from and after the 5th of February, 1849, the annuity was to belong to Mr. Strickland, and the money given for it to belong to the trustees, the subsequent death of Lane would make no difference. Even a bill for a specific performance could have been maintained upon such an agreement, according to the case of Kenney v. Wexham.^ There there was an agree- ment dated 18th April, 1818, for the future purchase of an annuity by the payment of two instalments, the first in October, 1818, and the last in January, 1819. The death was subsequent to the last stipulated payment And the Vice-Chancellor held, that from that date the purchaser became en- titled to it, and that the subsequent death of the annuitant in October, 1820, did not prevent the purchaser from having a specific performance ; and for this, Mortimer v. Capper,^ Jackson v. Lever,' Coles v. Trecothick,* were cited. But here in the correspondence we find no such arrangement till the assignment of the 28th of February. The offer which is stated by Mr. Strickland's agent, Mr. Cookney, in the letter of Slst January, 1849, is for the purchase of the annuity "to be completed next April, after the current half-year's annuity is paid, and the legacy duty then payable satisfied, and the future legacy duty allowed for ;" and he adds, that his client will bo prepared to do this on the 30th of April, unless they can agree for an ear- 1 6 Ma.1.1. 357. "^ 1 Bro. C. 0. 15(5. 3 3 Bro. C. C. 604. * 9 Ves. 234. SECT. I.] GUENEY V. WOMERSLEY. 363 lier day of payment, and, so to speak, to discount the payment of the 30th of April on that earher day. It is a clear stipidation throughout the correspondence, that the annuity shall continue to be paid up to that day, whatever that might be ; and until that day was fixed it is impossible to ascertain what sum of money was to be paid and received. Now this was never ascertained or settled in the lifetime of the annuitant. The annuity, therefore, still continued to belong to Lane, and never, as the Vice-Chancellor says in Kenney v. Wex- ham, passed to the purchaser, till this was ascertained and the bargain finally arranged between them. When this was done, the annuity became the property of Strickland, and the money the property of the vendors. But then there was no annuity iu existence. The money, therefore, which ■was paid, was paid wholly without consideration, and may now be recovered back from the defendant, to whom, as the executrix of Lane, it has passed. We think, therefore, that the judgment should be for the plaintiff. Judgment for the plaintiff. /^ SAMUEL GUENEY and Others v. THOMAS SCURR WOMERSLEY and Another.^ In The Queen's Bench, November 4, 1854. [Reported in 4 Ellis and Blackburn, 133.] Action for money had and received, and on accounts stated. Plea : Never indebted. On the trial, before Lord Campbell, C. J., at the London sittings after last Trinity term, it appeared that the plaintiffs are money-dealers and bill- brokers, carrying on business on a large scale in London under the firm of Overend, Gurney & Co. The defendants are also money-dealers and bill- brokers, cari'ying on business in London under the firm of Womersley & Burt. On the 17th December, 1853, Womersley & Burt brought to Overend, Gurney & Co., for discount, what purported to be a foreign bill of exchange, drawn at Calcutta by J. Le Brun on P. & C. Van Notten of London for 3050/., pay able ninety days after sight to the order of T. Dupont of Paris, e ndorsed speci ally by T. Dupont, to W. B. Anderson, and accepted by P. & C. Yan Notten. At the time when the bill was offered for discount it did not bear the endorsement of Anderson. Overend, Gurney & Co. agreed to discount the bill ; and the bill was taken away by Womersley & Burt, and on the same morning, was left with Overend, Gurney & Co. endorsed in blank by W. B. Anderson. A discount ticket was made out, in the manner usual in business (which is explained hereafter), showing the amount of the bill, less 1 This case should have been inserted in the subdivision immediately following. — Ed. V 364 c GURNEY V. WOMERSLEY. [CIIAP. II. the discount, viz.: 301 H. 19s. 7(7., and sent with Overe nd, Gurney & C o.'s check for that amount to Womersley & Burt. The check was paid by them into their own banlTer's ; and it was duly honored. Shortly afterwards, it was discovered that Le Brun, the supposed drawer, and T. Dupont, the supposed first endorser, were fictitious persons ; and that the supposed acceptance of P. & C. Van Xotten, who were a firm of high standing in London, was a forgery committed by Anderson. Ander- son was tried for forgery, and convicted ; and he was made a bankrupt. The present action was brought to recover, from the defendants, the amount of the plaintiflF's check of 301 U. 19s. 7d. given for this bill. It was not suggested that either the plaintiffs or defendants had, at the time of the discount, knowledge or means of knowledge that the bill was a forg- ery. Tlie plaintiffs' case was that, they having given the money for an ac- ceptance of P. s. lie/., formed the remuneration of Womersley & Burt. After this, several other genuine acceptances of P. & C. Van Notten were discounted for Anderson in the same manner, the parties assuming tacitly that the transactions were on the same footing as the first. In each case Overend, Gurney & Co. took the discount which at the time was the Bank of England rate ; and Womersley & Burt in each case made out a separate ticket at a different rate, and gave their own check to Anderson. All these bills were duly honored. On the 17th December, when the furged bill, the subject of this action, was brought, Overend, Gurney & Co. made out the ticket at the rate of 5 per cent, in the name of Womersley & Burt, and gave their check for the balance, viz. 3011/. 19s. Id. Womersley & Burt made out the ticket from them to Anderson at the rate of 6 per cent discount, and also charging him \ per cent commission on the amount of the bill, and gave him their check for the balance, viz. 2989/. 2s. 5c/. ; so that on this transaction they were to receive a remuneration of 22/. 17s. M. On each of these occasions the transaction was entered in Overend, Gurney & Co.'s books as a discount to Womersley & Burt, and in Womersley & Burt's books as a discount by Overend, Gurney & Co., and also as a discount to Anderson. The Lord Chief Ju stice told the jury that a person who gets a bill dis- counted, if he does not endorse or guara nty the bill, is not liable for the solvency of the parties to the bill ; but that, if it turns out to be not a genuine bill, he is liable, as there js^ comple te failure o f consideratio n. He told the jury that in this case there was a comple te failure of considcra- tiou, and directed them, if they thought that the discount was a transac- ti on betw-een the plaintiffs and the defendantip to find lor the plaintiffs ; but, if they thought it a transaction between the plaintiffs and Anderson through the agency of the defendants, they should find for the defendants . Th e jury found for the plaintiffs. Bramwell now moved for a rule nisi for a new trial. Coleridge, J. 1 am of opinion that there should be no rule. First as to the verdict l)cing against evidence. My Lord Ciiikf Justice is not dis- satisfied with the verdict; and there certainly was ample evidence to sup- port it ; there were circumstances well worthy of consideration the other way ; of which that which made the strongest impression on my mind was the fact that there were some bills endorsed or guarantied by the bill- brokers, and others which they did not guaranty. But this may be ex- plained by reference to the amount of the bills, or the credit of the parties SECT. I.] GUKNEY V. WOMERSLEY. 367 to them. I therefore tliiiik that the verdict should not be disturbed on the ground that it is against evidence. As to the supposed misdirection. The vendor of a specific chattel, it is not disputed, is responsible if the article be not a genuine article of that kind of which the seller represents it to be. And the question raised really is, What is the extent of the want of genuineness for which he is responsi- ble] Without laying down the limits, it is clear to me that this case fell much within them. In effect here the defendants said to the plaintiils, Will you take, without recourse to us, this bill which purports to bear the acceptance of P. & C. Van Notten 1 By doing so they represented it to be their acceptance, as it purported to be, and s old it, as answering that dc^ scription. Tha t being so, the case is not so strong as the bar of brass sold as a bar of gold, mentioned in Gompertz v. Bartlctt,^ or of the altered navy bill in Jones v. Ryde.^ WiGHTMAN, J. There was abundant evidence that the defendants acted i as principals in the transaction : and the verdict ought not to be disturbed I if- on that point. ' j As to the other point, it is in substance, that the plaintiffs really ob- tained an article of the kind which the defendants professed to sell, namely a genuine bill, and that there was no warranty that every signature on the bill was genuine. I think that the evidence showed that the defendants professed to sell a genuine bill accepted by P. & C. Van Notten. It was upon the genuin eness of that acceptance that the plaintiffs entiriely relied for their securi ty. That being so, I cannot distmguisF tliis case from those referred to by my Brother Coleridge. In considering whether a defect in an article renders it not an article of the kind of which it was represented to be on the sale, or is merely a breach of a collateral warranty, much must depend upon the special circumstances and terms of the rule. Here I think that the bill, not being an acceptance of P. & C. Van Notten, fails in what was the substance of the description by which it was held. My Brother Erle, who has left the court, authorizes me to say that he concurs. Lord Campbell, C. J. I agree that no rule should be granted in this case. The verdict of the jury finds that, in cases of this sort, in London, when a bill-broker takes a bill to a capitalist, and gets it discounted, the transaction is between the capitalist and the bill-broker, and not between the capitalist and the bill-broker's customer. And, so far from being against evidence, the verdict was founded on evidence to my mind justify- mg no other conclusion. There is, in practice, one advice note or dis- count ticket made out between the capitalist and the bill-broker, and another made out between the bill-broker and the customer. The rates of interest at which the bill is discounted are different, and bear no fixed relation to each other ; and it is quite immaterial to the customer whether 1 2 E. & B. 854, E, C. L, R. vol. 75. '•* 5 Taunt 488, E. C. L. R. vol. 1. 368 EICIIHOLZ V. BANNISTER. [CIIAP. II. the bill-broker takes the bill because he has got fuuils of his own which he i^^llmgJo^vest^m_dlswunnu^ foun^a" capitalist willing to discount it on ter ms that w ill leave him a profi t Iu"tliis case, 1h.^ fact that there were distinct and separate contracts, one between the plaintiHs and the defendants, and the other between the defendants and Anderson, seems to me established most clearl}'. As to the other objection ; I am of opinion tha t, though t he defenda nts, by not endorsing o r guarantying the bill, preserved themselves from wa r- ranting the solv ency of any of the p arties, yet they did undertake that the instrument was what it purported to be. It is not disputed that in fact the discount of their bill by the plaintiffs was solely on the faith of its being an acceptance of P. & C. Van Notten, which it was not ; and in con- sequence of its being so it was valueless. The possibility of recourse against the estate of Anderson, a convict and a bankrupt, did not prevent there being a total foilure of consideration. Jiide re/used. Bramwell, on a subsequent day (November 9), moved ^ for leave to ap- peal, under the Couunon Law Procedure Act, 1854,^ on the point as to mis- direction. He expressed some doubt whether, under this Act, the Court would grant leave to appeal on an ex parte application, or only grant a rule 7iisi so as to enable the opposite party to resist the application. Cur. adv. vult. Lord Campbell, C, J., on a subsequent day (November 15), said that, after the repeated decisions, the court thought it must be considered settled law, that the plaintiffs were, under such circumstances, entitled to recover the money paid, as paid on a consideration which had failed. That being so, the court, on consideration, thought that it ought not in a sound exer- cise of its discretion to give leave to appeal. Leave refused. EICHHOLZ V. BANNISTER. In the Commox Pleas, November 17, 18G4. [Repoi-ted in 17 Common Bench Reports, New Series, 708.] This was an action for money payable by the defendant to the plaintiff for money received by the defendant for the use of the plaintiff, for money paid by the plaintiff for the defendant at his request, and for money found to be due from the defendant to the plaintiff on accounts stated; Claim, 19/. Plea, never indebted, whereupon issue was joined. The cause was tried in the court of record for the trial of civil actions within the city of Manchester, before the deputy recorder, when the facts 1 Before Lord Campbell, C. J., Coleridge, Wigutman, and Bulk, J.I. 2 17 & 18 Vict. c. 125, § 35. SECT. I.] EICIIIIOLZ V. BANNISTER. 309 which appeared in evklence were as follows : — The plaintiff was acomuiission- ageut at Manchester. The deteudaut was a job-warehouseman in the same place. On the 18th of April last, the plaintiff went to the defendant's warehouse, and there saw, among other goods which the defendant had just purchased, 17 pieces of prints, which he offered to buy of him at ^i\d. a yard. After some discussion, the defendant agreed to sell them, and gave the plaintiff' an invoice in the following form, the whole of which was printed, with exception of the parts in italics : — 21 Choklton Street, Portland Street, Manchester. April 18tli, 1864. Mr. Eichhoh Bought of E. Bannister, Job-warehouseman Prints, Fonts, Grey Fustians, &c. Job and perfect Yarns in Hanks, Cops, and Bundles. \1 2iieces of prints, 52 yds. at b\d. £19 1| per cent for cash 6 £18 14 The plaintiff paid for the goods before he left the warehouse, and the defendant sent them by a porter to the plaintiff's place of business. The plaintiff sold the lot a few days afterwards for Vdl. 15s. net. The goods were subsequently returned to the plaintiff, they having been recognized as goods which had been stolen from the premises of one Krauss. The goods were taken possession of by the police, and the thief, one Aspinall, was tried at the general quarter sessions of the peace holden in and for the City of Manchester on the 9th of May last, and convicted, and sentenced to penal servitude for four years. On the part of the defendant, it was objected that there was no case to go to the jury, inasmuch as there is no implied warranty of title on the sale of goods. For the plaintiff it was insisted that he was entitled to recovei-, the money having been paid upon a consideration which had wholly failed. The learned judge directed a verdict to be entered for the plaintiff for the amount claimed, reserving leave to the defendant to move to set aside the verdict and enter a nonsuit or a verdict for the defendant, if the court should be of opinion that the plaintiff was not entitled to recover. Uolker, on a former day in this term, obtained a rule nisi accordingly. He referred to Crosse v. Gardner ;^ Pasley v. Freeman ;^ Morley v. Atten- borough,^ and Hall v. Conder.* C. Polloch now showed cause. The question is, whether there is any implied warranty of title upon a sale of goods. That there is such warranty 1 Caith. 90. 2 3 T. R. 51. 83 Ex. 500. * 2 C. B. N. s. 22, 40 (E. C. L. R. vol. 89). 24 370 EICIIIIOLZ V. BANNISTER. [CIIAP. II. according to the Roman, ^ the French,^ the American,^ the Scotch, aud almost every hiw of the continent of Europe, is clear : and there are not wanting authorities to show that it is so in the law of .this country. " By the civil law," says Blackstone,* " an implied warranty was annexed to every sale, in respect of the title of the vendor ; and so, too, in our law, a purchaser of " goods and chattels may have a satisfaction from the seller, if he sells them as his own, and the title proves deficient, without any express warranty for that purpose." In Crosse v. Gardner,^ the plaintitf declared quod cum (ou such a day) colloquium fuit between the plaintiff and the defendant cou- ceruing the buying and selling two oxen, which the defendant then had in his possession, and he (the defendant) adtunc et ibidem falsa et malitiose aj/irmabat that those oxen were his (the defendant's) proper goods, to wliich the plaintilY giving credit bought the said oxen of the defendant for so much money, when in truth the said oxen then were the proper goods of T. S., and that he the said T. S. posiea, etc., lawfully recovered the said oxen from the plaintiff, and licet (the defendant) sa'pius requisit fuit, yet lie refused to give the plaintiff satisfaction for the same. Upon motion iu arrest of judgment it was contended that the declaration was ill, because the plaintiff had not alleged that the defendant (sciens that these were the oxen of T. S.) did affirm them to be his oxen, nor allege tliis to be done deceptive, nor set forth any warranty, but generally that the defendant did affirm these to be his (the defendant's) oxen, which was not sufficient to maintain the action, because a man may be mistaken in his property and right to a thing, without any fraud or ill intent. But the court held that the action would lie upon a bare affirmation, tit supra, — referring to Harvey V. Young,® Bosden v. Thiuue,^ Furnis v. Leicester,^ Leakins v. Clissel,® and Ekins V. Tresham.^" In Medina v. Stoughton," it was held that an action lies against the seller of goods for affirming them at the time of the sale to be his own, when they were not, if he was in possession of them at the time of the sale; and that it is no answer that he bought them bona fide, aud believed them to be his. Offering to sell generally is sufficient evidence of offering to sell as owner : per Lee, C. J., iu Ryall v. Rowles.^^ And see the judgment of Buller, J., in Pasley v. Freeman." In Morley w.Attenborough," although the conclusion arrived at by the court is, that there is no implied warranty of title in the contract of sale of a personal chattel, yet many of the authorities referred to in the judgment delivered by Pauke, B., sustain the present argument ; and the decision may well be warranted by the 1 Cod. lib. 8, tit. 45. Dig. lib. 21, tit. 2. 2 Code Civil, art. 1626. Troplong, Ch. 4, De la Vente. 8 Armstrong v. Percy, 5 Wend. 535 ; Blasdale v. Babcock, 1 Johns. 517 ; Sedgwick on DainJiges, 2d Ed. 293 ; 2 Kent's Commentaries, 478. * 2 Bl. Com. 451. ^ Garth. 90. « Velv. 20. ^ Yelv. 40. 8 Cro. Jac. 474, 1 Roll. Abr. 91. » 1 Sid. 146. J» 1 Lev. 102. " 1 Ld. Raym. 593, Salk. 210. 12 1 Ves. 348, 351. " 3 T. R. 56, 67. " 3 Ex. 500. SECT. I.] EICIIIIOLZ V. BANNISTER. 371 circumstance of the vendor being a pawnbroker and the subject of sale an imredeonicd pledge. " With respect to executory contracts of purchase and sale," says that learned judge, " where the subject is unascertained, and is afterwards to be conveyed, it would probably be implied that both parties meant that a good title to that subject should be transferred, in the same manner as it would be implied, under similar circumstances, that a merchantable article was to be supplied. Unless goods which the party could enjoy as his own, and make full use of, were delivered, the contract would not be performed. The purchaser could not be bound to accept if he discovered the defect of title before delivery ; and, if he did, and the goods were recovered from him, he would not be bound to pay, or, having paid, he would be entitled to recover back the price, as on a consideration which had failed. But, when there is a bargain and sale of a specific as- certained chattel, which operates to transmit the property, and nothing is said about title, what is the legal effect of that contract 1 Does the contract [necessarily import, unless the contrary be expressed, that the vendor has a good titled or, has it merely the effect of transmitting such title as the |vendor has"? According to the Eoman law,^ and in France,^ and Scotland, and partially in America,^ there is always an implied contract that the ivendor has the right to dispose of the subject which he sells ; * but the jresult of the older authorities is, that there is by the law of England no warranty of title in the actual contract of sale, any more than there is of ipiality. The rule of caveat em2')tor applies to both ; but, if the vendor inew that he had no title, and concealed that fi\ct, he was always held '•esponsible to the purchaser as for a fraud, in the same way that he is if he cnew of the defective quality. This rule will be found in Co. Litt. 102 a, j} Rep. 22 a; Noy's Maxims, 42; Fitz. Nat. Brev. 94 C. ; in Sprigwell v. jVUen,^ cited by Littledale, J., in Early v. Garrett,^ and in Williamson v. jUlison,'' referred to in the argument. Lord Hale says, ' Though the words tssign, set over, and transfer, do not amount to a covenant against an eign litle, yet as against the covenantor himself, it will amount to a covenant gainst all claiming under him;' Deering v. Farrington.* It may be, that |s in the earlier times the chief transactions of purchase and sale were in fiarkets and fairs, where the bona fide purchaser, without notice, obtained 1 good title as against all except the Crown (and afterwards a prosecutor to ['horn restitution is ordered, by the 21 H. 8, c. 11), the common law did not nnex a warranty to any contract of sale. Be that as it may, the older |uthorities are strong to show that there is no such warranty implied by ' Vide Domat, Book 1, tit. 2, § 2, art. 3. 2 Code Civil, ch. 4, § 1, art. 1603. 8 Defreeze v. Trumper, 1 Johns. Rep. 274; Broom's Maxims, 628, where this subject well di.scussed. ♦ Bell on Sale, 94. s Aleyn, 91. « 9 B. & C. 982 (E. C. L. R. vol. 17) 4 M. & R. 687. "^ 2 East, 469. 8 3 Keb. 304. 372 EICIIHOLZ V. BANNISTER. [CIIAP. II. law from the mere sale. lu recent times a different notion appears to have been gaining ground (see note of the learned editor to 3 Rep. 22a); and Mr. Justice Blackstone says, ' In contracts for sale it is constantly under- stood that the seller undertakes that the commodity he sells is his own ; ' and Mr. Wooddeson, in his Lectures,^ goes so far as to assert that the rule of caveat emptor is exploded altogether, which no authority warrants. At all times, however, the vendor was liable if there was a warranty in fact; and, at an early period, the affirming those goods to be his own by a vendor in possession, appears to have been deemed equivalent to a warranty. Lord Holt, in Medina v. Stoughton,^ says that, ' where one in possession of a personal chattel sells it, the bare affirming it to be his own amounts to a warranty ; ' and Mr. Justice Buller, in Pasley v. Freeman,^ disclaims any distinction between the effect of an affirmation, when the vendor is in pos- session or not, treating it as equivalent to a warranty in both cases. Some of the text-writers drop the expression of ' warranty ' or ' affirmation,' and lay down in general terms, that, if a man sells goods as his own, and the title is deficient, he is liable to make good the loss ; * the commentator cites for that position Furnis v. Leicester,^ m both wliich cases there was an allegation that the vendor affirmed that he had a title, and therefore it would seem that the learned author treated the expression ' selling as his own ' as equivalent to an affirmation or warranty. So, Chancellor Kent, in 2 Comm. 478, says, that, ' in every sale of a chattel, if the possession be in another, and there be no covenant or warranty of title, the rule of caveat emptor applies, and the party buys at his peril ; but if the seller has possession of the article, and he sells it as liis own, and for a fair price, he is understood to warrant the title.' From the authorities in our law, to which may be added the opinion of the late Lord Chief Justice Tixdal, in Ormrod v. Huth,® it would seem that there is no implied warranty of title on. the sale of goods, and that, if there be no fraud, a vendor is not liable for a bad title, unless there is an express warranty, or an equivalent to it, by declarations, or conduct ; and the question, in each case, where there is no warranty in express terms, will be, whether there are such cir- cumstances as to be equivalent to such a warranty. Usage of trade, if proved as a matter of fact, would, of course, be sufficient to raise an infer- ence of such an engagement ; and, without proof of such usage, the very nature of the trade may be enough to lead to the conclusion that the person carrying it on must be understood to engage that the purchaser shall enjoy I that which he buys, as against all persons. It is, perhaps, with reference j to such sales, or to executory contracts, that Blackstone makes the statement j above referred to. We do not suppose that there would bo any doubt, if the articles were bought in a shop professedly carried on for the sale of goods, that the shopkeeper must be considered as wan-anting that those who pur- ' Vol. 2, p. 41.5. '^ 1 .Sulk. 210; Ld. Raym. 593. » 3 T. R. 57. \ * 2 151. Com. 451. "^ Cio. Jac. 474, and 1 Roll. Abr. 70. c 14 M. & W. 0(54. SECT. I.] EICHHOLZ V. BANNISTER. 373 chase will have a good title to keep the goods purchased. In such a case the vendor sells 'as his own,' and that is what is equivalent to a warranty of title. But, in the case now under consideration, the defendant can be made responsible only as on a sale of a forfeited pledge, eo nomine. The vendor must be considered as selling merely the right to the pledge which he him- self had." There is nothing in that judgment to militate against the claim of the plaintiff here. The circumstance of a tradesman selling goods in a public shop is a representation to all the world that that which he is selling is his own property. In Chapman v. Speller,^ the defendant at a sheriff's sale bought goods from the sheriff" for 18/. ; the plaintiff, who was also at the sale, bought the defendant's bargain of him for bl., and paid him the 23/. ; the defendant paid the sheriff the 18/., and the sheriff began to deliver the goods to the plaintiff, but they were then claimed as not being the property of the execution-debtor, and were recovered by the true owner ; and, in an action upon an alleged warranty that the vendor (the defendant) had title to sell, it was held that there was no implied warranty by the defendant that he had title, nor any failure of consideration, — the plaintiff having paid the 23/. to the defendant, not for the goods, but for the right which the defendant had acquired by his purchase, and this consideration not having failed. But, in delivering judgment, Patteson, J,, says : " In deciding for the defendant under these circumstances, we wish to guard against being supposed to doubt the right to recover back money paid upon an ordinary purchase of a chattel, where the purchaser does not have that for which he paid." In Sims v. Marryat,^ Lord Campbell, in delivering judgment, says, obiter, — " I do not think it necessary to inquire what the law would be in the absence of an express warranty. On that point the law is not in a satisfactory state. The decision in Morley v. Attenborough ^ was, that a pawnbroker, selling an unredeemed pledge as such, did not warrant the title of the pawnor. Of that decision I approve ; but a great many questions, beyond the mere decision, arise on the very able judgment of the learned Baron in that case, which I fear must remain open to con- troversy. It may be that the learned Baron is correct in saying, that, on a sale of personal property, the maxim of caveat emptor does by the law of England apply ; but, if so, there are many exceptions stated in the judgment which well nigh eat up the rule. Executory contracts are said to be ex- cepted ; so are sales in retail shops, or where there is a usage of trade ; so that there may be difficulty in finding cases to which the rule would prac- tically apply." [Erle, C. J., referred to Noy's Maxims, c. 42, p. 89,-» ^vhere it is said, " If I take the horse of another man, and sell him, an d ,;^^ tlie own er take him again, I may have an action of debt for the money ; ^ for the bargain wa s perfect by th e delivery of the horse ; and caveat emptor . ' '] That can h ardly be considered law at this day. ,— -^ t^,^*,!^ /J; I I. 7^ -J I M4 Q. B. 621 (E. C. L. R. vol. 68). 2 17 q. b. .281, 290 (E. C. L. R. vol. 79). ' ' 3 Ex. 500. 4 BvtlR-wood's Ed. 209. 374 EICIIIIOLZ V. BANNISTER. [CIIAP. II. Holl-er, in support of his rule. The real question is, whether there is a ■warranty of title to goods sold in a shop or warehouse ; or, in other words, whether the money which the buyer has paid for them, can, if the vendor turns out to have no title, be recovered back as upon a failure of considera- tion. As a general rule, there is by the law of England, whatever may be the law of other commercial countries, no implied warranty of title on the sale of a chattel. The law is the same with respect to warranty of title to land as of title to goods. [Byles, J. Chancellor Kent, in his Commen- taries,^ states the contrary to be the law of England as well as that of America.] The English authorities he refers to,^ with the exception of the passage in Blackstone, do not bear him out. The rule is clearly laid down by TiNDAL, C. J., in Ormrod v. Huth : '^ " The rule which is to be derived from all the cases appears to us to be, that where upon the sale of goods the purchaser is satisfied without requiring a warranty (which is a matter for his own consideration), he cannot recover upon a mere reprosentatiou of the quality by the seller, unless he can show that the representation was bottomed in fraud. If indeed, the representation was false to the knowledge of the party making it, this would in general be conclusive of fraud ; but, if the representation was honestly made, and believed at the time to be true by the party making it, though not true in point of fact, we think this does not amount to fraud in law, but that the rule of caveat emptor applies, and the representation itself does not furnish a ground of action. And, although the cases may, in appearance, raise some difference as to the effect of a false assertion or representation of title in the seller, it will be found, on exami- nation, that in each of those cases there was either an assertion of title embodied in the contract, or a representation of title which was false to the knowledge of the seller." That, it is submitted, is a correct exposition of the law upon the sulyect ; and it has never been questioned. Almost all the authorities are referred to and commented upon in Morley v. Atten- borough ; and the result arrived at is, that, by the common law of England, there is no implied warranty of title from the mere contract of sale of a chattel. The doctrine is still further carried out in Hall v. Conder,^ where Williams, J., in delivering the judgment of the court, saj'B : " With regard to the sale of ascertained chattels, it has been held that there is not any implied warranty of either title or qiiality, unless there are some circiun- stances beyond the mere fact of a sale, from which it may be implied. Tlic law on this subject was very fully explained by Parke, B., in giving the judgment of the Court of Exchequer in Morley v. Atteuboniugh." [Erlk, C.J. In both those cases, the dicta you rely on were extra-judicial, not necessary 1 Vol. 2, p. 478. 2 2 Bl. Com. 451 ; Bacon's Abridgment, Actions on the Case (E) ; Comyn on Contracts, Part 3, c. 8 ; Stuart v. Wilkins, Dougl. 18, and Parkinson v. Lee, 2 East, 314. 3 14 M. & W. r,-A, r,r,i. * 2 r. p.. n. s. 22, 40 (E. (\ L 1{. vol. 8!»)- SECT. 1.] EICHHOLZ V. BANNISTER. 375 to the determination of the question in issue,] They arc, at all events strong expressions of opinion. [Erle, C. J. Very.] In a note to William- son V. Allison/ the following MS. note of Sprigwell v. Allen, ^ by Buunet, J., is given: "In an action on the case for selling a horse as the defendant's own, when in truth it was the horse of A. B., upon not guilty pleaded, it appeared that the defendant bought the horse in Smithficld, but did not take care to have him legally tolled ; yet, as the plaintiff could not prove that the defendant knew it to be the horse of A. i>., the plaintiff was non- suited ; for, the scienter or fraud is the gist of the action where there is no warranty; for there the party takes upon himself the knowledge of the title to the horse and of his qualities." The note goes on, — " See also Chandler v. Lopus, in the Exchequer Chamber,' to the same purpose. The same MS. also refers to another case : ' So, if a man sell six blank lot- tery tickets, and afterwards another, as owner of these tickets, recover them of the vendee, unless the vendor knew them to be the property of another, or warranted them, neither this action (under the title Case of torts in nature of deceit and other wrongs) nor assumpsit for money had and received to the vendee's use will lie. Per Holt, C. J., Paget v. Wilkin- son.' * And see Denison v. Ralphson,^ where an opinion is given on the very point in question ; for, on the second count, which stated a warranty that the goods sold were good and merchantable, and averred that the defendant delivered theni^bad and not merchantable, knowing them to be naught, the court observe, that, though the declaration be 'knowing them to be naught,' yet the knowledge need not be proved in evidence." [Erle, C. J. If I sell an article as my article, is not that a contract that the article is mine 1 Has any court decided, that, under such circumstances, the money paid is not recoverable back, if it turn out that the seller has no title]] In Walker's Case,^ it is laid down, that, " if a man sell goods for money to be paid at several days, in such case, although the goods be taken by one who hath right before the day, yet the seller shall have an action of debt in respect of the contract." To which is added in the note, — "And, unless the seller knew the goods to be the property of another, or warranted them, the buyer must hear the loss; for, the rule is, caveat emptor" — citing 1 Inst. 102 a; 2 Inst. 247. [Erle, C. J. That is merely talking, not adjudging.] In Early v. Garrett,' Littledalb, J., says : " It has been held, that, where a man sells a horse as his own, when in truth it is the horse of another, the purchaser camiot maintain an action against the seller, vmless he can show that the seller knew it to be the horse of the other at the time of the sale, — the scienter or fraud being the gist of the action where there is no warranty, for there the party takes upon himself the knowledge of the title to the horse, and of his qualities." [Ekle, C. J., referred to Brown v. 1 2 East, 448. 2 Aleyn, 91. 8 Cro. Jac. 4. * Tr. 8 W. 3, Guildhall. 5 i Ventr. 366. 6 3 Co. Rep. 22a. M B. & C. 928 (E. C. L. R. vol. 17); 4 M. & R. 687. 376 EicniiOLZ v. bannistek. [chap. ii. Edgington.^] In Broom's Legal Maxims,^ the result of the authorities, ancient and modern, is thus summed up : " Upon the whole, we may safely conclude, tliat, with regard to the sale of ascertained chattels, there is not any implied warranty of either title or quality, unless there are some circumstances beyond the mere fact of a sale, from which it may be implied." The mere fact of the sale taking place in a shop surely cannot make any difference. As to the failure of consideration, that raises very nearly the same question. " It may be," says Parke, B., in Morley v. Attenborough,* "that, though there is no implied warranty of title, so that the vendor would not be liable for a breach of it to unliquidated damages, yet the purchaser may recover back the purchase-money, as on a consideration that failed, if it could be shown that it was the understanding of both parties that the bargain should be put an end to if the purchaser should not have a good title. But, if there is no implied warranty of title, some circumstances must be shown to enable the plaintiff to recover for money had and received." In the present case, the defendant sold in the usual and ordinary course of business, without any warranty or repre- sentation of any sort, and without any knowledge that he had not the full right openly to sell that which he had as openly bought. To hold that any implication of warranty of title arises under such circumstances will be to establish a doctrine, not only new to the law of England, but fraught with inconveniences the extent of which cannot well be foreseen.^ Erle, C. J. I am of opinion that this rule should be discharged. The plaintiff brings his action to recover back money which he paid for goods bought by him in the shop of the defendant, which were afterwards lawfully claimed from him by a third person, the true owner, from whom they had been stolen. The plaintiff now claims to recover back the money as having been paid by him upon a consideration which has failed. The jury at the trial found a verdict for the plaintiff, under the direction of the learned judge who presided ; and a rule has been obtained on behalf of the defend- ant to set aside that verdict and to enter a nonsuit, on the ground that it is part of the common law of England that the vendor of goods by the mere contract of sale does not warrant his title to the goods he sells, that the buyer takes them at his peril, and that the rule caveat emptor applies. The case has been remarkably well argued on both sides; and the court are much indebted to the learned counsel for the able assistance they have rendered to them. The result I have arrived at, is, that the plaintiff is entitled to retain his verdict. I consider it to be clear upon the ancient authorities, that, if the vendor of a cliattel by word or conduct gives the purchaser to understand that he is the owner, that tacit representation forms part of the contract, and that, if he is not the owner, his contract is 1 2 M. & O. 270 (E. C. L. R. vol. 40); 2 Scott N. R. 496. 2 4th Ed. 768, 8 3 Ex. 514. * See Lee i-. Baycs, 18 C. B. 599. SECT. I.] EICHHOLZ V. BANNISTER. 377 broken. So is the law laid down in the very elaborate judgment of Parke, B. • in Morley v, Attenborough,^ where that learned judge puts the case upon which I ground my judgment. A difference is taken in some of the cases between a warranty and a condition : ^ but that is foreign to the present inquiry. In Morley v. Attenborough,* Parke, B., says : " We do not sup- pose that there would be any doubt, if the articles are bought in a sh(»p professedly carried on for the sale of goods, that the sliopkeeper must bo considered as warranting that those who purchase will have a good title to keep the goods purchased. In such a case the vendor sells 'as his own,' and that is what is equivalent to a warranty of title." No doubt if a shopkeeper, in words or by his conduct, affirms at the time of the sale that he is the owner of the goods, such affirmation becomes part of the coib tract, and, if it turns out that he is not the owner, so that the goods are lost to the buyer, the price which he has received may be recovered back. I ventured to throw out some remarks in the course of the argument upon the doctrine relied on by Mr. Holker, which he answered by assertion after assertion, coming no doubt from judges of great authority in the law, to the efiect that upon a sale of goods there is no implied warranty of title. The passage cited from Noy certainly puts the proposition in a manner that must shock the understanding of any ordinary person, Ikit I take the principle intended to be illustrated to be this, — I am in possession of a horse or other chattel ; I neither affirm nor deny that I am the owner ; if you choose to take it as it is, without more, caveat emptor ; you have no remedy, though it should turn out that 1 have no title. Where that is the whole of the transaction, it may be that there is no warranty of title. Such seems to have been the principle on which Morley v. Attenborough was decided. The pawnbroker, when he sells an unredeemed pledge, vir- tually says, — I have under the provisions of the statute* a right to sell. If you choose to buy the article, it is at your own peril. So, in the case of the sale by the sheriflf of goods seized under a /. fa., — Chapman v. Speller.^ The fact of the sale taking place under such circumstances is notice to buyers that the sheriff has no knowledge of the title to the goods ; and the buyers consequently buy at their own peril. Many conti-acts of sale tacitly express the same sort of disclaimer of warranty. In this sense it is, that I understand the decision of this court in Hall v. Conder.^ There, the plaintiff merely professed to sell the patent-right such as he had it, and the court held that the contract might still be enforced, though the patent was ultimately defeated on the ground of want of novelty. The thing which was the subject of the contract there, was not matter, it was rather in the nature of mind. These are some of the cases where the conduct of the seller expresses at the time of the contract that he merely 1 3 Ex. 500, 513. 2 See Bamierman v. Wliite, 10 C. B. N. s. 844. * 3 Ex. 513. 4 39 & 40 G. 3, c. 99, § 17. M4 Q. B. 621. 6 2 C. B. n. s. 22. 378 EICHHOLZ V. BANNISTER. [CIIAP. II. contracts to sell such a title as he himself has in the thing. But, in almost all the transactions of sale in common life, the seller, by the very act of selling, holds out to the buyer that he is the owner of the article he offers for sale. The sale of a chattel is the strongest act of dominion that is incidental to ownership. A purchaser under ordinary circumstances would naturally be led to the conclusion, that, by offering an article for sale, the seller affirms that he has title to sell, and that the buyer may enjoy that for which he parts with his money. Such a case falls within the doctrine stated by Blackstone, and is so recognized by Littledale, J., in Early v. Garrett,^ and by Parke, B., in Morley v. Attenborough.^ I think justice and sound sense require ns to limit the doctrine so often repeated, that there is no implied warranty of title on the sale of a chattel. I cannot but take notice, that, after all the research of two very learned counsel, the only semblance of authority for this doctrine from the time of Noy and Lord Coke consists of mere dicta. These dicta, it is true, appear to have been adopted by several learned judges, amongst others by my excellent Brother Williams, whose words are almost obligatory on me; but I cannot find a single instance in which it has been more than a repetition of barren sounds, never resulting in the fruit of a judgment. This very much tends to show the wisdom of Lord Campbell's remark in Sims v. Marryat,* that the rule is beset with so many exceptions that they wellnigh eat it up. It is to be hoped that the notion which has so long prevailed will now pass away, and that no further impediment will be placed in the way of a buyer recovering back money which he has parted with upon a consideration which has failed. "^ Byles, J. I also am of opinion that this rule should be discharged. It has been said over and over again that there is no implied w\aiTanty of title on the mere sale of a chattel. But it is certainly, as my Lord has observed, barren ground ; not a single judgment has been given upon it. In every case, there has been, subject to one single exception, either declaration or conduct. Chancellor Kent * says : " In every sale of a chattel, if the pos- session be at the time in another, and there be no covenant or warranty of title, the rule of caveat emptor applies, and the party buys at his peril ; " for which he cites the dicta of Lord Holt in Medina v. Stoughton,^ and of BuLLER, J., in Pasley v. Freeman.^ " But," he goes on, " if the seller has possession of the article, and he sells it as his own, and not as agent for another, and for a foir price, he is understood to warrant the title." Thus the law stands that, if there be declaration or conduct or warranty whcrcliy the buyer is induced to believe that the seller has title to the goods he pro- fesses to sell, an action lies for a breach. There can seldom 1)0 a sale of goods where one of these circumstances is not present. I think Lord 1 9 B. & C. 928 ; 4 M. & R. 687. ^ 3 Ex. 513. 8 17 Q. ?.. 291. '•2 Com. 478. 6 1 Salk. 210; 1 \A. Kayin. 523. •> 3 T. K. 57, 58. SECT. I.] CLARE V. LAMB. 379 Campbell was right when he observed that the exceptions had WL'Unif,'h eaten up the rule. Keating, J. I am of the same opinion. Whether it bo an exception to the rule or a part of the general rule, I think we do not controvert any- decided case or dictum when we assert, that, under circumstances like those of the present case, the seller of goods warrants that he has title. These goods were bought in the defendant's shop in the ordinary course of business. He gives an invoice with them, which represents that he is selling them as vendor in the ordinary course. I think the case falls within that put by Parke, B., in Morley v. Attenborough,^ of a sale in a shoj), which he treats as a circumstance which beyond all doubt gives rise to a warranty of owner- ship. I was somewhat pressed by Mr. Holker^s question whether there is more affirmance of title in the case of a sale in a shop than in a sale else- where. It may be that the distinction is very fine in certain cases. If a man professes to sell without any qualification out of a shop, it is not easy to see why that should not have the same operation as a sale in the shop. It is not necessary, however, to decide that question now. Here, the sale took place in a public shop, in the ordinary way of business, and every circumstance concurs to bring the case within the distinction put by Parke, B., in Morley v. Atteuborough. Rule discharged. CLARE V. LAMB and Another. In the Court op Common Pleas, January 27, 1875. [Reported in Law Reports, 10 Common Pleas, 334.] Action for money had and received. Plea, never indebted. The cause was tried before Keating, J., at the sittings at "Westminster after Easter term, 1874. The facts were as follows : — A Mrs. Steiner, who possessed seven leasehold houses in the Mile End Eoad, mortgaged them in 1863 to one Dodd, for 300^., and afterwards further charged them with lOO;. to a Mr. Watson. In 1864, Mrs. Steiner married Dr. Lamb, who died in 1869, having by his will appointed the defendants his executors. Shortly after the death of Dr. Lamb, Dodd, the first mortgagee, with the concurrence of the executors, put the premises up for sale by public auc- tion, and Clare, the plaintiff, became the purchaser for 785Z. The purchase- money was with the sanction of the executors applied in part in paying off the two mortgages and paying the expenses of the sale and conveyance ; and the balance, 24U. 8s. 2d., was paid by Clare to the executors. The conveyance was executed by all the parties, and Clare received possession 1 3 Ex. 513. 380 CLARE ?'. LAMB. [CIIAP. IL of the premises from Dodd. The deed contained no covenant foi- title in the executors. In 1872, Mrs. Lamb, the widow of Dr. Lamb, discovering that she was entitled to the property, filed a bill in Chancery against Clare to recover possession. Clare gave notice of this claim to the defendants. Dr. Lamb's executors. On the 2 1st of February, 1874, a decree was pronounced in the suit, treating Clare as the assignee of the mortgagees, and directing an account, and that the surplus, after deducting the mortgage-money, interest, and expenses, should be paid over by Clare to Mrs. Lamb. Clare then (in October, 1873) brought this action against the defendants to re- cover back the monej^ which he had been called upon to pay to Mrs. Lamb, viz., the value of the equity of redemption. The leanied judge nonsuited the plaintiff", on the ground that under the circumstances money had and received would not lie ; but he reserved leave to the plaintiff to move to enter a verdict for him for 240/., the agreed value of the equity of redemption, if the court should be of opinion that the action was maintainable. H. Matthews, Q. C, in Trinity term last, obtained a rule nisi accordingly, on the ground that the money was paid under a mistake, and that there was a total failure of consideration for the payment. He cited Hitchcock V. Giddings,^ Bos v. Helsham,'^ and Cooper v. Phibbs.^ Garth, Q. C, and Charles, showed cause. Bosanquet and Bompas, in support of the rule. Grove, J. We are all agreed : but my Lord, being somewhat indisposed, has requested me to deliver my judgment first. I am of opinion that the nonsuit was right, and that the rule should be discharged. The question arises thus : Certain property was sold by auction, and by the conveyance, to which the defendants were parties, a mortgage was transferred to the purchaser, and the equity of i-edemption, the value of which was agreed to be 240/., was also conveyed to the pur- chaser. It turned out that, so far as the equity of redemption was con- cerned, the title of the vendors was wholly defective. Their testator. Dr. Lamb, having died, it was discovered that the equity of redemption was in his widow ; and she filed a bill in equity, r.nd a decree was made declaring her to be entitled to it. The question submitted at the trial was, whether the purchaser, having paid 240/. for property to which the vendors had no good title, could recover back that sum as money had and received upon a failure of consideration. In answer to the plaintiff's claim, it is contended that the maxim caveat emptor applies ; and that, the defendants, as exec- utors, having acted bona fide and in the belief that they had a good title, the plaintiff must take what he has got, and cannot recover back the n)oney he has paid. It seems to me, upon principle, irrespective of the authori- ties, that the maxim referred to applies a fortiori to this case. If a man 1 4 I'liw, 135. - \.. K. 2 Ex. 72. » L. W. '1 II. L. 1411. SECT. I.] CLARE V. LAMB. 381 goes iuto a shop to buy a chattel, the seller, especially if he be the manu- facturer, must necessarily know more of the nature and quality of the arti- cle than the buyer can. In that case, the rule caveat emj)tor is often a hard one, and yet it generally applies. In the case of the purchase of an interest in land, the person who sells places at the disposal of the buyer such title-deeds as he possesses and under which he claims. The purchaser has full opportunity for investigating the title of the vendor, and when he takes a conveyance he is assumed to have done so. Considerable incon- venience might result if this were not the rule. Conveyancers may agree upon the title, and, long after the conveyance has been executed, the whole transaction completed, and the proceeds disbursed, the seller might be called upon to return the purchase-money, by reason of some defect of which he had no notice at the time. But there is an ordinary and well-known covenant which the purchaser may insist upon if he wishes to get more security than he gets by an inves- tigation of the title ; he may require a covenant for title ; this additional security would probably increase the price. When the conveyance has been executed, all that the purchaser has to look to is the liability of the vendor under the deed. If it contains no covenant for title, the purchaser takes what the vendor gives him, or, rather, what he is able upon his title to give him, and the vendor will only be responsible for his own acts and incumbrances. Such I believe to be the general doctrine. Now the principal authorities upon the question before us are Bree v. Holbech,^ Johnson v. Johnson,^ Cripps v. Keade,^ and Hitchcock v. Gid- dings.'* In addition to these, we have the high authority of one of the most eminent judges and writers upon the law of real property, viz.. Lord St. Leonards. In Bree v. Holbech,^ the defendant, a personal representative, having found among the papers of the deceased a mortgage-deed for 1200/., assigned it to the plaintiff for a valuable consideration, the deed of assign- ment reciting that it was a mortgage-deed made or mentioned to be made between the mortgagor and mortgagee for that sum ; and, after the lapse of six years, it was discovered that the supposed mortgage-deed was a furger^^ and the purchaser thereupon brought money had and received to recover back the sum he paid for it. But Lord Mansfield said : " The basis of the whole argument is fraud. But here everything alleged in the replication may be true, without any fraud on the part of the defendant. He is an administrator with the will annexed, who finds a mortgage-deed amoi]g the papers of his testator, without any arrears of interest, and parts with it bona fide as a marketable commodity. If he had discovered the forgery, and had then got rid of the deed as a true security, the case would have been very different. He did not covenant for the goodness of the title, but only that neither he nor the testator had incumbered the estate. It was incumbent on the plaintiff to look to the goodness of it." That is a dis- 1 2 Dougl. 654, a. 3 3 B. & P. 162. 3 6 T. R. 606. ^ 4 Price, 135. 382 CLARE V. LAMB. [CHAP. IL tinct authority to show that the purchaser must look to his covcuaut, aud that the maxim caveat emptor appUes. lu Johnson v. Johnson ^ the pur- chaser was evicted for a defect of title after payment of the purchase-money, but before the conveyance was complete, and he was held to be entitled to recover back his money. Lord Alvanley thus expresses himself i"'^ "We by no means wish to l)e understood to intimate that, where under a con- tract of sale a vendor does legally convey all the title whicli is in him. and that title turns out to be defective, the purchaser can sue the vendor in an action for money had and received. Every purchaser may protect his pur- chase by proper covenants : where the vendor's title is actually conveyed to the purchaser, the nile caveat emptor applies." Nothing can be more specilic than that. His Lordship goes on : " In the present case, the plaintiff never has had any title conveyed to him, and therefore we are of opinion, notwithstanding the party sued is a legatee, that the plaintiff has paid his money under a mistake : consequently, the rule adopted in courts of law in such cases applies to him, and entitles him to recover that money from the party to whom it has been paid, in an action for money had and re- ceived." Lord St. Leonards, at p. 441 of the 13th edition of his book on Vendors and Purchasers, sums up the result of the authorities thus : " But, if the conveyance has been actually executed by all the necessary parties, and the purchaser is evicted by a title to which the covenants do not extend, he cannot recover the purchase-money either at law or in equity." For this he cites several cases in equity besides the cases I have already referred to. Not only have we the high authority of Lord St. Leonards for the doctrine I am adverting to, but the rule is substantially stated in the same terms in Dart's Vendors and Purchasers, 4th Ed. p. 711. There is only one case which prima facie looks the other way, viz., Hitchcock^. V, Giddings.^ There, a purchaser bought the supposed interest of the vendor , *" ^'^-^ ^/.^ulTremixinder in fee expectant on an estate-tail, and it turned out that at ^[^ . I J the time of the contract the tenant in tail had suffered a recovery, of which f^ "^^ t;W,>i^ -t^ ^^^^ parties were ignorant until after the conveyance was executed and a j Vf- ''■^^V-x \^r^^^t^ bond given for securing the purchase-money. The Court of Exchequer, in "^ . _ the exercise of its equitable jurisdiction, relieved the purchaser against the ^_ "^^ '^ ■ ''^ bon.l, on the ground of fraud. Lord Chief Baron Richards, in giving judg- ^^ i^^^'-'^t*. nient, said : "This is certainly a charge of fraud ; for, it is that the defend- n^'^'-Ln^ <»-ifc, ant, having no title to any interest in these estates at the time of the '^'A^r' ■ contract, bargained as if he had, and that thereby he prevailed on the u, rr^^i^u j^jj^jjj^ig- ^Q giye iji^ tbis bond. Now, if a person sell an estate, having ^ '*^4+''»*J ,v ^,j interest in it at the time, and takes a bond for securing the payment of ' '"" L'^^\,v> the purchase-money, this is certainly a fraud, although both parties should - Vi. JU W^ be ignorant of it at the time ; and that I believe to have been the case ^"^^^ *v^- ;^>»l here. I must not be told that a court of equity cannot interfere where or j^ ''there is no fraud shown. If contracting parties have treated while under ^ , ^A 1 3 B. & P. 1G2. 2 3 15. & P. P. 170. » 1 Price, 135. SECT. I.] WOOD V. SHELDON. 383 a mistake, that will be sufficient ground for the interference of a court of equity : but in this case there is much more. Suppose I sell an estate innocently, which at the time is actually swept away by a flood, without my knowledge of the fact ; am I to be allowed to receive 5000/. and inter- est, because the conveyance is executed and a bond given for that sum as the purchase-money, when in point of fact I had not an inch of the land so sold to sell 1 That was precisely the case with the present defendant, and it would be hard indeed if a coui't of equity could not interfere to relieve the purchaser." The distinction between that case and the present is obvi- ous, — there, the vendor was seeking to enforce performance of the contract by compelling the purchaser to pay for a thing he had not got ; here, the plaintiff is calling upon the vendors to refund money which they honestly believed themselves to be entitled to when they received it. ^^ Potior est conditio possidentis.''^ It does not appear to me that that case interferes with the doctrine laid down by the high authorities I have referred to, which, regard being had to the usual course of conveyancing, seems to me to be just. Denman, J. I am entirely of the same opinion ; and, after the full judgment pronounced by my Brother Grove, I think it unnecessary to say more. Lord Coleridge, C. J. I am of the same opinion. The rule is distinctly stated by Lord St. Leonards, and his conclusions are fully warranted by the cases before Lords Mansfield and Alvanley. Keating, J., concurred. Rule discharged. RICHARD WOOD et al, Plaintiffs in Error v. ISRAEL SHELDON, Defendant in Error. In the Court of Errors and Appeals of New Jersey, June term, 1880. [ Reported in 42 New Jersey Law Reports, 421. ] Writ of error to the Supreme Court, bringing up a judgment entered on a special verdict taken at the Essex Circuit. P. L. Voorhees for the plaintiff in error. F. A. Johnson and B. G. Pitney for the defendant in error. The opinion of the court was delivered by Beasley, C. J. The problem which the court is called on to solve, in this case, arises out of the following transaction : The defendants, in the court below, and who are now the plaintiffs in this writ of I error, were stockholders in the Citizens' Gas liight Company of Newark, | when the board of directors of that corporation passed a resolution declar- ing a scrip dividend of ten per cent on the amount of the capital stock, 384 WOOD V. SHELDON. [chap, ii, with interest, payable at the option of the company, and in pursuance thereof, issued to the defendants the certificate set out in the special ver- dict, and which, through tlie mediation of a broker, was purchased of them by the plaintiff. This instrument certifies that the defend ants are e ntitled to the sum of $1G40, "payable ratably with other certi ficates jssued pursuant to said resolution," at the plea sure of the company, with interest a t the rate of seven per cent per annum. It is furtheFTound, in a certain suit in the Court of Chancery, that this and the other certificates of indebtedness of the same class, were illegally an d fraudu- lently issued, and it was decreed that they s hould be delivered up t o be cancelled. This having been done, the defendant in error brought this action to recover the money paid by him in this transaction. The defence set up to this claim is, that there was no warranty annexed to this sale, and that the plaintiff got the certificate of indebtedness, ■which was the thing he bargained for. But this position rests, plainly, I think, on a false basis. The plaintiff did not bart;ain for the certificate, but fo r the money of which the certifi- cate purported to be the evidence of title. It serves to simplify the point to keep in mind the circumstance that this certificate is not a negotiable instrument, so that the rule of law pertinent to this matter is the rule that applies in the sale of an ordinary, uncommercial chose in action. The legal regulations which appertain to a sale of such an interest d o no t differ from those that attend the sale of a chattel. If a person sells a bond, in the absence of a special bargain, the legal incidents of the trans- action are the same as if the article sold had been a horse. _Jn both ia_- s tances, under ordinary circumstances, there is an implied warranty of title in^jjic t hing sold, by the vendor. Mr. Benjamin, in his work on Sales, states what he conceives to be the English rule at the present day in these words, page 557 : "A sale of personal chattels implies an affirmation by the vendor, that the chattel is his, and therefore he warrants the title, unless it be shown, by the facts and circumstances of the sale, that the vendor did not intend to assert ownership, but only to transfer such inter- est as he might have in the chattel sold." This is the well-known Ameri- can doctrine. Applying this principle in the present instance, it is clear that, under the conditions of the sale, the defendants, by the mere act of selling, impliedly held out that the title to this money was in them, and the certificate itself contained that averment. It certified that t he sum mentioned was due from the company to the defendants, and by the transfer of the certificate the detenUants adopted that statement. rn~ point of fact, there was no debt or money due, or corporate liability of any kind. There was nothing to sell, and, consequently, the defendants had no title to that which they undertook to sell. The ill-founded belief o f the d efendants, that they were possessed of a good title, is an ingredient of the case of no value, for the ground (jf recovery is not deceit, but warranty . SECT. I.] WOOD V. SHELDON. 385 Looking thus at the facts before the court in the light of legal princi- ples, I have felt no difficulty in reaching this result, nor do the authorities appear to be in any degree adverse to such a view. The only case to which my attention has been called, that seems to wear a hostile semblance, is that of Lettauer v. Goldman,^ but, on examination, it will be perceived that that decision is rested on a circumstance that is wanting in the present case, for the court expressly states that the rule ado])ted and en- forced is applicable only to a contract by force of which negotiable paper is transferred. The case referred to decided that the holder of a promissory note, which was tainted with usury, and was therefore void, could not be held liable, he having transferred it for a valuable consideration, and with- out knowledge, on his part, of such defect. This judgment is admittedly supported by uo precedent, and if we reason by analogy, there seems to be strong gi'ound to call it in question ; but as the authority is irrelevant to the present case, it is unnecessary to pause upon it. The other decisions, as it appears to me, lay down principles that favor an affirmance of the present judgment. Among these. Young v. Cole,^ is a case of mai'k. In that case, the plaintiff was a stockbroker, and had sold for the defendant four Guatemala bonds, and had paid him the price. The bonds, after they had been in the hands of the purchaser two days, were discovered to be worthless, for want of being properly stamped ; thereupon, the broker took them back, and, having reimbursed the purchaser, brought suit against the person for whom he had made such sale. It was held he was entitled to recover. The court, in assigning its reasons for this course, said : " It seems, therefore, that the consideration on which the plaintiff paid his money has failed as completely as if the defendant had contracted to sell foreign gold coin, and had handed over counters instead." In the case now pending, what was purchased was a debt due from tliis gas com- pany, and what was received was a paper which, at the time, had no value, and which never had possessed any. Gompertz v. Bartlett,^ is a case noticeable in this connection. An un- stamped bill of exchange, endorsed in blank, was sold without recourse by the holder, who was not a party to the bill. The instrument proved to j have been drawn in England, and was unavailable for want of a stamp, the vendor and purchaser, at the time of the sale, being both alike ignorant of the defect. The decision was that the money so paid for the bill could be recovered, the ground being that the article sold, as a foreign bill, did not answer the description by which it was sold. In the present case, the j t hing ost ensibly sold h ad never had a legal existence, so that it cou ld not icorrespond with its description at the time of sale. It will be observed Ithat these two cases are so much the stronger on the point in question, as Ithey relate to commercial paper, which, from its peculiar nature, has a icertain merchantable quality attached to it, so that when it is sold without 1 72 N. Y. 506. 2 3 Biug. N. Cas. 724. 3 2 El. & Bl. 849. 25 s 386 WOOD V. SHELDON. [chap. II. recourse, the infereuce is not altogether unreasonable that it was the uudorstaudiug that the purchaser assumed some of the risks touching its validity. But such au implication is entirely out of place where the transaction is an assignment of an ordmary chose ui adton, tor then the t hing sold constitutes the entire consideration of the purchase, t he bill of sale or certifica te of transfer having no separate value of its own. Nor should these remarks be closed without a reference to the impor- tant case of Thrall v. Newell, in which it was decided that au assignment that described the instrument assigned as " a note," amounted to a war- ranty that such note was a valid one so far as respected the capacity of the maker to enter into the contract. In that case, the note was void because of the insanity of the drawer of the note, and it was held that the money paid for such note could be recovered. The court also express a very decided opinion that if the affair had been devoid of any written con- tract, the defendant would have been liable to repay the money received by him for such void instrument, inasmuch as a warranty of the legal exist- ence of the note would have been implied by law from the sale of it. The cases cited in the brief of the counsel of the plaintitf in error, ap- pear to me wanting in pertinency. They are decisions elucidating or en- forcing the rule of caveat emptor, which it is insisted applies as well to a sale of stocks as to chattels. ITut that rule, in all cases, is applicable only to the quality of the thing: sold, and not to its title . So it has no relc- vancy where a nonentity has been the subject of a sale^ The precedents cited which maintain the principle that where a person gets what he intended to pvu'chase, he cannot repudiate the bargain, no matter how worthless the thing so obtained may be, certainly can have no application to this case, in which the vendee did not get what he expected to get. Both parties to the present contract thought that he was obtaining a valid obligation of this gas compan}', binding them to pay this large sum of money. Instead of this, a nullity was passed to him. The judgment should be affirmed. For affirmance — The Chief Justice, Drxoy, Kxapp, Magie, Parker, Reed, Scudder, Van Syckel, Clement, Dodd, Green, Lathrop, Wales — 13. For reversal — None. 1 19 Vt. 20S. SECT. I.] WHITE V. NATIONAL BANK. 387 WHITE V. NATIONAL BANK. In the Supreme Court of the United States, October Term, 1880. [Reported in 102 United Slates Reports, G58.] Error to the Circuit Court of the United States for the District of Colorado. The facts are stated in the opinion of the court. Mr. aS'. V. White for the plaintiff in error. Mr. Henry M. Teller, contra. !Mr. Justice Miller delivered the opinion of the court. This is an action by White, who was plaintiff below, for the sum of $60,000, against the Miner's National Bank of Georgetown, Colorado. The declaration contains twelve special counts, upon as many drafts, drawn by the Stewart Silver Reducing Company on Thomas W. Phelps, payable in the City of New York to the order of the defendant, and indorsed by J. L. Brownell, its president, to S. V. White, and duly protested for non- payment. To these counts is added another, in this language : " And for that also, heretofore, to wit, on the first day of April, a. d. 1876, at the said county of Clear Creek, the said defendant was indebted to plaintiff in $60,000, for so much money by the plaintiff, before that time, paid to the use of said defendant at its request, which said sura of money was to be paid to the plaintiff on request," with an allegation of request and refusal. To this declaration the defendant pleaded the general issue and several I special pleas, which it is unnecessary to notice. The case was tried by a jury. The plaintiff recovered $15,000 debt and I $2625 damages for interest, on account of three of the drafts. His claim on the other drafts, and for money paid at defendant's request, was rejected. jHe, therefore, brings this writ, and assigns for error the rulings of the court iin the progress of the trial, which are set forth in a bill of exceptions. I J. L. Brownell, a partner in the firm of J. L. Brownell & Brother, doing ibusiness as bankers and brokers in the City of New York, was also president of the defendant, and interested in the Stewart Silver Reducing Company jduring the time of the transactions involved in this suit. As such presi- Ident, he sold or transferred the several drafts on which this suit is founded to White, and received of the latter for the use of the bank the amount jof said drafts less the discount. They were not paid at maturity, but due demand, protest, and notice were made. Those on which plaintiff recovered need not be further noticed. The others were rejected by the pourt as evidence against the defendant, on account of the form of the ndorsement. 388 WHITE V. NATIONAL BANK. [CIIAP. II. As they were, in this respect, alike, the form of one will be given here as a specimen of the whole : — "$5,000.] Office of the Stewart Silver Keducing Company, [l. s.] "Georgetown, Col., Oct. 25, 1875. "Four months after date pay to the order of the Miners' National Bank, Georgetown, Colorado, payable at the Third National Uank, New York City, five thousand dollars. "Stewaut Silver Reducing Company, "By J. Oscar Stewart, President. " To Thos. W. Phelps, Esq., " Georgetown, Colorado." Across the face, in red: "Accepted. — Thos. W. Phelps." Indorsed : " No. . Pay S. V. White or order for account Miners' National Bank, Georgetown, Colorado. J. L. Brownell, p't. " S. V. White." Because of the words " for account of Miners' National Bank of George- town, Colorado," in this indorsement by Brownell, as president of the bank, the Circuit Court ruled that there arose out of the transaction no obliga- tion on the part of the bank to pay the draft or return the money, although due demand of the acceptor and refusal to pay was proved, with notice to the bank. This is the principal question which we are to decide. The plaintiff relies largely on two propositions to establish his right to recover against defendant on this indorsement. The first of these is that these words are merely directory and capable of explanation, and when it is shown by parol testimony, as in this case, that the plaintiff bought and paid full value for the draft, with the under- standing that he was buying it as commercial paper, with the usual inci- dents of such a transaction, the indorser is liable in the usual manner, notwithstanding the words we have quoted. The other proposition is that such is the custom of bankers who deal in such paper in New York, where these drafts are payable, and that the cus- tom must control the construction of the contract. We are not satisfied that either of these propositions is sound. The language of the indorsement is without ambiguity, and needs no explanation, either by parol proof or by resort to usnge. The plain mean- ing of it is, that the acceptor of the draft is to pay it to the indorsee for the use of the indorser. The indorsee is to receive it on account of the in- dorser. It does not purport to transfer the title of the paper or the owner- .ship of the money when received. Both these remain, by the reasonable and almost necessary meaning of the language, in the indorser. It seems to us that the court below correctly construed the effect of tlie indorsement to be to make Wiiitc tlio ngeiit of the bank for the collection of thu money. SECT. I.] WHITE V. NATIONAL BANK. 389 If this be a sound view of the legal effect of the written iudorsemeut, neither parol proof nor custom can be received to contradict it. But we are aware of the necessity of proceeding with great caution in a case of first impression in regard to questions aftecting commercial transac- tions, and we.do not, therefore, decide this one, because we do not think it absolutely necessary to the case. For assuming this to be correct, we think the plaintiff was still entitled to recover more than he did. The court below seems to have paid but little attention to the issue on the count for money paid to the use of defendant. It appears distinctly by the evidence, and is uncontradicted, that the money paid by plaintiff on account of these drafts was ])laced to the credit of the defendant with its corresponding bankers in New York, and paid out on checks of the defendant, so that there is no question that the latter received the money. There is also no question but that plaintiff thought he was buying these drafts and that they became his property by their delivery to him. It is also evident that Brownell, the president of the bank, thought he was selling him the drafts, and there is evidence that neither White nor Brownell noticed the restrictive words of the indorse- ment. But if the court below was correct in holding that the indorse- ment — tlie evidence in writing of what the parties did -^ only made White the agent of the bank, and left the bank the owner of the drafts, then both White and Brownell were mistaken, and the money was paid and received under a mutual mistake. If White paid his money as purchase-money of the drafts, he paid it without any consideration, for he did not purchase the drafts. He only burdened himself with the duty of collecting the money for the bank, and the bank received and used his money without giving him any consideration for it. So, also, if White did not become the owner of the drafts, and if, when he should collect the money on them, he would hold it, in the language of the indorsement, " for the account of the bank," the jury might have been left at liberty to presume that the money which he paid was a loan or advance on the security of the paper delivered to him at the time. Either of these views of the transaction would justify a recovery under the money count, in which the delivery of the money and the delivery of the drafts, with the qualified indorsement, would be evi- dence of the payment and receipt of the money and the circumstances which attended it. This indorsement is treated by counsel here as an assignment of the paper without recourse, in which the title to the paper passed, but the right to recourse to the assignor was cut off. But this is evidently an error. If the court below was correct, neither the title to the paper nor the right to the money under it passed. The only effect was to justify the acceptor in paying to the indorsee for the account of the bank. The legal effect of the transaction, as evidenced by the writing, was merely to enable White to collect tho monev for the bank. Though a restricted indorse- 590 BREE V. HOLBECH. [chap. II. ment, it was no assignment at all. It is not, therefore, a contradiction or a varying of the meaning of the written instrument to prove that, in the delivery of this paper to White, he and the bank were under a mistake as to the effect of it, or that he paid this money to the bauk without any con- sideration, or that he advanced money to the bank in the idea that he was to be reimbursed out of the draft when collected. The instructions given by the court, and the refusal of the prayer of plaintiff, fairly raised this question. All the drafts, except the three which had no such indorsement, were excluded from the jury. The jviry were told that nothing else was before them. The thirteenth instruction asked by plaintifif and refused by the court distinctly affirmed that if Brownell obtained from plaintiff sums of money on account of the drafts, which the court had refused as evidence, which money was placed to the credit of defendant in a New York bank, and afterwards drawn by defendant, the defendant was liable for such money. The judgment will be reversed, and the case remanded with directions to set aside the verdict and grant a new trial ; and it is So ordered. (f.) Mistake may he as to the Existence or Identity of the Suhject-Matter of Sale. BREE V. HOLBECH. In the King's Bench, May 18, 1781. [Reported in 2 Douglas, 654.] In an action of assumpsit for 2000?. had and received to the plaintifif's use, — The defendant having pleaded the general issue, and the statute of limitations, — the plaintiff replied : That the writ was sued out on the 22d of August, 1780; that, on the 18th of February, 1773, the defendant s sertcd and affirmed that there was an indenture of mortgage , dated the 24th of June, 17C8, made or mentioned to be made, between F. and S. of the one part, and W. H. (the defendant's uncle) on the other, for a term of years, granted to the said W. H. as a security for the payme nt of 1200/. with interest ; that tlie defendant then further assorted and affirm^^Tt^^^t, after making the said indenture, W. H. died ; that the defendant was hig ^ administrator with the will annexed, and there was due to him, as admin- istrator, the said principal sum on the said security, that the plaintiff, rely- ing on these assertions and affirmations, advanced 1200/. to the defendant, on his executing an indenture of assignment en the said 18th of Fel)rnary, 1773, which recited the mortgage, and purported, for the consideration of the 1200/. so advanced, to assign all the premises by the said recited SECT. I.] BREE V. IIOLBECH. 391 indenture of mortgage granted, for the remainder of the term, subject to tlie original power of redemption ; that, in this indenture of assitrn ment the defendant agreed with the plaintiff', that neither tlic said W. II. nor {he defendant had done any act to incumber the mortgaged estate ; that the said several assertions a nd affirmations of the defendant,^!iKr^o tho recitals in tho said indenture of assignment, were false, ijiasmuch as there nev er was any such indenture of mortgage, nor the sum of 1200/. nor any other s um, due t o tlie defendant, a s administrator of W. H. on such secur- ity, in the manner the defendant had asserted and affirmed, and as in the indenture of assignment was recited, or in any other manner ; audthat_ n either the premises nor any part thereof p assed by the assignment to the plaintiff", no r did any estate, right, or title therein, or to the said sunt- of 1200/. vest in him ; that, by fraud and imposition, and by means of the said false assertions and affirmations, and false recitals, the plaintiff" was induced to pay the said sum of 1200/. on the execution of the said indenture of assignment ; that, at the time of tlie execution thereof and of paying the money, the plaintiff was ignorant of the falsehood of the said assertions, affirmations, and recitals, and of the fraud so practised upon him, and did not discover them till within the space of six years next be- fore suing out the writ. To this replication, the defendant demurred gen- erally. The case was, this day, argued by Hill, Serjeant, for the plaintiff" ; and Chamhre, for the defendant. Cliambre, in support of the demurrer, contended, that there was noth- ing alleged in the replication which could take the case out of the statute. There was no fraud stated to have been practised by the defendant ; for it was not averred that he knew of the falsehood of the diff'erent assertions and recitals. But, if there had been fraud, that would not have been sufficient ; it was the plaintiff's business to look to the validity of his security ; and there is nothing relative to fraud among the different excep- tions and savings in the statute. Hill, Serjeant, insisted : 1. That, in point of law, this was fraud on the part of the defendant, although he himself might not know of the false- hood ; 2. That, where a party has been induced, by fi-and, to pay money, the statute of limitations does not run, or at least only runs from the time when the fraud is discovered. — 1. The assertions of the defendant, he observed, were positive, without qualification, and therefore he made himself answerable for the truth of them ; and, if any loss had been in- curred by his mistake, it ought to fall upon him, not upon an innocent third person. On this first head, he cited, 1 Show. 68 ; 3 Mod. 261 ; Comb. 163; Hearne's Pleader, 102, 224; Cro. Car. 141; Sir W. Jones, 196 ; 2 Burr. 112 ; 12 Mod. 494 ; 2 Ves. 198—2. On the second point, he relied on Booth v. Lord Warrington, in Dom. Proc. 1714 (which he cited from the printed cases), and The South Sea Company v. Wymondsell. ^ 1 3 P. Wms. 143 (a). 392 SHOVE V. WEBB. [CIIAP. 11. Lord Mansfield, — The basis of the whole argument is fraud ; and the question is, whether fraud is anywhere asserted in this replication. Ther e may be many cases where the assertion of a fals e fact, thoug h unknown to be false to the party making the assertion, will be fraudulent ; as in the case of Sir Crisp Gascoyne, who insured^aTIife, and affirmed It was as good a life as any in England, not knowing whether it was or was not. There may be cases too, which fraud will take out of the statute of limitations. But, here, everything alleged in the replication may be true, without any fraud on the part of the defendant. He is an administrator with the will annexed, who finds a mortga g e-deed among th e papers of his testator, with- out an y arrears of interest, and parts with it^oria ^(7e^"a"s "aT marketable commod[ty. If he had discovered the forgery, and had then got rid of the deed as a true secui'ity, the case would have been very different. He d id not covenant for the goodness of the title, but only that neither he nor the testator had incumbered th e est ate. It was incumbent on the plaintiff to look to the goodness of it. Jliil had leave to amend, in case, upon inquiry, the facts would support a charge of fraud. SHOVE V. WEBB. In the King's Bench, May 14, 1787. [Reported in 1 Term Reports, 732.] Assumpsit for goods sold and delivered ; money paid, laid out, and ex- pended ; money had and received ; and for goods sold and delivered to one A. Dobinson upon the defendant's credit and at his request. Plea the general issue. On the trial at the sittings after last Hilary term at Guildhall before BuLLER, J., a verdi ct w as taken for the plaintiff, damages IGO/. 17s. 3(/., subject to the opinion of the court as to the sum of 118^. 17s. 3d. part thereof. The defendant on the 2Gth of July, 1783, executed a bond and warrant of attorney to confess judgment thereon in the court of Common Pleas, for securing an annuity of 251. during the life of the defendant. The defend- ant also executed an assignment of his half-pay as an ensign in the army as a collateral security. The deeds for securing the annuity haVe been since set aside in the Common Picas, because part of the consideration for which the annuity was granted was 46/. 19s. 9(/. due from the defendant to the plaintiff for goods previously sold by the plaintiff to him, which was not specified in the memorial as registered. The residue of the considera- tion fur which the annuity was granted, was 111. 17s. Od., paid by tlie SECT, I.] JONES V. KVDE. 393 plaintiff to the defendant in cash at the time of granting the annuity. The defendant is indebted to the phiintiff in i2L for goods sold. The ques tion for the opin i on of the court is, AVhcthcr the plaintiff is en- titled_ to recover any, and what, sum beyond the sum of 42/.? The case was argued on a former day in this term by Wood for the plain- tiff, and Botm^ for the defendant, when the court took time to consider of it. On this day Ashhurst, J., delivered the opinion of the court. The question in this case will depend on the construction of the statute 17 Geo. 3, c. 2G, called the Annuity Act.^ The contract was strictly legal, and not within the mischiefs intended to be remedied by the act. The^ secur ity then ^ is set aside , n ot on account of an y fraud or defect in the contrac^Jt self, but upon a formal defect in making _thejTi cmorial, or at least it was an i nnocent mistake of the law^ And taking that to be the case, when the security was vacated, the origi nal contract revived. If in- - deed the sale had been made a few days before^ colorably, and with a view of afterwards stating the antecedent debt as a part of the consideration of an annuity intended to be granted, that would have totally altered the case ; b ut as it is to be, t .n.kpn fi^ nt they were bo7ia fide sold, we think the plaintiff is entitled to recover for th em. In re gard to the money paid as part of the consideration ; as the secu rity i s not set aside for any fraud in the transaction , but merely for a mistake or omission in form^ it becomes unconscie ntious in the party to reta nTit, and i s therefore recoverable on the count for money had and re ceivefTtn the pl aintiff's use. Therefore we are of opinion that the plaintiff is entitled to recover for his whole demand. Judgment for the plaintiff' 1601. 17s. 3d. JONES AND Others v. RYDE and Another. In the Common Pleas, May 4, 1814. [Reported in 5 Taunton, 488.] This was an action of assumpsit for money had and received which was tried at the sittings in London, after Michaelmas term, 1813, before Mans- field, C, J., when a verdict was found for the plaintiffs, damages lOOO/., subject to a case, which in substance was, that the defendants, who were bill brokers, were possessed of a navy-bill which purported to have been issued by the transport board, and to bear date and have been registered on the 17th of July, 1813, and to be payable on the 15th of October, 1813, ^ So much of the opinion as relates to the question of construction has been omitted. — Ed. ^T 394 JONES V. RYDE. [CHAP. II. and to be drawn on the treasurer of the navy in pursuance of a charter- party of 25th Juno, 1808, made with Messrs. Bell ^ /^Lx aHUZ^ >' A./-.,^.,^ /-- ^"V^ " (^/ When a Demand is necessary. / In the Exchequer, May 6, 1869. [Reported in Law Reports 4 Exchequer, 139- ] Action for money had and received. Plea : Never indebted. Issue. The plaintiti' being about to become tenant of a farm held by the defend- ant under a lease which would expire in the following year, the plaintiff and defendant on the 17th of July, 18G8, entered into an agreement iu /^e-^ie^^ e^ji^Y-c the following terms: — . " First, the said J. S. Jeffries, by and with the consent of Sir George •- — x^ /-»^ s tvc^ Broke Middleton (the landlord), has conveyed and assigned, in considera- ,tion of the sum of 2000^., unto the said T. Freeman all his interest in the farm known as Alnesbourne Priory, etc., together with all the growing ■ L^ Z^"*^.^ -r ^ . sisting of the flock of black-faced ewes, twenty-five scores, not more than three and a half scores to be crones, and sixteen agricultural horses, also all / y , crops as now standing upon the laud, or as already harvested and secured, ^ ''all the covenants and general valuation of the farm, all the live stock con- — riC«-t^he dead stock as generally used upon the said farm." y- y / ~y Secondly, the defendant was to harvest the crops, pay rent, etc., till /^ ^''-^''^^lichaelmas, and if he should be prevented from fulfilling his contract was ^Ly^t^^i^^iX^ -*. tillage and seed to same ; " as to this it was said that the same thing was charged twice over, once as tillage and seed, and afterwards as a crop. A verdict was taken for the plaintiff, with leave to the defendant to move to enter a verdict for him, the amount to be ascertained by an arbitrator, in case the judgment of the court should be in favor of the plaintiff. A rule having been obtained accordingly, J. Broivn, Q. C, Sir George Honyman, Q. C, and Finlay showed cause. Haivkins, Q. C, and Philbrick, in support of the rule, were not called upon. Kelly, C. B., after stating the facts of the case and the terms of the agreement, proceeded : The plaintiff brings this action to recover either the whole sum of 5319/., or the 2000/. paid on deposit, or the remaining 33] 9/., or an undefined sum which the jury may find to be the value. of those items 27 418 FREEMAN V. JEFFRIES. [CHAP. 11. which ought not to have been included in the vahaation. At the trial va- rious items were specified and agreed upon, which were admitted, or which were to be assumed, to represent fairly the plaintiff's objections. These items are of two kinds. The first are those which, by the custom of the country, ought not to be included in the valuation. This raises the ques- tion whether, \nider the a<,'reemcnt, power was not given to the valuers to determine what the custom of the country was, and to apply it to the cir- cumstances. In my opinion they had that power. If, then, we were to suppose a jury satisfied that some items were included which ought by the custom to have been excluded, yet the plaintiff cannot recover, for the question was left to the determination of the valuers, whose decision was final. The second class of items may rest on a different principle. Here it is said the valuation contains cumulative charges, one for a crop, and another for the seed from which it was raised. It may even here, however, be doubtful whether the question is not one of the custom of the country, and one therefore falling within the same principle as the first. But, assuming it to be otherwise, it is still a question whether, on a view of the fields and what was growing there, the valuers were not at liberty to consider whether both stubble and seed should not be included in the valuation. ' Therefore, looking at the nature of the items, and admitting that there may have been others of larger amount but of the same character, it is not competent to the plaintiff to object to the valuation ; but the determination of the valu- ers is conclusive against him, as it was against the defendant. On these grounds I am of opinion that the rule must be made absolute. But I must add that if the case were, as was put in argument, that the valuers had manifestly included something which they had no jurisdiction, right, or power to include, as for instance, a field of several acres with a crop of wheat upon it belonging to another owner, I think the action would still, under the circumstances, not be maintainable. For we must in this action consider the conduct of the parties before, at the time of, and after the valuation, the acts done between the two, and the acts done separately by the plaintiff and not communicated to the defendant. Everything goes on regularly till the 21st of July, when the defendant produces the inven- tory and valuation, and delivers it to the plaintiflt", who accepts and receives it. On the 23d the parties go together over the farm, when the plaintiff might have compared the inventory with the stock and crops, and seen whether it contained anything which ought not to have been included. But he did not do so. He accepted the inventory and delivered to tlie de- fendant the promissory note for the amount of the valuation according to their agreement. Now if a question liad then been raised as to the correct- ness of the valuation, and an error had been discovered, steps might have been taken to rectify it before tlio condition of the ])artios was altered, But the plaintitt", having received the inventory, and with full means of in- SECT. I.] FREEMAN V. JEFFRIES. 419 quiry, offers no objection and makes no inquiry, but takes possession of tlie farm, stock, and crops. Here again he had an opportunity of going through the valuation on the spot ; but he does not do so ; and it is not until after he has paid the promissory note on its becoming due in November, that, having previously, and on the occasion of his selling his interest in the farm, discovered, as he alleges, that a mistake had Ijeen made in the valuation, he commences this action. Now, suppose a mistake had been made in fact, and that too, of an important kind, such as that a field not belonging to the farm had been included, the plaintiff's duty would have been to go at once to the defendant and claim a deduction, and (as the items had not been separately estimated) that the valuers should revise the inventory and val- uation, and determine how much ought to be allowed. I put the question to Mr. Brown whether the valuers, having once made their valuation, were fundi officio, or whether it was still open to them to make a new valuation. He agreed that if the valuation, on such a ground, was erroneous, the valu- ers would be entitled to make a new valuation, and the true and correct amount being thus ascertained, the excess, he contended, and perhaps with reason, might be recovered back. This, however, was not done in fact. No notice was given to the defendant or to the valuers of any alleged error, nor was any opportunity afforded him or them of examining into the mat- ter. On the contrary, the defendant was led to believe, and did believe, that the valuation delivered was a correct, final, and conclusive estimate, and he received no notice to the contrary until after the promissory note had been paid, and it was impossible to reinstate the parties in their pre- vious condition. Clearh', then, the plaintiff cannot recover back the whole sum of 5319/. ; nor can he recover the 2000/. paid on deposit, for it was paid, not under the valuation at all, but in pursuance of the agreement. Can he then, thirdly, recover back the 3319/., or that sum whatever it was which he paid, as he alleges, under a mistake"? Cei'tainly he cannot. As- suming even (though without conceding it) that the valuation was incor- rect and void, and that, if the money had not been paid, an action against the plaintiff for the 3319/. must have failed, yet the plaintiff cannot, under the present circumstances, recover ; for, in the first place, it was paid, not in consequence of the valuation alone, nor because a specific sum was fixed by the valuation ; but the consideration for it was the sale and delivery of the farm, stock, and crops, which having been in fact delivered over to the plaintiff and being in his actual possession, no such failure of consideration has taken place as will entitle him to recover the sum paid, as if a mistake had been committed applying to the whole matter. This is an equitable action, and will only lie when it is inequitable in the defendant to retain the money which the plaintiff claims ; but, so fixr from that being the case here, it would be most inequitable to allow the plaintiff to take it away. The plaintiff was bound before he could call on the defendant to repay any money at all, and whilst it was yet practicable to correct the alleged error, 420 FREEMAN V. JEFFRIES. [CIIAP. II. to give full notice of it to the defeudant, and afford him the opportunity of investigating the claim and rectifying the valuation. It was in his power to do so, for he was still in possession of the farm. But having thus the means of bringing the question between himself and the defendant to a just and satisfactory settlement, he gives no intimation of any objection to the valuation, allows the defendant to suppose that the matter is concluded, and then, with full knowledge of all the circumstances on which he now founds this action, he parts with the farm, thus rendering it impossible for the valuers or the defendant, or himself even, to enter the farm and inspect the stock and crops for the purpose of reconsidering the valuation. He pays the promissory note, still without objection, and finally, and without a demand made, in December he commences this action. It is therefore not inequitable for the defendant to retain this money, for he has received it bona fide as the price of the stock and crops which he has delivered over to the plaintiff according to his agreement, and of which he has no means of repossessing himself. It appears to me, therefore, that this case does not come within the prin- ciple upon which the action for money had and received, to recover money paid by mistake, is maintainable. That principle is clear and simple in the extreme. No man should by law be deprived of his money, which he has parted with under a mistake, and where it is against justice and conscience that the receiver should retain it. If A. pay money to B., supposing him to be the» agent of C, to whom he owes the money, and B. be not the agent, it may bo recovered back again. If A. and B. are settling an ac- count, and make a mistake in summing up the items — A. pays B. 100/. too much — he may recover it back again. So, exempli gratia, in one of the many decided cases on this point, where an attorney's clerk had paid a sheriff 10s. Go?, demanded as of right for three warrants, believing that sura to be due, and id. for each warrant only was the proper sum, the attorney w^as held entitled to set off the difference, as money had and received in an action brought against him by the sheriff. Dew v. Parsons.^ But in all these cases, not only was the money paid under a mistake by the party paying it; but the retaining of the money by the receiver was agaiust equity, jus- tice, and good conscience. Here, however, there was no mistake on the part of the plaintiff. He paid the amount at which the valuers had in truth and in fact assessed the property valued : and the mistake, if any, was theirs, and he and not the defendant had the means of enabling them to rectify their error. On the other hand, not only was it not against equity and good conscience in the defendant to retain the money, at lca.st until the account could be fairly adjusted between him and the plaintiff, but it would have been manifestly unrighteous and unjust that the plain- tiff, having received po.s.scssion of the property for which the money had been paid, having sold it for a large sum of money wliich he had also re- 1 2 15. & A. 562. SECT. I.] FREEMAN V. JEFFRIES. 421 ceived, and thus knowingly deprived himself and the defendant of the means of rectifying any error which might have been committed, or of re- instating themselves hi their original condition, should be permitted by law to recover back the money he had so paid, thus taking to himself at once the property and the price of it, and leaving the defendant to his legal remedy, after depriving him of all means of practically enforcing it. Further, it appears that the promissory note was still in the hands of the defendant at the time of the payment of the money by the plaintiff in November ; and inasmuch as the plaintiff then had full knowledge of all the facts of which he alleges that he was ignorant when he gave the prom- issory note, and upon his ignorance of which his present claim is founded, I am of opinion that this was a voluntary payment made with knowledge of all the facts, and on that ground also the money cannot be recovered back in this action. For these reasons I think that the verdict for the plaintiff should be set aside, and the rule made absolute to enter the verdict for the defendant. Martin, B. I also think this rule must be made absolute. It is clear this action is not maintainable without a demand, that is, an intimation from the plaintiff to the defendant that the money which has been paid was paid under such circumstances as render a part or the whole recovera- ble back. I think this is clear, and I am prepared to give judgment on this point alone. The action is at common law ; and I only know of two kinds of common-law actions ; one for injury to person or property, and the other for breach of contract. Now, the ordinary case of breach of con- tract is, where both parties have agreed to a certain thing, and one breaks the promise which he has made. But for a long time implied contracts have been admitted into the law, where, a transaction having taken place between parties, a state of things has arisen in reference to it which was not contemplated by them, but is such that the one party ought in justice and fair dealing to pay a sum of money to the other. Now, a state of circum- stances has (it must be assumed) arisen here which was not in the contem- plation of either party, and which it is insisted raises an implied contract in the defendant. To judge whether this is so we must look at the circum- stances. The parties have entered into an agreement for the sale of the defendant's interest in the farm, stock and crops, for an entire sum to be put on it by two valuers, and of which 2000^. was paid down. It was the duty of the valuers to determine what was, according to the custom of the country, to be paid by an incoming to the outgoing tenant. They had no difference requiring the appointment of an umpire, but make an award, as to which it is ridiculous to suppose that any extravagant or considerable error has been committed and passed over by the plaintiff's valuer against the interest of his employer. A promissory note is given for the amount of the valuation according to the agreement, and is paid ; the plaintiff enters into possession of the farm ; be again sells his interest, and so ceases 422 FREEMAN V. JEFFRIES. [CIIAP. IL to be able to return to the defendant what he had got from him ; and now, the valuer on this sale having discovered what he thinks to be a mistake (and what we must suppose to be such) in the former valuation, the plain- tiflf without notice brings an action against the defendant to recover the whole sum which he has paid under that valuation. We are asked to treat the whole affair as a nullity, and are told that this is the essence of justice. But the effect contended for could only be produced by a rescission of the contract, and the contract cannot be rescinded unless the parties can be restored to their original condition. But if one party has done an act by reason of which it has become impossible to put the other in the same sit- uation as before, there can be no rescission, and the remedy, if any, must be on the contract. It is contended that under these circumstances, a con- tract will be implied to return the money ; but I am not of that opinion. If an action lies for recovering the money paid for those items which ought not to have been included in the valuation, it would be an action for the return of a portion of the money paid, on the ground that the consideration had failed, and after notice given that it had failed. But unless some com- munication has been made by the plaintiff, he is not entitled to recover either the whole or any part of this sum. On the ground, therefore, that the plaintiff is not in a position to sue without having made a demand on the defendant, I am of opinion that this rule must be made absolute. Bramwell, B. I give no opinion on many of the questions which have been discussed ; but on the ground I am about to mention I think this rule must be made absolute. The plaintiff's case is this : " I have paid money which I was not bound to pay, and which, if I had known facts which I now know, I should not have paid, I paid it on the footing of a valuation having been made, when, in fact, no valuation had been made ; neither a valuation including in distinct items the matters which were to be valued, nor a valuation in general of the whole of the items for which I ought to pay." But if the plaintiff were under the circumstances entitled to be repaid the sum he claims, he ought to have given notice to the de- fendant of the facts by reason of which he was so entitled ; because until he did so there could be no duty on the defendant to pay it over. Put the claim of this action, which is in the technical form of an action for money had and received, in a rational way, and it amounts to this. The plaintiff says, " I, in the belief that a certain valuation had been made, paid certain moneys to you ; I have since found that the valuation was not made, I therefore say there is a duty on your part to repay me." Would the duty of repayment arise until this notice was given] I apprehend not; for at what other time could it have arisen 1 Not at the moment when the money was paid ; for it was paid with the intention that the defendant should keep it. Was it, then, at the moment when tlie mistake was dis- covered] This would be most unjust; the mistake was tlie plaintiff's, and tlic discovery i.s the plaintiff's, and tiie defendant may still think that SECT. I.] FREEMAN V. JEFFRIES. 423 everything is right, and that no mistake at all was committed. Therefore, until notice no duty would arise, and therefore no cause of action. The argument of Sir G. Honyman as to the duty of knowledge is against him • for, where in this case, is the duty to communicate knowledge 1 Clearly in the plaintiff. Let me suppose the case that the plaintiff had brought against the defendant an action of trover or detinue for the promissory note. It is admitted that the plaintiff could not have established his cause of action without some demand ; for how could there be a wrongful deten- tion until some claim was made % If this is so, how can money paid be de- manded back by an action without previous notice % Suppose I hand over money to some one to take care of, without the obligation of retaining it in specie (and I do not include circumstances constituting the relation of banker and customer), I must give notice to him that I want it back be- fore he is indebted to me, or is under any present duty in respect of it. It is contended that no demand is necessary where there is already a cause of action. But this is begging the question; for the contention on the other side is, that there can be no cause of action till demand ; and the case of Wilkinson v. Godefroy ^ is an authority in favor of that position. Therefore, on this ground alone, without saying anything of other grounds, the plaintiff cannot succeed, he not having done that which was necessary to entitle him to maintain an action for money had and received. PiGOTT, B. I am much struck with the observations which my learned Brothers have made as to the necessity of a demand to entitle the plaintiff to maintain the action, and I am disposed to acquiesce in their view ; but I prefer to rest my judgment on the nature of the agreement between the parties. This valuation was in substance an award between an outgoing and an incoming tenant, and the subject-matter of it is all the defendant's interest in the farm, that is, everything which the custom of the country would give to him as against his landlord. Now, if we look at the trans- action with reference to these circumstances, no doubt it was not in the contemplation of the parties that the plaintiff should pay for what he did not get ; but it was in the contemplation of the parties that the valuers should determine what was the custom of the coimtry, and what was to be paid according to it, and it was contemplated that there might be differ- ences of opinion, and even some errors in the valuers. But it was not con- templated that for some slight errors the whole transaction should be ripped up and rescinded ; and that when everything was swept away, and the whole surface of the farm changed, a question which has thus become impossible of determination should be transferred from an examination under favorable circumstances, and by a convenient tribunal, to a trial be- fore an inconvenient tribunal and under most unfavorable circumstances. This would be not justice but a great wrong to the defendant. It is plain that the parties intended the whole matter to be left to the valuers, with 1 9 Ad. & E. 536. 424 SHARKEY V. MANSFIELD. [CIIAP. II. the chance of such eiTor as they might make, but with power to determine what should finally be due. There was, tlierefore, no mistake of fact in the plaintiflf, who paid upon a valuation which was actually made, but the mistake if any was the mistake of the valuers. Eule absolute. JAMES SHARKEY, Appellant, v. LUTHER E. MANSFIELD, Respondent. In the Court of Appeals of New York, October 17, 1882. [Reported in 90 New York Reports, 227.] Appeal from judgment of the General Term of the city court of Brooklyn, ent ered up o n an or d er mad e Octoljer 1, 1880, which affirined a judgment in favor of defendant, and affi rmed an order denying a mot ion fo r a new trial. This action was brought to recover a balance alleged to be due for work and material in building a stone pier in the Gowanus canal. Plaintiff claimed that the work, save some extra work, was to be done for a gross sum, and that no price was fixed for the extra work ; defendant claimed the agreement to be that the work should be paid for at a specified price per cubic yard. He set up as a counter-claim an over-payment made through mistake on his part as to the quantity of the work done, which mistake was not discovered until a measurement was made after the suit was commenced, which was in 1878. Plaintiff proved that his bookkeeper presented to defendant a bill for the work as claimed by him in 1872, and that thereafter defendant made payments thereon, N. II. Clement for appellant. Tracy, Catlin and Hudson for respondent. FiNcn, J. This is not a case of money paid under a mutual mistake, where the action of each party was equally innocent. The mistake was tha t of the party w ho paid, and not at a ll that of the one who received the amount in dispute. The plaintiff was employed by the defendant to build a stone pier in the Gowanus canal. The precise terms of the contract, and the amount due for construction were sharply litigated on the trial ; but t he verd ict of the jury establ ishes that there was an over-payment mista- kenly made by the defendant. His right to r ecover back is resisted, majnly upon the ground that notice was not gi^ep and dema nd made o f the over- payment, before setting up the counter-claim. Without stopping to consider whether the same rule applies to a defendant pleading an over-payment by way of counter-claim, as that which governs a jilaiiitiff suing for the same cause, and assuming the law to be identical in both cases, we are still of opinion that a demand was not a condition pre cedent to the defendant's right of action. Two cases in this court arc reliid upon by the appellaut. SECT. I.] SHARKEY V. MANSF-IELD. 425 The Mayor v. Erben ;^ Southwick v. The First National Bank of I^rcmpl.is.'' In the first of these cases no mistake was established, and that fact decided the case. The 60«rt added, " where money is paid under mutual mistake," demand, or at Isast notice of the error, must precede a right of recovery. In the later case, the mistake was mutual, and stress was laid upon the fact that the defendant " lawfully aud innocently received the draft and the money thereon." The ground of these decisions is quite obvious. Where the mistake is mutual, both parties are innocent, and neither is in the wrong. T he party honestly receiving the money through a common mistake owes no duty to return it until at least informed orth£_crror_^T f, isjuRt. tl.nt i,e S should have an opportunity t o correct the mistadceJiinwiejTti^j^i^^ j both sides, before being subjected to t he risks and expenses of a litigation. It was said in Abbott v. Draper,^ that " when a man~h^s' paid money as due upon contract to another, and there is no mistake, and no fraud or other wrong on the part of the receiver, there is no principle upon which it can be recovered back until after demand has been made." While this language is not accurate as to a mistake on the part of the receiver, if that was the meaning intended, the doctrine is clearly recognized that where the receiver is guilty of fraud or other wrong in taking the money, he is not entitled to ^o^^ice. The necessity of a de m and does not, therefore, exist i n a case whorejheparty receivingthemo ney, instea d of acting innocently ancTm^er an honest mistake, kno ws the wF oie truth, an3 ~consciousIy receiv^es^what does not belong to h jm^kiug advantage of the mi stake or oversight of tlie ' other party,_aM_daimi ng to hold the money th us oBtauied as his own. In vi such case he cannot assume the attitude of bailee or "trustee, for he holds the money as his own, jindhis^ duty to return it arises at the instant o f the \ wrongful receipt of the over-payment. He is already in the wrong, and it { needs jio request to put himjn that posi tion. T heUticaTEauFl^rVan ^ Gieson;4 Andrews v. Artisans' Bank ;5 Dill v. Wareham ; « Southwick v. First National Bank of Memphis.^ This case is of that character. The receiver was not innocent. If he did not perpetrate a fraud, at least he committed a wrong. He knew all the facts and must be assumed to have known the law. He went to trial not admitting a mistake, but insisting that there was none. He charged a I 1 price beyond that to which he was entitled, or for quantities which were ' exaggerated, and obtained the money through the inadvertence and mistake i P of his debtor, who had not measured the work. H e did not come rightfully ^ by the excess^ He took it as his own money, conscious of all the facts, and not only claimed to hold it as such, but sued to recover more. The case is not one in which he owed no duty until apprised of his mistake, for he made none. H e took what was not bis, knowing all the fa cts, and at the 1 3 Abb. App. Dec. 255. 2 §4 N. Y. 420, siipra. 3 4 pen. 53. * 18 Johns. 485. 5 2(i N. Y. 299. « 7 Met. 447. ' 84 N. Y. 430. 426 STURGIS V. PRESTON. [CHAP. II. moment, of its receip t^ i^wasbis juty to return it. The action for money had and received could be at once maintained. The appellant further relies upon the facts of the presentation of his bill and a payment thereafter, made by the defendant, and also upon the lapse of time during which the bill remained unchallenged. These circumstances he insists amounted to an admission of the correctness of the bill. They tended to that result, but were not conclusive. They were met by the de- fendant's evidence of mistake and his explanation consistently therewith. The facts relied on and the explanation given were submitted to the jury and they have determined the question. We discover no just ground for reversing the recovery. The judgment should be affirmed, with costs. All concur, except Tracy, J., taking no part. ^ , Jiidgment affirmed. JOHN H. STURGIS v. JONATHAN PRESTON. In the Supreme Judicial Court of Massachusetts, March 1, 1883. [Reported in 134 Massachusetts Reports, 372.] CoLBURN, J. In this case, the plaintif f contended, and offered to prove that in the ypn r JH71 he barL^ained with th e defe ndant for a lot of land, for a certain sum a square foot ; that the defendant stated the number of square feet in the lot ; that the plaintiff relied wholly upon the defendant's statement , and had no reason to believe or suspect that there was any error in said statement ; that he thereupon paid for the land accordingly, and took a deed thereof; that ther e was not the n umber of squa re fe et of land in said lot that the d efendant had repres ented; that he did not discover the deficiency until t he y ear 1880, a short time before this action was brought, when he was preparing to build upon the lot ; that immediately jijxm the discovery o f the mistake, he notifie d the defendant thereof, and dema nded repayment ^ofjhe^s um so overpaid, and brought this action to recoveTTt T he plaintiff disclaimed all ch arges of fraud or fraudule nt con- cealment o n the part of the defendant. (T^ of the counts in the plaintiff's declaration was for money had and received. The defendant relied, as one defenc e to the action, upon the statute of limitations. The plaintiff contended that an action for money had and received has always been treated, at common law, as being founded on equity, and that the decision in this case, whatever it ought to be, should be the same, whether it should be considered a decision at common law or in ecputy ; and argued that, as in equity, in cases of mistake, the statute of limitations SECT. I.] STUKGIS V. I'liESTON. 427 does not begin to run until the discovery of the mistake, this action is not barred by that statute. The answer to this argument is, that, al though an a ction for money had and received, i n its spirit and object, resembles a suit in equity, it is still an action at law, w ithin the statute of limitations ; and, as all charges of fraud ule nt co nceal ment ar e disclaimed, it is not within any exception to the statute.^ The Commissioners on the Eevised Statutes, in their note on c. 120, § 11, say : " In many cases of implied assumpsits, and other suits on contracts, the cause of action may remain for a long time unknown to the plaintiff; but unless that knowledge was fraudulently concealed from him, it was never supposed that he could bring his action after the expiration of six years." See also Adams v. Ipswich •,'^ Bishop v. Little ;^ Bree v. Holbech ;* Banning on Limitations of Actions, 21. Indeed, under the facts in the case at bar, it would seem that, even in a suit in equity, the plaintiff's claim would be barred ; Farnam v. Brooks ; ^ but we have no occasion to decide this point. The plaintiff further contended that his right of action did not arise until after demand, whicli was not made until 1880, and that, for this reason, this action is not barred by the statute of limitations. We are of opinion that t he plaintiff's cause of action ar ose imme diately upon the paym e nt of the money, and that no de mand was necessary. If the plaintiff should sustain h is offer of proof, the defen dant held, and claimed as his own, from t he mom ent it was p aid to him, money which in equity and good conscience he ought to have immediately repaid to the j)laintiff. D ill v. Wareham ; ® Earle v. Bickford ; ' Utica Bank v. Van Gieson ; * Hawley v. Sage.^ This case differs widely from those in which the defendant is in the right- ful possession of money, making no claim to it as his own, but ready to pay it over to the rightful owner ; in which it is held that no right of action arises, and that the statute does not begin to run until after a demand upon him by the party entitled to the money, and a refusal to pay it over to the rightful claimant. French v. Merrill ; ^° Jones v. McDermott." Judgment for the defendant. J. P. Treadwell, for the plaintiff. T. P. Proctor {E. Ta2)pan with him) for the defendant. l^crUf- c,l- t:J^i,, 1 Gen. Sts. c. 155, §§ 1, 12. * Doug. 630. 7 6 Allen, 549, w 132 Mass. 525. 2 116 Mass. 570. 6 9 Pick. 212, 245. 8 18 Johns. 485. "114 Mass. 400. ' 3 Greenl. 405. 6 7 Met. 438. 9 15 Conn. 52. .^ ".^--t^i y ->-'^*^^U.^L / yC^^ i [char II. -<.^. ^Al^ "^1 /. y^. .'^.C i^tJ /-u<^ y~/ c^ ■ /•i/i^4C<~^ .^ ^-y/ KELLY V. SOLARL ^- / (^) Plaintiff'' & Negligence no Bar to a Recovery. ^Y^-^Cw-e-i^ yii^- j^-^.-...^ ^X^L-^ '^<^^' K^LY v. ^OLAEI. / In the Exchequer, Novembek 18, 18 il / IReporlfid in 9 Meeson ^- Weishy, 54.] Assumpsit for mouey paid, mouey had and received, and on am iiccou»<^ ^*'*'*<-^^'stated. Plea, wore assumpsit. At the trial before Lord Abinger, C. B., at the London sittings after Trinity term, it appeared that this was an action brought by the plaintijff, as one of the di rectors of the Argus Life Assurance Company, to recover from the defendant, Madame Solari, the sum of 197/. 10s. alleged to have been paid to her by the company under a mistake of fact, under the following circumstances. Mr. A ngelo Solari, the late husband of t h e defendan t, ig the, year 1836 effected^ a^policy on his life with the Ar^ii^^A^uraiice Cqmpany_for.£200^ He died o n the 18th of October, 1840, leaving the defendant his executrix, Dot having (by mistake) paid the quarterly premium on the policy, which became due _on_the 3d of September preceding. In November, the actuary of the office informed two of the directors, Mr. Bates and Mr. Clift, that the policy had lapsed by reason of the non-payment of the premium, and Mr. Clift thereupon wrote on the policy, in pencil, the word "lapsed." On the 6th of February, 1841, the defendant proved her husband's will; and on the 13th, applied at the Argus office for the payment ^f_the sum of £1000, secured upon the policy in question and two others. Messrs. Bates and Clift, and a third director, accordingly drew a cheque for 9 87/. 10s. , ■which they handed to the defen da nt's age nt, the di scount being deducted in consideration of the payment being made three months earlier than by the rules of the office it was payable. Messrs. Bates and Clift stated in evidence, that they had, at the time of so paying the money, entirely Jor- gotten that the policy in q iieation. had lapsed. Under these circumstances, the Lord Chief Baron expressed his opinion, that if the directors had had knowledge, or the means of knowledge, of the policy having lapsed, the plaintiff could not recover, and that their afterwards forgetting it would make no difference ; and he accordingly directed a nonsuit, reserving leave to the plaintiff to move to enter a verdict for him for the amount claimed. Thesiger, in the former part of this term, obtained a rule nisi accordingly, or for a new trial ; against which, Piatt and Butt ncjw showed cause. Thesiger and Whateleij, contra. Lord Abinger, C. B. Ithiuk the de fendant ought to have had the op- portunity of taking the opinion of the jury on the question whether in reality / SECT. I.] KELLY V. SOLAUI. 429 the dire ctors had a kn owledge of the facts^ and Uiercfore tliat the re sh ould be a newtrial, and not a verdic^foi^Uiej)laiiitiffj although I am now pre- \ ( pared to say That! laid down the rule too broadly at the trial, as to the efiect of their having had means of knowledge. That is a very vague I ■ expression, and it is difficult to say with precision what it amounts to ; for example, it may be that the party may have the means of knowledge on a particular subject, only by sending to and obtaining information from a correspondent abroad. In the case of Bilbie v. Lumley, the argument as to the party having means of knowledge was used by counsel, and adopted by some of the judges ; but that was a peculiar case, and there can be no question that if the point had been left to the jury, they would have found that the plaintiff had actual knowledge. The safest rule however is, that if the party makes the payment with full knowledge of the facts, although under ignorance of the law, there being no fraud on the other side, he can- not recover it back again. There may also be cases in which, although he might by investigation learn the state of facts more accurately, he declines to do so, and chooses to pay the money notwithstanding; in that case there can be no doubt that he is equally bound. Then there is a third case, and the most difficult one, — where the party had once a full knowledge of the facts, but has since forgotten them. I certainly laid down the rule too widely to the jury, when I told them that if the directors once knew the facts they must be taken still to know them, and could not recover by saying that they had since forgotten them. I think the knowledge of the facts which disentitles the p arty from reco vering,_mnst mean~a k nowledg e eiistmg ja, th£_ mind at t ii&_tinxe-oiL4iayment. I have little do u bt in th is case that the directors had forgotten the fact , otherwise I do not believe they ~wbuld have brought the action ; but as Mr. Piatt certainly h as a r ight to have tha t questio n su bmitted to the j ury, there m ust be a new trial. Parke, B. I entirely agree in the opinion just pronounced by my Lord Chief Baron, that there ought to be a new trial. I think that where money is paid to aj iother under the influence of a mistake, that is, upon the sup- position that a specific fact is true, whi ch woul d en title the other to the money, but which fact is untrue, and the money would not have been paid if it had been known to the payer that the fact was untrue, an action will lie to recover it back, and it is against conscience to retain it ;" thouglTa demand may be necessary in t hose cases in which the party receiving ma y" have been ignorant of the mistake. The position that a person so paying is precluded from recovering by laches^ in not availing himself of the means of knowledge in his power, seems, from the cases cited, to have been founded on the dictum of Mr. Justice Bayley, in the case of Milnes v. Duncan ; and with all respect to that authority, I do not think it can be sustained in point of law. If, indeed, the money is intentionally paid, without reference to i / the truth or falsehood of the fact, the plaintiff meaning to waive all inquiry I j jC into it, and that the person receiving shall have the money at all events, I / 430 APPLETON BANK V. McGILVRAY. [CIIAP. II. whether the fact be true or false, the latter is certainly entitled to retain it ; but if it is paid under the impression of the truth of a fact which is untrue, it may, generally speaking, be recovered back, however careless the party paying may have been, in omitting to use due diligence to inquire into tlie fact. In such a case the receiver was not entitled to it, nor intended to have it. GuRNEY, B., concurred. RoLFE, B. I am of the same opinion. With respect to the argument, that money cannot be recovered back except where it is unconscientious to retain it, it seems to me, that wherever it is paid under a mistake of fact, and the party would not have paid it if the fact had been known to him, it cannot be otherwise than unconscientious to retain it. B ut I agi-e e tjiat^ ] Mr. riatt has a ri^dit to_goJ;OjheJury again, u]3on_two_grQU]ids : first, that — the jury may p ossibly"finT^ b arthe~ djr(^oig^ba4^ tTiFlact7~andsccondly, they^may also come to the conclu sion, that they had:'defermined~thatThey would not expose the'^ce to nivpopularity, and would therefore~paythelnoiiey at all events; in which case I quite agree that~they could not recover it back. Rule absolute for a new trial. / ^-^■e,^ ^RESIDENT, DIRECTORS a\d COMPANY of the APPLETON / BANK V. DAVID F. McGILVRAY and Others. In the Supreme Judicial Court of Massachusetts, October Term, 1855. ■ yC— l/l^^L^ <^ -;<<— A^^i^^eis4,lReported in 4 Gra;i, 518.] kcTim OF CONTRACT to rccover $370.42, received by the defendants to the plaintiffs' use. At the trial before Bigelow, J., the plaintiffs, to prove their case, called a witness, who testified that he had been an expressman between Boston and Lowell for eleven years, and that was his whole business ; that some- time previous to April 7, 1854, he rece i ved for collecti on from the defend- ants, a partnership doing business in Boston, two notes of J. C. Hildreth & Co., a partnership doing business in Lowell, for $370.4 2 e ach, the one due on the 7th and the ot her on_the 13th of April, and both payable to the de- fendants, and indorsed in blank by them ; and was directed to collect them in the ordinary way, without any directions as to protesting them, and gave his receipt therefor ; that it was sometimes his custom to collect notes by depositing them in a bank, and sometimes by calling on the parties personally, though he did not communicate to the defendants how he was going to collect their notes, and did not know that they knew he ever col- j ,j^^,^^ected notes delivered him through the banks ; that before the 7 th of Apr il^ 7 it l^i'fh^ 0,0/^^ ^1 '%/*'*^^*-' /t 7 SECT. I.] APPLETON BANK V. McGILVRAY. 431 he deposited the notes with the plaintiffs, a bank in Lowell, for collection ; that on the 8th of April he called on the plaintiffs, and aske^iT^he note" due the day before had been paid, and was informed by a clerk of the plaintiffs that it had been, and receive d the amount of it from the plaintiffs ; that the plaintiffs received no compensation for collecting these notes, and he did not communicate to the plaintiffs, when he left the notes, to whom they belonged ; that lie took_themoney so paid, and the same day paid it t o the defendants, but did not reme mber tel ling the de fendantsT when he paid them the money, that he collected it through the plaintiffs, or any bank ; and the defen dants p a id him for his servi ces. The plaintiffs also pro ved t hat, by reaso^i of the notes not having been placed on th eir regul ar file, they had not notified Hildreth & Co., the promisors, of jthe maturity of the first note, and their clerk was led into the mis take of supp osing that it had been paid,.when_in_fact i t had not, and has never been paid to any one ; that on the 1 0th o f April, as soon ^s the mistak e was discovered, the plaintjffs_demanded_ payment of_th e promiso rSj ■whojrefused, and on the 11th of April these facts were communicated to the defendants, and the note tendered them, and the money they had re- ceived from the carrier demanded by the plaintiffs, and refused by them. ' It was also proved that the promisors had not funds to pay the note when due on the 7th of April, and had determined not to pay it, and would not have paid it, if presented ; that after the 7th they paid no business debts (this being one), and no change took place in their circumstances ; but they continued in possession of a stock of dry goods until the 1 7th of April, when they were sued by the defendants on the note which fell duo on the 13th of April, and an attachment of their stock made, which was afterwards dissolved by an assignment of their estate under the insolvent laws ; and the second note was never paid, but was proved in insolvency against their estate. Upon these facts, the defend ants contended that there was no such privity or agency proved t o have existed between the parties, as to enable the plaintiffs to maintain this action ; and that, as the mistake arose from the negligence of the plaintiffs, they had no remedy against the defendant s^^^ A verdict was taken b^^consent fo r the plaintif fs, subject to the opinion of the full court. £>. S. Richardson and W. A. Richardson for the plaintiffs. J. G. Abbott for the defendants.^ BiGELOW, J. This view of the legal relation of the parties is decisive of the remaining objection to the plaintiflFs' right of recovery in this action. The mon ey was clearly paid over to the defendants under a mistake of fact, and, upon familiar principles, an action can be maintained to recover it back, ^t is no answer to the p lai ntiffs' c laim, that the mistake arose from the negli- gence of the plaintiffs^ The ground on which the rule rests is, that money," ' A portion of tlae opinion relating to questions of agency has been omitted. — Ed. 432 STANLEY RULE AND LEVEL COMPANY V. BAILEY. [CHAP. IL ; paid through nusapprg bcnsioD of facts, iu equ uty and good conscience be- y / 'A j Fengs to the party^who p aid it ; and cannot be .justly retained by the pa rtj_ t ' I / / receiving it, cousistently wi th a true application of the real facts t o the '-^^'^"t^-' £<^j^ legal rights oFlhe parties.^ The cause of the mistake therefore is wholly immaterial. The money is none the less due to the plaintiffs, because their negligence caused the mistake under which the payment was made. The case would have been dififereiit, if it had appeared that the defendants had suffered any damage, or changed their situation as respects their debtor, by reason of the laches of the plaintiffs. But the facts show that their rights were wholly unaffected by the mistake under which the pay- ment was made. Nothing oc curred subsequently to the payment, which renders it unconscientiou s to recove r the money back. It is therefore cTear that the^efendants have money belonging to the plaintiffs in their hands, to which they show no legal or equitable title. Kelly v. Solari ; ' BeU V. Gardiner ; » 2 Smith's Lead. Cas. 243, 244. Judgment on the verdict.* cZ '^^ yi-f^t^^^ £^C^A I^HE STAJNXEY RULE' AND LEVEL COilPANY v. ■ '^*— ^ -c(^ i-T^ -C^EONAED BAILEY. ,/ -^^ i^^^^A^r^ --7 ^ " ,^ . — ^^^C^/ y 'j:< OURT OF lERRORS''oF'C<^"yi^C'nCUT,^ANUABY TeKM,' ISTO -^<%^ a-w^^ a ,^^ J^epvrted in 45 Connecticut F&ports, 464. Assumpsit, to recover back money claimed to have been paid under a mistake of facts ; brought to the Court of Common Pleas of Hartford vJ County. The facts were found by a committee, and on the facts the court 7 " (McManus, J.) rendered judgment for the plaintiffs. The defendant ^brought the record before this court by a motion in error. The case is sufficiently stated in the opinion. G. G. Sill for the plaintiff in error. •^"^ — c^ -rz^ Q ^ MitcMl for the defendants in error. Park, C. J. We think the finding of the court below, that the money sought to\be recovered in this suit was paid by the plaintiffs to the defendant through misapprehension of the facts with regard to their obligation to pay it, is decisive of the case. It is conceded that the plaintiffs are entitled ''^■^""'^ recover a part of the amount, and we think it is equally clear they ought to recover the whole. That part of it which is in dispute was paid to the defendant as a royalty for the privilege of manufacturing and selling certain articles, under certain patents, of which the defendant previous to this time was the owner. The money was paid according to the terms of 1 2 .Saund. PI. & Ev. 2d Ed. 394. 2 9 M. & W. 54. « 4 Man. k G. 11. * Lawrence r, American National Bank, 54 N. Y. 432; Guild v. Baldridge, 2 Swan, 295, accord. — Eft SECT. I.] STANLEY KULE AND LEVEL COMrAN'Y V. BAILEY. 433 a certain contract between the parties, wherein the defendant, fur the con- sideration of a certain royalty to be paid on all the articles covered by the patents which should be manufactured and sold by the plaintiffs, granted them the privilege of manufacturing and selling them during the continuance of the patents and any extension of them. The plaintiffs manufactured and soldjb e ar ticles, and pauljthe royaltvjw;.cording to the terms of the, contrac t. In the mean time some of the defendant's patents expired and were not^xtended^ but the plaintiffs being ignorant of the fact continued to pay the royalty as they had done before, and paid the sum which they now seek to recover jocT patents which had tlius expired. The defendant knevTtliat the patents had expire d and ha d not been renewed at the tinift hejigcei ved the money ; but believingjhatjiejiad the right to receive it under the contract, did not state th e jact_t o the pla intiffs. It further appears that the plaintiffs paid the money believing that the patents were in force, and that they would not have paid it had they known the facts. But it is said that they had the means of knowledge, and that this is equivalent to knowledge itself. There may be such full and complete means of knowledge as to be equivalent to knowledge itself, but we think this is not such a case. The defendant owned the patents. He was in the employ of the plaintiffs. The patents were on a large number of articles ; and some of them were covered by two or more patents of different dates. The case was a complicated one, and required thorough examination to determine the exact fact. It would naturally be expected tha t the d efend- ant would keep himself informed on tbem atter, and being in the employ- ment of the plaintiffs wo uld mform tTiem when the patents expi red. This w ould reasonably be exp ected by the plaintiffs where they had no reason . to suspect dishonesty in the defendant ; and we think they had a right to rely on what would ord inarily be e xpected und er^t^£_jd]: ^""Tstanc P!jJ^ It is further claimed that, whatever might otherwise be the right of the plaintiffs to repayment, they have lost the right, inasmuch as they made a voluntary payment of the royalty on articles covered by the remaining patents, after they had become apprised of the fact that they had paid the royalty on patents which had expired. This claim is made upon the idea that the last payment made the first payment voluntary, although it was not so originally. Eat a p ayment is either voluntary or involuntary at the time it is made, and nothing can occur afterwards to alter its charac ter in this respect. As well might il; be claimed, if A. sues B. upon a note, and B. has a claim against A. for work done at his request, that unless B. sets off his claim against A.'s demand he thereby acknowledges that he has no claim, and CAnnot afterwards recover it. This claim is clearly without foundation. There is no error in the judgment complained of. In this opinion the other judges coucun-ed. ^ A portion of the opinion relating to the construction of the contract has been omitted. — Ed. 2S A 434 McAKTHUR V. LUCE. [CHAP. II. DOUGALD McAETHUR v. THEODORE LUCE, et al. In tue Supreme Court of Michigan, April 28, 1880. [Reported in 43 Michigan Reports, 435.] Error to Alpena. Submitted April 22. Decided April 28. Assumpsit. Plaintiff brings error. Kellei/ and Clayberg for plaintiff in error. Turnbull and McDonald for defendant in error. I^LuiSTON, C. J. Luce & Co ., in demanding that McArthur pay them for logs cut, as they supposed, upon their land, acted in entire good faith. They had a survey made, and according thereto the plaintiff had_cut logs over the liiie. When the claiuTwas madelipon "the plaintiff he em ployed a surveyor and the y went upon the land, and plain tiff then became satisfied tlnirhgliadcvLtiLnd^ taken logs from off defendants' land, and authorized a] settlement to be m ade, w hich was done. This was in 1871, and all parties rested~m"the~beiief that a correcfsettlement had been made until some time in 1875, when a^new survey established the fact that no logs had been cut upon defendants' lami^and this action was brought to reco ver ba c k the moneyspaid, upoiTthe claim of having been paid under a mistake of ft\ct. Where a claim is thus made against a nother who, not relyi ng upon th e representati ons oi the claimant, ha s the opTpor tunity to and does i nvestigate^ the fiicts, and the reupon becomes satisfied that the claim _made is correct and adjusts and pays the same, I think_such set tlement and paymen t should b e cons id ered ji s final. __ If not, it is very difficult to say when such disputed questions could be considered as finally settled, or litigation ended. In the settlement of disputed questions where both parties have equal opportunity and facilities for ascertaining the facts, it becomes incumbent o n eac h to then make his investigation, and not carelessly settle, trusting^to future investi^tJoiTto^sKow^ar jnistake of fact and enable him to recover back th e amount paid. One course encourages carelessness and breeds litigation after witnesses have passed beyond the reach of the parties : the other encourages parties in ascertaining what the f\\cts and circumstances actually are while the transaction is fresh in the minds of all, and a final and peace- ful settlement thereof. Detroit Advertiser & Tribune Co. v. Detroit,^ and County of Wayne v. Randall.^ The judgment must be affirmed with costs. The other justices concurred.^ 1 43 Mich. 116. 2 43 Mich. 137. 8 In Wiiulbiel v. Carroll, 16 Ilun, ini, it was held that 07ie who pays a claim knowing that it has been ])aid before, but ignorant of the means of proving that fact, cannot recover the money so paid. Conf. Guild v. Baldridge, 2 Swan, 295. — Ed. SECT. I.] ATTORNEY-GENERAL V. PERRY. 435 (j.) Defence of Purchase for Value. ATTORNEY-GENERAL v. PERRY. In the Exciiequeh, Easter Term, 1735, [Reported in Comyns, 481.] This was au information by the Attorney-General for 623^. 14s. M. half- penny, due to his Majesty for so much money received by the defendant for his late Majesty's use, between April the 1st, 1725, and the 1st of September following. The defendant pleads that he is not indebted for the said sum. Upon a trial by a jury of Middlesex, they find specially to the effect following, viz. : That on the 24th of September, 1724, the defendant im- ported into the port of London 28,333 pounds weight of Virginia tobacco, /md paid custom for the same, viz., 88Z. 10s. 9c?. halfpenny for the old sub- sidy, and gave security by bond to pay 535^. 3s. 6cZ. halfpenny for the additional duties due to his late Majesty on importation of the said tobacco. That in May, 1725 , the defendant s old the said tobacco to Richard Corbet, for exportation to Cadiz in Spain, and shipped off the same in the port of London in the ship called the Francis and Mary, Isaac Cocart, master, for Cadiz. That on the 14th of July, 1725, Richard Corbet made oath before the proper officer, that he had the direction of the said voyage, and that all the said tobacco so shipped was exported really and truly for parts beyond the seas, on commission, and that none of the said tobacco had been since landed, or was intended to be relanded in Great Britain or Ireland. That John Walkley, the defendant's servant, made the usual oath, that the duty of the said tobacco was paid or secured, and that the defendant had sold it for exportation. That on the 5th of June, 1725, a declaration of the contents of the loading of the said ship was made in these words : A content in the Francis and Mary, Isaac Cocart, for Cadiz, 40 ton, 5 men, 4 guns, 1, 38. Micha. Perry, etc. That on the same day Isaac Cocart made oath under the said content before the proper officer, that the said content contained a just and true account of all the goods, etc., on board his ship for the present voyage, and that he would take no more goods on board without first paying custom, and having a warrant from the King's officers ; and that if he should take on board any certificate goods, or goods that received a drawback, bounty, or premium on exportation, that he would not reland them, or suffer them to be unshipped in order to be relanded, with-' out the presence of the King's officers. X K 436 ATTORN EY-GENErwVL V. PERRY. [CHAP. II. That the said tobacco being so put on board the ship, and certified by the proper officers of the customs, two debentures were made out ; one fo r the drawback of 88/. 10s. 9c/. halfpenny; the other for the drawba ck or discharge of t he 535/. 3s. 6(/. halfpenny, secured by the defendant, u pon which the defendant, on the 13th of August, 1725, received back the 88/. 10s. 9d. halfpenny ; and on the 17th of August, 1725, had his bond for the 535/. 3s. 6(/. halfpenny delivered up to him. That this tobacco after it was put on board was landed in Ireland on the 28th of Ju ly, 1725, but wit hout iEe defen d ant's prmty, n or had he the property in it from the time it was put on board, nor the direction of the voyage ; but it was~s oI3 by tTie defenda nt for 126 9/. lis. 2d. for exportation to the said Richard Corbet; whereof G45/. 16s. lOd. half- penny was paid in money, and the debentures were taken for the re- mainder of the price, and if by any accident the debentures became void, the said Richard Corbet was to answer the amount in money to the defendant. That Richard Corbet hath been absent five years, but the King's oflScers had no notice of the tobacco being landed in Ireland till June, 1733. Et si supra totam, etc. Attorney-General and Solicitor-General, for the Crown. Mr. Strange and Mr. Bootle, for the defendant. And on full consideration of the case, Reynolds, C. B., Carter and FoRTESCUE, BB., against Thomson, B., were of opinion, first, That the debenture for the drawback given by Corbet to the defendant, by landing the tobacco in Ireland, became void ; for no drawback ought to be made unless the goods be exported ; the words of the statute 13 & 14 Car. 2. c. 11, are express. No allowance shall be made or demanded if the goods be re- landed, etc. And so by the statute 6 Geo. c. 21, if landed in Ireland the debenture for the drawback shall be void. Second, that the payment of the money to the defendant by the King's of- ficers upon this void debertturc renders the defendant answerable to the King for the money by him I'cceived ; fo r whoever receives the King's money, with- out warrant or lawful authority, is accountable to the King for it. Thia is expressly resolved by two Chief Justices and the Chief Baron, 11 Co. 90, the Earl of Devonshire's case, who was Master of the Ordnance, and by Privy Seal 2 Jac, reciting that munition utterly decayed and unserviceable had been claimed as fees and vails to the Master of the Ordnance by reason of his said office belonging ; and giving him authority to dispose of such of them as were set down in a book, etc., he had disposed of several pieces of iron ordnance, shot, and munition in the said book set down ; for those things being received and disposed b}- him by color of a Privy Seal, which was v(jid, because founded on a false suggestion (for it suggests that these were fees or vads claimed as belonging to the said office, which must mean lawfully claimed and lawfully belonging, which was not true, for this was a SECT. I.] ATTORNEY-GENERAL V. PERRY. 437 new office erected 35 II. 8.), the Earl was accountable for them as much as if he had taken them without any Privy Seal. So in Sir Walter Mildmay's case,^ cited, 11 Co. 91, and reported Cro. Eliz. 545 j Mo. 475, who liein*' Chancellor of the Exchequer received 140^. a year for tliirty years together, by warrant from the Lord Treasurer, as an augmentation of his fees, since the Court of Wards was annexed to the exchequer, whereby his labor was much increased ; but because such warrant was void, it was resolved that he should answer for the monies which he had received. And this is not from any peculiar prerogative the Crown hath above a subject, for the case would be the same with regard to a common person ; whenever a man receives money belonging to another without any rea son, authority, or consideration, an act ion lies against the receiver as for mo ney recei ved to the other's us e ; and this, as well wh e re the money is receiv ed through mistake under color, and upon an apprehension, though a mista ken apprehension, of h a ving a good authority to receive it, as where it is receiv ed by imposition, fraud, or deceit in the recei ver (for there is always an im po- sition and deceit upon him that pays^ where it_ is paid) by color of a void warrant o r authority, alt hough the receiver be innocent, of \t.. Cases might be cited to warrant every part of this rule ; but as the defendant appears to be an innocent person, wholly ignorant of the fraud of Corbet in landing the tobacco in Ireland, and one who thought he had a good debenture, and was lawfully entitled to receive the drawback, it is necessary to instance only cases where the party receiving thought at the time of his receipt that he had a good authority to do so, but afterwards discovers that he had not ; as where a man having a grant, an office, or conveyance of lands, and thinking himself well entitled receives the rents and profits, it is well known that if it afterwards appear that the grant or title is not good, the receiver is chargeable by the rightful officer or owner of the land for so much money received to his use. 2 Mod. 260, 263 ; 2 Jon. 127 2; 2 Lev. 245; 3 Lev. 262.3 The cases cited by Mr. Attorney-General are strong to the same purpose. A man insuring a ship, on a rumor that the ship is lost, pays the insurance, and it afterwards appears that the ship is not lost, the insured shall pay back the money.* And Jacob and Allen. ^ By Trevor, C. J., if an ad- ministrator authorizes A. to collect the debts and effects of his intestate, which he receives and pays over, and then a will is discovered, the rightful executor may bring assumpsit against A. for what he has received, as money received to his use. It was there insisted, that A. was only agent for the administrator, received the money for his use, and liad paid it to him ; yet held, that the administration being void, the administrator could give no authority, and consequently A. received without authority, and then noth- ' Godb. 292; 2 Roll. Abr. 161. 2 i Freeni. 478 ; s. c. 2 Show. 21. 8 3 Mod. 239 ; 1 Show. 35 ; Carth. 90 : s. c. Comb. 151. * 1 Salk. 22. 5 1 Salk. 27. 2 Ann. 438 ATTORN FA'-GENERAL V. PERRY. [CHAP. II. ing hinders the raishig an inipUed contract, and cliarging the defendant in an indebitatus assumpsit. So in the case of Martin and Sitwell,^ where Barkedalc had made a policy of insnrance for 51. premium in the plaintiff's name, and paid the money to the defendant, and it afterwards appeared that the defendant had no goods on board, upon which Martin brought assumpsit for the 51. premium, and it was insisted that this was money received from B. and to his use ; but as Martin was trustee for B. the payment by B. must be taken as agent for him ; whereby it is plain that there is no force in that objection, that the defendant acted as agent for Corbet, and received the drawback by his authority, and for his vise. But it is further objected, that Corbet being the person who committed the fraud, who w^as the exporter, and entitled to the drawback, the Crown ought to pursue their remedy against him, and not against the defendant, who was innocent, and took this money only in his own behalf, and for satisfaction of a debt owing to him from Corbet. It is certain that for any penalty forfeited by the lauding in Ireland, Corbet, and not the defendant, ought to be prosecuted ; but when Corbet obtains a debenture, which he himself makes void and ineffectual, and de- livers this debenture as payment for the tobacco he bought of the defend- ant, what need is there to resort farther than to him who had the money from the Crown ? Hasser and Wallis.^ A man marries a woman seised of lands, and takes the rents and profits, but afterwards it appears that he had a former wife then living ;, upon which she brings assumpsit against the husband for money received to her use ; and though it was objected, that the payment to him, who had no authority to take the rents, was ab- solutely void, and that the tenants might be sued, for the money still lay in their hands, and they might sue Wallis ; yet the court held that the action was maintainable against Wallis who received the rents, and that a recovery against him would be a discharge to the tenants. As to the case of Tomkins and Barrett,^ upon an usurious contract, the case appears to be good law ; the same case is reported in Skin. p. 411. But there is a mistake in one of the reports, for Salkeld saith that it was in the Common Pleas, and came to trial before Chief .Justice Tredy ; Skinner, that it was in the King's Bench, and came to trial before Chief Justice Holt ; unless it can be supposed, that the same, which in both reports is said to be II. 5 W. it M., should after a nonsuit in one court bo brought on to trial in the other court ; for this is an exception to the general rule, that where a man receives money for an unlawful purpose, or upon an illegal contract, he who is party to the unlawful act shall not exempt himself, and defeat what himself hath done, liy falling on his accom- plice, who is not more criminal than himself; as in the case there put, if 1 1 Show. 156 ; .s.c. Holt, 25. " 1 Salk. 28. 8 1 Salk. 22. SECT. I.] YOUMANS V. EDGERTON". 439 a man gives money to A. to bribe tlie custom-house officers, who pays it accordingly, he shall not afterwards charge A. for this money as received to his use. So if a man gives a bond upon an usurious contract, and pay part of the money, and afterwards an action is brouglit on the bond, to which the statute is pleaded, and the bond thereby avoided, he who paid part shall not maintain an action against the receiver, as for so much received to his use, for he was party to this usurious agreement ; and though an act of Parliament makes the bond void, yet it is only to him who claims the benefit of the statute and pleads it ; for if he plead non est factum, or solvit ad diem, the plaintiff will recover ; if then he pay the money, he waives the advantage of the statute ; and a party equally faulty, who pays his money pursuant to a faulty agreement, ought not to have it back again ; so that the reasons given by Treby, that the plaintiff in such case is j)articeps crim- inis, etc., volenti non fit injuria, seem not altogether so improper. The objection made, that in this case no privity was between the King and the defendant, was likewise made in the Earl of Devonshire's case,* and in Sir Walter Mildmay's case there cited ; but it was there answered, that in the case of the Crown the law will raise and create a privity so as to render him accountable who receives any of the King's money. And in case the defendant be chargeable, the executors will be so like- wise; they were resolved so to be in both these cases. All the Baro ns a greed that the delivering up the bond could n ot be con- sidered as money received to the King's use ; and therefore it was adjudg ed by the court, that his Majesty do recover against the said Micaj ah Perry .the sum of 88^. \0s. 9(7. halfpenny, being so much by him unjustly receiv ed m money of the officers of the customs for the duty inwards, called the o ld subsidy ; but as to the residue of the said 623^. 14s. M. halfpenny i n the said information mentioned, that the said Micajah Perry do go without a day as to such residue, saving his Majesty's right, if he shall think fit he re- after to prosecute him for it. WILLIAM YOUMANS, Respondent, v. APOLLOS C. EDGERTON, Appellant. In the Supreme Court of New York, November Term, 1878. [ncported in 16 Hun, 28.] Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The action was brought by the plaintiff as assignee of William T. Kilmer and John Hodge against defendant, to recover money paid on a contract. Jor t he purchase of land, made by K ilmer with one J ame s R. Shaver . 1 11 Co. 90. -/^ 440 YOUMANS v. EDGERTON. [CHAP. II. One Kuapp was the original owner of lot number eleven, in regard to which this claim arises. lu 1851) he entered into a written contract to sell this lot fur 8000 to Townsend' Shaver, and to give him a warranty deed; the last instalment payable June 1, 1865. Townsend Shaver went into 1 possession and remained in possession till he sold to James K. Shaver, but paid^ nothing. In 1864, Townsend Shaver made a written contract with James R. Shaver to sell him this lot for SI 097.34, and to give him a war- ranty deed, the last instalment payable June 1, 1809. James R. Shaver went into possession and remained in possession till he sold to Kilmer. The referee finds that there is no evidence of p ayment on this co ntract. In I'ebruary, l^Gl, James R. Shaver made a written contract with Kilmer to sell him this lot and lot ten for 8150 0, and to give a good and sufficien t deed, the last instalment payable June 1, 1874. Kilmer soon after paid Shaver 8-00, apd took possession. Afterwar ds, in April , 186 7, James R . Shaver, for a good and valuable consideration, sold and delivered the last- mentioned Kilmer contract to the defendant, and assigned it to him by a written assignment thereon. The defendant took this assignment in good faith, and paid the full value thereof, and soon after gave Kilmer notice that he held the contract. James R. Shaver did not assign to the defend- ant the contract which he held of Townsend Shaver, unless such assign- ment is to be inferred from the assignment of the Kilmer contract. The defendant made no agreement with James R. Shaver to perform the Kilmer contract. Afterwards Kilmer gave the de fendant a chattel mortgage, from which the defendant, about April, 1869 , realized 8^00 as a part paym ent on the contract. Afterwards, and in April, 1869, Kilmer assigned, in writ- ing, to one Hodge his contract with Shaver. Kilmer agreed to pay Hodge $200, and the amount that Hodge should pay, and Kilmer was to remain iu possession. Kilmer did remain in possession till 1873, and then the premises were occupied by one Bryden, under Hodge, for about a year, and till the spring of 1874. On the 15th of April, 1874, Hodge entered into a written contract with one Keeler and one Wilson to sell them the lots ten and eleven for 81700. They took possession of the premises till the fall of 1874, when they agreed with Hodge to abandon, and did abandon the premises. At sundry times between April 20, 1869, and June 10, 1874, Hodge made payments to defendant on the Kilmer contract, and the last 1 payment fully paid it up. In December, 1874, Hodge assigned the Kil- I nier contract to the jJaintiff, and also all causes of action against Shaver I and the defendant for breach of contract. At the time that Hodge made the last pa3'mcnt to the defendant, he de- manded a deed of the premises. On defendant's refusal, Hodge demanded back the moneys paid by him. The referee finds that all of the payments, except the last, were made and received in ignorance of the fiict that Knapp had the title, and in the belief that James R. Shaver had a good title when he entered into the contract witli Kilmer. %t was claimed by the plaintiff SECT. I.] YOUMANS V. EDGEIiTON. 441 and denied by the defendant, that the defendan t p romised Hodge to give him a deed on the fulfi hn ent o f th e contract. The referee, in his opinion, states that he makes no finding on that point. Tlie referee held that the plaintiff was entitled to recover back of the moneys paid to the defendant, such proportion as the value of lot number eleven bore to the whole moneys, excepting such last payment, which was made with knowledge. 0. W. Smith for the appellant. Youmans and Niles for the respondent. Learned, P. J. The plaintiff claims to recover this money on two grounds. First. As money paid upon a consideration which has failed. Second. As money paid under mutual mistake of ftict. First. The question presented in the first ground is this : If vV. contracts to sell land to B., and then for a valuable consideration assigns B.'s con- tract to C, and if B. pays C. the contract-price, and then A. refuses to con- vey, can B. recover from C. for breach of contract or failure of consideration'? It seems to me that he cannot, unless C. has contracted with A. to ful fil ^the contract. Then, under the doctrine of Lawrence v. Fox,^ B. might have the benefit of C.'s agreement with A. If, for instance, A. had not only as- signed the contract, but had also conveyed the land to C, on consideration that C. would perform the contract, then probably B. would have an action on C.'s agreement. But in the absence of any such contract, and if C. had . taken from A. only an assignment of B.'s contract, I cannot see t hat C. would be liable to B. Suppose that by the terms of the agreement B. was to give, and should give, his notes to A. as a consideration for the land. If A. transferred the notes to C, they would carry with them no obligation on C.'s part to perform the contract of sale. So, in the present case, the plaintiff has taken Hodge's rights by assign- ment ; Hodge took Kilmer's rights in the same way. The plaintiff then stands in Kilmer's place, and the only person with whom Kilmer had a con- tract w as James R. Shaver. No one else has ever agreed to convey to Kil- mer or to his assignees. The defendant paid Shaver in full, and only received a transfer of Shaver's right to collect the payments on the con- j tract. He assumed no contract himself. And it should be observed that, i strictly, this is not the case of a failure of consideration, but of breach of contract. The consideration for the payments made by Hodge was the con- tract on Shaver's part to convey. His contract was executory. On per- formance by Kilmer's assignee, the assignee had a right to demand a deed. If Shaver did not, or could not give a good and sufficient deed, then the action against him would be on the breach of contract, — ou the breach of the written contract, — not on any implied liability for failure of considera- tion. Thus in Fletcher v. Button," and in Lawrence v. Taylor,^ both cited by the plaintiff, the action was in each case brought for the breach of the written obligation to convey the land. 1 20 N. Y. 268. 2 4 n. y. 396. » 5 Hill, 107. / f ! 442 YOUMAXS r. edgerton. [chap, il The contract, then, was with Shaver, and there is no finding, and, so far as I can see, no evidence, that the plaintiff has ever demanded a deed from him. It is true, that the referee finds that the legal title was in Knapp up to the commencement of the action. But it does not follow conclusively from this fact, that James R. Shaver, if demand had been made of him, would not have obtained, through the Townsend Shaver contract, a good deed from the owner. At any- rate his refusal should have been shown. Second. The plaintiff claims to recover this money as paid under a mutual mistake of fact ; and this is the view taken by the learned referee. It is veiy important to see exactly what the mutual mistake is on which the recovery is claimed. The money was paid severally by Kilmer and by Hodge to the defendant The learned referee finds that when the payments (excepting the last) were made and received, Kilmer, Hodge and the de- fendant were in ignorance that Knapp had the title to the lot, and that they believed that at the time when James R. Shaver made his contract with Kilmer he had a good title. Now, I have already pointed out that the defendant was a bona fide pur- chaser for full value from Shaver of the moneys to be received on the Kilmer contract. It will readily be seen, therefore, that the principle of recovering money paid under mutual mistake will not apply to him, unless it would apply to Shaver, if he had not assigned to the defendant. Sup- pose, then, for a moment, that Kilmer and Shaver had made this contract under the mutual mistake (so called) above stated, and that Kilmer had paid Shaver under like mistake, what would have been Kilmer's remedy t Not an action for money paid under mutual mistake, but, as already pointed out, an action for breach of contract upon the failure of Shaver to convey. The cases referred to by the learned referee are cases of an exe- cuted contract ; where, for instance, a deed has been given and the consid- eration paid, but the grantor had no title. Now, in the present case, it was not important that Shaver had no title when he executed the contract, if, when it was paid up, he was able to give a good deed which should con- vey the title. If he was unable then to convey, he was liable on his con- tract. Money is not paid by mistake when it is paid on an executory contract, and the consideration for the payment is the agreement of the other party. But further, au action to recover back money paid by mistake is a strictly equitable action, based on the idea that the defendant ought not to retain that for which he has given nothing. Now the defendant in this case has given the full value for the money he has received. He purchased from Shaver the claim against Kilmer. Shaver, now it is said, cannot perform his part of the contract with Kilmer. It is then Shaver who holds, in this view, money which he ought to refund ; not the defendant. The defendant has only received back what he paid to Shaver. The plaintiff's assignor trusted, not to the defendant's promise, but to Shaver's. To illustrate, SECT. l] merchants' INSURANCE CO. V. ABBOTT. 443 suppose that Shaver had given Hodge a deed, and had taken Hodge's note or bond for the purchase-mouev, and had then, for vahie received, traus- fen-ed the note or bond to the defendant, and Hodge had paid the same to the defendant. If subsequently it should have proved that Shaver had no title, and Hodge should have sought to recover back the money as paid under mistake, against whom would the action lie, if at all ? Clearly against Shaver, who had profited by the transaction ; not against the de- fondant, an innocent party, who had not profited by it. If the present re- covery be sustained, then the defendant is left remediless ; and Shaver, the pai'ty who is confessedly to blame, retains all the benefit of the contract. For the defendant would seem to have no remedy against Shaver, and Shaver has had full payment ou the contract. It was proved on the trial that Shaver is insolvent. That fact accounts probably for the attempt to make the defendant liable. But, of course, Shaver's insolvency is no rea- son for the defendant's liability. The plaintiff urged, on the trial, that there was evidence that the defendant agreed with Hodge to give him a deed. An examination of the case on this point satisfies me that this was not proved. Some other questions are presented as to the allowance of interest before demand, and as to the eftect of the plaintiff's possession, and of the assignment to him of the contract, and of the want of an actual sur- render. But it is unnecessary to pass upon them. The judgment should be reversed ; a new trial granted ; reference dis- charged; costs to abide the event. Present — Learned, P. J., Boardman and Bockes, J J. Judgment reversed and new trial granted; reference discharged ; costs to abide event. MEECHANTS' INSURANCE COMPANY OF PROVIDENCE v. CHARLES W. ABBOTT and Others. In the Supreme Judicial Court op Massachusetts, September 13, 1881. {Reported in 131 Massachusetts Reports, 397.] Gray, C. J. These actions are in the nature of assumpsit for money had and received, with special counts alleging that the plaintiffs were in- duced to pay the money by fraud and mistake. The five ca.ses were tried together, but are not exactly alike. In the first action, which is brought by the Merchants' Insurance Com- pany of Providence, R. I., against Charles W. Abbott and the members of the firm of Denny, Rice & Co., the material facts are shown by the report of the presiding justice and the special findings of the jury to be as follows : — On ^Mareh 17. 1876, a woollen mill was destroyed by fire, upon the con- 444 merchants' insurance co. v. abbott. [chap. II. tents of which Abbott }i cld a_ £ol icy of iusnr.ancR from the phiiutifts in the sum of $2500, payal)le in sixty days after satisfactory proofs and adjustment of loss, and providing that any fraud or false swearing in the proofs of loss should avoid the policy. Soon jifter the fire, Abbott made and delivere d to the plaintiffs proofs of loss, a nd they, after a reason able Jnye_stjgation, which di sclosed no grounds for a refusal to pay ^jin d in ignorance of any _^ frauJotT Abbott's part, adju sted the amount of the loss in ac coTdancejwith_ suc li proofs. Denny, Eice & Co. offered evidence of the following facts : At the time of the fire Abbott was indebted to them in the sum of about 84000. lu the latter part of April, 1876, Abbott paid them about $1500 in cash, and, as security for the payment of the rest of his debt, executed an instnunent in writing under seal, by which, after reciting the issuing of the policy, and that a claim for loss had arisen under it, lie assigned to them all his " claims upon said insurance company for loss under said policy," and au- thorized them to demand and sue for the same in his name, if necessary, and the proceeds to enjoy to their own use, and generally to do all and every act in and about the premises which he might do if this assignment had not been made. In Jun e, 187 6, at the expiration of the sixty days allowed by the terms" of the policy, the plaintiffs, in good faith, and not knowing of any fraud on Abbott's partT, paid tcTDenny, Rice & Co. the amount of the loss as ad justed, and too k a receipt signed b y them inlhis joi-m"m^stCD, May 25^ 1876. Received of the ]\Ierchants' Insurance Company of Providence $2478.80 in full satisfaction and discharge of all claim for loss and damage under this policy by fire March 17, 1876, and this policy is hereby cancelled and surrendered." The sura so paid exactly extinguished the debt of Abbott to Denny, Rice & Co., and they never paid any part of it to him. The mill and its contents, as the jury found, were burned with the knowledge and at the instigation of Abbo tt, and his proofs of loss were false and fraudulent. The plaintiffs, did not learn that they had been defrauded untiT^May, 1877, and then at once placed the case in the hands of legal counsel for investigation, and for prosecution, if investigation should warrant it ; and on January 16, 1878, bro ught this action. The other de^ fendaii ts had no knowledge of any f raud^norw- as any demand for the m oney made upon them before t his action jwas commenced. On June 5, 1877, Abbott filed a petition in bankruptcy, and on October 3, 1877, obtained a certificate of discharge, and no dividend was paid out of his estate. The justice presiding at the trial ruled that Abbott's certificate of dis- ' I charge was no bar to this action ; and, holding that tlie facts offered to be ' proved by the other defendants constituted no defence, directed a general \ verdict for the plaintiffs, and reported the case for such disposition and i 'judgment as the full court should determine. SECT. I.] merchants' INSURANCE CO. V. ABBOTT. 445 There can be no doubt of the liability of Abbott in this action. If tho money had been paid by the plaintiffs to him, it could be recovered back as money paid under the influence of a mistake between them and him as to the existence of a state of facts that would entitle him to the moncy.^ Kelly V. Solari;*^ Townsend v. Crowdy;^ Pearson v. Lord ;* Stuart v. Sears ;^ Welch V. Goodwin ;« 2 Phil. Ins. §§ 1816, 1817. Although Abbott has not in fact received the money, the payment of the money by the plaintiffs at his request in discharge of his debt to the other defendants is ef[uivalent to the receipt by Abbott of so much money, and is sufficient to enal)le the plaintiffs to maintain the action against him upon the special count, if not upon the general count for money had and received. Emerson v. Baylies ;'' Perry v. Swasey.® This liability of Abbott to the plaintiffs, being a debt created by his own fraud, is not barred by his certificate of discharge in bankruptcy. U. S. Kev. Sts. § 5117; Turner v. Atwood ; ^ Mudge v. Wilmot." As to the other defendants a different question is presented. If, before receiving the money from the plaintiffs, they had known the true state of facts, and had participated in Abbott's fraud, they would have been liable to refund the money. Martin v. Morgan ; ^^ Mason v. Waite.^^ But the report states that there was no evidence offered, nor was it contended at the trial, that they had any knowledge of the fraudulent conduct of Abbott, but it was conceded that they were wholly innocent parties. As to them, therefore, assuming the truth of the facts which they offered to prove, the case stands thus : They held a valid debt against Abbott. The assignm ent by Abbott to them was made in consideration of thatdebti_and [ \ )( to secure the pay mentthereof. The previous existence of the debt^ does not make the assignment the less a conveyance for value. Blanchard v. Stevens ;^^ Culver V. Benedict ; ^^ Ives v. Farmers' Bank ; ^^ Eailroad Co. v. National Bank.-^® There is no question of the validity or of the genuineness of the assignment. Having been made after the fire, and after the amount of the loss had been adjusted between the plaintiffs and Abbott, it was in legal effect an assignment of a claim of Abbott upon the plaintiffs for a certain sum of money. That claim, not being negotiable in form, could not have been sued by these defendants except in Abbott's name, and subject to any defences which these plaintiffs had against him. But the plaintiffs, at 1 Accordingly, in two other actions, brought hy the Manufacturers' Fire and Marine hisurance Co. and the American Insurance Co., respective!}', against Abbott only, to re- cover back money paid to him by the plaintiffs under the same circumstances as between them, which were tried, argued and determined witli the cases in the text. Tlie plaintiffs had judgment. 2 9 M. & W. 54. 3 8 C. B. n. s. 477. * 6 Mass. 81. M19 Mass. 143. « 123 Mass. 71. "^ 19 Pick. 55. » 12 Cush. 36. » 124 Mass. 411. 1" 124 Mass. 493, and 103 U. S. 217. 11 3 Moore, 635 ; s. c. 1 Brod. & B. 289 ; Gow, 123. 12 17 Mass. 560. 13 3 Cush. 162. " 13 Gray, 7. ^^ 2 Allen, 236. i^ 102 U. S. 14, 58, 59. 446 merchants' insurance co. v. abbott. [chap. II. Abbott's request, and without any suit, paid the amount of the loss, as adjusted between themselves and Abbott, directly to these defendants, who were wholly ignorant and innocent of the fraud of Abbott. The plaintiffs do not stand in the position of resisting a claim of Denny, Eice & Co. on an alleged promise of the plaintiffs, in which case Deiniy, Rice & Co. would have to prove a valid contract of the plaintiffs to pay to them or to Abbott, their assignor. But the plaintiffs are seeking to recover back from Denny, Rice & Co. a sum ot nioneywhic h^ tlie plamtiffs have voluntarily paid to them, and which the plaintiffs ass ert to be wrongfully withheld trom them by^these defenda nts, and whi ch they are therefore boun3~tg' prove that, as b e t we enlihese parties, the plaintiffs have the b etter right to, and it is Unequitabl e and ui^ust that these jefendant s should retain. The only contract of the plaintiffs was with Abbott, and the only mistake was as between them and him. The money was voluntarily paid by the plaintiffs in discharge of Abbott's supposed claim upon them under their policy, and to these defendants as the persons designated by Abbott to receive it, and was in legal effect a payment by the plaintiffs to Abbott. These defendants received the money, not in satisfaction of any promise which the plaintiffs had made to them (for the plaintiffs had made no such promise), but under the agreement of Abbott with these defendants that they might receive it from the plaintiffs and apply it to the satisfaction of Abbott's debt to themselves. In other words, the money was paid by the plaintiffs to these defendants, not as a sum which the latter were entitled to recover from the plaintiffs, but as a sum which the plaintiffs admitted to be due to Abbott, under their own contract with him, and whicli at his request and in his behalf they paid to these defendants, who at the time of receiving it knew no facts tending to show that it had not in truth become due from the plaintiffs to Abbott. This payment by the plaintiffs to these defendants at Abbott's request was a satisfaction of Abbott's debt to these defendants, and might have been so pleaded by him if sued by them upon that debt. Tuckerman v. Sleeper.^ As between the plaintiffs and these defendants, there was no fraud, concealment, or mistake. These defendants had the right to receive from Abbott the sum which was paid to them. The assignment which they presented to the plaintiffs was genuine, and was all that it purported to be. They bold the money honestly, for value, with the right to retain it as their own, under a title derived from Abbott, and independent of the fraud practised by him upon the ])laintiff8. The case stands just as if the money had been paid by the plaintills to Abbott, and by Abbott to these defendants, in which case there could be no douV)t tliat, while the plaintiffs could recover back the amount from Abbott, neither Abbott nor the plaintiffs could recover the amoiuit from these defendants, 'i'he fact that the money, instead of being paid by the 1 U Cu-sh. 177. SECT. I.] MEKCHANTS' INSURANCE CO. V. ABBOTT. 447 plaintiffs to Abbott, and by Abbott to these defendants, was paid directly by the plaintiffs to these defendants, does not make any difference in the rights of the parties. 1'he two forms do not differ in substance. In either case, Abbott alone is liable to the plaintiffs, and these defendants hold no money which ex ceqiio et bono they are bound to return eitlier to Abbott or to the plaintiffs. The case does not differ in principle from one in which B., having made a contract for the sale of goods in his possession to A., afterwards, by A.'s direction, actually delivers them to C, who has purchased them from A. in good faith for a valuable consideration as between A. and C, the nature of which is known to B., and B., upon subsequently discovering that the sale from himself to A. was procured by A.'s fraud, undertakes to recover the goods or their value from C. ; or from a case in which a bank, having at the request of a debtor paid money to his creditor upon a bond or a check, under the mistaken supposition that the bond is secured by mortgage of property of the bank, or that the bank has funds of the debtor sufficient to meet the check, seeks to recover back the money so paid. In Aiken v. Short,^ the action was brought by the public officer of a bank against an executrix to recover back money paid to her under the following circumstances : George Carter had made to the defendant's testator a bond secured by equitable mortgage on property devised to him by Edwin Carter; and had afterwards conveyed the same property to the bank, the latter agreeing to pay the bond. The defendant applied to George Carter to pay the bond, and was referred by him to the bank, which, conceiving that the defendant had a good equitable charge, paid the debt to get rid of the charge aflFecting its own interest. By the discovery of a later will of Edwin Carter, it turned out that George Carter had no title to the property, and consequently that the defendant had no title, and the bank had none. It was held that the bank could not recover back the money which it had paid to the defendant. Chief Baron Pollock, according to Hurlstone and Norman's report, after stating the facts of the case, said : " The bank had paid the money, in one sense, without any consideration, but the defendant had a perfect right to receive the money from Carter, and the bankers paid for him. They should have taken care not to have paid over the money to get a valueless security ; but the defendant has nothing to do with their mistake. Suppose it was announced that there was to be a dividend on the estate of a trader, and persons to whom he was indebted went to an office and received instalments of the debts due to them, could the party paying recover back the money if it turned out that he was wrong in supposing that he had funds in hand ? The money was in fact paid by the bank as the agents of Carter."^ By the similar but fuller report in the Law Journal, it appears that the Chief Baron, after observing that the bankers "had paid the money, no doubt, in one I 1 H. & N. 210 ; s. c. 25 L. J. (n.s.) Ex. 321. 2 1 H. & N. 214. 448 merchants' insurance CO. v. ABBOTT. [chap. II. sense, without auy cousideration," added, " What is that to the defeiidaut, who received it, having a perfect right to receive his [her] money from somebody, that is, from George Carter ? And I think the bankers must be considered rather as paying it for George Carter, and they ought to have taken care that they did not pay in their own wrong when they paid it. It appears to me that this does not at all fall within any case whatever decid- ing that money may be recovered back because it has been paid under a mistake." ^ Barons Platt, Martix and Buamwell were of the same opinion. Baron Platt saidj " The action for money had and received lies only for money which the defendant ought to refund ex cequo et bono;'' and, after stating the other facts, said, " Carter referred her to the bank, who paid the debt, and the bond was satisfied. The money which the defendant got from her debtor was actually due to her, and there can be no obligation to refund it; " ^ or, according to the fuller report, " He refers her to the bank. They, acting as his agents, upon being referred to, pay his debt. How can that be properly recoverable ? Surely the debt is satisfied. The debt was due. It is not as though there were no debt due, and there was a mistake of fact ; but here the debt was actually due, and the money was paid to satisfy that debt. It appears to me clear, beyond all question, that this money cannot be recovered back." ^ Baron Martin said, " The case comes to this : If I api)ly to a man for payment of a debt, and some third person pays me, can he recover back the money because he has jjaid it under some misapprehension ] " * In Chambers v. ]\Iiller,^ the plaintiff presented at the defendants' bank a check drawn on them by a customer, and received the money ; and after he had counted it over once, and while he was recounting it, the defendants, having meanwhile discovered that the customer's account was overdrawn, forcibly detained the plaintiff, compelled him to give up the money, and returned the check to him ; and he brought an action against them for assault and battery. Chief Justice Erle at the trial ruled that the property in the money had passed to the plaintiff, and consequently that the defend- ants' justification failed; and his ruling was confirmed by the court in banc. The question whether the defendants had a right to take back the money by force, though mentioned by some of the judges, was not reserved or decided. See especially 32 L. J. (x. s.) C. P. 31, note. The ground assigned for the decision by Chief Justice Erle and Mr. Jus- cicc Williams was, that the money, having been once paid by the bankers to the payee of the check, became irrevocably his, and they could not have recovered it back from him in an action for money had and received, because as between them and him there was no manner of mistake, for the check 1 25 L. J. (n. .s.) Ex. 323. 2 ] h. & N. 214, 215. ' 25 L. J. (s-.s.) Ex. 324. ■• 1 H. & N. 213, 214. 6 13 C. B. (N-. s.) 125 ; s. c. 32 L. J. (n. s.) C. P. 30. SECT. I.] merchants' insurance CO. V. ABBOTT. 440 was genuine, and the money was duo from the drawer to the payee, and the mistake as to the amount of the drawer's funds in the hands of the bankers was a mistake between liim and them only, with which the payee liad nothing to do. The CiiiKi'' Justice distinguished the case from that of Kelly V. Sohiri, above cited, in that " there the nionoy was paid to a party who had no right to it whatever, and the mistake was between the parties themselves as to the money being due." ^ The like distinction was taken in Hull V. South Carolina Bank,^ and in Guild v. Baldridge.^ So in Pollard v. Bank of England,'* Lambton & Co., bankers, under the mistaken belief that they held funds of the acceptor of a bill of exchange, paid the amount of the bill to the Bank of England, which had discounted the bill for the drawer; and it was held, in a considered judgment delivered by Mr. Justice Blackburn, in behalf of himself and Chief Justice Cockburn and Justices Mellor and Lush, that Lambton & Co. could not recover back from the Bank of England the amount so paid, and that the Bank of England therefore held the amount on the drawer's account. For these reasons, the court is of opinion that, assuming the truth of the facts of which evidence was introduced by the defendants, the plaintiffs may maintain the action against Abbott, and not against Denny, Rice & Co. In any view of the case, Denny, Eice & Co. and Abbott cannot be jointly charged in this action. They have made no joint contract with the plain- tiffs, nor have they jointly received money from the plaintiffs. The grounds of liability of the two are distinct. The liability of Abbott to the plaintiffs rests upon the ground that, by reason of his fraud and their mistake, they have at his request paid money to the other defendants for his benefit; and it is independent of the question of the amount of his debt to the other defendants. The liability of Denny, Eice & Co., who were not parties to any fraud or mistake, can rest upon no other ground than their receipt and retention of money to which they have no right, and which, as between them and the plaintiffs, justly belongs to the latter; and this liability can- not exist unless the amount of the debt due from Abbott to them is less than the sum of money which they have received from the plaintiffs. The allegation in the amended declaration, that the money was paid by the plaintiffs for the joint use and benefit of both defendants, is therefore un- supported by the evidence, and the objection on the ground of this variance might be taken by the defendants at the trial. Manahan v. Gibbons.^ The other four actions are brought against Abbott and the members of the firm of Browne, Steese & Clarke. The only particulars appearing by the report, in which these cases differ from the first, are that the evidence introduced by the other defendants tended to show that Abbott's debt to them was in part for money advanced by them to him after the fire ; that each of the assignments executed by him to them was in form a simple 1 32 L. J. (n. s.) C. p. 33. 2 Dudley, 259, 262. ^ 2 Swan, 295, 303. * L. R. 6 Q. B. 623. * 19 Johns. 109. 29 450 merchants' insurance CO. v. ABBOTT. [chap. II. assignment of all his " right, title, and interest iu this policy, ana all benefit and advantage to be derived therefrom ; " and that in the fifth case Abbott signed a separate receipt similar to that signed by them, and the check given by the plaintiffs was payable to the order of Abbott and the other defendants. But as the evidence introduced, as stated in the report, showed that in all these four cases "the amounts due on the policies as adjusted, assigned to them as aforesaid, were paid to Browne, Steese & Clarke by the insurance companies at the expiration of the sixty days allowed by the terms of the policies, and the money kept by them, and no part of it paid to Abbott," a majority of the court is of opinion that neither the difference in the form of the assignments in the four cases, nor that in the form of the receipts and of the check in one of them, can affect the result ; but that the assign- ment in each case, having been made after the fire, and after the adjustment of the loss as between the company and Abbott, was in legal effect not an assignment of the policy as an existing contract of indemnity against future contingencies, but only an assignment of a claim upon the company for an ascertained sura of money ; and that assuming the truth of the facts offered to be proved by the defendants, this sum, having been paid by the company to Browne, Steese & Clarke, without any fraud or mistake as between them, and not exceeding the amount of the demands of Browne, Steese & Clarke against Abbott, cannot be recovered back from them, but from him only. The report provides that, if the court should be of opinion that the plaintiffs have no joint cause of action against the defendants, they may elect which of the defendants they will discontinue against, and such further proceedings shall thereupon be had as law and justice may require. The other defendants, in each case, contend that, as Abbott is the only party whose residence or place of business is in the county of Middlesex, the other defendants residing and doing business in Suffolk and the plaintiffs being a foreign corporation, therefore, if the plaintiffs elect to discontinue against Abbott, the defendants should be entitled to the same right to move to dismiss, or plead in abatement, that they would have had if the action had originally been brought against them alone, and they propose to plead in abatement that, as between them and the plaintiffs, the action is brought in the wrong county. Gen. Sts. c. 123, § 1. But the action was rightly brought in the county in which one of the defendants resided, and the case has been fully tried on the merits, without objection being taken to the venue by motion to dismiss or answer in abatement. The statutes provide that amendments discontinuing as to any joint planitiff or defendant may be allowed at any time before final judgment, that judgment shall not be arrested in any civil action by reason of a mistake of venue ; and that judgment may be entered against such defendants as are found on the trial to be liable on the contract declared on, notwithstanding it is found that all the defendants are not jointly liable thereon. Gen. Sts. c. 121), §§ 41, SECT. I.] STANDISH V. ROSS. 451 79 ; c. 146, § 4 ; c. 133, §§ 5, 6. And the court is not ousted of its juris- diction of a transitory action, once acquired by service upon a defendant residing in the county, by a failure to recover against him at the trial. Lucas V. Nichols.^ The plaintiffs are therefore entitled, pursuant to the leave reserved in the report, to elect to prosecute their action against either defendant. Under the rulings at the trial, the facts which the evidence introduced by the other defendants tended to show, as to the validity and amount of Abbott's debts to them, became immaterial, and were not passed upon by the jury, and the plaintiffs are entitled, if they so elect, to a new trial fjr the purpose of determining these facts. If, for this purpose, they elect further to prosecute either action against the other defendants, they must discontinue against Abbott ; and neither the question of Abbott's fraud, which has been fully tried and settled by the verdict, nor the question of the other defendants' innocence of that fraud, which was conceded at the former trial, is to be open upon the new trial. Winn v. Columbian Ins. Co. ; ^ Eobbins v. Townsend ; ^ Bardwell v. Conway Ins. Co.* If, on the other hand, the plaintiffs elect to discontinue against the other defendants, judgment must be entered for the latter, and Judgment for the 'plaintiffs against Abbott alone. The cases were argued in February, 1879, by H. W. Stiter {F. Dabney with him), for Denny, Eice & Co., by C. R. Train and E. W. Hutchins, for Browne, Steese & Clarke, and by J. P. Treadivell, for the plaintiffs ; and were reargued in March, 1881, by F. Dabney (//. W. Suter with him), for Denny, Rice & Co., by A. S. Wheeler and E. W. Hutchins, for Browne, Steese & Clarke, and by W. G. Russell and J. P. Treadivell, for the plaintiffs. {Tc.) Effect of Defendant's Change of Position. STAI^DISH V. ROSS. // In the Exchequer, February 15, 1849. [Reported in 3 Exchequer Reports, 527.] Debt for money had and received. Plea, never indebted. At the trial, before Rolfe, B., at the Liverpool Spring Assizes, 1848, it appeared that the action was brought by the plaintiff, who was sheriff of Lancashii'e in 184G, to recover money paid to the defendant under the following circumstances : — The defendant having recovered judgment 1 5 Gray, 309. ^ 12 Pick. 279. « 20 Pick. 345. * 118 Mass. 4G5. 452 STANDISH V. ROSS. [CIIAP. II. against oue Hignctt, iu the afternoon of Saturday, the 25th Apri], 1846, placed in the sherifi's hands a writ of fieri facias, with a request to execute it on that day at the warehouse of llignett at Manchester. The officer on going there found the warehouse closed, as was the custom iu Manchester on a Saturday afternoon, and the writ remained unexecuted until the 1 1 th yiiix, when the officer entered and seized by the defendant's order. On the same day the sheriff assigned the goods seized to the defendant by bill of sale, which stated the consideration to be the sura of 25G/., paid by the defendant to the sheriff. A return of fieri feci was then made. Prior to the entry and seizure, the defendant's attorney had notice of an act of bankruptcy committed by Hignett before the 25th April ; upon which a fat issued on the 28th August, and assignees were appointed. The as- signees brought trover against the sheriff for the goods seized, when he paidtheir value, and brought the present action to recover back the money so paid. It was submitted, on behalf of the defendant, that the action was not maintainable ; and the learned judge, being of that opinion, nonsuited the plaintiff, reserving leave for him to move to enter a verdict. A rule nisi having been obtained accordingly, Athertou and UnthanJc showed cause. Martin and J. Addison, in support of the rule. The judgment of the court was now delivered by Parke, B. This case was argued before the Lord Chief Baron and my Brothers Eolfe and Alderson, on showing cause against the rule to enter the verdict for the plaintiff. The action was bro tj gli t ^by jthe_plam t jff^_who was sheriff of Lancashire in 18^, agafnstthe defendant for money had and received : the plea was the general issue. The defendant was a judgment >^ creditdr~afEer^verdTct~^or '6ne~ BtglieTf, ~a trader, and issued a fieri facias ^ against his effects, which was put into the sheriff's hands on the 25th of *^ April, 1846. The sheriff did not immediateh' levy, but waited until the 1 1th J" May, when he entered and seized by the defendant's order. Prior to the ^^ entry and seizure, on that day, the defendant's attorney had notice of an \ act of bankruptcy which had been committed by Hignett before the writ ;/ was put into the plaintiff's hands on the 25th ; and a fiat was duly issued "j against Hignett in the month of August following, under which assignees were chosen at a meeting which was then held. Long prior to this tlie plaintiff had sold and delivered to the defendant the goods for 25G/. by a bill of sale expressing that the defendant had paid that sum. The plaintiff then returned to the fieri facias "fieri feci." The assignees, after their ap- j)ointment, sued the plaintiff in an action of trover for the goods which were seized on the 11th May, and he was obliged to pay them 332/. The plaintiff brought the action afterwards to recover from the defendant 256/., for which he had sold the goods to the defendant. ]\Iy Brother Rolfe, having directed a nonsuit, reserved liberty to move to enter the verdict for that sura. SECT. I.] STANDISH V. ROSS. 453 The case was fully argued before us, and we have not been without doubt on the question submitted to us; but, after full consideration, we think the rule must be made absolute. Several objections were taken to the plaintiff's right to recover. One was, that no money was paid by the sherill", the plaintiff, to the defendant. But although no money in fact passed, the bill of sale in the form in which it was drawn shows, as between the plaintilf and the defendant, that they were in the same situation as if the plaintiff had sold to the defendant and received the money ; and the other evidence in the case also showed that it was treated as paid over to the defendant. Another objection was, that the money, when paid, was not the sheriff's moue}^ ; but if it was not, the plaintiff was still entitled to recover back that money, which had been paid to the defendant under ignorance of matter of fact, as soon as he had been compelled to pay for the goods seized, to the real owner. Again, it was objected, that the sheriff was estopped by the return of fieri feci. The case of Brydges v. Walford decided, that, as between the same parties, it was no absolute estoppel in another action ; and though the return says that the goods were then the goods of the debtor, that did not estop the sheriff from saying that the then title of the debtor was defeated by matter subsequent. Such evidence does not in truth contradict the return. It was then urged (and this objection was one which seemed at first to have the most weight in it), that the plaintiff had no right to recover back the money, as he could not put the defendant in static quo ; for, in the first place, if the sheriff had been guilty of neglect in not executing the process on the 25th of April, before the plaintiff in the suit had notice, the plaintiff would have had his remedy for that neglect, and that remedy was suspended by the sheriff's return (A fieri feci ; and in the second place, the plaintiff was prevented by the same return from having a ca. sa., by which he might have taken the body of the bankrupt in execution. We think these cir- cumstances make no difference in the case. When money is sought to be recovered, on the ground that the consideration stipulated by the contract has failed, it is a defence that the plaintiff has had the consideration in part, and that the parties could not be replaced in statu quo. That is the case of Hunt v. Silk,^ But in this case the plaintiff's claim does not rest on the ground that the money~has been so^pai^~[j tls for money paid, not m erely by mistake, but in necessary inv hi cible igii orance of ma tter of fact. 1/ The pla intiff befo re the fiat issuej ^was boundto_£ay^ t he proceed s_^f_tbe execu t ion to the ex ecution plaintiff; he could not possibly jcnow wheth er a fiat, whi ch^ would de feat the title of the execution defend ant to the g oods, would issue or not. When the^a^ issued, the title of the assignees related ^ a^7^^P^^m g;dejn^_sherjyj ^ by relation, a nd_he was then, e om- pellable to make good the loss of the goods to their true owner; and then 1 5 East, 449, ■^/> ^T-TT-^ "i^^-H^^ 454 POOLEY V. BROWN. [CIIAP. II. he contends, that he is justly entitled t o recover b ack thej)rice_of^hem^ which he~has ~paid to the execuHon^ainti^^ is,_as^was saiTT>yThe judges In Brj-dges v. Walford, and by Lord Ellenborough in Wilson V. Milner, unless it be an answer Jhat_the jjlaintiiLcamiot bejgutjn the same situation^ Does. then Tthis c ircumstance make a d ifference^? It is to be^bome in^iud that the suspension of neither remedy was caused by any neglect or misconduct of the sherilf, as he was compellable to execute the writ when it was executed, and to make the return which was made. The remedy itself, by action against the sherifl' for not executing the writ, remains ; it is in respect of the delay of the remedy only that the defendant could not be put in statu quo. We think these circumstances form no impediment to the right to recover, if money were p aid over under an ordiiTary HisFa^'prfactXIOo ^^otlj^ any bar to the recovery of it, tEat the defendant had ap p lied the money in the mean time to some' purchase whTch Jia-Otherglsejwou ld not have made, and so could not be placed in statu quo. -" Rule absolute. POOLEY V. BROWN. In the Common Pleas, January 15, 18G2. [Reported in 11 Common Bench Reports, New Series, 566.] This was an action for money had and received, etc. Plea, never in- debted. The cause was tried before Erle, C. J., at the sittings in London, after last Trinity term. The facts which appeared in evidence were as fol- I lows : In April, 1860, one Lindo brought to the plaintiff eight several - 1 bills of exchange, amounting together to the sum of 358/., which purported to be drawn by one Meyer at Brussels upon and accepted by Messrs. Gil- more & Co. in London, and to be indorsed by Meyer in Brussels, and asked him to discount them for the defendant, but without recourse to him. The plaintiff consented to do so, and accordingly gave the defendant a check for 322/. 19s. 4c/. The bills had affixed on them adhesive stamps pursuant to the 17 & 18 Vict. c. 83, s. 3, but it did not at the time occur to either of the parties to cancel the stamps, as required by s. 5. It turned out that t h e name of Meyer as^th.c_drawer and indorser of tliese bills was forged. Gilmore & Co., the acceptors, having subsequently ! become~bankrupt7lhe plaintiff, in April, 1861, sought to prove for the I amount of the bills against their estate ; when it was discovered that the "^ stamps had not been cancelled, and the proof was rejected. The plaintiff then demanded back the sum which he had paid the defendant for the bills, as upon a failure of consideration. [ SECT. I.] rOOLEY V. BROWN. 455 On the part of the defendant, it was objected, that, by reason of the non- compliance with the statute, to which he was himself a party, it was not competent to the plaintiff to use the bills as evidence ; that the plaiutiflF, by reason of his own laches, whereby he had materially altered the posi- tion of the defendant, had disabled himself from recovering back the money ; and that, as there was no mistake of fact, the money was not recoverable back. A verdict was taken for the plaintiff for 322/. Ida. Ad., leave being 1 reserved to the defendant to enter a nonsuit, if the court should be of opinion, that the plaintiff was not entitled to maintain the action. ( C. Wood, in Michaelmas term last, accordingly obtained a rule nisi to enter a nonsuit, on the grounds, — " first, that the bills were inadmissible ^, "^ in evidence ; secondly, that the plaintiff was a party to the violation of the statute, and caused his own loss ; thirdly, delay in applying to the defendant for payment ; fourthly, that, if any mistake, it was one of law, and not of fact." J. Brown, with whom was Ilaivkins, Q. C, on a former day in this term showed cause. Manisty, Q. C, and Wood, in support of the rule. Erle, C. J. This was a rule to enter a verdict for the defendant. The facts were, that the plaintiff, in April, 1860, bought of the defendant for 323/. certain foreign bills of exchange purporting to be drawn by Meyer, in Brussels, on Gilmore & Co., of London : the defendant omitted to cancel the adhesive stamp, according to the 17 and 18 Vict. c. 83, s. 5, when he delivered them to the plaintiff (the cancellation having escaped the atten- tion of each party at the time of the sale). G ilmore & Co . before the matur- ity of the bills became bankrup t. In Apri l, 1861, they proposed a dividend ; and these bills were ten dered jor^raQ^JaiLre jected because the stamp w aa, not^ancelledl Then theplaintiff demanded, and brought this action for, the "silm which Fe had paid to the defendant for the bills, on the ground that the consideration had wholly failed, — citing Young v. Cole,^ where tho purchaser of Guatemala bonds was held entitled to rescind the purchase and recover back the price, because they were not stamped with a Guate- mala stamp, and Gurney v. Womersley,^ where the plaintiff rescinded the contract and recovered the purchase-money paid for some bills which purported to be accepted by one Van Notten, but which (as to that name) were forgeries. In answer to this claim of the plaintiff, the defendant has relied on two grounds, — first, that the consideration for which the plaintiff paid his money has not failed ; on the contrary, the specific things which were the subject of the contract of sale were delivered and received, viz., the bills drawn by Meyer & Co., of Brussels, on Gilmore & Co. of London. At the time of the contract, they had all the qualities of the things which the 1 3 N. C. 724 ; 4 Scott, 489. 2 4 Elli.s & B. 133. 456 POOLEY r. BROWN. [chap. II. C\tV o V Cv. \~»'>. V defendant intended to sell and the plaintiff' to buy. The defect arose in the process of delivery. When foreign bills sold are delivered, the Stamp Act, 17 Sc 18 Vict, '^v- v-v .-N-v^ g2^ commands the seller to cancel the adhesive stamp before he delivers, ^^^(LeUca-xorx.> and the buyer to see that this has been done before he receives them. Each party in this case omitted to perform the duty so commanded : and the statute has declared the consequences which are to follow from this inattention, viz., the seller is to forfeit 50/. to the Queen, and the buyer is to lose the capacity of making the bills avaihible for any purpose. Al- though the cancelling is required from the seller, the seeing that it has been done before he receives it is required from the buyer. Each of the actors has his duty enforced by the above-mentioned consequences from neglect ; and the defendant contended upon the argument before us that there was nothing in the statute which laid the whole of the loss on the seller. If this ground failed, then the secoad-gimmd on which the defendant relied was, the time that had elapsed before the plaintiff" claimed to rescind the contract and to recover back the purchase-money, and the change in the cjr cumstances of the pa rties^durm g that _time.__ The plaintiff" had kept the bills for a year ; the defect was always apparent if he had known the law ; and his ignorance of the law would be no excuse for his omitting to make his claim. During that time the acceptors had become bankrupt, and the drawer had not been made to pay ; and the situation of the defen- dant may have been materially altered for the worse by the delay ; while the plai ntiff", by rescinding the contract, w ould gain so much more than he^ would havego ^with a valid transfer, as the price he paid exceeds the divi-^ denT he would receive u nder the bankruptcy^ If any ac t ion lay, [Would be^raore^easonable to sue in such cose for the triT^loss rather than for the received. original price asj noneyjmc U nder thes e_circi mistances, we ar cjiU of opinion that the plaintiff had no ri ght to rescind tlie"cont racrof"salerand tliat the detendant i^ entitled to succeed_^m_the_jecond^round above mentioned. I^iy Brother Keating and myself are also of opinion that the defendant is fll entitled to succeed on the first ground as above stated; but from this opinion my Brother Williams dissents. Williams, J. I agree with my Lord and my Brother Keating that this rule ought to be made absolute, but on the second ground only. If the plaintiff' had, within a reasonable time after he had received the hills from the defendant, and without any delay prejudicial to the latter, w ,., 'r required him to take and return the ])urchase-money, on the ground that 'S '"^ he had omitted to cancel the stamps, I tliink the plaintiff" might have Lvviii- r-v»^ *^ ^v4^o maintained this action, because I think there was an implied understand- • , , ing when the bills were sold they were to be not merely foreign bills of V "^^changc, but negotiable and avaihible Ijills, as both parties believed "' ^'^^ . r . \ I ■ \ I tvuV i cfc^'--/^^ X*^*^^ ^i t^ir •x^ iJ^M' ifM. i^y^*^ SECT. I.] POOLEY V. BROWN. 457 they were, and they have turned out not to bo such bills, by reason of the defendant's neglecting to cancel the stamps before he parted with the bills, as required by the statute. I think, therefore, the plaintiff would have had a right to recover back the purchase-money, either by reason of the consideration having totally failed, or by reason of his having paid it in mistake of facts, as put by Lord Campbell in Gom^ertz v. Bartlett.^ I am strengthened in this view of the case by considering, that, if the vendee of a bill sold and delivered under such circumstances could be compelled to keep it, the bill must by the terms of the statute be wholly unavailable in his hands ; whereas, if he be allowed to return it to the vendor, the latter may at all events sue the acceptor on it. Some doubt, perhaps, may exist whether he could, by transferring it subsequently to another vendee, or another holder for value, render it available in the hands of the latter, because the statute says that no person who shall take such a bill from another shall be allowed to make it available, unless at the time he takes it it shall bear a stamp cancelled in the manner directed, i. e. (as it might, perhaps, be contended), cancelled by the first holder before he has de- livered the bill out of his hands to any one. But I can find nothing in the Act which would prevent the vendor, though he may have transferred the bill, in violation of the statute, without cancelling the stamp, from after- wards suing the acceptor on it, if the bill gets back to his (the vendor's) hands. It was argued on behalf of the defendants, that it is unjust to allow the plaintiff to recover back the whole price of the bills, because he will there- by be put into a better plight than if the defendant had complied with the statute ; in which case the defendant would only have been able to obtain a dividend under the acceptor's bankruptcy. But the answer to this argu- ment is, I think, that, in truth, the defendant is merely remitted to the condition of being the holder of the bills of which, by reason of his own neglect to cancel the stamps, he has in the result never legally ceased to be holder. And no injustice is done to him thereby, if he is so remitted with- out any injurious delay. In the present case, however, I agree with the rest of the court, in thinking that the action is not maintainable, because the vendee of the bills neglected for an unreasonable time to return them to the vendor, and must, under the circumstances, have thereby prejudiced the vendor as to his position in respect both of the drawer and the acceptors of the bills. WiLLES, J. Not having heard the whole of the argument, I take no part in the judgment in this case. Rule absolute. 1 2 Ellis & B. 849. f >l\ ■+- ri 458 NEW ALL V. TOMLINSON. ^ [CHAr. IL NEWALL AND Another v. TOMLINSON and Another. In the Common Pleas, April 17, 1871. [Reported in Law Reports, 6 Common Pleas, 405.] Action for money had and received, money paid, interest, and money found due upon accounts stated. Plea, never indebted. The particulars of demand were as follows : — 1870, Dec. 14. To amount of overcharge paid by the plaintiffs to the defendants, being an over-payment on invoice for 289 bales of cotton ex Glen Cora, dated April 22d, 1870, viz. : — Error in weight of 74 bales of cotton, said to weigh 37,485 lbs. net, @ U^d., per lb £1796 3 1 Discount 26 18 10 £1764 4 whereas it ought to have been 26,685 lbs. llkZ. per lb. . 1278 9 8 Discount 19 8 1259 9 509 15 Interest to 15th of December 15 17 2 £525 12 2 The plaintiffs seek to recover the sum of ^251. 12s. 2d. as the difference due to them on the above account, and the like amount on accounts stated. The plaintiffs also claim interest on 509/. 15s. (part of the said sum of 525/. 12s. 2d.) from the 15th day of December, 1870, till payment or judgment. The cause was tried before Willes, J., at the last assizes at Liverpool. The facts were as follows : The plaintiffs and the defendants were respec- tively cotton-brokei-s in Liverpool. In April, 1870, the plaintiffs bought of the defendants 74 bales of cotton ex Glen Cora, each acting for prmcipals whose na mesjwerc not d isclosed, and, accordingjto^thfi-Usage jq£. the COt tQ P- , ma rket, eac hJreatingJhe_otheraJi54)niid^ Weight- lists of the cotton were in the ordinary course delivered to each party from the warehouse-keeper at Albert Dock ; but a clerk of the defendants made a mistake of 100 cwt. in adding up the figures, and the consequence was that when the plaintiffs paid for the cotton they paid the defendants too much by 509/. 15s. The mistake was not discovered until the 14th of December, when the plaintiffs demanded back that sum. The invoice for the cotton (which was delivered on the 22d of A]n-il) was headed as fol- lows : — " Messrs. Newall k. Clayton, bought from W. D. Tomlinson & Co." etc. ; and it was not until after the discovery of the mistake that the plain- tiffs were informed (as the fact was) that Messrs. Dixon & Co. were the defendants' principals. SECT. I.] NEWALL V. TOMLINSON. 459 In the mean time the defendants, who had prcvionsly to the arrival of i the cotton advanced very considerable sums to the shippers, Messrs. Dixou & Co., hadjiUowed the sum in question in their account wij;h them,, and had subsequently gone on making^fu rthcr advances ; and when Dixon & Co. ultimately suspenJed^ayment, the balance due fromthem to the defend- ants on accouniTof^hese transaction s ex ceeded 2000^. The defendants thereupon claimed to be entitled to shelter themselves under the rule of law which protects payments bona fide made by an agent to his principal, without notice ; and at the trial it was submitted on their behalf, that, being known to be brokers, and being under advances to their principals, whether the plaintiffs knew that they were acting for principals or not, they (the defendants) were entitled and bound to hand over the money to their principals, or (which was the same thing) entitled to set it off against their advances, and having done so, were not liable to be called upon to refund it : and the cases of Holland v. Eussell ^ and Shand v. Grant ^ were cited. The learned judge in his summing-up said that every agent for the sale of goods who has advanced money upon them and has them in his posses- sion, has a right to sell them as owner, unless there be a countermand of his authority ; and he distinguished the cases cited, on the ground that in both of them the persons who dealt with the agent knew that they were dealing with one who represented an undisclosed principal ; whereas here the defendants, though general brokers, acted in the particular case~as prmc ipaJs^^and_hedii^ jury to find Tor the plaintiffs, damages 509^. 15g., reserving leave to the defendants to move to enter a verdict for t hem, or a n onsuit, if the court should think the ruling wrong. Quain, Q. C, moved accordingly. BoviLL, C. J. The defendants in the first instance personally claimed the price of the cotton from the plaintiffs as upon a sale to them by the defendants, each being, as between themselves, personally bound as princi- pals in the transaction, though each were acting for principals whose names were not disclosed. The invoice was made out as upon a sale from the defendants to the plaintiffs, and claiming the price as being due to the j defendants personally ; and each were liable personally to the others for the due performance of the contract. The defendants were entitled to sue for and recover the price of the cotton in their own names, and to apply it when received to their own use and benefit. They had made large advances to their principals, Messrs. Dixon & Co., upon the security of the cotton, and were entitled to sell it to recoup themselves. In no sense could they be said to have received this money for the purpose of handing it over to Messrs. Dixon & Co. ; nor did they in point of fact hand it over to them. It is true that the defendants were shown to have made further advances 1 1 B. & S. 424; 30 L. J. Q. B. 308: in error, 4 B. & S. 14; 32 L. J. Q. B. 297. 2 15 C. B. N. s. 324. 460 NEW ALL V. TOMLINSON. [CHAP. IL . ^___^ to Messrs. Dixon ir Co. subsequently to the receipt by thera of this money. That, however, could not make it money had and received by Messrs. Di.xou -^^.^rd,,k Co. to the use of the plaintiffs, so as to enable them to sue Messrs. Dixon k Co. for it. The mistake originated with the defen dants^ themselves, and they alone are responsible. The cases relied on are clearly distinguishable. UrSlTaiunrGrant^ the defendant received the money as agent of the ship- owner, and for the purpose of handing it over to him. The case was put entirely upon the ground that the defendant was a mere agent. He had handed over the money to his principal, and the principal was the proper person to sue. So, in Holland v. Kussell, the same view was taken, and the decision proceeded upon the ground that the defendant was a mere agent. Cockburn, C. J., in delivering the judgment of the court below, after stating what had been the contention on one side and on the other, says ^ : " We are of opinion that the plaintiff" fails upon the facts. Not only is it clear that the defendant was acting solely as agent, but (the court having power to draw inferences of fact) we are of opinion that the plaintiff" was aware that the defendant was acting as agent for the foreign owners, and as such made to him the payment of the money he now seeks to recover back." And, when the case came before the Court of Error, the same view was taken. Erle, C. J., delivering the judgment of that court, says' : " The defendant who received this money from the plaintiff" received it as agent for a foreign principal. Tlie plaintiff^ knew that, and paid him in that capacity, with the intention that he should pay it over to that principal, and he did so ; and all the money thus received has been ac- counted for in a settlement of account approved by the foreign principal, under circumstances which clearly amount to payment of that sum to him. The defendant having therefore been altogether an agent in the matter, is there anything which takes him out of the ordinary' protection to which an agent is entitled who pays money to his principal before he received notice not to pay it, and before he knew that there was no legal duty on him to do so ] There is nothing in this case to deprive the defendant of the right of an ordinary agent so to protect himself." Here the defendants were not mere agents. They were dealing as principals, and entitled to apply the proceeds of the sale of the cotton to their own use. For these reasons I am of opinion that the direction of the learned judge was right, and that there should be no rule. BvLES, J. I entirely agree with what has fallen from my Lord upon the first point. T he defendants did not receive the _jEO'jej-asmGJ^c agents: they re ceived it for their own use an djbenc fit. In a ddition, I would ob^ ser ve that the defend ants here are seeking to excuse one mistakejy another, they paid over (or accountecTfoiyThe money to their employers, if not with 1 15 C. B. N. s. 324. 2 1 B. & S. 424, at p. 432; 30 L. J. Q. B. 308, at p. 312. 8 4 B. & S. 14, at p. 15 ; 32 L. J. Q. B. 297, at p. 298. SECT. I.] NEWALL V. TOMLINSON. 4G1 recollection, yet with notice of the facts. If they were mere agents, they were bound to remember. On both grounds, therefore, I think the verdict was right. Montague Smith, J. I am of the same opinion. Upon the facts ap- pearing, the defendants were not mere agents to receive the money for Dixon & Co., and to hand it over to them. They received it on their own account, and had a right so to receive it and to appropriate it to their own use. They were not mere conduit-pipes : they were in s ome sense principals, and had a right to appropriate the money in satisfaction o f their adv ances to Dixon &, Co., andTFey did soT What is said by Lord Mansfield in Buller V. Harrison^ seems to me to be very much in point : "The law," he says, *' is clear, that, if an agent pay over money which has been paid to him by mistake, he docs no wrong ; and the plaintiff must call on the principal : and in the case of Muilman v. , where it appeared that the money was paid over, the plaintiff was nonsuited. But, on the other hand, shall a man, though innocent, gain by a mistake, or be in a better situation than if the mistake had not happened 1 Certainly not." If the argument of Mr. Quain were to prevail, the defendants clearly would be in a better posi- tion than if the mistake had not happened. They received the money and appropriated it towards satisfaction of their own debt. I think the defend- ants were not, to use the words of Erle, C. J., in Holland v. Russell,^ agents altogether. As between themselves and the plaintiffs, they were principals. Brett, J. I am of the same opinion. The defendan ts w ere originally liable because under a mistake they received money which they were not entitled to. TKey^cannbt get r id of that liability, unle_s_s thgy_ bring them- selv es within the rule as to an a gent who has received money on account of his principal an d has paid it o ver to him. It seems to me that they have Tailed to bring themselves within that rule. They did n ot rece ive this money for their principals. They stood with regard to the plaintiffs as onginal contractors^ I should be sorry, however, to decide the case on thaFground alone. The money in question was received by the defendants, not only as between the plaintiffs and themselves, but also as between Dixon & Co. and themselves, on their own account, and not on account of Dixon & Co. Being under advances, they had a right to sell the cotton and receive the proceeds on their own account. They cannot, therefore, say that they received the 509Z. 15s. in question to the use of their principals ; and con- sequ^ntTy they~d6 not bring themselves within the rule relied on. I will only add tEat I found my judgment entirely upon that view, and I do not rely on the ground that the money was received by the defendants through a mistake of their own. "^ Eule re/used. 1 2 Cowp. 568. 2 4 B. & S. 16. 462 DURRANI V. THE ECCLESIASTICAL COMMISSIONERS. [CHAP. II. v^. "'-•e-. ^ DUREANT V. THE ECCLESIASTICAL COMMISSIOXEES FOR ENGLAND AND WALES. In the Queen's Bench Division, November 16, 1880. [Reported in Law Reports, 6 Queen's Bench Division, 234.] Special case, stated by way of appeal from the judgment of the judge of the county court of Downham in favor of the plaintiff, in an action brought t o recover back an amo unt of tithe commutation rent-charge paid to the defe ndant s as rectors of th e rectory of Crimplesham, under a mistake of fac t. The material facts appearing in the case were the following : — Prior to Michaelmas, 1870, certain lauds in the parish of Crimplesham, in Norfolk, were held by a Mr. Hodgkinson as tenant. At Michaelmas, 1870, the plaintiff s ucceeded Hodgkinson in his tenancy, ex cept as to a part of the land call ed Stank s, consisting of about twenty-five acres, which was cut off and thenceforward held separately. The action was brought to recov er back tit he which accrued due betwe en the 10th of April, 1874r, and the fij; st o fjOct ober, 1876, in respect of Stanks ^^ and* was paid by the plaintiflTtojthe defendant s. The defendants became owners in possession of the tithe of the parish of Crimplesham on the 10th of April, 1874. The names of the persons for the time being occupying the respective hereditaments subject to tithe were put down in the collecting book of the tithe-owner's agent, which was used by the collector at the tithe audit. When Hodgkinson gave up his ten- ancy the name of the plaintiff was substituted in the collecting book of the then collector for that of Hodgkinson in respect of all the lands, including Stanks. From that time until April, 1874, the collector for the lessees, and afterwards the collector for the defendants, gave notices to the plain- tiff, as an occupier of lands in the parish, to pay the tithe for the lands that appeared by the collecting book to be occupied by him, without any knowledge on his or their part that the plaintiff did not occupy the land called Stanks, or that the plaintiff was not liable to pay tithe for the same, being guided simply in the notices of audit by the list above mentioned. The plaintiff paid his tithe according to the notices, in ignorance that the amount specified in the notices included the tithe for Stanks not occupied by him. The tenant of Stanks, who was liable under an agreement with the landlord to pay tithe, was not asked to pay for that land until after the plaintiff, in April, 1877, accidentally discovered that he was paying tithe for land not in his possession, and refused to pay it any more. SECT. I.] THE KINGSTON BANK V. ELTINGE. 463 The question for the opinion of the court was whetlicr, under these cir- cumstances, the plaintiff was entitled to recover back any and what part of the tithe so paid by him to the defendants 1 F. M. White, Q. C. and J. M. Lloi/d, for the defendants. Pollock, B. I agree in the decision arrived at by the county court judge in favor of the plaintiff. If the mistake, which was common to both parties, had been discovered within a certain time after the payment the defendants could have obtained the tithe from the tenant. The fact that the niistake was n oWiscovere d in tim e preve nts jthis^^ndso alters the po sition of the de fendants ; but there is no conduct on the part of the pTaiivhff such as would disentitle him from recovering in this action. In Cocks V. Masterman^ the ground of the decision was that the banker should bear the loss, because he had not done that which bankers are bound to do, given notice of the forgery of the cheque when it became due. This and other similar cases proceed upon the ground of some mutual relation between the parties creating a duty on the part of the plaintiff, breach of which disentitles him from recovering. No such state of facts exists here, and the plaintiff, having paid the money under a mistake of fact, is entitled to recover it back. Hawkins, J., concurred. Jv dgment for t he plaintiff. ^ .-^r y '^^^' ^""^^^ ^HE^KINGSTOI^ BANK, App^ant, v. ROELIFF ELTINGE, Presi OF NewPaltzTKespondent. LUGUENOT 'ESjI r / U^/^ DENT O^ THE In TOE Co/rt op Appeals op New York, ^ne 11, 1869 W X%/^ vu. ^ t ^^^-^ ZX^ 464 THE KINGSTON BANK V. ELTINGE. [CHAP. II. Nicholas Elniendorf was the owner of a steamboat called the Alida, worth $19,000; and of other personal property worth §1143.99; also of real estate in said county worth $18,147.88, and the judgment debtor, AVm. Masten, owned a propeller worth $1000. No liens or incumbrances then existed against the said property of the judgment debtors, excepting four judgments docketed in said clerk's office, viz : in favor of other parties against said Elmendorf and others, amounting in the aggregate to about $10,000 ; on which no executions had then been issued to the sheriff. Before the executions had run out on the said judg- ments in favor of the Huguenot Bank in the sheriff's hands, the real and personal property of the judgment debtor, Elmendorf, was amply sufficient to pay said judgments and all prior liens. Subsequently and prior to March 28, 1854, other judgments in favor of various parties were recovered against Elmendorf, and on the 25th of March, 1854, the King ston Bank recovere d three several judgments a gainst Elmendo i;^_Lockwood,_ and S choonmaker, amounting in the aggregate to about $15,000, and thereafter judgments to a large amount were perfected by various parties against Elmendorf The sheriff levied on the Alida between the first and the middle of ^May, 1854, and on the propeller, the property of William Masten, the middle of March, 1854. On the ITtli of July, 1854, the steamboat Alida, the property of Elmen- dorf, was sold by the sheriff for $19,000 (and the propeller was sold at the same time for $1000), to John Van Vechten, for which sum of $19,000, Van Vechten, by the consent of the Kingston Bank, gave his note to the sheriff. The real estate of Elmendorf was sold by the sheriff", under executions, April 10, 1855, and brought $18,171.88. On the 20th day of July, 1854, Van Vechten paid all the judgments in favor of the defendant, the Huguenot Bank, and the same were at his request then satisfied and cancelled of record ; these judgments were paid and cancelled of record by the consent of the Kingston Bank. T hese payments were made from the proceeds of the sale of the Alida, nnder-jJTejnistake of Jlact that the Alida had been l evied upon under t he executions upon the defenda nt's judgments^ _wh ereas no such levy had been^ mad e ; but th ose execirtlons had run out in the sheriff's hands prior to any levy on the Alida. They were so paid without any fault or want of care of the defendant, and without the defendant's obtaining any advantage thereby, as the judgments of the defendant were entirely safe and secure by the real estate of Elmendorf, on which they were a lien prior to plaintiff's judg- ments, but by being satisfied by the payments before mentioned, the de- fendant's lien on the real estate was lost without fault of the defendant, and if this plaintiff recover, the defendant will probably lose its judgments. There was no fraud in the conduct of the plaintiff or the defendant, but the SECT. I.] THE KINGSTON BANK V. ELTINGE. 4G3 ^laintiffhad the means of easily ascertaiuiug the facts as to tlie levy prior to tEF^iayment of dctendant's judgments! " ^SslTconclusion oflavvTTie found that the plaintiff had no cause of action. The judgment was atlirnied by tlie General Term. Samuel Hand for the appellant. Jacob I. IlarJenburff for the respondent. Hunt, Chief Justice. The judgment iu this case was rendered upon a finding of facts by the judge who tried the cause, without a jury. This judgment was affirmed by the General Term, In such case the Code pro- vides, that the findings of ftict are conclusive upon us. Both parties in their briefs proceed upon the basis of the facts thus found, and the respondent expressly states, that the findings of the judge are fully sustained by the testimony. It is not competent, therefore, for the respondent to insist, as he does in his second point, that "no part of the moneys paid to the Huguenot Bank were moneys realized out of the sale of the Alida. It was all money of N. Elmendorf, the principal debtor, and upon it the Kingston Bank had no lien or claim whatever." The judge trying the c ause has found , that "the ju dgments of the defendants were paid from the proceeds of the sale of the Alida, under the mistake of fact thaTtbe^ Alida had been levieH~upon underlEe executions of the defendants' Jud^^ menjj PttTTefeas"no^ucET e^^ This finding, as the respondent admits, and it cannot be denied, is sustained by the evidence. As a fact it is conclusive upon us here. The "case, then, stands thuZ The defendants, Having the earTTeirjudgments against Nicholas Elemeudorf and others, issued three executions upon their judgments in January, 1854. In March, 1854, the judgments in favor of the plaintiffs were recovered, and executions issued upon them to the sheriff holding the prior executions. During the life of the latter executions, but after the lien of the former had expired, by lapse of time, the steamboat Alida was levied upon, under the executions in the sheriffs hands, and sold for $19,000. Both parties supposed that the boat had been levied upon by the first e x ec ivtions, as well as by the late r _ones : the_ purchaser paid the fir st executions and the judg- ments were sat isfied of record. This was done by the consent of the plain- tiffs! The plaintiffs' executions, in consequence thereof, remained unpaid. Upon discovering the error, to wit, that the first executions had expired, and were not a lien upon the boat or its proceeds, the plaintilT demands of the defendant the money thus erroneously paid, and brings this action for its recovery. The money thus received by the defendant was the plaintiffs' money. That it did not belong to the defendant follows necessarily. The av ails of the property of a j udgment debtor, when sold upon execution, are by law to be paid to the~"cre3rto rs upon whose execution It is sold . Their"""" j udgments and exec utions are thereby satisfiecT and discharged. Such pro- ceeds, on the other hand, do not belong to a judgment creditor, whose exe^ 30 466 THE KINGSTON BANK V. ELTINGE. [CIIAP. II. ^ i ^,J^ c utiou has expired by lapse of time, and is not, therefore, a lien upon the property, ^'either is such jud gment impaired or a ffected Jby such sale. It may be immediately enforced jjv ^another ex ecution upon any pr op erty,, real or personal, that The debtor may possess. Gardinier v. Tubbs;^ McChain v. Duffy ; ^ Van Winkle v. Udall ; ^ People v. Hopson ; * Ostran- der V. "Walter.^ The defendants have received the money which should have been paid to the plaintiffs, by their assent, it is true, but w hich a s sent was based upoiTa mistake of fact. The principles of law will not permit the defend- antsToTetain this money, unless there is something in the case to take it out of the general rule. The authorities to this point are numerous. Barr v. Veeder ; ® Wheadon v. Olds ;'' The Bank of Utica v. Van Gieson ; * Canal Bank v. Bank of Albany ; ® Bank of Commerce v. Union Bank.^° So far as can be gathered from the statements of the judge trying the cause, and the opinion of the court below, their judgment in favor of the defendants was based, first, upon the idea that, by the exercise of proper diligence, the plaintiffs might have learned that the defendants' executions had expired, and thus have avoided the error ; and second, that by the discharge of their judgments, the defendants had lost their lien upon the real estate of their judgment debtor, and if compelled to refund, would in fact lose their debt. I will consider each of these positions. As to the first proposition, that the plaintiff had the means of learning the true state of the case. It cannot be denied that either party might have made inquiry, and would probably have learned the actual facts. There is no reason to suppose that the sheriff would have refused an ex- planation of the order and lien of the executions in his hands, if he had been called upon for that purpose. This course, however, was open to either party, and there is no more negligence in failing to obtain the knowledge, by one party, than the other. The defendants were equally T>6und with the plaintiffs to possess the knowledge, and if the want of it is a ground of complaint, are equally censurable with the plaintiffs for not possessing it. In The Canal Bank v. The Bank of Albany ^ the court say ; " The conduct of both parties was bona fide, and the negligence or rather misfortune of both the same. It was the duty, or more properly, a measure of prudence in each to have inquired into the forgery, which both omitted. But this raises no preference at law or equity in favor of the defendants, but against them. They have obtained the plaintiffs' money without consideration, not as a gift, but under a mistake. For the very reason that the parties are equally innocent, the plaintiffs have the right to 1 21 "Wend. 169, 171. « 1 Denio, 574. T 20 Wend. 174. w 3 Comst. 237. 2 2 Dner, 645. 6 2 Hill, 329. 8 18 Johns. 485. 8 1 Hill, 559. 6 3 Wind. 412. 8 1 Hill, 287. SECT. I.] THE KINGSTON BANK V. ELTINGE. 467 recover." (Pago 290.) The same rule is laid down in Tlie Bank of Commerce v. The Union Bank.^ Care and diligence are not controlling elements in the case. It is a question of fact merely. The inquiry is, are the pa rties mutually in error, and did they act upon such mutu al mistake, not whet her they^ ought so to have a^cted. if, i n consequenc e of such mutua l mistake, one party has receivedthe property of the other, he must refund, an d th is \vrthou t reference" / \ 7^ to vigilance or negligen ce^_ On a sale and purchase of real estate, the rule and the principle are different. It is a case of a bargain in which the law requires the exercise of care and attention. A party cannot then allege himself to be ignorant of a fact, of which he was put upon the inquiry, and of which he could have obtained a knowledge by reasonable diligence. In cases of bargains and sales, the rule is applicable, vigilantibus non dormien- tibus leges subveniunt. Such was the case cited of Taylor v. Fleet ^ and of which there are many instances in the books. But where there is no matter of contract, no bargain or sale, there is no call for the exercise of astuteness. The case then becomes one of fact. Was there or not an error between the parties'? And the determination of that fact controls the result. Where this expression of the want of care and attention is used in reference to cases of simple mistakes of fact, by which one has thus re- ceived the money of another, and that it is thus used in many cases can- not be denied, the expressions have not been duly considered. In support of this view, I refer to Townsend v. Crowdy.^ A. had agreed with B. to purchase his share of a partnership business, for a given sum, subject to diminution, if a moiety of the profits for three years should be less than a certain amount. Having made a partial investigation of the accounts, and believing that the profits had reached the amount named, A. paid the sum in full. Six months afterwards, a more accurate estimate having been made, it was discovered that the profits were considerably less than the estimated amount. Held, that the payment having been made under a mistake of fact, A. was entitled to recover back from B. the sum paid in ex- cess. In ordering judgment upon the case stated, Erle, Chief Justice, said : " I am of the opinion that our judgment in this case should be for the plaintiff. ... It seems, from a long series of cases from Kelly v. Solari ^ down to Dails v. Lloyd, ^ that where a party pays money under a mistake of fact, he is entitled to recover it back, although he may, at the time of the payment, have had means of knowdedge of which he has neglected to avail himself." Williams, J., said : " I am entirely of the same opinion. . . . Since the case of Kelly v. Solari, it has been established that it is not enough that the party had the means of learning the truth, if he had chosen to make inquiry. The only limitation now is, that he must not waive all inquiry." Willes, J., concurred. Byles, J., said : " I 1 3 Comst. 237. 24 Barb. 95. » 8 C. B. N. s. 476, 492. < 9 M. & W. 54. 6 12 Q. B. 531. 468 THE KINGSTON BANK V. ELTINGE. [CHAP. 11. am of the same opinion. . . . All the three courts have held that the right to recover back money so paid is not fettered by the condition suggested, that there shall not only be absence of knowledge but also absence of the means of knowledge of the facts." In Kelly v. Solari, above referred to/ the plaintiff represented a life assurance company, and brought the action to recover from Madame Solari the sum paid to her on a life policy of £1,000 in favor of her deceased hus- band. The deceased having neglected to pay his quarterly premium in September, the directors of the company, in November following, wrote upon the policy the word "lapsed." M. Solari died in October, and in the February following, the defendant proved her husband's will, demanded the payment of the policy, and received the amount less a sum deducted for payment before maturity. The directors testified that at the time of making the payment, they had forgotten that the policy had been lapsed. At the trial the Lord Chief Baron expressed his opinion, that if the directors had had knowledge, or the means of knowledge, of the policy having lapsed, the plaintiff could not recover, and that theii* afterwards forgetting it would make no difference. He directed a nonsuit, reserving leave to the plaintiff to move for a verdict for the amount claimed. On such motion being made, Lord Abixger, C. B., said: "I think the plaintiff ought to have had the opportunity of taking the opinion of the jury, whether in reality the directors had knowledge of the facts, and therefore, that there should be a new trial and not a verdict for the plaintiff; although I am now prepared to say that I laid down the rule too broadly at the trial, as to tlie effect of their having had means of knowledge." Parke, B., concurred, say- ing, among other things : " The position that a person so paying is pre- cluded from recovering by laches, in not availing himself of the means of knowledge in his power, seems from the cases cited to have been founded on the dictum of Mr. Justice Bayley, in Milner v. Duncan,'^ and with all re- spect to that authority, I do not think it can be sustained in point of law. If, indeed, the money is intentionally paid without reference to the truth or falsehood of the fact, the plaintiff meaning to waive all inquiry into it, and that the person receiving shall have the money at all events, whether the f\\ct be true or false, the latter is certainly entitled to claim it ; but if it is paid under the impression of the truth of a fact which is untrue, it may, generally speaking, be recovered back, however careless the party paying may have been in omitting to use due diligence to inquire into the fact." The case of Dails v. Lloyd, referred to in the above opinion, is reported also in 12 Ad. & E. n. s. 53L These cases show that the question of care and diligence does not arise in an action like the present. The next proposition of the respondents is, that by the discharge of their judgments they have lost their lien upon the real estate of their judgment 1 9 M. & W. 54. « GB. &C. C71. SECT. I.] THE KINGSTON BANK V. ELTINGK. 409 debtors, and if compelled to refund would lose their debt. To state it in ano tlier form, they insist that t he claim against them can not be main- tained, uTiTc ss ntEey can be^ restored to their original position, and secured fro m the intervention of ot he r liens and _ purchas es. This thcy~say cannot ~ now be done, citing Crozier v. Acker.^ That was the case of a mistake of law. The Chancellor says : " If this court can relieve against a mistake in law in any case, where the defendant has been guilty of no fraud, which is very doubtful, it must be in a case in which the defendant has lost nothing by the mistake, and where the parties can be restored to the same situation in which they were at the time the mistake happened." The application of this principle to the present case would substantially destroy the rule that money paid in mistake of facts can be recovered by the payer from the receiver. If the facts could be so arranged, that there would be no loss to either party, there would be nothing to contend about, and no such actions woiild be brought. It is only where the retention or restoration of the money involves a loss that the parties are anxious about it. It is an ordinary result of the tr ansaction, that the party receiving has incurr ed liabi li_ties or_p aid money which he would n ot h ave done, except for the receipt_q£jthe_rnoney^^Ifind no case, however, in which this has been held to relieve him from th e performan ce ofJiisjdutY;__ In the present" case, the one party or the other, upon the facts found, will lose his debt. By cancelling their judgment, the respondents will have lost an available security. By failing to rfeceive the amounts due to them upon their sub- sisting executions, the appellants will have lost their debt. One part y or .i the other bei ng compelled to lose, the question is, which shall it be. The u V answer given by the authorities is, that the party having t h e lega l^jglit must^preyaiL- In the Canal Bank v. Bank of Albany,^ which was an action by one bank to recover from the other the amount of a draft paid to it upon a forged indorsement of the name of the payee, the plaintiff recovered as for money paid by mistake, and it was held no defence to show that the defendant had collected the money as the agent of another bank in the city of New York, and had in good faith and without notice paid over the money to its principal. Here a loss was inevitable to the defendant or its principal, and it was impossible to restore them to the position of the holder of an unmatured and unpi-otected draft. They were held liable nevertheless. In Bank of Commerce v. Union Bank,^ the same principle is laid down Ji-,C~\ ^^ and in the same manner. The Union Bank had paid to its New Orleans /j. correspondent the money received from the plaintiff. In Rheel v. Hicks,* a complaint had been made against the plaintiff that be was the father of a bastard child, of which one Louisa Hepe was preg- -'--^ •• nant, and upon the oath of the said Louisa. The plaintiff was aiTcsted, 1 7 Pcaige, 137. M Hill, 287. 3 3 Corast. 230. * 25 N. Y. 289. 470 THE KINGSTON BANK V. ELTINGE. [CIIAP. II. and compromised the matter with the superintendent of the poor by pay- ing him fifty dollars in consideration of a full settlement and release fur the child's support. It turned out that the complainant was not pregnant with a child by any one, and that she was not delivered of a child at all. The plaintiff brought his action against the defendant to recover back the money paid, and recovered. This court also held that the fact that he had paid over the money to the county did not alter the case, although it was his duty so to pay over all moneys received for the support of bastards. Neither of the propositions on which the judgment of the Supreme Court is supposed to be based can be maintained. There is nothing to except this case from the general principles applicable to its class, and, upon the facts found, the judgment should have been for the plaintiff. The Supreme Court could readily vacate the satisfaction of the judg- ments and restore^the defendants to their Ibrmer pos ition, so far as the judgment debtors are concerned.^ Should there have been bo7ia fide pur- chases in the mean time, the case would b e more complicated, and we are n ot called upon to say what would be the result! In any event, I think this consideration cannot prevent the plainti ffs from recovermg the moneys justl y due to them. Adams v. Smith ; ^ Barker v. Bissinger.'* The judgment should be reversed and a new trial granted. Daniels, J., dissenting. The money which formed the subject of the present controversy was derived from a sale of the steamboat Alida, made under executions issued upon judgments recovered by the plaintiff against her owner. The purchaser at the sale, by the consent of the plain- tiff, made and delivered his note to the sheriff for the amount of his bid. And when the money in dispute was paid, it was paid by the pur- chaser upon judgments recovered against the same defendant in favor of the Huguenot Bank. At that time it was supposed by that bank, and also by the plaintiff, that the sale had in fact been made under the execu- tions issued upon the judgments of the Huguenot Bank, and that conse- quently that bank had the prior right to receive the money. Under that supposition the plaintiff consented that the money should be paid upon the judgments recovered by the Huguenot Bank, and that they should be cancelled of record. This proved to be a mistake, for the execu- tions of the Huguenot Bank had expired before the levy upon the steam- boat was made. At the time when the money was paid, the judgments of the Huguenot Bank were liens upon real estate of sufficient value to pay and satisfy them. This was afterwards sold under other judgments recovered against the debtor, and the proceeds applied in payment of thera. The question, therefore, arises, as one of the parties must be subjected to the loss of the money in controversy, upon whom should that loss in justice and ccpiity be imposed ] No positive wrong can be attributed to either 1 r> Cow. 280. 2 14 x_ Y. 270. SECT. L] the KINGSTON BANK V. ELTINGE. 471 of them. For thej each acted under the mistaken assumption of the existence of an important fact, concerning which each was equally bound to inquire. And the means of knowledge of its actual existence were eqiially accessible to them both. The consequences of a recovery by the plaintiff will be precisely the same to the defendant as those arising out of the maintenance of the defendant's defence will be to the plaintiff. If the plaintiff shall succeed, it will leave the defendant's judgments to that extent unpaid, but incapa- ble of being restored as liens upon the debtor's property. While the suc- cess of the defendant will leave the plaintiff's judgment standing against the same debtors, divested of the means of payment which the levy and sale under them had supplied them with. For while the levy continued and when it was followed by the sale, the plaintiff's judgments were jjro tanto paid, but the payment was not_an absolute satisftiction or discharge. It was still subject to the contingency that the judgments would be revived against the debtors in case actual payment was prevented, without any fault of the creditor or of the sheriff who was acting in its behalf. In this case no such fault was attributable to either. For by the mistake of the parties the money which was realized from the sale of the property, was applied in payment of other debts which its owner was equally liable to pay. No complaint, therefore, can be made by him, for he has had the full benefit of the property sold, by the application of its proceeds in the payment of his debts. And under those circumstances he could not avail himself of the technical and temporary payment made by means of the levy and sale, which was afterwards defeated by the mistaken action of his creditors without in any manner increasing his liabilities, for the purpose of preventing the future collection of the plaintiff's judgments. People v. Hodgson ; -^ Peck v. Tiffany.^ The equities, therefore, were entii'ely equal between the parties to this action. It was, however, insisted by the learned counsel for the plaintiff, that his client enjoyed the legal right, and that it should prevail for that reason. In this the counsel was in error, for until the money was actually paid over, the creditor had no legal title to it. The note which was taken by the sheriff upon the sale was owned by him, for the benefit, however, of the creditor who should prove to be legally entitled to receive its proceeds. But until it, or the proceeds derived from it, were delivered over to the creditor, the latter acquired no legal title to either. As neither was ever delivered to the plaintiff, but the proceeds were paid to the defendant with the plaintifis' consent, the latter can, in no just or proper sense, be said to own the money in dispute. The most that can be affirmed in its favor is that it was entitled to become the owner, but relinquished its right to do so in favor of the defendant. And this united the legal title with the equities then created by the cancellation of the defendant's judgments in 1 1 Deuio, 574, 578. ^ 2 Com. 451, 456. 472 THE KINGSTON BANK V. ELTINGE. [CILVr. II. favor of the latter, which in equity would constitute a sufficient answer to the plaintiffs' action. For it is an established principle of that juris- prudence, that the legal title shall prevail in all transactions brought within its cognizance, where the equities prove to stand upon an equality. - ~ «^ l^^'^c^j rpj^g recoveries which were had in the cases relied upon by the plaintiffs' counsel were all sustained by that principle, for the evidence showed that ^t^ o^\^M,^^\.^ the moneys which the defendants were required by the judgments to re- f , fund, were owned by the plaintiffs when they were received by the defend- '^^^•^^^^ ants. The legal title, as well as the equitable right, united in support of ., y*/;^ y w<«..**V.the demands made by the.^iaintiffs^ ;_.aiid nj ^dditioirToTha't,'they sTbod / ^, , precisely^ in the same relation to the persons who had respectively received "^^ '*^'^^'"the moneys from them, and for that reason could maintain similar, or other / A-c<^a.^»^/, 145. 85 Barb. 319, 322. » 11 li:irl.. f>49, 551-52. i« 1 (Ir.mt (Pu.), 17. SECT. I.] UNION N. BANK OF TROY V. SIXTH N. BANK OF N. Y. 473 was made, to be prior to that of the plaintiffs. Gibson, J., who delivered the opinion of the court, held that the defendant could have retained the money if it had not been for the fraud perpetrated by his attorney. There is no legal ground upon which a recovery by the plaintiff" could be properly or justly sustained ; the judgment should, therefore, be athrmed. All the judges, except Daniels, J., concurring with Hunt, C. J., for reversal, upon the grounds stated in his opinion, Judgment reversed and new ti'ial ordered. THE UNION NATIONAL BANK OF TROY, Eespondent, v. THE SIXTH NATIONAL BANK OF NEW YORK, Appellant. In the Court of Appeals of New York, January 24, 1871. [Reported in 4ti ComlocL , 452.] Appeal by the defendant from a judgment of the late General Term of ■ • the Supreme Court in the third district, affirming a judgment for the 1/ v plaintiff" upon the report of Justice Ingalls, as referee. The action was b y the plaintiff", a bank doing business in the city of Troy, to recover a sum of m oney alleg^ to have b e en paid by it, ^ indgr a. mist ake of fact, to the defe ndant, a bank in the city of New York. The facts, as they appear by the referee's finding and the evidence, are these : — The defenda^tSjJiavingdi^^ for one Cregan a note of one Bassett to Ashley, for $1000, which was dated September 26, 1865, at four months, payable at the Columbia Bank, Chatham Four Corners, indorsed by the payee, and by Davidson and Cregan, sent it before it was due to t\} e plaintiff's for collection. The plaintiffs sent it to the Columbia Bank at Chatham, about thirty miles from Troy. It was not p aid on the 29th of January, 18667when it became due, but protested, and notice of its pro- test was mailed by the Columbia Bank to all parties on it. The defeiTdants, ^on the rec eipt oTthe notice, applied to Cregan, and he paid them the n ote and took it up on the 5th of February, 1866. He did not jrgceia3_thc note, as it was not i-eturned by t he plaintiffs. On the same 5th of February, the plaintiff"s, not having received the notice of protest from the Columbia Bank, and believing that t he note was_^id, remitted the amo unt to the defendants. The defendants received the remittance of the amount of the note on the Gth of February, and supposing that the K^ ^ I bue auiouuL oi ine noie on ine ocn oi reoruary, ana supposmg tnat tne ), note had been paid after its protest, at once refunded the amount received II j^ I by them to Cregan, the indorser. The maker and payee both resided at ^ Chatham. The indorsers Davidson and Cregan resided in New York. On 474 UNION N. BANK OF TROY V. SIXTH N. BANK OF N. Y. [CHAP. II. tlie 9th of February the plaintiffs for the fir_st time wr ote to the Cohimbia_ Bank, inquiring about the note. On the 10th the Columbia Bank re- j \ turned to the plaintiffs the note protested, and plaintiffs then sent the \ same to the defendants, who received it on the 12th. The pl aintiffs then claimed from defendants t he money jent^or_tlie note. They ^ clineT because th^y had paid it over to Cregan, who refused to re- turn it, and because they were not liable. The plaintiffs then, under an arrangement with the defendants, undertook to collect the note from the maker, but did not carry the same into effect. Cre gan has died insolven t. He alleged that he had parted with security on receiving the money from the defendants, and refused to pay back to them what they paid him. There was no proof, however, of this. Samuel Hand and James Emott for the appellants. Charles F. Tabor for the respondent. FoLGEEi, J. The rule established by the class of cases of which The Kingston Bank v. Eltinge ^ is one, is not questioned by the counsel for appellants. But he insists that there is a distinction between them and the case in hand. Admitting that there was a mutual mistake in sup- posing that the note was paid, when it was not paid, he claims that the respondents were negligent in not making inquiry and using the means at their hand for an-iving at correct information of the fixcts. But as a suffi- cient answer to this, it is held that it is no bar to an action that the party paying had the means of knowing, and might have availed himself of those means by care and attention, and thus have arrived at exact knowledge. Waite v. Leggett.'^ " Care and diligence are not controlling elements in the case. It is a question of fact merely. The inquiry is, Are the parties mutually in error, and did they act upon such mutual mistake % Was there or not an error between the parties % And the determination of the fact controls the result." Kingston Bank v. Eltinge.^ If the money " is paid under the impression of the truth of a fact which is untrue, it may, generally speaking, be recovered back, however careless the party paying may have been in omitting to use due diligence to inquire into the fact." Kelly v. Solari ; ^ Marriott v. Hampton.* If it ■were conceded that the plaintiffs were subject to the imputation of negli- gence, that alone would not bar their action. The appellant's counsel urges, however, that the plaintiffs were the agents of the defendants; that it was their duty to collect the note and remit the proceeds, or to return promptly the protested paper. They did not fail in the first branch of this duty, for the note was not paid ; nor did they fail in making protest, etc., of the note. For that was done by which all prior indorsers to the defendants were charged. Notice of non-payment 1 40 N. Y. 391. 2 7 Cow. 195. 3 9 M. & W. ^A. ■» 2 Sin. L. P. 403, notes. \ SECT. I.] UNION N. BANK OF TROY V. SIXTH N. BANK OF N. Y. 475 was also given to the defendants. It woidd not be claimed, if the trans- action had stopped here, that the defendants would have any cause of complaint against the plaintiffs. It must be remembered that the notice of non-payment meant for the plaintiffs~vvas lost from or mis carricdln the maiL Tliey wereauthorized to act upon the natu ral inference from the usual co urse of business, that, no notic e having been received of non-pay- me nt of The n otg, pp ynipnt h jjdJl^^ "^"^" There was thus far no ftiilure ofduty to the defendants. And the case stands the same as if the relations of the plaintiffs and defendants were not those of agent and principal. And the omission on the part of the pl aintiffs to ma ke inquiry a nd^btain correct knowledge is no more preva- lent against them than it would be if they had not been the agent of the defendants. ' The appellant's counsel makes the point also that the defendants, relying upon the act of the plaintiffs and paying over the money to Cregan, from whom they cannot recover it, have been irreparably injured, r, >;-. /^^ and that the plaintiffs are estopped from denying their assertion to the ^ ^ ^ ' defendants that the note had been paid. The facts bearing upon this must be considered as they existed on the day on which the plaintiffs first sought from the defendants repayment of the money. This was about the 11th of February, 1866; and for some time subsequent thereto, Cregan was a dealer with the defendants and had on deposit with them an average amount large enough to have met this payment, and the amount of the note could have been charged against this deposit. It is said that Cregan refused to repay the money, alleging that, believing the note had been paid, he had parted with collateral security. But this is not proven. And the findings of the referee put the refusal of the defendants to repay on the ground that Cregan could not be required to pay the note. T here is no fact found or proven w hich_shows this, or establishes that the maker and in dorsers of t he note were not on that day just as liable to the jdefendants as they _were _at_the m atur ity of the npte.^ Troy City Bank v. Grant ; ^ Wilkinson v. Johnson.^ The defendants, having at the time of the plain- tiffVdemand upon them for repayment all the means of securing them- selvesfroin loss whTch theyha d onlhe day on whichTthe note matvired, and thus being in the same situation in which they were before the pay- ment by the plaintiffs, c annot claim that they were immedi ately injured by tih£-ac t. of the plaintiffs. When injury does not necessarily result, it is wholly immaterial as respects the plaintiffs right to recover. And it is for the defendants to show that injury has resulted. Guild v. Baldridge.' And see Rheel v. Hicks.^ The judgment of the General Term should be affirmed with costs to the respondent. 1 Lalor, Supp. 119. 2 3 b. & C. 428. 3 2 Swan, 295-304. * 25 N. Y. 289. t H 4 476 WHITE V. CONTINENTAL NATIONAL BANK. [CIIAP. II. Church, C. J., and Allex and Ghover, JJ., concur. Allen, J., expressly on the ground t hat the defendants did not necessarily sustain loss by tKe mistake. They were notified in time to reclaim the money of Cregan, and there is no evidence to show that the situation of Cregan or the defendants has been changed in the mean time, or that either had parted with any security. Andrews, J., absent. Peckham, J., having been a member of the court below, did not sit. LEONARD D. WHITE et al, Appellants, v. THE CONTINENTAL NATIONAL BANK, Respondent. In the Court of Appeals of New York, March 21, 1876. [Reported in 64 New York Reports, 317.] Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of New York, affirming a judgment in favor of plaintiffs entered upon a verdict, and affirming an order denying a motion for a new trial. This action was brought to recover back money paid by plaintiffs to defendant, upon an altered sight draft drawn upon plaintiffs by their cor- respondent in Euffalo. The draft was drawn for the sum of t; ft;enty-seven dolla rs. After its delivery to the payee, and before presentation and acceptance, it was altered so as to change the amount t o $27 50. It was sent by one Hor- ton, of Baltimore, to Austin Baldwin &. Co., New York, and received by them August 16, 1869. That firm deposited it on the same day with defendant, and for its avails sent to Horton a sterling bill of exchange on London at sixty days. Defendant credited said fimi the amount of the draft. The dra ft was p rese nted, August 17. to and acce pted by plaintiffs, payable~attheLeather Manufacturers' Bank, by whom it was paid to defendant. In the regular course of business between plaintifls and the drawer of the draft, monthly statements of accounts were rendered. The August account was rendered the forepart of September. It was not examined by the drawer until October 5, when the alteration was first discovered. Plaintiffs were advised on the 6th, and immediately notified defendant. The court charged among other things : " If the jury believe from the evidence, that if Austin Baldwin & Co. had been, either directly by the plaintiffs or by them through the defendants, informed within a reasonable time after the acceptance of the draft by the plaintiffs, that the same was forged for an amomit exceeding tlie sum of twenty-seven dollars, they. SECT. I.] WHITE V. CONTINENTAL NATIONAL BANK. 477 Austin Baldwin it Co., or the defendants, could have taken steps to trace and arrest the crime in its consummation, and have prevented the accent- ^.' ancc of their bill of exchange on the City Bank of London, and that they fixiled to take either of such steps, by reason of the acceptance and payment of the draft in question by the plaintiffs, and the failure of the plaintiffs to advise them of such forgeiy until on or about October 6, 18G9, then the plaintiffs are estopped from denying the genuineness of the draft in ques- tion, and that the defendants are entitled to a verdict." To which the plaintiffs' counsel excepted. Plaintiffs' counsel requested the court to charge, that plaintiffs were not bound to know that this draft had been altered in the way it was altered ; and that all they were bound to know when they accepted it was that the signature to the draft was genuine. Also, that if the plaintiffs were not legally chargeable with knowledge of the fact that the draft had been altered, no duty devolved upon them to give any earlier notice than was given, either to Austin Baldwin & Co. or anybody else, of the fact of the alteration. The court declined so to charge, and the plaintiffs' counsel excepted. Hamilton Odell for the appellants. Wm. Allen Butler for the respondent. Allen, J. The right of a party paying money to another under a bona fide forgetfulness or ignorance of facts, to recover it back from one who is not entitled to receive it, is well established. The equitable action for | \ money had and received will lie against one who has received money which in conscience does not belong to him. Kelly v. Solari ; ^ The Bank of Orleans v. Smith. '^ The doctrine has been applied repeatedly, in cases analogous to the present. Bank of Commerce v. The Union Bank ; ^ The Continental Na- tional Bank v. The National Bank of the Commonwealth ; ^ National Bank of Commerce v. National Mechanics' Banking Association ; ^ The Marine National Bank v. The National City Bank.^ That the plaintiffs in this action paid to the defendant, professing to be the holder of the bill, the face of it, in ignorance of th e facts dis entitling the defendan t to receive the same, is not dispute d. Their right to recover the money thus paid must be unquestioned, unless their right is barred by some circumstance which takes the case out of the general rule, or by some act of their own they have lost the right. Certain general principles, applicable to commercial paper and regula- ting the rights and obligations of the several pai'ties thereto, are very familiar and of every-day application. First. The plaintiffs, as drawees of the bill, were only held to a knowl- edge of the signature of their co rrespondents, the drawers ; by accepting '>/ V^ 1 9 M. & W. 54. * 50 N. Y. 575. 2 3 Hill, 560. 5 55 N. Y. 211. 8 3 Comst. c 59 N. Y. 230. 67. N 478 WHITE V. CONTINENTAL NATIONAL BANK. [CHAP. IL auJ paying the bill they only vouched for the genuineness of such signa- tures, and were not held to a knowledge of the want of j^en uineuess of any / otherj)art^ the instrument, or of any other names appearing thereon, or / oTthetitle of the holder! Kelly v. Solari ; ^ Broom's Legal Maxims, 257 ; Ivational Park Bank v. The Ninth National Bank;'^ Merchants' Bank v. State Bank ; ^ Espy v. The Bank of Cincinnati ; * Goddard v. The Merchants' Bank.^ Second. The de fendant, as holder of the bill and claiming to be en- titled to receive the amount thereof from the drawees, was held to a kn owledge of its own title and the genuineness of the indorsements, and of ever}' part of the bill other tlian the signature of th edra^wfira^ within the general principle which m ak es every party to a promis sory note or bill of^ ^ exchange a guarantor of the genuine ness of every preceding indorseme nt, / an d'of'the genuTuenesaToF^he instrument., Erwin v. Downs ; ® Turnbull vTBowyer ;' Story on Promissory Notes, §§ 135, 379, 380, 381. The pres- entation of the bill, and the demand and receipt of the money thereon, was equivalent to an indorsement. The drawees had a right to act upon the presumptive ownership of the defendant as the apparent holder. The focts which disentitled the defendant to receive the money, and in ignorance of which it was paid, were those presumed to be within the knowledge of the defendant and not of the plaintiffs. The defendant, in receiving the money and in disposing of it, did not act upon the ftiith of any admission by the plaintiffs, express or implied, of any fact which they now controvert in prosecuting this action. There was, therefore, no want of good faith, no negligence, or even want of ordinary care on the part of the plaintiffs in the payment of the money. Thejde fendant, in the entire transacti on, acte d u pon other evidence of its right t o^the money^tlTan the ^ statement or actions of the plaintiffs, and in dealing with tjie bill and with the" money, its avaHsTacted upon the (ipparcti't title an d genu i neness of the ^^, instrument, and the responsibility'~orthose"fromnmd through whom it recelvcd~ffie]bill. The plaintlI!VtherefoT5^o^m^^g'dut5^toTFc~^eIendaht in~respecno the forgery which invalidated the bill and its title to the moneys represented by it. It follows that there could be no negligence on the part of the plain- tiffs^vhich could defeat their right to reclaim the money paid whenever the forgery and the consequent mistake in the payment were discovered. ()\\\\\/^ swindler or reclaiming the bill bought and paid for upon the credit of the bill. Estoppels cannot be based upon mere conjectures, even if a proper foundation is laid for them in other respects. There is nothing really in the case to distinguish it from The National Bank of Commerce v. The National Banking Association,^ in which the plaintiff recovered. Should this action be retried other questions may arise not presented by this record, growing out of the relations between the defendant and other parties, and the character in which the defendant acted, whether as agent or principal. Upon the present record the equities are with the_plaintiffs. Ifjhey fail Jo_r ecover. they lose thejmgnev absolut^jy and wTthrmt. legal f| fault on their part. K the defend ant is comp elled to reimburse tFe plaintiffs, ^r^as^tgT-emedygver^ agains t the~prior indorsers : and if they in turn x have no reniedy againstthe prior indorsers, it is because they have chosen" i lo"dearwIth ^rrespou sible persons, or those of whose character and respond \ sibility they were ignorant. It would be unjust to father the^onsequences^ of their metho"d~of deaTmg upon innocent third persons. But waiving the question as to the responsibility of the defendant for the genuineness of the instrument, and taking the most favorable view for the defendant, which is to regard it as the case of a mutual mistake, in respect to which neither was in fault, and in that view, and upon that theory, the case is within the principles decided in The Bank of Commerce v. The Union 1 55 N. Y. 211. 4S0 WHITE V. CONTINENTAL NATIONAL BANK. [CIIAP. II. Bauk ;* The 'Kingston Bank v. Eltinge,^ and the phaintiffs are entitled to a new trial. Upon the case as made and upon the exceptions taken at the trial, I am of the opinion that the judgnient should be reversed, and a new trial granted. :Miller, J. (dissenting). The priucii)le is well settled that money paid under a mistake of fact may be recovered back, although the party paying the same has been negligent in making the mistake, unless the payment has placed the other party in such a position as would render it unjust to require him to refund. Having this doctrine in view the question arises whether the defendant was liable to refund the avails of the altered draft within the rule stated, under the circumstances presented in this case. The draft in question was accepted by the plaiutiifs upon the seventeenth day of August, and it is claimed that the defendant, relying upon the plaintiftV acceptance, lost the means and opportunity of stopping payment of the sterling bill of ex- change which had been issued in lieu of the forged draft, by the plaintiffs' omission to inform the defendant of the forgery, and that the question of fact whether such a change of position had taken place as affected the defendant's rights, was properly submitted to the jury by the judge upon the trial. The charge assumed that both parties acted in good faith, and that negligence could not be imputed to either in dealing with the forged draft, and in this respect the judge charged substantially that if the defen- dant, upon being advised on the seventeenth day of August, could have taken precautionary measures which would have prevented it from sustain- ing this loss, then the plaintiffs could not recover. This rule as the case stood was not erroneous, and can be upheld within the authorities. Con- ceding that the acceptance of the draft falls within the rule, that by a cer- tification of a check the drawer is concluded only as to the signature of the drawee and his own certification, and that he is not bound to know the handwriting of the filling up, yet, when, by means of his omission to act, a loss is sustained, the party in fault shall bear that loss. This doctrine was upheld and is within the ruling in the case of The National Bank of Commerce v. The National Mechanics' Bank.^ In that case the check in controversy was altered after it was certified, by raising the amount, and it was held that the sum paid could be recovered unless it was shown that the holder has suff'ercd loss in consequence of the mistake. It is said, in the opinion by Judge Rapallo : " If the defendant had shown that it had suffered loss in consequence of the mistake committed by the plaintiff", as, for instance, if, in consequence of the recognition by the plaintiff" of the check in question, the defendant had paid out money to its fraudulent de- positor, then clearly to the extent of the loss thus sustained the plaintiff" should be responsible." It appeared that the money was paid before the 1 3 CoiiLst. 230. 2 40 N. Y. 391. « 55 N. Y. 211. SECT. I.] WHITE V. CONTINENTAL NATIONAL BANK. 481 check was presented to the plaiutifT, and that the loss had been fully in- curred by the defendant before the plaintiff had made the mistake which it sought to have corrected. It will be observed that the case differs materially from the one at bar, for here the acceptance was made by the plaintiffs after the draft had been altered, and not before, as in the case cited, and it cannot be doubted that the mistake committed by the plain- tiffs by the recognition of the draft caused the defendant to pay the money. It was, therefore, a fair question for the jury whether the loss might not have been averted in season by notice of the forgery. The case is also brought by the testimony within the distinction taken by some of the judges in The Union Bank of Troy v. The Sixth National Bank of New York,^ that where the defendant necessarily sustains loss by the mistake, unless notice in time to prevent such loss is given, no recovery can be had. It was not necessary to establish that the defendant relied entirely upon the plaintiffs' acceptance to entitle it to claim the benefit of an estoppel; for even if, in consequence of it, he refrained from using means which he had in his power to prevent the loss finally sustained, the right of estoppel will be upheld and the loss must fall on the party who caused it. Continental National Bank v. National Bank of the Common- wealth.2 The plaintiffs, by failing to take the means to advise the defend- ant, are brought directly within the rule that when the omission of a party affects the act of another, and he is thereby misled and influenced to his prejudice, the party in fault must bear the loss. The claim that the question submitted to the jury which has been discussed was not material, and that there was no evidence to guide the jury in determining it, is not well founded. It is not difficult to see that the draft given may have been stopped, the forger arrested, the acceptance in London have been pre- vented, or some measures have been adopted which would have saved all parties from loss, if the defendant had been notified of the forgery ; and it was proper for the jury to decide this question of fact. While the instructions to the jury asked by the plaintiffs' counsel and refused contained legal propositions which were abstractly entirely correct in a proper case, neither of them were applicable to the question of flict, which was for the jury, and therefore each of them was properly refused. There was no error in the admission of evidence or in any of the rulin<'-s upon the trial, and the judgment should be affirmed, with costs. For reversal : Allen, Rapallo, Andrews, and Earl, J J. \ ! For affirmance : Miller, J. ; Church, Ch. J., and Folger, J., not j votuig. Judgment reversed. 1 43 N. Y. 452. 2 50 N. Y. 575. SI 482 HOLLIS V. EDWARDS. [CIIAP. II. SECTION II. FAILURE OF DEFENDANT TO PERFORM CONTRACT. (a.) Defendant relying on Statute of Frauds. HOLLIS V. EDWARDS and Another. In Chancery, before Sir Francis North, L. K., May 1, 1G83. [Reported in 1 Vernon, 159.] In these cases, bills were exhibited to have an execution of parol agree- ments touching leases of houses, and set forth that in confidence of these agreements the plaintiflFs had expended great sums of money in and about the premises, and had laid the agreement to be that it was agreed the agi-eeraents should be reduced into writing. The defendants pleaded the statute of frauds and perjuries. For the plaintiffs it was insisted on the saving in the act of parliament ; viz.. Unless the agreement were to be performed within the space of a year : but it was answered, that clause did not extend to any agi-eement concerning lands or tenements. Then it was insisted for the plaintiffs, that undoubtedly they had a clear equity to be restored to the considera- tion they had paid, and to the money which they in confidence of the agreement had expended on the premises.^ As touching that matter, it was said by the Lord Keeper, that there was a difference to be taken, where the money was laid out for necessary repairs or lasting improvements, and where it was laid out for fancy or humor ; a nd that he thought clearly the bill would hold so far, as to be restored to the considera ti on : but he said, the difficulty that arose upon the act of parliament in this case was, that the act makes void the estate, but does not say the agreeme nt, jt.gpif shnll hn ynir) ; and therefore, thou gh / / the estate itself is^void , yet possibly the agreement may subsist ; so th at a ^ man may recover damagcs_a t law for the non-performance of it ; and if so, he shoul d not doubt to decree it in equity : and therefore directed, that ~tEe plaintiffs sho^d jgclare at law upon the agreement, and the defenda n ts were to admit i t, so as to bring that point f(jr judgment at law ; and th en he would conside r what was further to be done in this case. 1 As to latter point, see infra. — Ed. f SECT. IL] gray V. HILL. 483 GRAY V. HILL. At Nisi Prius, before Besj, C. J., June 20, 182G. [Reported in Rjjan ^- Moody, 420.] Assumpsit, on a special agreement. to_assign to the plaintiff a lease of certain premises, of which the defendant was possessed, m conside ration that the^plajntig^woiild p ut the premises in good an d su fficient re pair, within the covenant of the defendant in the lease. Averment, that the plaintiff did put^ the premises in repair, and breach, that t he de fendant refu sed to assign__the_ J_ease. There was a count f or work an d labor, and the~u8ual money counts . " ~ It was proved, that the premises had been admitted by the defendant to be in extreme want of repair, and that the landlord had given the defend- ant notice of his intention to sue him on the covenant, unless the premises were put into sufficient repair within a certain time. Upon this it was verbally a greed between the plaintiff and the defendant, that the plaintiff should repair the premises, and the defendant would assign his lease to him. The plaintiff expended a considerable sum of money on the premises, and put them in complete repair. Upon his demanding an assignment of the lease the defendant refused. Vaugkan, Serjt., for the defendant, contended, that the agreement was void under the statute of frauds, and the plaintiflp could therefore not re- cover damages for the breach of it; the plaintiff undertook the repairs under the promise of an assignment, which promise was not binding. Wilde, Serjt. The defendant has had the benefit of the plaintiff's labor, and money expended at his request, and though he is not legally liable to assign the lease, the law upon his refusal implies a promise to compensate the plaintiff^ Best, C. J. The objection is a most dishonest one, hut, if legal, must prevail. The 4th section of the statute is deci sive against the plaintiff" on t he special count, but I think the plain tiflT entitled to a verdict on the others.__ The^pla intiff has expended this money f oi^~the ben"efit, and aX the instance o f_the defendan t ; the law will therefore imply a promise not touched by the statute, nor within the danger of perjury guarded against by it ; the agreement is executed on the part of the plaintiff, and the de- fendant is legally liable to remunerate him for what he has done. , The cause was then referred. Wilde, Serjt, and Chitty for the plaintiff Vaughan, Sei-jt., and Justice for the defendant. 1 2 Phillipps's Evidence, 67. V X \ 484 KNOWLMAN V. BLUETT. [CIIAP. II. KNOWLMAX V. BLUETT. In the Exchequer Chamber, June 12, 1874. [Reported in Laxo Reports, 9 Exchequer, 307.] Appeal by the defendant from a decision of the Court of Exchequer refusing a rule to enter a nonsuit.^ I I The defendant, who was the father of seven illegitimate children of the I I plaintiff, agreed with her verbally to pay her 300^. per annum, by equal ^ quarterly instalments, for so long as she should maintain and educate the I children. At the time of the making of the promise the eldest child was about fourteen years old. For several years the plaintiff maintained and educated the children, and the defendant paid the agreed sums. At Michaelmas, 1870, he discontinued his payments. The plaintiff continued to maintain and educate the children, and in ^lay, 1873, brought an action for two and a half years' arrears.^ Arthur Charles, Cole, Q. C, and Lopez, Q. C, with him, for the de- fendant. Folkard, St. Auhyn with him, for the plaintiff, was not called on. Blackburn, J. We are of opinion that the Court of Exchequer was right in refusing a rule in this case. The bargain between the parties was that if the plaintiff would take care of and maintain the children, the I ♦'v^ y . . defendant would pay her 300^. a year as long as she did so. This arrange- T"5/ tr ment was never revoked, and the plaintiff h avhig_ taken care of and main- ti'hyyptl^ -J - r tained the children, now sues for arrears due to her. It is said that the [ ' ''^action is not maintainable because there is no memorandum in writing of "^ t^u* V'( *^® bargain. But the plaintiff has performed her part of it, and it w ould -'^'^A^be unjust if she could not obtain repayment of the sums she has expended. ■^M^ klM'f ^® could have maintained an action for " money paid at the defendant's ' request," and it would have been no answer to have said that the term in respect of which she was suing was longer than a year, and that the agree- ■v ment which fixed the rate of remuneration was one not to be performed within a year. We think that in substance her present claim is fo r monej^ paid, although the decl aration is in form upo n a special contract. Keating, Mellor, Lush, Grove, and Archibald, JJ., concurred. Judgmeiit affirmed. 1 L. R. 9 Ex. 1. 2 Tliis statement of facts is taken from the head notes. — Ed. SECT. 11.] PULBKOOK V. LA WES. 485 PULBROOK V. LAWES. Ix THE Queen's Bench Division, January 19, 1876. [Reported in Law Reports, 1 Queen's Bench Division, 284.] Declaration that the plaintiff and the defendant agreed that the defend- ant should grant to the phiiutiff, and that the plaintiff should accept of the defendant, a lease of a dwelHng-house in Seven Sisters Itoad, for seven, fourteen, or twenty-one years, upon condition that tlie defendant should carry out certain suggestions of the plaintiff as to certain specified altera- tions and improvements in and to the dwelling-house, the plaintiff to pay 75/. towards the alterations and improvements, at the yearly rent of 120/., and that before the execution of the lease the defendant should execute the \{ alterations and improvements, and all conditions were fulfilled, etc., to ' '^ entitle the plaintiff to have the alterations and improvements executed by the defendant, yet the defendant has not executed the alterations and im- provements, etc., whereby the plaintiff has been deprived of the said lease, and divers expenses incun'ed by the plaintiff in preparing to take posses- sion of the house and in making certain alterations and improvements in anticipation of the said alterations and improvements being executed by the defendant, by his permission, became wholly lost and useless to him. Common counts for work done and materials provided by the plaintiff for the defendant, for money paid, and money due upon accounts stated. Pleas, as to first count, denial of the agreement and the breaches. As to the common counts, never indebted. Joinder of issue. At the trial a verdict was taken for the plaintiff, subject to the award // / of an arbitrator, who stated the following case : — - W ' 1. The plaintiff is an attorney and solicitor, and the defendant is a cabinet-maker. The plaintiff, in a letter dated the 20th of May, 1873, proposed to take a lease of one of the defendant's houses if he would carry out certain suggestions and alterations contained in the letter. A corres- pondence ensued between the parties, and it was ultimately agreed between them that certain alterations should be done, the plaintiff to pay a sum of 751. towards them. 2. The plaintiff wished to have the drawing-room painted in a particu- lar way, and the defendant consented that he should send in his own work- men to paint it, and he accordingly did so. Gas-pipes were laid down by the plaintiff, and certain alterations and improvements were made by him with the defendant's knowledge and consent, and with a view to the plain- tift's occupancy of the premises. In anticipation of the house being handed over to him in accordance with the terms proposed in the letter of the 20th of May, and subsequent letters, the plaintiff ordered certain gas fittings, 486 PULBEOOK V. LAWES. [CIIAP. II. - 1-V-. i-iil- 'V/vV ^'^^X,^; cornices, and blinds to be made to fit the house, and paid certain sums of money for work done and materials provided at the defendant's request for decorating the drawing-room aud making the agreed alterations. 3. From divers causes the alterations and suggestions proposed by the plaintiff and agreed to be done by the defendant were so long in being carried out by the defendant (aud never were in fact fully carried out) that the plaintiff was compelled to decline to take the house ; the fittings for gas, cornices, and blinds wliich he had had expressly made for the house he was obliged to sell at a loss ; and the money he paid for work and labor done at the defendant's request was also lost to him. 4. It is alleged on the part of the defendant that certain letters to be found in the appendix to this case form no agreement so as to satisfy the requirements of the "ith section of the Statute of Frauds,^ and this ques- tion, at the request of the defendant, is submitted for the consideration of the court. 5. In the event of the court being of opinion that the point is sustain- able, and goes to the whole declaration, then the arbitrator directed a verdict to be entered for the defendant generally. 6. In the event of the court being of opinion that the objection goes to the first count only, then he directed a verdict to be entered for the de- fendant on the first count, and for the plaintiff on the money counts for 51/. 3s. 7. In the event of the court being of opinion that the point raised must fail, then he directed that a verdict be entered for the plaintiff on the first count for 40/., and on the money counts 51/. 35. Horace Brown, W, G. Harrison with him, for the plaintiflF. Baylis, Q. C, T. E. Baylis with him, for the defendant. Blackburn, J. I think that when we get over the difficulty of under- standing the question which has been submitted to us the law is tolerably clear. The plaintiff and the defendant wrote certain letters, and had cer- tain inter\news as to a house of the defendant, and the result of these let- ters and interviews was that the plaintiff proposed to take a lease of the house if the defendant would carry out certain improvements and alterations. Some of these improvements and alterations were completed, and then I think the case finds as a fact, that it was agreed that a lease should be granted, that the rest of the alterations should be executed by the defend- ant, Ijut that the pliiintiff should pay 7.^/. towards them. The first question is, whether the letters between the plaintiff and defendant are a sufficient memorandum in writing to enable the plaintiff to maintain an action on tlie agreement to grant a lease. [The learned judge referred to the letters, and expressed his opinion that they were insufficient to constitute such a mem- orandum.] I think, therefore, that as regards that part of his claim the Ji jvi. plaintiff is not entitled to recover. ^WUWVV ,„r^W^V^}\K, vnvy^wut* ^ It is not necessary to set out these letters. SECT. II.] PULBROOK V. LAWES. 487 But then comes another question. The plaintiff wished to have the drawing-room painted in a particular way, and the defendant consented that the plaintiff should send in his own workmen to paint it, and ho accordingly did so. It is said by Mr. Baylis that this painting was not one of the terms of the agreement, and that it was fanciful painting and of no benefit to the house. But the arbitrator, no doubt, took into considera- tion the question whether there was any benefit to the premises or not. He says " The plaintiff wished to have the drawing-room painted in a particular way, and the defendant consented that he should send in his own workmen to paint it, and he accordingly did so." He further saj's, "Gas-pipes were laid down by the plaintiff, and certain alterations and im- provements were made by him with the defendant's knowledge and con- sent, and with a view to the plaintift''s occupation of the premises ; " and, further, " In anticipation of the house being handed over to him, the plain- tiff ordered certain gas-fittings, cornices, and blinds to be made to fit the house, and paid certain sums of money for work done and materials pro- vided at the defendant's request for decorating the drawing-room, and making the agreed alterations." Then follows this statement : " From divers causes the alterations and suggestions proposed by the plaintiff and agreed to be done by the defendant were so long in being carried out by I V^ the defendant (and never were in fact fully carried out) that the plaintiff I was compelled to decline to take the house ; the fittings for gas, cornices, and blinds, which he had had expressly made for the house, he was obliged to sell at a loss ; and the money he paid for work and labor done at the defendant's request was also lost to him." This statement is not clearly expressed, but I think that it must be taken to mean that through the defendant's default the plaintiff was prevented from taking possession of the house. Now, if the plaintiff had gone into possession, and paid 75/., and had afterwards been turned out, either from the defendant's default or in any other manner, could not he have brought an action to recover back the 75/. ■? I think he could, for it was money the consideration for which had totally failed. Instead of this, it appears that in the present case the defendant had arranged to make the alterations himself, but that the plaintiff" did part of them in his place. I think that so far as the plaintiff did the work instead of the defendant, it was equivalent as between the parties to payment. If the agreement had c ontinued, the plaintiff' c ould , not have sued for the 75/. ; but when the contract goes off, it is exactly the ^ame thing as if tlie consideration had failed, and the plaintiif'ts- entttled — to"recover the value of what the defendant has received under a quantum ~merutt. It is clear that he is entitled to recover somethingT-tmdHitjre the arbitrator has fixed the amount. The argument of Mr. Baylis is, that as V tbe^gre ement is one conce rning an i nterest in land, and is not in writ ing, it cannot be given in evidence. But an agreement which cannot be put 4^ r (Mi/Cvwrifc- 488 PULBROOK V. LAWES. [CIIAP. 11. in evidence, such as an unstamped document, may be looked at for a col- lateral purpose. It would be very unjust if the plaintiff were not paid for V|what he has done at the defendant's request simply because the Statute of Frauds prevents the agreement from being given in evidence, and, in spite of the Act, I think he may recover under a quantum meruit. Several cases were cited on behalf of the defendant. One of these is Cocking V. Ward.^ But that case was decided before the Common Law Precedure Acts came into operation, and when there was not the same power of amending the special count as there is now ; the court, however, held that the plaintiff might recover the money due to her under the count for accounts stated. Now there are many cases which establish that no account can be stated, unless in respect of a debt. In Cocking v. Ward,* there could not be a count for land sold and delivered, and they had to resort to a subsequent acknowledgment to support the count for accounts stated. But now-a-days, when a liability is proved, the plaintiff is not defeated through a mistake in his pleadings ; and though this may lead to some looseness, I t hink it_isj much more calculated to promote_justice. Unde r a qiiantu mjn£ruiLih&- ^\ di An t \S m ayj::£ Cover. and the defendant can- no t retain the benefit without p aying the price . Lush, J. I am of the same opinion. The facts of this case are that the defendant agreed to grant a lease of a house to the plaintiff for seven, fourteen, or twenty-one years, and it was at first part of the agreement that the plaintiff should pay 75Z. towards certain alterations in the house. Afterwards, the defendant agreed that the plaintiff should send in his workmen to paint the drawing-room in a particular manner. Now, it seems to me quite clear that the agreement between the plaintifif and the defend- ant was never expressed in writing so as to satisfy the Statute of Frauds. The plaintiff cannot, therefore, bring an action on the agreement ; but the question remains, can he, under the common counts, recover the amount which he has expended on the house according to the finding of the arbi- trator. Kow, it seems to me, that what the plaintiff did was veiy muchas if he hadjaidJheT^/^jn to the hands of the d efeudanLiiftfiiLlhe making qf_ the agre emen t, in whichcase he would clearly be entitled to recover back thelnoney. I cannot see t hat the fact that he has expended jthe moiiey upon the improvement of the house with the consen t of the defendant can niake'Tm ^dityerence. Tquite feel that in deciding as we do, we are going counter to Hodgson V. Johnson. 2 There the defendant, tenant of a brick -yard, agreed verbally with the plaintiff that the plaintiff should go into possession, taking the plant and bricks at a valuation, and the defendant was to pay the rent due from him. It was held that the plaintiff, though he had gone into posses- sion, and had his goods sold under a distress, could not recover under the 1 1 r. B. 8.'}S ; 15 L. J. C. P. 245. 2 K. r.. & K. C85 ; 28 L. J. Q. B. 88. SECT. II,] GKEER V. GREER. 489 agreement to pay the rent, as it was not in writing. But the only point taken before the court was whether the agreement to take the bricks could be severed from the agreement as to the occupation. It is strange that the court seems to have overlooked the fact that, quite independently of the agreement to transfer the lease, the circumstances of the case origi- nated a claim for compensation. If the point were to arise again, I am in- clined to think that the decision would not be followed. This being so, I think the plaintiff is entitled to recover back the money which he has paid, as on a failure of consideration. Judgment for the pi(ii7itiff. NATHANIEL S. GREER v. AMOS GREER. In the Suprsme Judicial Court of Maine, July Term, 1840. [Reported in 18 Maine Reports, 16.] The action was assumpsit, wherein the plaintiff alleged that the de- fendant became surety for him to the amount of $39.07, and that he con- veyed to the defendant, for security and indemnity, his farm worth $700 ; that he paid the debt for which the defendant was his surety ; that the defendant afterwards conveyed the far m to a third person ; that he re- quested the defendant to re-convey the land, and that he wholly refused to convey to the plaintiff, and conveyed the land to a third person. There was also a count for money had and received. At the trial before Emery, J., the plaintiff offered to prove, that on April 6, 1830, the plaintiff conveyed his farm to the defendant, worth $700, in consideration that he would pay to Norris a debt of about $40, due from the plaintiff, it being then agreed, that if plaintiff should in- demnify the defendant and save him harmless from the debt to Norris, that the defendant should re-convey the farm to the plaintiff ; that in July, 1836, the parties met at the house of a magistrate for the purpose of mak- ing and executing a re-conveyance of the fiirm, they then agreeing that the plaintiff had fully repaid and indemnified the defendant for the Norris debt, and the defendant expressed his willingness to execute a deed to the plaintiff, and it being inconvenient at that time for the magistrate to pre- pare the deed the parties separated ; that afterwards, the defendant fre- quently admitted that he had been fully paid and indemnified for the Norris debt, and agreed to execute a deed of the land to the plaintiff and to fulfil the agreement on his part ; that afterwards, October 17, 1836, the defendant conveyed the same farm, by deed of warranty, to one Thomas, who has since, by process at law, recovered seizin and possession thereof against the plaintiff; that in pursuance of the agreement, the magistrate V 490 GKEER V. GREER. [CIIAP. II. wrote a deed from the defendant to the plaintiff, from the original deed left fur that purpose ; and that the defendant came afterwards and took away the old deed, and said that the plaintiff had not behaved well, and he should not execute the new deed. There was no written agreement be- tween the parties. The counsel for the defendant objected to the admis- sion of this evidence or of any part thereof, on account of its not being in writing, and it was for this cause excluded by the judge. A _nonsuit was then entered, by consent, which was to be set aside, if the testimony should have been admitted. J. Williamson for the plaintiff. ir. G. Crosby for the defendant. The opinion of the court was drawn up by "NVeston, C. J. The contract upon which the plaintiff declares is void by the statute of frauds. Where the party who would avail himself of this statute, has himself been guilty of fraud, the party injured may often have a remedy in equity, and sometimes at law. There^ are cases where a court of equity would decree a specific performance, when the estate had not been previously conveye d to a bona fi de pur chaser, withou tjaojice . An d when it ha^T^TdSree might-^aasS-agal nst the frauj ulent party, to _make_ compensation in da mages. Tt has been said, that where a court of chancery would decree a specific performance, upon a parol contract for the sale of land, on the ground of fraud, damages might be recovered at law, based upon such fraud, in a proper action ; but not assumpsit upon the contract. Boyd v. Stone.'' It is, however, there stated, that " no instance can be found in the reports of chancery cases of a specific performance decreed, where the fraud consisted only of a breach of promise." The facts offered to be proved present a case of great oppression. Whether any relief could be afforded in chancery, we are not called upon to determine. We are, h ms-ever, quite clear, upon the authoritie s, that the plaintiff cannoFmamtamT assumpsit, upon the ex- press_CQiitra6ti- We ar e further of the opinion, that the plaintiff is entitled to reclaim ■what h e~ba8 paid ^i nce th e conveyance of the land, ujx)n an assumpsit implied byJaw^_J'or the liability undertaken by the defendant for the jilaintiff, the latter put property into his hands far transcending what was wanted for his indemnity. When the defendant, therefore, paid what ho liad assumed, retaining the property, and being thereby more than reim- J bursed, he had no further claim upon the plaintiff. The payment subse- quently made by him was to re-purchase the estate upon the paR)l contract. It was upon this consideration alone tliat the defendant could equitably receive or retain it. These parol contracts, altlxMiL'-li iidt liL'.dly. :ire morally binding, and paymcnt8~made under them ca jmuj^ be ic'cliiim eil, s(>_ long as the party receiving is m nVfauIt. But if he repudiates th^^ontra,ctj^ 1 11 Mnss. 342. SECT. II.] IIAWLEY V. MOODY. 491 a right o f reclamation, upon the principles of equity and good conscience, " accrue s to the other jpm-tj. Here tiTe defendant has repudiated the contract, by depnvingTiimself of the power of fulfilment. Itichards v. AUen.^ Having a second time received of the plaintifi" what he had paid for him, he holds the sum last received for the use of the plaintiff; and to that extent, we are satisfied the action may be maintained, if the case stated can be made out in proof. Nonsuit set aside. ADDISON D. HAWLEY v. ELISHA MOODY. In the Supreme Court of Vermont, October Term, 1852. [Reported in 24 Vermont Reports, 603.J This was an action of assumpsit. Plea, the general issue, and trial by the court. On trial, the plaintiff gave evidence tending to prove, that on the 11th day of July, 1851, he contracted with the defendant for a lease of the defendant's tavern-stand in Waterbury, (called the Waterbury House), for one year from and after the first day of September, 1851, for six hundred dollars ; and paid the defendant at the time one hundred dollars, in a gold watch, which defendant received as a payment of one hundred dollars towards the rent. And it was further stipulated at the time, that the par- ties should meet at Mr. Dillingham's office as soon as he returned home (he being absent that day), and execute a written lease. The contract was all in parol. The plaintiff called upon the defendant for the lease, and the defendant^ soon after, on the same day, tendered the watch back to the plaintiff, which the plain tiff refused to receive,^ and the watch was after- ward s attached by one of the plaintiff's creditors, and sold on ex ecution against the plaintiff. The defe ndant, on the 14th day of July, 1851, leased the same premises to one Howard for one year, and declined to lease them to the plaintiff. The plainti ff tendered to the defendant, on the first day of September, 1851, fi veliundred dollars in specie, and demanded a lease of the premises, according to the contract, which defendant declined. ~ The county court, March term, in Washington county, 1852, Poland, J., presiding, — adjudged that plaintiff could not recover, and rendered judg- ment for defendant. Exceptions by plaintiff. T. P. Redfield for plaintiff. Peck & Colby and Dillingham for defendant. The opinion of the court was delivered by Redfield, J. 1. The statute of frauds in this State contains no excep- tion of leases, or contracts for leases in futuro, as is found in the English 1 17 Maiiip, 296. ^ 492 • IIAWLEY V. MOODY. [CHAP. II. statute and in some of the other States. This case falls, therefore, within the statute. 2. Part-performance has not been regarded as any gi'ound of relief at law ; and it has not been considered that part-payment mei-ely amounted to such part-performance as to entitle the party to enforce the contract in equity even, or not generally. 3. The only question then is in regard to the part-payment. It seems to be well settled, that the party repudiating the contract cannot recover \ I for part-payment under it ever, but that the other party may. Shaw v. I I Shaw.i To this extent the counsel seem to understand the law alike, and that would settle the rights of the parties sufficiently, were it not that they seem to stand upon ceremony as to the mode, whether the party making the payment in a specific thing is bound to take back the same thing, when the contract is repudiated by the cfther party. There can be no doubt the property passed by the sale and delivery to the defendant, the only question is, as to the effect of defendant's refusal to fulfil the contract. If the contract could be regarded as originally void, like a Sunday contract, then no property would pass, until a reaffirmance on some other day. But here the contract is not void, as was expressly held by this court in Phillirook v. Belknap.^ It has always been so held, whenever the question has arisen, notwith- standing the elementary writers, in a loose way, often speak of this class of contracts as void, meaning thereby, contracts upon which no action will lie. That is all the statute provides, "That no suit in law or equity shall be maintained upon them." But to all intents they are contracts, and per- fectly valid for all purposes except actions, so long as they are acted under. There can be no doubt the property in this watch passed t o defe ndant, and might have been sold by him, or leg ally atta ched upon his _.deb_ts. 4. The only remaining inquiry then is as to the effect upon the title of ' the watch, of defendant's refusal to complete the contract. If this were to be regarded like the case where one is induced to purchase property, by fraudulent representations, and where, upon the discovery of such facts, he elects to rescind the contract, as he may, then the property would revest. But here is no fraud in the contract, neither is it the object of the statute , I to attach to this class of contracts any mark of reproach. The contract is innocent enough, if each party chooses to trust to the honor of the other party as to its performance. If that were not so, one could not recover fur payments made under it. The contract is not void, or affected with any taint or turpitude, nor is it rescindable at the election of either party. Either party, if he choose, may repudiate it, but that only operates upon > C Vt. 09. 2 6 vt. 383. SECT. II.] HAWLEY V. MOODY. 493 SO much of the contract as remains executory at the time, and does not repeal anything done under it. For these purposes it remains in full force. And the party repudiating must be content to lose what ho has , done under it, as, the contract remaining in force, the other party may ( defend under it. But if the party rep udiatingJJieJutiire_perfo^ ^ has hu nself jreceived a dvances which he declines to pay for in t hej]node.strpulaied,Jt js rcgai^ as equitab le that he sh o^uldj^efund in t he usu al mode for money had and for goods sold^and it is not in his^ power withoutThe consenroFlhe'othe'r^ party^oj ^est the title of th e specific things~received. This seems to us the only view consistent with general principles appli- cable to the subject, or with the decided cases, and manifestly just and equitable. If the party has bought goods which he declines to pay for in the mode stipulated, and which but for his own act he might do, he ought and he must be content to pay in the usual mode of paying for goods sold and delivered, and this recovery may be had under the general counts. Gray v. Hill.^ As the former cases upon this subject have adopted no. principle at all analogous to allowing either party the power of rescission of the contract, we feel reluctant to push ourselves upon an unexplored field, without some obvious and pressing necessity, in order to warp justice, which we think is not this case. By the adoption of this new feature, even if it were more consonant with justice in the particular case, which we think it clearly is not, we should be fearful of ultimately encountering evils which are not apparent at the moment. And there are some which we could easily foresee might arise. The specific things received in payment might have been more or less put to use by the party receiving them, for which he ought to be accountable. They might have been sold and transferred in different modes, and thus new rights and interests intervene. And if we adopt the principle of rescission, we do not see, but in principle, it will cut off by the roots all rights accrued under the contract before repudiation, which would certainly be unjust to the innocent party. And asjLlie^ repudiating party is always clearl y in the wrong, it can be noTiardship upon him, to pay in currency for what he has received in advancelxpon the^ontract! If one party has the power of rescission, then the other, and especially the innocent party, should have the power= The result of which must be that, however many times the property has changed hands, or under whatever circumstances, the innocent party may pursue it and recover of the last proprietor, if not of each intervening one, which would often be attended with serious embarrassment and probable wrong. Judgment reversed and case remanded for new trial. 1 1 R. & M. 420 ; Chitty on Contracts, 305. 494 SMITH V. SMITH. [CHAP. II. JOSEPH S. SMITH v. THE AD:\IIXISTRAT0RS OF JOHN S. SMITH, Deceased. In the Supreme Court of New Jersey, February Term, 1860. \Re-ported in 4 Dutcher, 208.] This cause came before the court on the following state of the case, certified from the Warren circuit. This suit was brought by the plaintiff against the defendants, as admin- istrators of the estate of John S. Smith, deceased, to recover the cost and expenses of erecting a dwelling-house and cow-shed by plaintiff upon a farm of the deceased, situate in the township of Blairstowu, in the county of Warren. The declaration, besides several special counts, contained the ordinary common counts. It appeared on the trial that the said deceased, in his lifetime, was the owner of several farms situate in the county of "Warren ; that the plaintiff, who was a son of the deceased, had lived on one of the said farms, as a tenant from year to year, for upwards of twenty-three years prior to the death of the said John S. Smith, first farming the same on shares, and afterwards at a low money rent, which he had paid regularly to within a short time of the death of his father; that the other farms of the deceased were also occupied by his other sons at low rents ; that during the tenancy of the plaintiff the dwelling-house on the said farm became greatly dilapi- dated and out of repair. It was testified to by the plaintiff"'s son and son- in-law, that in the year 1854, the plaintiff applied to the deceased to put up a new dwelling-house and cow-shed on the premises, and tliat the deceased said that the house was getting old, and a new one was needed ; and that a cow-shed was also needed, but that he was getting too old to build, and had no horses and wagon to build with, and told the plaintifl:" to go on and build a house and cow-shed to suit himself; and that the plaintiff replied that he would not build on an uncertainty, and that the deceased told the plaintiff to go on and build, and the farm should be his : and it was further testified to by Mary Snyder, that the deceased, in a conversa- tion with her, said that the plaintiff wanted him to build a better house, and he thought the plaintiff ought to have a better house, but he was get- ting old, and had done all the building he would ever do — if the plaintiff wanted a better house he should build it himself; that the plaintiff had replied to that, that he, the plaintiff, did not want to build on an uncer- tainty, and he did not know who he was working for, and that he, the deceased, had told the plaintifi" to go on and fix what he had a mind to — that he hud left it to him. SECT. II.] SMITH V. SMITH. 495 It further appeared in evidence that, during the year 1855, the phiintiff built on the said farm, at his own expense, a dwelHng-housc and cow-shed at a considerable cost, and continued to occupy the farm as a tenant from year to year until the death of his father ; that tlie said John 8. Smith died, in December, 1856, intestate, without conveying or devising the said farm to the plaintiff', and that the said farm, with the other lands of the deceased, descended to his six heirs-at-law, of whom the plaintiff was one. It did not appear in evidence that the said agreement was reduced to writing, or that the said deceased specified the size of the buildings or the materials to be used, but it was shown in evidence that the deceased was occasionally on the premises while the house was being lauilt, and that he expressed himself pleased with the manner in which the plaintiff" was put- ting up the building ; and it further appeared that the said house was a suitable one for the farm. It also appeared in evidence that the said form, as occupied by plaintiff when the said buildings were erected, contained about one hundred acres of land, and was worth, without the plaintiff's improvements, from $3000 to $3500, and that the estimated cost of the said building was from $G00 to $1200. It further appeared in evidence that, after the death of the said John S. Smith, a dispute arose concerning the granting of letters of adminis- tration upon his estate, and that, for the purpose of settling this dispute and dividing the real estate of the deceased among his heirs, the heirs-at- law and widow of deceased entered into the following agreement : — " Memorandum of an agreement, made this sixteenth day of February, eighteen hundred and fifty-seven, between Rachel Smith, widow of John S. Smith, late of the township of Blairstown, in the county of Warren, and State of New Jersey, deceased, and Joseph Smith, Lewis Smith, Benjamin L. Smith, John Snover, and Mary his wife, formerly Mary Smith, John Smith, of the said county, and Elisha Smith, of McComb county, Michigan, all heirs-at-law of the said John S. Smith, deceased. Whereas disputes have ' arisen between the said widow and the said heirs-at-law of said deceased in relation to the administration on the estate of said deceased and the assign- ment of dower to the widow of said deceased, and the division of the real estate of said deceased among the heirs-at-law of said deceased, for the purpose of amicably settling the said disputes between the said widow and heirs, and among the said heirs themselves, the said Eachel Smith, Joseph Smith, Lewis Smith, Benjamin L. Smith, John Snover, and Mary his wife, John Smith, and Elisha Smith, for the consideration of the sum of one dollar to each by the other in hand paid, have mutually agreed to a settle- ment of the said disputes as follows : — " First It is mutually agreed that the said Rachel Smith, the widow of the deceased, and William L, Hoagland, of the township of Blairstown, 496 SMITH V. SMITH. [CHAP. XL shall be appointed joint administrators of the estate of the said deceased, giving bond for the due execution of their offices according to law. " Second. It is mutually agreed between the parties that Aaron 0. Bartow and John H. Blair, of Knowlton, and John Shannon, of Blairstown, in said county, shall assign and set oft" to the widow of the said deceased, her dower in the lands of the said deceased, and that any assignment of dower to said widow, made in writing under the hands of the said Aaron 0. Bartow, John II. Blair, and John Shannon, or a majority of them, on or before the thirtieth day of April next (1857) shall be binding and conclu- sive upon the said parties ; and that the said widow shall enjoy the said lands so set off or assigned by the said Aaron O. Bartow, John H. Blair, and John Shannon, and hold the same for her dower in the same manner and for the same estate as she would be entitled to do in case the same had been set off by any court having jurisdiction of the same ; and the said Rachel Smith shall release and remise all her right and claim to the other lauds of the said deceased to the heirs-at-law of the said deceased, as the same may be divided among them, as hereinafter specified. " Third. It is mutually agreed, by and between the said lieirs-at-law of the said deceased, that the residue of the said lands of the said deceased which may not be set off and assigned to the widow of the said deceased as aforesaid shall be partitioned off and divided among the said heirs-at-law in equal shares, by the said Aaron 0. Bartow, John H. Blair, and John Shannon, and that the award or determination of the said Aaron 0. Bartow, John H. Blair, and John Shannon, made under their hands, or the hands of a majority of them, making a partition or division of the said last named lands among the heirs of said deceased, and specifying the part or parcel thereof to be held by each one, shall be binding and conclusive on the said heirs, and that the said heirs shall thereafter each hold in severalty the part or share of the said lands so as aforesaid set off and assigned to him or her, anjj shall mutually execute, each to the other, such releases and con- veyances as may be necessary and proper to vest in each the portion or parcel of said lands so as aforesaid determined and specified to belong to each in fee simple : and it is further mutually agreed, by and between the said heirs, that the said partition or division shall be made on or before the thirtieth day of April next (1857), and that as soon as mutual releases shall be exchanged as aforesaid, each shall be entitled to enter immediately into the possession and enjoyment of the part or parcel so assigned and set off to him or her, reserving, however, t6 the persons now in the occui)ation of the said premises the right which they now have in the crops standing or growing on the said premises ; provided however, that the share or part assigned and set off as aforesaid to Mary Snover, wife of said John Snover, shall be so assigned and specified, by the said Aaron 0. Bartow, John H. Blair, and John Shannon, that the same shall extend and reach to some one of the highways upon which the said lands lie. SECT. II.] SMITH V. SMITH. 497 " Fourth. It is also mutually agreed, by and between the said heirs-at-law, that if the said partition or division shall be made among the said heirs-at- law as aforesaid, and it shall subsequently be discovered that the pei"sonal estate of the said deceased shall not be sufficient to pay debts and expenses, so that it shall be necessary to make application to the court for an order to sell lands, that then and in that case each of the said heirs shall and will pay to the administrators of the said deceased an equal oue-si.\th part of the deficit, and that the payment of the same by each one shall be and remain a charge upon the share of such one in the said lands ; and further, that the expense of the said partition and assignment of dower shall be paid equally by the said heirs. " Fifth. It is further agreed that nothing in this agreement shall bar or release any claim, debt, or demand which either of the said heirs shall have against the said estate of the said deceased ; and for the due performance of all and singular the matters and things herein contained, the parties hereto bind themselves each for himself or herself, but not for the other, to the othei's, their heirs, executors, administrators firmly by these presents." Which agreement was signed and sealed by all the parties therein named. It further appeared in evidence that, in pursuance of the above agree- ment, the said Aaron 0. Bartow, John H. Blair, and John Shannon set off the dower of the widow, and made a division of the residue of the lands of deceased among the said heirs, and that in that division they assigned and set off to the plaintiff twenty-seven acres and fifty-eight hundredths from the said farm, and that the buildings, for the recovery of the cost of which this suit was brought, were situate on the part assigned to plaintiff in the said division ; and that in that division the commissioners made to the plaintiff no allowance for the buildings, but valued the lands and buildings together as part of the estate of the deceased, and that the plaintiff after- wards sold the portion set off to him for the sum of $2000. The jury rendered a verdict for defendant by dii'ection of the court. The court granted a rule to show cause why there should not be a new trial. " I, Edward W. Whelpley, judge of the Circuit Court of the county of Warren, certify the case to the Supreme Court, for its advisory opinion upon the following points : — " 1. Whether there was any evidence in the cause from which the jury could lawfully infer a promise by John S. Smith, deceased, or his adminis- trators, since his death, to pay for the improvements in money or out of the personal estate of said Smith. " 2. Whether the agreement to leave the plaintiff the farm, or give it to him by will or otherwise, was within the statute of frauds. " 3. Whether plaintiff entering into the agreement set out, and receiving 32 498 SMITH V. SMITH. [ciIAr. 11. from the part set off to him more than the cost of his improvements, does not prevent the arising of any implied promise by the administrators to pay for the improvements which might have been raised if the intestate had, and the plaintiff lost, the value of his labor and materials. " 4. Whether the vesting of the land on which the buildings were erected in the plaintiff by descent and the division made is not so far a perform- ance of the intestate's contract with the plaintiff as to be a bar to any action for the non-performance of the contract, or to recover back the con- sideration of it, to wit, the value of the plaintiff's work, labor, and mate- rials put and expended upon the land of which he had the possession." Argued at November term, 1859, before the Chief Justice and Justices Haines, Vredenburgh, and Van Dyke. Depue and Shipman for plaintiffs. Kennedy and Sherrard for defendants. The opinion of the court was delivered by the Chief Justice. The contract proved upon the trial of this case, or which the evidence tended to prove, was clearly within the statute of frauds and perjuries. It was a contract for the transfer of an interest in land. The plaintiff", who was tenant from year to year of his father (the defendant's intestate), erected new buildings upon the demised premises upon the authority of his father, who told the plaintiff " to go on and build, and the farm should be his," or, as another witness testified, " to go on and fix what he had a mind to — he had left it to him." The evidence in the cause would have warranted the jury in finding that the plaintiff erected the buildings with the consent and approbation of his father, upon his express promise that the farm should be his upon his father's death, by deed or devise. The contract to transfer the land, being within the statute of frauds, was void, and cannot form the foundation of an action. The plain- tiff, therefore, clearly could not sue upon the special contract. May the jury lawfully infer a promise to pay for the improvements in money out of the personal estate of the deceased 1 It is clear, from the evidence, that the erection of the buildings was not a voluntary service, nor a service rendered relying upon the generosity of the intestate to make compensation. The son expressly refused to proceed with the buildings till he had his father's promise that the farm should be bis. The case, therefore, does not fall within the fiimiliar principle, that no promise can be implied to pay for gratuitous services or services rendered in expecta- tion of a legacy. Grandin v. Reading;^ Johnson v. Hubbell;*^ Jacobson V. Ex'rs of Le Grange ; " Martin v. Wright ; * Little v. Dawson.^ But will the law raise an implied promise to pay money when there was an express promise to pay in land ] The answer is, that the promise to Ijay in land was void, and therefore no promise. If the plaintiff had erected 1 2 Stock. 370. 2 2 Stock. 332. 3 3 Johns. 199, * 13 NVeaJ. 400. » 4 Dull. 111. SECT. II.] SMITH V. SMITH. 499 the buildings upon the intestate's land at his request, the law would have implied a promise to pay for them. The plaintifl' is in no worse situation because the defendant made an express promise to jiay for tlie services in a particular mode, which promise is itself a luillity. The true principle, savs ]\lr. Chief Justice Nelson, is this : " The contract being void and incapable of enforcement in a court of law, the party paying the money or rendering the services in pursuance thereof may treat it as a nullity, and recover the money or the value of the services rendered under the common counts. This is the universal rule in cases where the contract is void for any cause not illegal, if the defendant be in default." King v. Brown.^ The principle seems to be perfectly well settled, and is sustained by very numerous authorities, that where a party to an agreement void by the statute of frauds fails to execute it, the price advanced, or the value of the articla delivered in part performance of the contract, whether in money, labor, or chattels, may be recovered back. Mavor v. Pyne ; ^ Gray v. Hill ; ^ Gillet V. Maynardj^ Shute v. Dorr/ Lockwood v. Barnes/ Abbott v. Draper.'' In all such cases the law raises by implication a promise to repay ad- vances made upon the faith of the contract, and for which no consideration has been paid. If, as a consideration for the improvement, the intestate had agreed to devise to the plaintiff a different tract of land from that upon which the improvement was made the case would be clear of difficulty. But as the improvement is made upon the farm agreed to be devised, it may be urged that the improvement was made not for the benefit of the intes- tate, but for the plaintiff's own benefit, inasmuch as he resided upon the farm during his life, and expected to receive it after his death. It is true that where the vendee in possession under a parol agreement for the purchase of land makes improvements upon the premises, he cannot recover the value of such improvements in an action at law, upon the refusal of the vendor to fulfil the contract. Gillet v. Maynard ; ^ Shreve v. Grimes.* The improvements in such case are not made at the instance or request of the vendor, nor for his benefit, but for the benefit of the party making them. The law, therefore, will imply no promise by the vendor to pay for them. But this case does not fall within that principle. The plaintiff was not in possession under a contract for the land, but as tenant from year to year paying rent. The improvements inured to the benefit of the in- testate. He might, upon the completion of the improvements, have turned the plaintiff out of possession, or demanded and received an in- creased rent for the premises during his life. He was instrumental ,in having the improvements made. The plaintiff refused to make them until 1 2 Hill, 486. 2 3 Bing. 285. ^ Ry. & m. 420. * 5 Johns. R. 85, and cases cited in note a. ^5 Wend. 204. 6 3 Hill, 128. 7 4 Den. 51. 8 5 Johns. 85. 9 4 Littell, 224. 500 WILLIAMS V. BEMIS. [CHAr. XL he had his father's promise that the laud should eventually be his. The improvements were not only made by the procurement of the intestate, and for his use, but his estate has actually received the increased value of the improvements made by the money and the labor of the plaiutiflf. There seems no good reason, either in law or equity, why the jury may not infer a promise to pay for them. If it be objected that the evidence in the cause admits of a different iuterpretation, and that the terms of the contract were ditferont from those above stated, the answer is, that what is really proved by the evidence was a question of fiict, and should have been sub- mitted to the jury. 3. The legal rights of the plaintiff under the contract were in nowise affected by the agreement entered into among the heirs, after the death of John S. Smith, for the settlement of the intestate's estate. It was ex- pressly stipulated that nothing in the agreement should bar or release any claim which either of the heirs might have against the estate. 4. Neither the vesting of the title to the land upon which the buildings were erected in the plaintiff, as one of the heirs-at-law of the intestate, nor the assignment of a portion of the farm upon which the buildings were erected to the plaintiff under the agreement among the heirs, can be re- garded as a performance of the intestate's contract with the plaintiff. The plain sense of the agreement was, that the plaintiff should be paid for his improvements ; that their value should be added to his portion of the estate ; that he should have the farm and the buildings. The agreement among the heirs contemplates au equal division of the intestate's estate among all the heirs, allowing the plaintiff no compensation whatever for his improvements more than he would have received as an heir-at-law had the improvements been made by him gi-atuitously and exclusively for his father's benefit. An allowance, it is true, might have been made in the division of the estate by the commissioners, with the assent of the heirs, to the plaintiff for his improvements. But it is not contemplated in the agree- ment, and whether made or not would be a question of fact for the jury. The verdict should be set aside; and a new trial granted and the Circuit Court should be advised accordingly. lu^^^x. DANIEL WILLIAMS v. JONAS BEMIS, Executor. In the Supreme Judicial Court oe Massachusetts, October Term, 1871. [Reported in 108 Massachusetts Reports, 91.] Contract for work done and materials furnished in cultivating the land of Harvlin Towne, the defendant's testator. Trial in the Superior Court, SECT. II.] WILLIAMS V. BEMIS. 501 before Scddder, J., who, before verdict, by consent of the parties, made a report of the case, of which the material parts were as follows : — " The plaiutitf testified tliat the work was done and the materials used by him upon the land of Towne tinder Towne's general direction. On cross-examination he testified, against his own objection, that before he began the work Towne said he might take the land for one year and plant it with potatoes, and he would furnish one half the seed and the necessary dressing, and give the plaintift" two thirds of the crop ; that the plaintiff declined to take the land for one year upon the terms named, telling Towne that the labor and seed to be furnished by him would cost more than he could get for it the first year ; but that he told Towne he would take the land and do the work on it for two years for two-thirds of the crop for two years, the plaintiff to furnish one half of the seed and all the labor, and Towne all the manure, and phosphate if necessary, and Towne assented ; that the work named in the declaration was done under the contract during the first year ; tliat at the expiration of the first year the crop of that year was divided according to the conti'act, the plaintiff taking two-tbirds and Towne one-third thereof ; that Towne then refiised to allow the plaintiff to plant the land the second year ; and that the work done and seed furnished and used upon the land by the plaintiff during the first year was more than -was necessary for the first year's crop, and of greater value than the plain- tiff's share of that crop, and inured to the permanent benefit of the land, and of the crop for the second year, as was understood and anticipated by the parties when the contract was entered into and the work was done and the seed used upon the land." If upon this testimony the plaintiff was to recover anything beyond the crop already received by him, then judgment was to be entered for the plaintiff for the sum of $53.25, otherwise judgment to be entered for the defendant. G. F. Hoar and W. A. Williams for the plaintiff. F. P. Goulding for the defendant. Ames, J. An action for money had and received lies to recover back money paid by a party to an agreement which is invalid by the statute of frauds, and which the other party refuses to perform. Cook v. Doggett ; ^ Basford v. Pearson ; ^ Gillet v. Maynard.^ An action would also lie for the return of any article delivered, or for payment for labor and services ren- dered, upon such an agreement and under such circumstances. Sherburne V. Fuller;* Lane v. Shackford;^ Holbrook v. Armstrong.® Such is undoubt- edly the general rule, as established by numerous authorities. " Certainly so much as has been expended by the plaintiff in money or labor may be recovered in an action for money paid, or for work and labor done, for the 1 2 Allen, 439. 2 9 Allen, 387. « 5 Johns. 85. * 5 Mass. 133. ^ 5 x. h. 130. « 1 Fairf. 31. 502 WILLIAMS V. BEMIS. [CHAP. II. defendaut." Kidder v. Hunt ; ^ Shute v. Dorr.* "The true principle is this : the contract being void and incapable of enforcement in a court of law " (the defendant having refused to perform it), " the party paying the money, or rendering the services in pursuance thereof, may treat it as a nullity, and recover the money or value of the services under the common counts." King v. Brown,^ per Nelson, C. J. In Gray v. Hill,* Best, C. J., held that where the defendant, in consideration of certain repairs to be made by the plaintiff, agreed to assign a lease to him, and after the repairs were made refused to make the assignment, and set up the statute of frauds as a defence, tlie law implied a promise to pay for the repairs, and this implied promise was " not touched by the statute." See also Van Deusen V. Blum.^ The defendant insists that the work was done by the plaintiff in the cultivation of crops which were to be partly his own, and was not done upon the credit of Towne, or with any expectation of charging it against him. Such undoubtedly was the understanding of the parties originally. But as Towne saw fit to say that the special contract was not binding upon him, it cannot be set up by his executor as binding upon the plaintiff. King V. Welcome.^ It cannot be treated as a nullity for one purpose, and as a contract for another. It required two years for its completion, and both parties understood that there was to be no profit or advantage to the plaintiff except from the operations of both years taken together. A large part of the labor and expense incurred in the first year, had no reference whatever to the operations and results of that year, taken by itself, but were a preparation of the land for increased productiveness in the second year. The plaintiff must be considered as having, in that way, paid in advance, in part at least, for the privilege of using the land the second year in the manner agreed upon. By the repudiation of the contract, he has lost the privilege which he had so paid for. The consideration xipon which he made that payment has failed by the wilful act of the other party to the contract, and he is therefore entitled to recover back what he has so paid. Basford v. Pearson.' If it had been a payment in monej^ it would be too plain to be controverted. A payment in labor and services, of which the other has secured the benefit, stands upon the same ground. Judgment for the plaintiff for the sum agreed. 1 1 Pick. 328, 331. 2 5 Wend. 204. » 2 Hill, 485, 487. 4 Ry. & M. 420. » 18 Pick. 229. ^ 5 Oray, 41. ^ 9 Allen, 387. SECT. II.] DAY V. NEW YOllK CENTRAL K. K. CO. 503 OLIVER H. DAY, Respondent, v. THE NEW YORK CENTRAL EAILROAD COMPANY, Appellant. In the Commission of Appeals of New York, March Term, 1873. [Reported in 51 New York Re2wrts, 583.] Appeal from judgment of the General Term of the Supreme Court in the eighth judicial district, affirming a judgment in favor of the plaintiflF, entered upon a verdict. ~ The complaint contained two causes of action ; and for the first cause alleged in substance that in May, 1855, the plaintiff agreed to con vey to the defendant about an acre and two-thir ds of an acre of land, together wit h the right of ingress an d egress, to and from the land so to be con- veyed, to the plaintiff's land, and to build and keep in repair cattle yards and pens for livestock^ sufficient to accommodate the shipping or trans- porting such stockto and from the cars to the plaintiff's land, adjoining the land so to be conveyed, free from any expense to the defendant ; and that the defendant should temporarily deliver to the plaintiff, from that time forward, for temporarily keeping and feeding, all the cattle, swine and live stock which should be transported on its road eastward from the Niagara River, the profits of such keeping and feeding to be realized by the plaintiff; that the defendant, for that purpose, requested the plaintiff to ' \ build, make, and construct the necessary yards, pens, and so forth, for the I V temporary feeding and keeping such live stock ; that a conveyance of the land was made by the plaintiff to the defendant, and the necessary yards, pens, and other conveniences for doing business, contemplated by the agree- ment, were constructed by the plaintiff; that the defendant disregarded the agreement entered into on its part, and refused" to al Tow the live-stock transported on jtsjroad_toJ) e delivere d temporarily to the p laintiff' for feed- | v ing and keeping, and refused to allow the plaintiff the enjoyment of the j j^ofits he_wouldTiaye realized by keeping and feeding such stock. The second cause of action was an indebitatus assumpsit for land sold and conveyed, for a right of way for use and occupation of land and prem- ises, for work and labor, care and diligence, and for materials furnished, and for construction of cattle yards, etc., for the defendant. The answer was a general denial. The first cause of action only was contained in the original complaint, . and the action was tried on that issue in November, 1858, and a verdict 1/ rendered for the plaintiff for $4384. On appeal to the General Terra, a |/ A new trial was ordered, on the ground that the agreement on the part of 504 DAY V. NEW YORK CENTRAL K. E. CO. [CHAP. II. the appellant, being verbal only, was void by the statute of frauds, for the reason that it was noTto be pe'rformed within one year, and also that it created a negative easement on the lands of the plaintiff.^ The plaintiff then amended his complaiiit, adding thereto the second X coimt, and a second trial was afterward had, and a verdict recovered by the plaintiff in 1867 for 82500. On a second appeal to the General Term, a new trial was ordered on the ground that the damages should have been confined to the value of the laud conveyed by the plaintiff.'^ y M On the third and last trial, damages were recovered only for the actual value of the laud conveyed by plaintiff to the defendant, with the interest. On the last trial, the plaintiff gave evidence tending to prove the parol I agreement alleged in the first count of the complaint, and that the plaintiff I ' and his wife, on the 9th day of July, 1855, executed and delivered to the V defendant a deed of the land, which also contained a grant on their part ' to the defendant of the right of ingress and egress to and from the land thereby conveyed over and across the land of the plaintiff, to the public highway northwardly, in such place or places as might be convenient or necessary to load or unload cattle, horses, sheep, swine, or any other animal from said highway on to or off of the cars on to the railroad track of the defendant built on the land thereby conveyed ; and the deed also con- tained a covenant on the part of the plaintiff to build and keep in repair all the cattle yards and pens for stock, swine, sheep, etc., that might be wanted to accommodate shipping or transferring to or from the cars on his land adjoining the land thereby sold and conveyed, free from any expense to the defendant. The plaintiff also proved that he made the erections contemplated by this deed in the summer of 1855, and that the defendant laid down a track on the land conveyed, and that the live stock going eastward was brought in the cars and unloaded into his yards ; that the business proceeded thus till the spring of 1856, when the defendant built yards and pens on its own '■/^*'^^'~^land, and that thereafter some of the stock was unloaded at the plaintiff's and some at the defendant's yards. The plaintiff testified that the only considerat ion he got f or his deed was one dollar and the parol agi'e ement set forth in the first count of the com- plaint on the part of defendant, and that he realized in the years 1855__and 1856 j^rofi^sJrojQQjJiiL-atack brought by the defendant to his yards upward of .S6000. The action was commenced November .30, 1857. The defendant moved that the plaintiff be nonsuited upon the following grounds : That the agreement set forth in the first cause of action being by i mI parol, was void ; that the agreement was for a monopoly of the business, * J,; and the court should not enforce it ; that tlie plaintiff could nut recover on * ' the second cause of action for the improvements made on his own premises ; that the plaintiff cannot recover for the value of the agreement to give the ' 31 Barb. 548. * 53 B^irb. 250. SECT. II.] DAY V. NEW YORK CENTRAL R. R. CO. 505 plaintiff the business of yarding and feeding liogs and cattle, for this would be another mode of recovering damages for the breach of the alleged agree- ment. Also npon other grounds which are included substantially in the requests to charge, hereinafter stated. The court denied the motion, and the defendant excepted. The defendant's counsel requested the court to charge the jury that the plaintiff could not recover the value of the land conveyed, (1) because the defendant never agreed to purchase it or to pay any consideration for its conveyance ; (2) because he must first rescind the agreement and restore what he has had under it, to wit, the enjoyment of the stock business for two years, and the consequent profits thereof; (3) because there must be a total failure of consideration for the conveyance to enable the plaintiff to recover ; (4) because he cannot rescind the contract in part and affirm it in part; (5) because to recover under the common counts the plaintiff must first restore what he has acquired of the defendant. The court refused so to instruct the jury, and the defendant's counsel excepted. The defendant's counsel also requested the court to instruct the jury that if both parties had performed the agreement in part the plaintiff could not maintain the second cause of action, in case the jury found he had received any benefit from defendant's partial performance; also, that the plaintiff could not recover unless the jury found that he had not received any consideration for the conveyance of the land ; that proof of a partial failure of consideration would not support such a cause of action ; also, that the consideration of one dollar, expressed in the deed, and the express covenant to do the things specified " free of any expense to the railroad company," deprived the plaintiff of the right to maintain the cause of action secondly set forth ; also, that if they found that the plaintiff was entitled to recover, he could recover only such sum as, together with the benefit he had received by the partial performance on the part of the defendant, would remunerate him for the value of the land he conveyed ; that the amount of the profits made by the plaintiff out of the business during the time the defendant performed the agreement on its part must be deducted from the value of the land conveyed ; also, that if the profits realized by the plaintiff from the business furnished by the defendant at his yards, exceeded or equalled his expenditures for improvements and the value of the land conveyed, he could not recover ; also that, in determining the amount of the damages, the jury had the rigfit to take into considera- tion the benefits the plaintiff had derived from the partial performance by the defendant of the contract. The court refused each request, and defendant excepted. The court charged the jury, in substance, tliat tlie plnintiff could not recover upon the first cause of action, for the reason that tlie agi-eement therein set forth was void under the statute of frauds, but that he could recover on the cause of action secondly set fortli, if the jury found the facts *f U 506 DAY V. NEW YORK CENTRAL K. R. CO. [chap. II. iC^~ 'Wfi ^ -^Mf-il: ^ ■f in respect to the contract to be as the plaintiff claims, provided they also found that tlie plaintiff had complied with and performed the contract on bis part and the defendant had broken and refused to perform the same, and if they so found, then the damages to which the plaintiff would be entitled would consist of the value of the land granted to the defendant by the plaintiff, including the right of way granted by the deed, as actually appropriated and used by defendant, and interest on such value. That the plaintiff could not recover any damages in this action, unless it was proven to their satisfaction that the "agreement on the part of the defendant, was made as the consideration of the deed from the plaintiff to the defendant. The defendant excepted to the charge that the plaintiff could recover for the value of the land, or for the value of the right of way. The jury rendered a verdict for $828.58. John Ganson for the appellant. A. R. Potter for the respondent. Earl, C. The point was not taken by the defendant at any stage of the trial, that the plaintiflF had not given sufficient proof tending to establish the parol agreement claimed by him, to wit : That in consideration of the conveyance of the land to the defendant, it was to give to the plaintiff at his yards and pens the business of temporarily keeping and feeding all the stock which should be transported upon its road eastward from Niagara River. Hence we must assume, for the purposes of the appeal, that the parol agreement, as testified to by the plaintiff, was established. We must also assume that this agreement was void under the statute of frauds, for such is the claim on the part of the defendant, and it was upon this theory alone that the recovery was based, and upon it alone the plaintiff seeks to uphold the judgment. As the consideration for the plaintifi"'s land, the defendant agreed to pay him one dollar and to give him the stock business 'at his yards. It paid him the one dollar and gave him all the business for the year 1855 and part of it for the year 1856, and out of this busines s the plaintiff made profits to the amount of about $6000. And yet he brings this action to recover the entire value of the laud conveyed by him on the ground of a total failure of the consideration of his conveyance. A m ere st atement of the case shows that the action must be w ithou t foundat ion. If one pays money, or renders service, or delivers proj)erty upon an agreement condemned by the statute of frauds, he may recover the money paid, in an action for money had and received, and he may recover the value of his services and of his property upon an imj)lied assumpsit to pay, provided he can show that he has been ready and willing to perform the agreement, and the other party has repudiated or refused to perform it. Gillet V. Maynard;^ King v. Lrown;'' Cook v. Doggett;' Erben v. Loril- lard ; * Richards v. AUen.^ 1 5 Johns. 85. 2 2 Hill, 439. » 2 Allen, 439. * ly N. Y. 299. 2 2 Hill, 439. 6 17 Me. 296. SECT. II.] DAY V. NEW YORK CENTRAL R. R. CO. 507 While the law in such case will uot sustain an action based upon the agreement, it still recognizes its existence and treats it as morally hinding, and for that reason will not give relief against a party uot in default, nor in favor of a party who is in default in his performance of the agrcenieut. > A party who has received anythin g under such an ag reement, and the n has j-efused to per form^ jt^ought^ in justice to pay for what ho has received, andjience_ the law for the purpose of do ing justice to the other par ty~vviir imply an assumpsit. ~~ An assumpsit is never implied except where the justice and equity of the case demand it. A party entering into an agreement, invalid under the statute of frauds, is charged with knowledge that he cannot enforce his agreement, and if he, not being in default, has received part of the con- sideration of his agreement, upon what principle of justice or equity will the law imply an assumpsit on the part of the party in default still to pay the entire consideration'? Yet such an assumpsit has been enforced in this case. Suppose one agree by parol to work for another for ten years for the consideration of $500, to be paid at the end of that time, and also a piece of land to be conveyed to him, and at the end of the time the $500 be paid and the conveyance of the land refused, can he, upon an implied assumpsit, recover the entire value of his services 1 If he has received no part of the consideration agreed to be paid to him, the law will imply a promise to pay him what his services are worth, and will enforce such promise. Bu^hat shall be done when he has received part of the con- sideration 1 He should not be left without any remedy for the balance honestly due him, but upon the same pnncipies of justice and equity the law'shouTd^mply a pro mise to pay the balance. Here the plaintiff was to receive for his land one dollar and the stock business at his yards. The one dollar may be regarded as merely nominal, and the other must be held to be the substantial consideration. The plaintiff expected to get the value of his land in the profits which he should make out of the business which the defendant should give him. This | / business the defendant gave to the plaintiff for one year, at least, just as 1 1 /v it agreed to, and out of it the plaintiff appears to have made profits much gi-eater than the value of the land conveyed. These profits were the very . consideration contemplated by the parties for the conveyance of the land, j\ and to the extent that the plaintiff has had the business and profits, he has/' had the very consideration he contracted for. Suppose the defendant had agreed to pay plaintiff $100 and also to give him the stock business, could the plaintiff in this action after receiving the $100 recover tlie whole value of the land, entirely ignoring the money payment? Suppose, instead of giving the defendant land, the plaintiff had paid it money for the same con- sideration, could he, under the circumstances of this case, recover back all the money paid in an action for money had and received 1 Clearly not. \\ ^ 508 DAY V. NEW YORK CENTRAL R. K. CO. [CIIAP. II. The very basis upon which the action rests forbids it. As said by Lord ]\LvxsFiELD, in Moses v. Macferlan,^ " if the defendant bo under an obhgation from the ties of natural justice to refund, the law implies a debt, and gives this action founded in the equity of the plaintiff's case." And he says the action "is equally beneficial to the defendant. It is the most favorable way in which he can be sued ; he can be liable no further than the money he has received; and against that may go into every equitable defence upon the general issue ; he may claim every equitable allowance ; he may prove a release without pleading it ; in short, he may defend himself by everything which shows that the plaintiff, ex cequo et bono, is not entitled to the whole of his demand or to any part of it." And in Longehamp v. Kinuy,- the same learned judge says : " Great benefit arises from a liberal extension of the action for money had and received, because the charge and defence in this kind of action are both governed by the true equity and conscience of the case." It would be against both equity and good con- science to allow the plaintiff in the case supposed to recover all the con- sideration which he had paid, when he had already received a part of the benefit and consideration which he had contracted for. \Vit liin the prin - ciples laid down in the cases cited he wo uld be pcrm itted_ to re coyerjthe balance only ot the money paid b y him after deductingtheva lue of so muclTorthe consider ation as h eTgrecei yed, and iflt could be shown in ^acli case by thj~a efendant 3haj^_iJaJBiiiL ^^ actually receiv ed from the__ aiFendant uponlhe^gr eement m ore thanj ie had paid^there would be no T^?75T57rTfnroFeqmtv]for ^e action~to stand on. The^ same principles of justice a nd equity should be applied to this case, the plaintiff's equities canbelTo greater tha,t he paid in land rather than in money. The agree- ment cannot be enforced. Neither party can in this action be allowed any benefit from it or any damage for its breach. The defendant having repudiated the agreement, the plaintiff can recover for his land as if there had been no agreement as to the amount of the consideration, but he must allow so much of the consideration as has been paid ; and if he has received more in the profits of the business which the defendant brought to him under the agreement than the value of his land, he can recover nothing. If the profits are less than the value of the land, then he can recover the balance. It was not necessary for the plaintiff to tender the profits to the defend- ant before the commencement of the action. They were part of the con- sideration receive vanced by the plaintiff, his agents or assigns, to the defendant, when re< quired, free from interest and commission, at the current exchange of the place, and the residue of such freight to be paid on the delivery of the car- go in Liverpool, in good and approved bills on London not exceeding three months' date." The vessel sailed from Liverpool, and arrived at ALaranham I with her outward cargo, and delivered it there ; when 120/., the sum pZ^/.**:<^i| stipulated by the charter-party to be paid for the freight of the outward I cargo, were paid to the defendant by the agents of the plaintiff. The ^^^^ plaintiff's agents also, on his behalf, paid or advanced to the defendant at Ut>//yZ>? I I Maranham, 192/. 9s. lOd. for the necessary disbursements of the vessel at / ^1 Maranham, as stipulated by the charter-party to be there paid or advanced. The vessel received at Maranham from the agents of the plaintiff a home- ^^ ward cargo, and sailed with it for Liverpool ; but during the voyage was ^ ^-^-^^^^^^^ captured, and, together with her cargo, was wholly lost to the proprietors, k.^,*«/*-«*-vT.*^ j g^jj(j never arrived at Liverpool. / l^llb^f' ' ' The question is, whe ther the plaintiff is entitled to recover th e 192/. 9s. ^ ' lOcZ.'so'paid^or advanced to the defendant at Maranha m. If he is^ the vcr- X ! i dicFto stand ;ifno t, a nonsuit to be entered. _ Richardson for the plaintiff. Littledale for the defendant. Lord Ellenborough, C. J. By the policy of the law of England freight and wages, strictly so called, do not become due until the voyage has been performed. But it is competent to the parties to a charter-party to cove- nant by express stipulations in such manner as to control the general opera- tion of law. The question in this case is whether the parties have not so covenanted by the stipulations of this charter-party. I f the charter-party be silent the law will demand a performa nce of t he voyage, for n o freight u^ SECT. II.] DE SILVALE V. KENDALL. 517 can be_ due until the voyage be completed. But if the parties have chosen to stipulate by express words, or by words not express but sufficiently in- telligible to that end, that a part of the freight (using the word froiglit) should be paid by anticipation, which should not depend upon the perform- ance of the voyage, may they not so stipulate ] Now by this cliarter-jjarty it is stipulated that 120^. shall be paid to the defendant for freight of the out- ward cargo to IMaranham, and as much cash as may be found necessary for the sliip's disbursements in Maranham, to be advanced by the plaintiff, his agents or assigns, when required, free from interest and commission, at the current exchange of the place, and the residue of such freight (implied- ly therefore denominating the former payment as an advance of freight, without interest or commission) upon the delivery of the cargo at Liver- pool. It is argued on one side as if this was a mere loan to provide for the necessai-y disbursements of the ship at Maranham, the money to be ad- vanced indeed at Maranham, and to be afterwards repaid by deducting it from the freight, if freight should be earned, but to be repaid at all events whether freight should be earned or not. And I certainly agi-ee that if the charter-party does not import that this was to be a payment in advance, specifically, of freight, the result would be as contended for. But in the first place the advance is to be made free of interest and commission, whlTSh shows it not to have been intended as a loan ; for if a loan, why shouki not iuterest~amrcommTssion be paid for it ? Inthe^ next place the word residue imports that it is fi^eight that was to be partially advanced, of which the remainder only was to abide the usual risk which the law casts upon the earning of freight, that is, the conveyance of the cargo to its place of des- tination. The preceding payment was on the contrary, by the stipulation of the parties not to be subject to that risk, which but for the stipulation and by the ordinary course of law it would have been. And there can be no doubt that the payment of freight may by the agreement of the parties be so exempted. I therefore read this covenant as if it were, that 120/. should be paid to the defendant for outward freight at Maranham, and that as much more as might be necessary for the ship's disbursements should be advanced by way of freight, and that the residue should remain subject to the contingency of the ship's arrival and delivery of the goods at their place of destination. A part was to be free from all contingency, the residue was to abide the contingency. Thus it appears to me, upon the plain meaning of the instrument now befoi-e us, and without looking to other cases which apply to different forms of covenanting from the present, .that this money was received at Maranhama s freight, a nd that it is dis- tTiiguished by the provision^respecting the residue from that part of the freigKFwlTictrwjis~ttr^hide the" PTdt miry contihge ncylmposed by the law. I therefore think thaF inasmuch as it is freight, the plaintitf is not entitled" to recover in this action. Le Blanc, J. I agree to the construction which has been put by my 518 DE SILVALE V. KENDALL. [CHAP. IL Lord upon this charter-party. The plaintiff has advanced a sum of money to the defendant at Maranham, which he now seeks to recover, upon the ground that it was advanced by way of loan, or as a payment by anticipa- tion of freight which was not then nor has ever since been earned. It is open to the parties to such contracts as the present to make such stipula- tions, consistently with law, as they shall please. And here the parties have contracted for the letting and taking the ship to freight on a voyage to Maranham and back to Liverpool, and for the payment of a specific sum for the outward freight to Maranham, and for the homeward freight they contract to pay according to a specific rate of payment upon the goods to be delivered. But they also contract in what manner this freight sliall be paid, that is, that the outward freight, together with so much of the freight home as should be necessary for the disbursements of the ship at Maran- ham, should be paid in advance when required, and the residue of such freight to be paid upon delivery of the homeward cargo at the place of destination. Now there can be no doubt that it is competent to parties to stipulate for 'part-pay ment_ofjthe freight befo re it c an be kno wn whether any freight wiiraccr ueor n ot^ And have they not so stipulated by this cTiarter-party] If it was intended that what was advanced at Maranham should be returned in the event that has happened, the parties might have provided for it by their contract. That this question has not yet come before the courts can only be accounted for by supposing that persons have not been advised to attempt the question, because undoubtedly there must have been many cases before this, in which the parties have stipulated for a payment of freight in advance ; indeed such cases are very common, and it must very often have happened that the ship has not arrived. And what has happened still more often, is that wages have been stipulated for and paid in advance at a particular period of the voyage, which is similar to the present case, and yet I believe no action has ever been brought to re- cover back such wages from those capable of paying, on the ground that no freight was earned, and therefore wages were never due. j t is impossi ble to consider this as a loan of m o ney, because of the exception by wliich Tt i s made free fronTinterestaud^com mission, and b ecause also " the residue of suchTfeigEt''ns^ made payable upon the ship's arrival. This covenant, tTierefore, must be understood as a covenanFTor the pajnncnt of the freight in different modes, some part of it upon the arrival of the ship at Maran- ham, and the rest to abide the contingency of the ship's return to her port of destination. It is clear therefore the plaintiff is not entitled to recover. Bayley, J. Wherever there is an express stipulation that the party who is to be entitled to freight shall be paid any portion of it in advance, there ought also to be an express stipulation that the party paying it shall be entitled to recover it back, if frciglit be not earned, if sucli be the intention of the parties to the instrument. For without some provision of tliat sort how are we to raise a new implied contract to tliat effect] It seems clear S^'^^'- "■] DE SILVALE V. KENDALL. 519 that the parties to this iustrumeut have stipulated for a partial payment in advance by way of freight and not as a loan ; for after settling the amount and rate of freight to be paid for the voyage out and home, tliey stipulate that such freight shall be paid as follows, that is, the outward freight to Maranham, and as much cash as should be necessary for the ship's disbursements in Maranham to be advanced by the freighter when required, free from interest and commission, at the current exchange of the place, and the residue of such freight on the delivery of the homeward cargo. Therefore, _tak ing the jvhole of the clause together, it seems to mo t hat this p ayment is to be cons idered_ as a paymen_ t of so much of tho~ freigh tjii^a dvance. And if that be so, upon what grounTTslTto^be re- covered back ? It is suggested as a ground, that the freight has failed by the non-performance of the voyage, and thus the plaintiff has derived no benefit from it ; but what benefit has the defendant derived ] lie also has lost as well as the plaintiff, and the question is, whether he is to bear a farth er loss. Now in order to mainTalu money had and received, it is in gen- eral incumbentjipon_the plaintiff to show th llt the defenda ntjias money of the plaintiff which in _eqm ty an d good conscience he ought not to detain from him. But here the question raised is not whether the defendant has money which he. ought not to detain, but whether out of his own money he shall be bound to make good that which the plaintifiF has lost. It seems to me that the defendant shall not be so bound. Dampier, J. It has been argued upon the words of this charter-party, that " as much cash as may be found necessary for the vessel's disbursements in Maranham, to be advanced by the plaintiff to the defendant," imports a loan of money, and not a payment of freight. And if those words stood alone, and unexplained by the other part of the clause, I should have thought they might have been subject to such a construction. But taking the whole clause together I think it is not so. It stipulates for the pay- ment of such freight, that is, the outward and homeward freight ; the outward freight and so much cash as should be necessary for the ship's dis- bursements in Maranham, to be advanced at the current exchange of the place ; and then it adds that the residue of such freight shall be paid on the delivery of the cargo. So that it contemplates the whole as freight ; and beside, the exemption from interest and commission tends to show that it was not a loan.^ I think it impossible therefore upon the whole of this ^ If in the present case, which is to be decided according to English law, the advance could be treated as a loan, it might be necessary to consider that case with the utmost attention, . . . but it would, as it seems to me, be impossible to hold that it was, without overruling all the cases on this subject, or the doctrine assumed in all that have been decided since the time of Charles II. . . . Although I have said that this course of business may in theory be anomalous, I think its origin and existence are capable of a reasonable explanation. It arose in the case of tlie long Indian voyages. The length of voyage would keep the shipper for too long a time out of money ; and freight is much more difTicult to pledge as a security to third persons than goods repre- 520 WRIGHT V. NEWTON. [CHAP. II. clause to consider this payment as a loan. Then the question is, whether freight io nomine may not be stipulated to be paid in advance; and upon that I think there can be no doubt that it may. As little doubt exists in my mind that this is a stipulation of that nature to pay a portion of the freight in advance, and it does not appear that there is any covenant that the party shal l recov er^ it back in the event of freight not being earned. Therefore it does not seem to me that the defendant has receive d money which he k eeps aga inst good conscience. And if so the plaintiff is not entitled to recover. Jiulgment of nonsuit. WRIGHT V. NEWTOX. In the Exchequer, Easter Term, 1835. [Reported in 2 Crompton, Meeson, and Roscoe, 124.] Assumpsit for money had and received. Plea, non assumpsit. At the trial before Alderson, B., at the last Lancaster assizes, it appeared that the defendant, being in the occupation of a public-house, and being desirous of leaving it, entered into a verbal a gree ment with the plamtiff for the sale t o him^onl oehalf of a M i-s. Williams, of the good-will and fixtures of the house,^at the siim qL12P^.j^50^j' which was to be paid on the Monday after, if the landlord consented to the change of tenancy, and on pay ment of thej;emainder of the money the defendant was to give up possession. The 50^. was paid to the defendant on the 19th of May, and on the 20th, on application being made to the landlord, be verbally agreed to accept Mrs. Williams as tenant. In consequence of this, Mrs. Williams, for whom the house had been taken by the plaintiff, removed, and took her fm-niture to the defendant's house, and went to reside there, and continued there for five or six weeks, and carried on the business, but the defendant and his wife also continued to reside there. It appeared, that, on the 2d of June, the landlo rd with drew his co nsent to accept Mrs. Williams as tenant. The defeiidant on being informed of this, said that Mrs. Williams might keep his, the defendant's, name up, and he would give possession in spite of the landlord. Mrs. Williams subsequently, by the defendant's consent, I ' took away her furniture, but th e defendant refused to return the 5 0^. \ The defenda nt afterwards sold the good-will and fixtures to another person , ' ' who was ac cordiug ly_le t into possession. This ^action was brought to recover Imck the sum of 50/., as money h ad and r ecei ved f or the use of the plaintiff. The learned BAKON~Tefrit to the jury to say whether the sented by a bill of lading. T herefor e the shipper agreed tojnake the ad vanc e on wliat^ he would ultimately have to pay, and for a consid eration, took the risk in onlcr to oEviatc aT i^t^yment, which d isarmn^es' business transi tions. ^r Mr. Justice BiiEir, in AlHsonirBrrstoniariue Ins. Co., L. R. 1 Ap. Cas. 200, 225. — Ed. SECT. II.] HIRST V. TOLSON. 521 parties had agreed to rescind the contract, and if thoy were of that opinion, he directed them to find a verdict for the plaintiff; which they accordingly did. Cresswell now moved by leave of the leanied B.\ron to enter a nonsuit. Parke, B. — It seems to me that this was a contract with a condition that the landlord's consent should be obtained ; and the question is, has that condition been performed 1 There was a deposit of 50/. made upon the landlord' s agreeing to take Mrs. Williams as tenan t, but the remainder of the money not having bee n pai d, and Mrs. Williams not having~eutered into possession as tenant, the landlord subsequently withdrew his consent, I thinkat^must_be jaken as if t he la ndlord never has consented ; an d if so, t he co ndition has n ot been perform ed. There would be nothing to bind ' ^ the landlord unless there had been an actual transfer of the possession. The money was paid on a consideration which has failed, and therefore the plaintiffis entitledHEol^cover it back, as money had and received to~hr8 use. The jimple_CLuestion is, whether~the landlord's consent of the 19th i of Ma^yjrM-Mndmg^^ponTi mT 1 thini: H was not, and th e"refore the con- I ^ dition was no t performed. There must be no rule. ' I ' BoLLAND, B. — The consent would have been sufficient if Mrs. Williams I had acted upon it before it was withdrawn, by paying the remainder of the | I purchase-money, and getting into possession as tenant. As it was with- drawn before Mrs. Williams took possession as tenant, I think that the verdict was right. Alderson, B. — I^think that the defe ndant never gavejip^ possession to Mrs. Williams as tenant. He kept possession of the house for a very good reason ; because the remainder of the purchase-money was not paid. Rule refused. HIRST V. TOLSON. In Chancery, before Sir Lancelot Shadwell, V. C, April 25, 1849. [Reported in 16 Simons, 620.] In November, 1845, Sarah Hirst, widow, articled her son, Henry, to Richard Tolson, a solicitor and attorney, for five years, and paid Tolson a pre mium _jiL,lQDz.- By the Articles, Mrs. HirstPTor herself, her executors and administrators, covenanted to provide her son with board, lodging, and clothes ; and Tolson, for himself, his executors and administrators, cov- enanted with Mrs. Hirst to instruct her son or cause him to be instructed in the business or profession of an attorney and solicitor which he then did or should, at any time thereafter during the term, use or practise ; and, at the end of the term, to use his best endeavors to procure him to be admitted an attorney and solicitor. 522 HIRST V. TOLSON. [chap. II 111 October, 1847, Tolson died : the defendants were his executors. After his decease, Mrs. Hirst apphed, to a judge at Chambers, to order the de- fendants to return a portion of the premium : but the learned judge dis- missed the application, ou the ground that he had no jurisdiction to make the order against the executors of an attorney. Mrs. Hirst and her son then tiled the bill in this cause, praying that the defendants might be decreed to return to her a just proportion of the premium, out of Tolson's assets. The defendants stated, in their answer, that, after Tolson's death, they arranged with a gentleman named Clough, whom Tolson had taken into partnership with him shortly before his death, to take Henry Hirst as his clerk, for the remainder of the five years, without any premium ; that Henry Hirst continued iu the office for about ten days after Tolson's death, and then left it without assigning any reason for so doing ; and that the de- fendants had since offered, but without admitting their legal liability, to refer the matter to the arbitration of any respectable solicitor ; but that Mrs. Hirst had rejected their offer. Mr. Bethell and Mr. Rogers for the plaintiffs. Mr. Roundell Palmer and Mr. Amphlett for the defendants. The Vice-Chancellor. In this case, it is alleged that a debt has accrued to the plaintiffs, and they are seeking to obtain payment of it out of assets. The case, therefore, is plainly distinguishable from the case of May v. Skey,^ which I decided a few days ago. In that case, a lady had advanced money to a married woman (whose husband had gone abroad and left her wholly unprovided for) to enable her to procure clothes and other necessaries ; and the lady sued the husband for the money. In the course of the argument two cases were cited iu which the court had ordered money advanced under similar circumstances, to be repaid. But, in each of those cases, the hus- band was dead, and the suit was against his assets. In i\Iay v. Skey, how- ever, the husband was al i ve, and, therefore , I held that the bill would not lie ; fo r the cour t has no jurisdi ction to order a debt to b fi__pai(i-by_the debtor hi mself In this case it appears, on the face of the articles, that there is a debt : what the amount of it is, I do not say : that must be determined by the , , . , Master : but, there being a deb t_a nd payment of it being sought out of the I aU ///{ the new patent for milling Mr. Bovill was about to bring out. Unfortu- nately Mr. Bovill died a few days after the money was paid, and we 8uj)poso no application has been, or will now be made for a prolongation of the 1S4'.) patent, and that our client will lose the benefit of the new patent wliiuli Mr. Bovill intended taking out. This being so, it appears to us that tlio consideration in respect of which Mr. Knowles paid the sum of 15U/. wholly fails, and that Mr. Bovill's executors will not object to repay that sum to Mr. Knowles." To this letter the defendant's attorneys sent the following answer : — " The executors of Mr. Bovill have handed us your letter of the 28th inst. We do not agree with your construction. Your clients made a bargain for better or worse ; if the application had been refused, would you then have claimed a return of the money % There is no covenant nor agreement by Mr. Bovill to apply. The consideration was only partly for the 1849 prolongation if granted, the chief consideration was for another invention of Mr. Bovill's. Had this been secured by him, your client might have received a very large benefit at a very nominal sum, and so the right to call on Mr. Bovill for a license of such new invention, if brought out, was an ample consideration, and of great value. Put the very frequent case of a person taking a license without a warranty of validity, and the patent being subsequently upset, and that too within a year of the license, which may, for argument's sake, have been for fourteen years. It has been held, over and over again, that the licensee must con- tinue his payments. He has had all he bargained for. Here ]\Ir. Knowles has had all he bargained for, the right to call upon Mr. Bovill practically to give him for nothing a very valuable right. We see no ground, morally or equitably, upon which your client can ask for a rebate or return of the 150Z. It was clear Mr. Kuowles thought the renewal was of a very ques- tionable nature, but he bargained with Mr. Bovill for the 150/. to shut out every contingency." The question for the court was, whether the plaintiff was entitled to the IK ^' return of the 150/. ' ' Qaahi, Q. C, for the plaintiff. Garth, Q. C, with him J. C. Mathew, for defendants. Martii.-, B. — In my opinion the plaintiff is entitled to our judgment. The true test in this case is the quesJbion,_What did he buy'? In my opTnion henbought aiT application for the gi-ant of one patent and the 526 KNOWLES V. BOVILL. [CHAP. II. prolongation of the other. By the contract he was to take the chance of the foilure or success of such application. But what he bought was au application. T he result is that the consideration in this case wholly fails, because it is admitted such applica,tJon never, was and now never will be made. Tlie law in some cases implies a contract when the parties have not expressly made one. In cases of the total fiiilure of consideration for a simple contract, it implies a contract to repay the money which has been paid for the~cdnsidftrarion that has so failed. If I thought Mr. Garth's contention were correct, and that plaintiff only bought the chance whether an application would be made and prove successful, the case might be different, but I do not think that is the true meaning of the contract. Bramwell, B. — I am of the same opinion. The plaintiff manifestly paid his money for the right to have an application made for the renewal of the one patent and the granting of the other. It cannot be doubted that if Mr. Bovill had lived and no application had been made, the plaintiff would have been entitled to recover his money. From this it is perfectly clear he bought the right to have such application made. In point of fact it was not made. Then why is his claim not well founded 1 }>h\ Garth invokes a rule of law ; he claims to read such a contract with a qualification implied by law that Mr. Bovill is only bound to make such application if he lives ; he is to be excused by death. Mr. Quahi may fairly say then, "j[am entitled to add a qualifi cation to th at_^ualiiication, viz., that if he dies the monej^ shall be returned." I am strongly of opinion that the law ought never to imply terms in a contract unless the justice or necessity of the case obviously and imperatively demands it. But if a party contends that there is such a qualification when the engagement is of a personal character, how can he object to the qualification being qualified as I have pointed out] Can anything be more obviously just and reasonable? Why should the contractor's death be a benefit to his estate, and inflict a loss on the othe r part y ? In such a case the cou rt only i ntrod uces a term which it is satisfied, not perhap s tha t the part i es inte nded, but tha t they would have intended if they had^ contemplated the circumstan ces which have arisen. ' PiGOTT, B. — I am of the same opinion. It is quite clear that the inten- tion of the parties was that there should be an application for these patents, and that such application formed the consideration for the payment of the money. There never was any such application, and consequently the con- sideration wholly failed. Cleasby, B. — It is clear th at what plaintiff bought was the chance of Mr. Bovill being successful in his application or not, not the chance of his making it or not ; that would have left it in his option to make it or not7 whereas it was admitted if he had lived and not made it the plaintiff would have recovered. Judgment for j)loiintiff. SECT. II.] WIIINCUP V. HUGHES. 527 ^^iCx^^ >i Action in the Salford Hundred Court against the defendant as executrix of Thomas Rogers Hughes, deceased. The first count of the declaration stated that the testator covenanted with the plaintiff to instruct one George Whincup, the younger, during the term of six years, from the 31st of July, 18G8, in the business of a watch- maker and jeweller. Breach, that he did not so instruct him. Second count, for money had and received by the testator for the use of the plaintiff, and for money had and received by the defendant as executrix, for the use of the plaintiff. Third plea (infer alia) to the first count, that after the making of the said covenant, and after the said Thomas Rogers Hughes had for the space of twelve months instructed the said George Whincup, the younger, in his said business according to his said covenant, the said Tlioraas Rogers Hughes died, and was thereby prevented from any further performance of his said covenant. To the rest of the declaration, never indebted. . Issues and demurrer to third plea. At the trial the facts appeared to be as follows : The plaintiff had appren- ticed his son to the defendant's testator, a watchmaker and jeweller, by a deed bearing date the 26th of November, 1868, for the term of six years, to be computed from the preceding 31st of July. The plaintiff covenanted to pay a premium of 251. to the master, and provide the apprentice with food and clothing during the terra, in consideration whereof the master covenanted with the plaintiff to instruct the apprentice in his business, and to pay him wages according to an ascending scale, commencing at 4s. per week during the first year, and ending at 10s. per week in the last year of the term. The plaintiff paid the premium, and the apprentice was duly instructed up to the 14th of November, 1869, when the defendant's testator died. The learned judge, upon these facts, held that the cove nant to instruct the apprentice was a merely personal covenant, which was put an end to by the testator's death, and that the plaintiff could not, therefore, recover on the first count ; but he held that the plaintiff m ight recover a part of the premium paid under the common counts, on the ground of failure of consideration. The verdict was thereupon entered for the plaintiff for the sum of 15^., the amount found by the judge, to whom the question of e A Yev-a f 528 WHINCUP V. HUGHES. [CHAP. II. amount was left by consent ; leave being reserved to the defendant to move to enter a nonsuit, on the ground that neither the premium paid at the commencement of the apprenticeship, nor any part of it, was recoverable back, the consideration for its payment not having failed, either wholly or as to any apportionable part. A rule nisi had been accordingly obtained, against which J. W. Melloi- showed cause. G. B. Hughes supported the rule. BoviLL, C. J. This is an action brought to recover a part of the pre- mium paid upon the execution of an apprenticeship deed, ou the ground of failure of consideration. The general rule of law is, that where a con- I tract has been in part per formed uo part of t he money paid under such i contract can be re covered back . There may be some cases of partial per- I formauce~which fbrm exceptions to this rule, as, for instance, if there were ^ a contract to deliver ten sacks of wheat and six only were delivered, the price of the remaining four might be recovered back. But there the con- sideration is clearly severable. The general rule being what I have stated, is there anything in the present case to take it out of such rule? The master instructed the apprentice under the deed for the period of a year, and then died. It is clear law that the contract being one of a personal nature, the death of the master, in the absence of any stipulation to the contrary, puts an end to it for the future. The further performance of it has been prevented by the act of God, and there is thus no bre ach of con - tract upon which a ny actionjgjlHie^against ^the exec utor. That being so, can any action be maintained otherwise than upon the contract? The contract having been in part performed, it would seem that the general rule must apply unless the consideration be in its nature apportionable. ( \ 1 am at a l oss to see on what principle such apport ionment could be made. \ It could not properly be made with reference to the proportion whicli the period during wliich the apprentice was instructed bears to the whole term. In the early part of the term the teaching would be most onerous, and the services of the apprentice of little value ; as time went on his services would probably be worth more, and he would require less teaching. Tliere ai> pears to be no instance of a similar nature to the present in which an action for the return of a part of the premium has been brought. There have been attempts to recover part of the premium in the case of articled clerks. In Ex parte Bayley ^ which has been cited, the decision was not put • on the ground of legal liability, but of the autliority exercised by the court over one of its own officers. In the case of Re Tliompson,^ than which a stronger case could hardly exist, inasmuch as there the clerk died within a month after a premium of over 200^. was paid, an application was made to the court, in the exercise of its summary jurisdiction, but they declined to order tlie return of any part of the premium. It was assumed in that case 1 9 B. & C. 691. * 1 Ex. 864. SECT. II.] WIIINCUP V. HUGHES. 529 that no action at law could lie, foi' otherwise the application would have been uuuecessary. Thus it appears that even on application to the extraor- dinary jurisdiction of the court over its own officer, the Court of Exchequer deliberately came to the conclusion that neither in law nor in justice wa.s there any right under such circumstances to a return of premium. With regard to the justice of such a case, it is clear that it would be almost impos- sible to estimate what the master might on his side have lost by the loss of the service of the apprentice. Again, the person receiving the premium nat- urally assumes that it becomes his property to be dealt with as he [)leases ; he is pei-fectly ready to perform his part of the contract ; he never undertakes to retu rn any p ai;tj)f the premium, and the necessity for such return is never^ contemplated. We have been pressed with the authority of the case of Hirst V. Tolson,^ where, an attorney having died, the Lord Chancellor or- dered the return of a part of the premium paid by an articled clerk. But this decision expi-essly proceeded on the supposition that such part of the premium would be a debt in law, although the Lord Chancellor came to the conclusion that under the circumstances it was not necessary to send the plaintiff to seek a remedy in a court of law, but he might recover in equity. The Lord Chancellor refers to the case of Stokes v. Twitchin - as establish- ing the principle that where there is such a partial failure of consideration, an action is maintainable. On referring to that case it appears that it is no authority for any such proposition. In that case the indenture was void for breach of the provisions of a statute. The plaintiff claimed the whole premium back on the ground of total failure of consideration. There is no doubt that money had and received will lie upon such a failure of consider- ation, though the plaintiff failed in that case on the ground that he was himself party to the illegality. With regard to the equity of the case, the Lord Chancellor refers to two former decisions in the time of Vernon and Finch, which appear to be Soam V. Bow den ^ and Newton v. Rouse.* On refei'ring to the report of the former case in Finch, it appears that there the master had received a pre- mium of 250^. and died within two years, and a bill having been filed against the executors for the return of a portion of the premium, it is stated that the executors said that they would be willing to do whatever the court should direct in the matter. It is quite consistent with this report that the executors really did not contest the point, but submitted to what the court might, under the circumstances, think just. The case of Newton v. Rouse * is certainly a very remarkable cnse, because there the agreement contained an express provision that in case of death GO/, should be returned, and on a bill being filed, the court decreed the return of 100/. This is certainly wholly inconsistent with the principles regulating the interpreta- tion of contracts both at law and equity. The only possible gi-ound on 1 2 Mac. & G. 134 ; 19 L. J. Ch. 441. » g Taunt. 492. 3 Finch, 396. * 1 Vern. 460. 34 530 wiiiNCur V. hughes. [chap. ii. which the decision can be explained is that mentioned by the note to the case in the 3d ed. of Vernon, by Mr. Eaithby, and referred to in 1 Story's Equity Jurisprudence, 10th ed., p. 472, viz., that it must have been a case of mutual mistake, misrepresentation, or unconscientious advantage taken by one side of the other. Under these circumstances, it does not appear to me that the case of Hirst v. Tolson ^ is a satisfactory authority or one by which we are bound. It appears to be based on a misapprehension of the law on the subject, and is distinctly contrary to the opinion of the Court of Exchequer in Be Thompson.^ For these reasons I think the rule ought to be made absolute. WiLLES, J. I am of the same opinion. We have no jurisdiction to override the intention of the parties as expressed in the contract of appren- ticeship. The effect oftha ^ contract is clear. In consideration of the pre- mium the mas ter undertakes to teach, and the jy jEienik fi u n dpvt nkes to serveTbTaTperiod of six years if tbeyjjoth shall live so long. If this, which Vtbe trueTegaTconstruction of this contract, were set out in so many words, it would seem extraordinary that there should be any claim for a re- payment of premium on the death of either of the parties. But it is a well- known rule of law that every contract must be construed as if those terms which the law will imply jvere expressly iutroduc e ^mto it. buch being the~contract, if thT apprentice died, could the master be called upon to refund any part of the premium"? No suggestion to that effect was made. Then why should there be any difference in case of the master's death 1 In some particular cases there might be a reason. There might be a custom in relation to the subject. No suggestion is made of any such custom here, but in 2 Williams on Executors, 6th ed. p. 1G31, a custom in London is mentioned, that in such a case the executors shall get the apprentice trans- ferred to some other master of the same trade. In such a case, however, the action must be on the custom, not for money received. The decision in the case of Hirst v. Tolson ^ does not appear satisfactory, for the reasons given by my Lord. With the utmost respect to the au- . thority of the eminent Chancellor who decided it, with regard to the ques- tion of equity, I must confess that the justice of that decision appears to me very doubtful. The executors there seem to have offered to get the clerk placed in the office of another attorney without premium, and that having been declined they were made to refund money which the testator had probably spent long before his death without ever contemplating the necessity of refunding it. I must say that the doctrine of the common law which, except in the instance of the paternal or masterful jurisdiction of the court over its own officers, does not compel any return on the partial failure of consideration, appears to me on the whole preferable to an equity 80 doubtful as this. In 1 Williams' Saunders, p. 313, the case of an ap- prentice running away is mentioned, and Cuff v. Brown ^ is referred to, » 2 Mac. & 0. 1.34; 11» L. .1. Ch. iU. " 1 Ex. 864. ^ 5 PHcc, 297. SECT. II.] WIIINCUP V. HUGHES. 531 where in such a case, the master having refused to take back the appren- tice, the court held that it could not order any return of preuiiuin. It is there stated that in the case of an attorney's clerk the Court of King's Bench decided otherwise, considering that they had a more extensive au- thority, and the cases of Ex parte Prankerd ^ and Ex parte Baylcy ^ are referred to as instances. In 2 Williams on Executors, fith ed. p. 1GI51, tlio case of Hirst v. Tolsou ' is treated as applicable to attorneys only, and being an exercise of the equitable jurisdiction of the Court of Chancery, Montague SiMITH, J. I am of the same opinion. Independently of the rule of law, that an action for money had and received can only be brought when there is a total failure of consideration, with the exception of a few cases which, on being analyzed, hardly prove to be exceptions, I think this case is clear as a question of intention between the parties. The contract is a written one, and if on a consideration of its terms we should come to the conclusion that the parties did not mean that in case of death there should be a return of the premium, the defendant will, of course, not bo liable. The contract is, that in consideration of 2ol. paid at the time of its execution, the master will teach for six years ; and the contract is sub- j ect to an implied condition that both parties should so long live, for, bemg a mere personal undertakmg, it is only in such case^ that it can be per- formed. Now, I cannot imp ly from such a contract that the parties meant th at in case of de ath any part of the "premium should be returned. If they had so meant there would have been no difficulty in expressly "pro- viding'for such a continge ncy. We should, I think, be doing violence to the terms of the instrument if, as a presumption of law or fact, we added any such condition. The parties must be taken to have considered the possibility that one of them might die. In the case of the apprentice's death, or permanent illness during the later years of the term, the loss to the master might be considerable ; might be even of greater value than the premium, for the services form a considerable part of the consideration for the master's contract. The master in such case could recover no com- pensation for his loss : see Boast v. Firth.* Under these circumstances, it seems to me that the parties, if they intended that there should be any return of premium, would have provided for it. Moreover, it appears to me clear that the action for money received cannot lie where the contract has been partly performed on both sides. To ascertain the amount which equity in such a case requires to be returned, it would be necessary to go into a great variety of considerations, the relative weight of which it would be almost impossible correctly to estimate: e.g., the value of the service lost to the master, and the degree to which the apprentice had profited by the instruction. It would be impossible to take merely the proportion of the time which had elapsed to the whole term as the standard of measurement. 1 3B. & A. 257. 2 9B. &C. 691. 3 2 Mac. & G. 134; 19 L. J. Ch. 441. * L. R. 4 C. P. 1. 532 ANGLO-EGYPTIAN NAVIGATION CO. V. RENNIE. [CHAP. II. My Lord and my Brotlier Willes have gone so fully into the authorities that I ueed say nothing further about them, except that the mere fact that, while similar cases to the present must be of such frequent occurrence, no case of an attempt to recover back part of the premium is to be found in the books, except with respect to an articled clerk, is of itself an authority against the plaintiff. Brett, J. I am of the same opinion, and to my mind the case is very clear. By the contract a specific sum is paid to the testator in respect of a continuing consideration, viz., a personal duty to be performed for six years if both parties should live so long. There is no express stipulation for any return of the premium or any part of it. The death of the testa- tor is no breach of the contract, and the question therefore is, whether, thei'e being no breach on his pai-t, his executors can be made to return the premium or any part of it. Now the case cannot be brought within the rule of law relating to total failure of consideration, or mutual rescission of a contract. It comes within the rule that where a sum of money has been paid for an entire consideration, and there is only a partial failure of consideration, neither the whole nor any part of such sum can be recov- ered. No authority has been cited in favor of the plaintiff at common law. I express no opinion as to the decisions in equity that have been cited, inasmuch as we are not now exercising an equitable jurisdiction, and, there- fore, they do not appear to me applicable. The decisions with regard to articled clerks seem to be strong authorities for the defendant, inasmuch as even when the court did interfere to compel a retuiii of the premium, they felt obliged to justify the strong measure of exercising jurisdiction to modify the contract of the parties, by saying that they did so in the exercise only of their authority over their own officer. Rule absolute. ANGLO-EGYPTIAN NAVIGATION COMPANY v. EENNIE AND AnOTUEB. In the Common Pleas, February 25, 1875. [Reported in Law Reports, 10 Common Plens, 271.] Special Case stated iu an action for the detention of certain boilers and machinery, and for the recovery of two sums of 2000^. paid by the plain- tiffs to the defendants. The facts of the case sufficiently appear from the judgment. H. Matthews, Q. C, Arthur Wilson with him, for the plaintifis. Benjamin, Q. C, for the defendants. SECT. II.] ANGLO-EGYPTIAN NAVIGATION CO. V. RENNIE. 5.33 Feb. 25. The judgment of the court (Lord Coleridge, C. J., and CJhove and Denmax, JJ./) was delivered by DeniMan, J. This was a special case stated without pleadings in an action in which the plaintiffs claimed to recover certain boilers and ma- chinery detained by the defendants, with damages for their detention, or to recover back two suras of 2000/. each, paid by the plaintiffs to the defend- ants as stated in the case. In case our judgment should be for the plain- tiff's for the recovery of the goods, judgment was to be entered for 5000/., to be reduced to 40s. on the goods being delivered up. In case we should decide for the plaintiffs on the other ground, judgment was to be entered for 4000/. The two questions for the court therefore are, whether, under the circumstances of the case, either detinue or money had and received could be maintained. The material facts of the case were as follows : On the ISth of Decem- ber, 1871, the plaintiffs, a shipping company in London, being owners of two steamships, the Minia and the Scanderia, entered into a written con- tract with the defendants, engineers in London, which is set out in the special case, and the terms of which, so far as they are material, are as follows : — The engineers agree to make and sujjply to the company new marine boilers and various parts of machinery for the screw-steamers Minia and Scanderia belonging to the company, and to alter the engines of those steamers into compound surface condensing engines, according to specifica- tion annexed. The engines and boilers and connections are to be com- pleted in every way ready for sea so far as specified, and tried under steam by the engineers previous to being handed over to the company ; the result of such trial to be to the satisfaction of the company's inspector. The work to be commenced without delay, and completed with all reasonable dispatch. Duo notice shall be given by the company to the engineers of the date at which the steamers will be placed in their hands after the work is ready, to have the engines completed. p]ach of the steamers shall be completed ready for sea within sixty working days from the date at which she is placed in the hands of the engineers. The price to be paid by the company to the engineers in respect of this agreement shall be the sum of 5800/. for each steamer, payable as the work progresses, in the following manner, viz. When the boilers are plated, 2000/., half cash, halF by the company's acceptanc c_ aT four months* date ; when the whole of the work is ready for fixing on board, 2000/., half cash, half by the company's acceptance at four months' date ; when each steamer is fully completed and tried under steam, 18 00/. , whereof 1000/7 cash , and 800/. in acceptances at four months. All bills to be approved. The contract then contained a guarantee by the engineers against bad 1 Keating, J., who heard tlie argument, had resigned at the end of Hilary term. I» 534 ANGLO-EGYPTIAN NAVIGATION GO. V. EENNIE. [ciLVr. II. materials or workmanship, and an undertaking to make good for six months ; and then it continued as follows : — "All the work hereby contracted to be done by the engineers shall be SL executed to the satisfaction of John Pile, or other the company's inspector for the time being ; and all the payments agreed to be made by the com- I : pany shall only be made~onThe cer titicate of such inspector th at the condi- "^ , tions entitling the engineers to receive such payment have been fulfilled." The contract contained an arbitration clause. The specification referred to in the contract was headed " The woi'k hereby specified to be done to each of the steamers Minia and Scanderia," and contained, amongst other mattei's, the following provisions and require- ments : — " Four new boilers of oval form to be fitted and fixed on board ; each boiler to have two furnaces, and to be provided with all necessary fittings," etc. ; " the boilers to be cleaded with felt and wood, or patent cement, as may be determined, with all necessary piping to fit and fix them to the engines ; funnel casings to be removed and replaced ; old boilers to be cut up in ship, and removed in pieces, so as not to disturb the deck." Then followed provisions relating to alterations to be made in the cylin- ders, and providing several articles, such as new cylinder covers to be put on the old cylinders, with glands, slide-rods, and " all that may be neces- sary to make the engines complete compound and surface condensing engines." Then followed a provision that a surface condenser containing 2000 cubic feet of tube cooling surface was to be supplied ; and immediately afterwai-ds it was specified as follows : " One of the present air-pumps to be arranged as a circulating pump ; both the pump and the other air-pump now in the ship to have foot-valves fitted, if they are not so at present ;" " waste-water valves to be fitted to ship ; the present waste-water valve chest to remain for the air-pumps' discharge ; " " all present piping in con- nection with boilers to be condemned, and replaced with copper piping sufficient to bear the increased pressure ; " " all brasses to be set together, and the whole job to be put in thorough working order so fixr as the new work is concerned ; " " in conclusion, it is intended that the engineers shall remove the present boilers and such parts of the machinery as may be necessary to make the above alterations, giving new boilers and com- plete machinery instead, and so as to comply with the requirements of the Board of Trade, whose certificate they are to obtain as far as the work which they engage to do extends." The case finds that under the contract the whole of the old n)aterials to // be necessarily taken from caoh ship by reason of tlie execution of the V / work contracted to be done would become the property of the defendants, !' and that the value of such old materials in each ship was 353/. At the date of the contract, the 18th of December, 1871, the Scanderia was in the f- SECT. II.] ANGLO-EGYPTIAN NAVIGATION CO. V. KENNIE. 5^)5 port of London. Tlie contract, .so fur us relates to the Miiiia, was per- formed on botli sides ; and no question arises as to that ship. On the 28th of June, 1872, the plaintiffs gave notice to the dcfeiidaiits that the Scanderia was ready to be placed in their hands on the 1st of August next, to receive her boilers and machinery. But, upon hearing from the defendants on the 28th of June that they could not promise to he ready by the 1st of August, the plaintiffs determined to send her on another voyage. She sailed from Cardiff accordingly in August, and on her return voyage was lost by perils of the sea. On the 15th of August, 1872, the boilers for the Scanderia were plated, i On the 27th of August the plaintiffs' inspector certified that the defendants ' were entitled to receive the first sum of 2000/. in respect of that ship ; V and on the 28th of August the plaintiffs paid the same in the manner , ■ provided by the contract. On the 4th of January, 1873, the whole of the work was ready for fi.xing on board the Scanderia, and on the 1 5th the plaintiff's' inspector so certi- fied, and that the conditions entitling the defendants to the second sum of 2000/. had been fulfilled ; and the plaintiffs on the 17th of January paid that sum as before. At^Uie ^ime of the last-mentioned pa yment, the plaintiflfe ^ew, but the defendant s did n ot know, of the lo ss of the vessel. On the 25th of April, 1873, the defendants, having heard of the loss of the Scanderia, wrote requesting the plaintiffs " to pay the balance d ue on th e contract, amounting to 1800/." On the 26th the plaintiffs replied that, " looking at the work which the defendants had not been called upon to perform, they considered that they had already paid all that they could be required to pay in respect of the engines, if indeed they had not already paid more than a proportionate part of the contract price." On the 10th of May, 1873, the plaintiffs gave notice to the defendants stating that the contract of the 18th of December, 1871, having come to an end, they required the defendants to deliver to the plaintiffs the boilers and other machinery and things made by the defendants under the con- tract, and, in default of delivery, threatened proceedings. On the 21st of May the defendants' solicito rs wrote, stating that the defendants were wil- , . , ling to hand over the boiler3~ancr other machm ery asked for, " on being I ' paid the amount of their lien. " Subsequently, on the 23d and 2"?th of May, in answer to letters of inquiry as to their meaning, the defendants' solicitors wrote that the amount claimed by the defendants as their lien was the amount of the last instalment under the contract, viz., 1800/. They, however, proposed that the question should be disposed of under the /| l arbitration clause, which offer was declined by the plaintiffs. i The case further stated : " The total sums paid under the contract by the plaintiffs to the defendants are, 5800/., in respect of the Minia, and the two above-mentioned sums of 2000/. each in resjiect of the Scanderia. The ^ 536 ANGLO-EGYPTIAN NAVIGATION CO. V. KENNIE. [CHAP. II. defendants have received the old materials, valued at 353/., out of the Min- ia. Xo offer of any further sum has been made by the plaintiffs to the de- fendants. The defend ants, at the date when they heard of the loss of the Scanderia, had completed 71 per ccut of the whole work contracte d for in respect of the Sca nderia. At that date the price of labor and materials was higher than at the date of the coutract." A careful perusal of the specification scen isjt o us to establish that th e contract was for one en tire job, for which 5800/. was to be received on one side, and 353/. val ue in old materials on the other. The full performance of this contract having been rendered impos sible by the loss of the Scan- dena,~we think that the plaintiffs cannot maintain that any property has passed, and that therefore the claim in detinue fails^ "The second~ground upon which the plaintiffs rested was a claim to be rei)aid the two sums of 2000/. paid by them, as money had and received. "With regard to the first of these sums, it seems to us to be clear that it was paid in pursuance of the contract, and under such circumstances that the parties could not be placed m statu quo by its repayment. The boilers certified to be plated may have been either of more or less value than 2000/., or of more or less profit or loss relatively to the rest of the subject- matter of the contract. The defe ndants are guilty of no wrong in not hav - ing fitted the boilers in question to the plaintiffs' ship. It seems quite plain that, if the ship had perished during the currency of the bill at four months given for the second 1000/. payable upon the plating of these boilers, that would have been no answer, as between the parties, to an action on the bill. Wit h regard to the second 2000/., there is a still further ob j ection to its recovery i n an acti on for money h ad_and__receiYed. Before the plai ntiff s paid t hat sum t o the defendant s , the y wereawa re of the loss of the Scan- deria ; andt he defendants were not aware of it. It cannot, therefore, be maintained that it was paid by the plaintiffs upon a consideration which has since failed ; for it was paid with knowledge of the facts, which were unknown to the defendants. We are therefore of the opinion that the plaintiffs have failed to sustain either of the grounds upon which alone they contended that any right of action against the defendants could be supported, and that we are bound to give judgment for the defendants. Judgment for the defendants.^ 1 The ili.scii.s.sioii of tliis question lias bwn omitted. — Ed. 2 The phiintill's iu this brought error to tlie Court of Kxeheriuer Chamber, but on the suggestion of the court tlie matter waa submitted to arbitration, and no judgment was given. L. K. 10 C. P. 571. — Eu. SECT. II.] GEIGGS V. AUSTIN. 537 NATHANIEL GRIGGS et al. v. SAMUEL AUSTIN et al. In tde Supreme Judicial Court of Massachusetts, ALiRcn Term, 1825. [Reported in 3 Pickering, 20.] Assumpsit for money had and received and for money lent and accom- modated. The plahitiffs, to maintain their action, offered to prove, tliat in Xovem- i ; ber, 1822, they shipped on board the ship Topaz nine hundred and four || (j barrels of apples, to be carried to the port of Liverpool, and that fieij,'ht X was paid in advance to the defendants, they being owners of the .ship I p for the intended voyage ; that no deduction was made from the usual I , -^ freight on account of advance payment, and that there was no agreement -c that freight was to be allowed at all events ; that the ship was stranded at I c Crosby, about six miles below the port of Liverpool, and that the greater I ' ^ part of the apples belonging to the plaintiffs was lost. ^ The defendants objected to this evidence, contending that the freight having been paid in advance, they were not liable to repay it, the apples being lost without their fault, and there having been no agi-eement to re- fund in case of such loss. This objection the judge overruled, intending however to reserve the question. The plaintiffs accordingly proved the stranding of the vessel and the loss of the apples. In the bill of lading it was expressed, that the apples were to be de- livered " in the like good order and well-conditioned, at the aforesaid port of Liverpool, the danger of the seas only excepted, unto Mr. William Graves [one of the plaintiffs] or to his assigns, he or they paying freight for the said goods nothing, being paid here." W. Prescott and J. T. Austin for the defendants. aS^. Htibhard for the plaintiffs. Parker, C. J. This action is indehitatus assumpsit on money counts. It is brought to recover back a sum of money paid by the plaintiffs to the defendants for the freight of a number of barrels of apples taken on board their ship, the Topaz, bound from r>oston to Liverpool. It is proved by the bill of lading signed by the master, :uid an account made out by the owners, with their receipt upon it, that the \\\w\e freight agreed upon was paid before the sailing of the vessel, and tlic report finds, that before the vessel arrived at her port of delivery abroad, she was stranded or wrecked on a beach within six miles of her port, by means of which a large portion of the plaintiffs' apples were destroyed, or rendered wortliless by the salt water. This brief statement presents the principal cpicstion which has been 538 GRIGGS V. AUSTIN. [CILVr. II. argued ; there are other fticts iu the report material to some inferior questions, which will be stated iu their proper place. The plaintiff s conten d that the consideration for the payment of the money was the agreement on the part of the owners to transport the apples in their ship to Liverpool ; and tliat having foiled to do this, they are bound in conscience to return the money ; and that an action at law lies for it, upon the grniimLQ£-fi t'^"''f^ "f consideralion. The defendants insist, that the payment of the freight in advance imposes all risks upon the owner of the goods, and that the failure of transportation and delivery having happened without their foult, there is no legal nor equitable prin- ciple which will oblige them to refund. Some reliance in support of their defence is placed upon the condition expressed in the bill of lading, that the goods are to be delivered safely, " the dangers of the seas excepted ; " but as this condition has in practice been applied only to the contract in relation to the goods themselves, so as to protect the ship-owner from a demand for their value in case of loss by perils of the sea, and has never been construed to bear upon the rights of the parties in relation to the freight, we cannot see anything in that instrument which can affect the question before us. This must stand upon the principles of marine or mercantile law, so far as they may have been recognized and adopted, or may be found agreeable to the rules and maxims of the common law. It is certainly a clear principle of the common law, t h at when m oney is pai d or a p jo niise made by opp p^^ty in fontemplntion of some act to be done by the other, which is t he sole consideration of the pay ment or promise, and the thing^ stipulat ed to be done is not perf orrned, t he mo ney may be rpfovPirpH hnck, nr]The promise fi ^n'^i^^^fl "" ^nnU r-nngid a rntin n mny be. avoided bctwec nthe parties to the contract. This general principle is the foundation of perhaps the largest class of cases which have been sustained under the action for money had and received. Exceptions may be made by a stipulation of the parties, but without such exceptions the rule seems to be universal. And this bro ad pri nciple of justice has been adopted in the marine law, in relation to this subject of freight, upon the continent of Europe, as ij very fuily^roved by the resear ches made an d the cases cited by Chief Justice KENT\j n the cas e ofJVVatsmi I'^DnyMnck.i It would be but an affectation of learning to go over the ground which has been so ably preoccupied in the opinion given in that case, especially as the same ground has been traversed by Mr. Justice Story in a note in liis edition of Abbott on Merchant Ships, etc., wliich note was avowedly sup- plied from the opinion of Chief Justice Kent above cited. I wish for one, since books are so prodigioifsly multiplied, to spare the profession and the ljul)lic the expense of reiterated citations on points indubitably settle n ^ UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. 51 li ^^ 1 ■i iiiiii- §