UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY CASES ON QUASI-CONTRACTS EDITED WITH NOTES AND REFERENCES BY JAMES BROWN SCOTT A.M. (HARV.); J.U.D. (HEIDELBERG) PROFESSOR OF LAW IN COLUMBIA UNIVERSITY "Justice is the great interest of man on earth." Webster on Justice Story (1345). " Justice, moral fitness, and public convenience, when applied to a new subject, make common law without a precedent ; much more, when received and approved by tisage." Per Willes, J., in Millar v. Taylor (1769) 4 Burr. S312. NEW YORK BAKER, V00RHI8 & COMPANY 1905 copyuight, 1905 By Bakek, Vooruis & Company T \^05 ' r^ INSCRIBED TO JAMES BARR AMES an obligation implii:d in LAW G67340 PKEFACE The present collection of cases on Quasi-Contracts is prepared to meet the needs of classroom instruction of not more than three hours a week during half a year. While a case-book as such can make little or no pretence to origi- nality in any way, attention is called to the historical treatment of the subject in the first eighteen pages of the book, whereby the quasi- contract of the present day is treated as a natural, if unconscious, development of the quasi-contract of the Eoman Law. To make clear this connection, frequent reference is made in the footnotes to the Eoman and modern Civil Law of the Continent and Spanish- American States. It is hoped that the law of Quasi-Contract gains in importance and precision, as it certainly does in antiquity and dignity, by treatment as a part of a larger and well-nigh universal system of law. In the next place, the arrangement is different from that with which the public is familiar. The present collection follows, and necessarily, Mr. Ames's classification of the nature and extent of quasi-contract, as did Judge Keener, both in his Cases and Treatise; but the non-contractual aspect of the subject is accentuated from the very beginning. After the introductory matter of Book I., the obligation is considered as existing, independent of any contract, and, indeed, its existence is in itself the negation of contract. As, for example, the obligation of restitution when defendant acquired the plaintiff's property by a tort, or where the money in question was paid by the plaintiff under duress, legal or equitable, or under com- pulsion of legal process. Then recovery is considered when a con- tract exists, but the contract itself is due to mistake of law or fact. In the next place, the question of recovery in quasi-contract is considered when the contract is impossible of performance; when the contract is illegal; when the contract is unenforceable under the Statute of Frauds. The collection ends with what may be considered the cul- mination of Quasi-Contract. namely : the repudiation of the contract VI PREFACE by defendant or plaintiff, as in Britton v. Turner (page 753), and a recovery is sought on a quantum meruit notwithstanding the legal as well as practical existence of the contract. An examination of the full and detailed table of contents will render superfluous any further analysis of the arrangement and underlying theory of the collection. In the third place, it is hoped that the annotations and references in the footnotes will make it possible for the serious-minded student to carry his studies beyond the English well into the foreign law of quasi-contract. The annotations are not, except in rare instances, merely cumulative; but aim rather to call attention to various re- finements and subtleties of the doctrine which it was impossible to set forth at large in the text. The publishers placed Professor Keener's Cases at the editor's disposal, and the Treatise, as well as the Cases were constantly con- sulted in preparing the present collection, so that it is believed that no really leading case contained in either work has been overlooked. If not printed at large in the text, it will probably be found in the foot- notes by way of annotation. But unless the case seemed indispensable, the editor preferred, as a rule, shorter cases, selected with reference to the geography of the country as a whole. New England and the Atlantic seaboard have not l)een neglected; but a goodly number of cases were chosen from the Middle West, and Texas and the Pacific coast are represented. Louisiana and Scotland were drawn upon espe- cially for the civil law in an English garb. Had Judge Keener's collection been a half to a third shorter, the present editor would not have undertaken the comparatively thank- less and irksome compilation of a case-book. The editor takes this opportunity of thanking publicly the follow- ing friends, through whose kindness and courtesy the labors of selec- tion and annotation were much lightened: Professor James Barr Ames, Dean of the Harvard Law School, who placed his numerous manuscript annotations and notes at the editor's disposal, A glance at the text will show the indebtedness, and whenever a note is printed in the exact language of ]\[r. Ames, credit is duly given. Professor Wam])nugh, also of the Harvard Law School, and Professor Kirchwey, Dean of the Columbia School of Law, were equally kind in this particular, and the ])ook owes not a little to their friendly suggestions. And finally, the editor tenders his sincere thanks to Christopher B. PREFACE Vll Wyatt, Esq., of the New York Bar, for valuable assistance in the section devoted to illegal contracts, and to J. Keuben Clark, Jr., also of the New York Bar, whoso aid extended from the beginning to the end of the book, and whose devotion in the matter of annotation and verification it is a duty as well as a pleasure to acknowledge. James Brown Scott. Columbia University, September 1, 1905. CONTENTS BOOK L THE SOURCES, EXTENT AND NATURE OF QUASI-CONTRACT. CHAPTER I. Sources of the Obligation 1 CHAPTER II. Extent of the Obligation 19 Sec. I. Obligation Arises from a Record 19 Sec. II. Obligation Arises from a Duty 26 1. Customary 26 2. Official 29 3. Statutory 32 Sec. III. Obligation Arises from an Unjust Enrichment. 33 Sec. IV. Obligation Arises from a Negotiorum Gestio... 37 CHAPTER III. Nature of the Obligation 42 Sec. I. Wherein Quasi-Contract Differs from a Pure Contract 42 1. Effect of Statute of Limitations 42 2. Set-off and Counterclaim, Attachment and Arrest in Quasi-Contract 56 3. Contract versus Quasi-Contract 75 Sec. II. Wherein Quasi-Contract Differs from a Tort.. 85 X CONTENTS BOOK 11. THE OBLIGATION OF QUASI-CONTRACT. CHAPTER I. Where there is no Contract, Actually or in Contempla- tion OF the Parties 107 Sec. I. Where the Plaintiff has Suffered a Tort.... 107 1. Waiver of Tort Action 107 2. Election of Remedies 137 Sec. II. Money Paid by Plaintiff Under Compulsion . . 154 1. Under Duress, Legal or Equitable 154 2. Under Compulsion of Legal Process 189 3. In Discharge of an Obligation 227 (a) The Doctrine in General 227 (h) Specific Applications of the Doctrine. . . . 238 Sec. III. The Defendant has Received a Benefit at the Plaintiff's Hand 280 1. The Benefit was Conferred without Request. . . 280 (a) The Plaintiff Intended to Benefit De- fendant 280 (&) Plaintiff Intended to Benefit Himself, not the Defendant 307 2. The Benefit was Conferred at Request, but not in the' Creation or Performance of a Contract. 336 CHAPTER II. A Contractual Relation Exists, but One Party has Failed to Receive an Equivalent ton nis Outlay 352 Sec. I. The Failure is Due to a Mistake 352 1. The Mistake may be as to Law or Fact 352 2. Mistakes of Fact may be: (a) As to the Creation of a Contract 407 (&) As to the Subject Matter of a Contract. . 439 (1) Mistake mav be as to the Existence or Identify of the Subject Matter. . 439 (2) Mistake may be as to the Validity, the Amount of tlic Claim, or as to a Collateral Fact 483 CONTENTS XI 3. Considerations Atl'ecting the Recovery for a Mistake of Fact 541 (a) The D(^fen(lant must have Keceived Money 6t its Equivalent, which ex cequo et bono he may not Retain 541 (&) The Necessity of Demand 5G0 (c) The Effect of a Change of Position by Either Party 5G8 (d) The Effect of Plaintiff's Negligence 582 (c) The Defence of a Purchaser for Value. . 591 Sec. II. The Failure is Due to Non-peuforman'ce of the Contract or a Condition Thereof by One Party G03 1. The Default is Defended on the Ground that : — (a) Performance is Impossible G03 (1) The Defendant Pleads Impossi- bility G03 (2) The Plaintiff Pleads Impossibility. GIG (h) The Contract is Illegal GGO (1) The Facts upon which the Illegality Depends are Unknown to One Party. 660 (2) The Facts upon which the Illegality Depends are Known to Both Parties. 663 (c) The Contract is Unenforceal)le Under the Statute of Frauds 686 (1) The Defendant is in Default 686 (2) The Plaintiff is in Default TOG 2. The Default is Wilful and Inexcusable 713 (a) The Defendant is in Default 713 (h) The Plaintiff is in Default 735 TABLE OF CASES Abbott V. Allen Abbott V. Inskip Aikin v. Short Allegheny v. Giier Anonymous Appleton V. Bascom Argyle v. Ilalcraig Asher v. W'allis Astley V. Reynolds Atwell V. Zeluff Augner v. Mayor PA(JE 475 710 530 3!)3 33, 8G, 714, 740 252 568 131 170 215 81 Bachelder v. Fisk 259 Bailey v. Bussing 269 Baldwin Bros. v. Potter 682 Bank of Chillicothe v. Dodge 391 Bank of Nashua v. Van Vooris 64 Bank of Omaha v. Mastin Bank 522 Barber v. Dennis 134 Barlow v. Bell 313 Bartholomew v. Jackson 295 Batard v. Howes 264 Battersey's Case 268 Benson v. Monroe 213 Bilbie v. Lumley 355 Billings V. Inhabitants of Mon- mouth 425 Birkley v. Presgrave 239 Bishop of Winchester r. Knight 86 Bize V. Dickason 353 Blood I'. Wilson 746 Bonnel v. Fouke 352 Bosanquett v. Dashwood 156 Boston Ice Co. v. Potter 300 Bower v. Thompson 566 Braithwaite v. Akin 117 Bree r. Holbech 439 Bright V. Boyd 314 Brisbane r. Daores 358 }?ritton V. Turner 753 Brown v. Hodgson 227 Brown v. Woodbury 733 Browning v. Morris Bryant's Estate, In re Buel V. Boughton Buller V. Harrison Butterfield v. Byron PAGE 669 40 551 570 654 306 518 296 200 593 541 737 182, 204 Cahill V. Hall Calkins v. Griswold Calvert v. Aldrich Carey v. Prentice Cathcart v. Moodie Cavendish v. Middleton Champlin v. Rowley Chandler v. Sanger Chesapeake & Ohio Canal Co. v. Knapp 719 City of London v. Goree 27 Clark V. Eckroyd 578 Clark V. Manchester 726 Clark V. Pinney 197 Collier v. Coates 706 Cook V. Doggett 689 County of Allegheny v. Grier 393 Crosse v. Gardner 461 Crumlish's Adm'r v. Cent. Imp. Co. 280 Culbreath v. Culbreath 368 Curteis v. Bridges 134 Cutter r. Powell 632 Daimouth v. Bennett 166 Dale's Case 460 Dale V. Sollet 542 Dambmann v. Schultung 533 Davies r. Humphreys 262 Dawson v. Linton 228 Day r. N. Y. Cent. R.R. Co. 698 Decker v. Pope 251 Decring r. Winchelsea 255 Donahue i-. Donahue 343 Dowling V. McKonney 702 Dupleix r. Do Roven 19 XIV TABLE OF CASES Dusenbury v. Speir Dutch V. Warren 7, D'Utricht v. Melchor Duval V. Wellman Eades v. Vandeput Eicholz V. Bannister Elliott V. Swartwout Ellis & Morton v. Ohio Life Ins. Co. Erkens v. Nicolin Farmer v. Arundel Fellows V. School District Ferguson v. Carrington Ferns v. Carr Ferrill's Adm. v. Mooney's Ex. First Baptist Church v. Caughey First Nat. Bank of Nashua v. Van Vooris First Nat. Bank of Omaha v. Mastin Bank CAGE PAGE 68 Helm V. Wilson 741 713 Henderson v. Folkestone Water 441 Works 360 677 Hickam v. Hickam 344 Hicks V. Palington 239 134 Highwayman's Case, The 666 467 Hill V. Re Wee 443 221 Hindmach v. Hoffman 109 Hitchin v. Campbell 137 488 Hodgson V. Harris 46 404 Hoffman & Co. v. Bank of Mil- waukee 529 543 HoUis V. Edwards 686 217 Hosmer v. Barret 197 121 Huffman v. Hughlett & Pyatt 149 611 Hull V. Bank of South ( [IJarolina 524 106 Hurley v. Lamoreaux 98 420 64 Fleetwood v. Charnock 255 Ford V. Stobridge 250 Forsyth v. Ganson 290 Francisco Garguilo, The 32 Frank v. Lanier 452 Frost V. Raymond 477 Fuller V. Tuska 565 Galvin v. Prentice 711 Gillett V. Brewster 564 Gillie V. Grant 396 Gordon v. Bruner 62 Grant v. Easton 21 Great Northern Ry. Co. v. Swaf- field 233 Greenbaiim v. Elliott 194 (Jriswold V. Bragg 323 Grymes v. Bloficld 280 Hambly V. Trott 87 Harding v. Freeman 461 Hardy & Bros. v. Chesapeake Bank 505 Harris v. Loyd 532 Haven v. Foster 384 Haynes & Co. v. Second Baptist Church 646 Head v. Porter 99 Hlinois Trust & Savings Bank v. Felsenthal 554 hi re Bryant's Estate 40 Irving V. Wilson 174 Isle Royal Mining Co. v. Hertin 333 Jack V. Fiddes 189 Jackson v. McKnight 553 Jackson v. Rogers 28 James v. Cavit's Adm. 190 Jellison v. Jordan 691 Joannin v. Ogilvie 184 Johnston v. Commercial Bank 506 Jones V. Judd 641 Jones V. Pope 44 Jones V. Ryde 444 Kelly V. Solari 582 Kelly V. Thompson 705 Ker V. Rutherford 568 Kilgour V. Finlyson 413 King V. Brown 688 King v. Moore 31 Kirkman Ex. v. Philips's Heirs 126 Kitchen i\ Campbell 137 Knowles v. Bovill 615 Knowlman d. Bluett 693 Koch V. Williams 696 La Du-King Mfg. Co. v. La Du 694 Lamine v. Dorrell 107 Lantz V. Frey 340 TABLE OF CASES XV PAGE Layer v. Nelson 251 Leatlicr Manufacturers' Bank v. Merchants' Bank 560 Leather v. Simpson 527 Lenians v. Wiley 537 Lewis V. Canij)bell 220 Liphtlj' V. Clouston L35 Linden v. Hooper 170 Livingston v. Ackerston 337 London (city of) v. Goree 27 Luke V. Lyde GIG Mackrell v. Simond & Hankey 621 AIcMillan v. V'anderlip 749 Mansfield t'. Lynch 376 Mar V. Callander 591 Marsh v. Pier 142 Martin v. McCormick 480 Martin v. Sitwell 407 Marston v. Swett 430 Alattlage v. Lewi 558 Mayer v. Mayor of N. Y. 515 Mayor of Baltimore v. Lefferman 207 Menetone v. Athawes 643 Merchants' Ins Co. v. Abbott 594 Merryweather t;. Nixan 269 Miller i;. Miller 111 Miner v. Bradley 723 Morley v. Attenborough 462 Morris v. Tarin 544 Moses V. Macferlan 4, 100 Mowatt V. Wright 399 Mussen v. Fales 660 Newhall v. Tomlinson 575 N. Y. Life Ins. Co. v. Statham 627 Nicholson i\ Chapman 286 Norden t'. Jones 114 Gates V. Hudson 175 Osborn r. Bell 93 Osborn v. (Governors of Guy's Hospital 336 Oxendale v. Wetherell 735 / Palmer r. Wick & Pultencytown Co. ' 275 Parker r. Macomber (!36 Parsons v. Moses 321 PAGE Patterson v. Patterson 292 Pease v. Howard 49 Peerce v. Kitzmiller 22 People ex rel Dusenbury v. Speir 68 Pcrkinson v. Gilford 85 Perry v. Newcastle Mut. Fire Ins. Co. 585 Pickslay v. Starr 283 Pinches V. Swedish Evang. Luth- eran Church 747 Pirie & Co. v. Middle Dock Co. 243 Piatt V. Bromage 549 Police Jury v. Hampton 37 Porter v. Tull 557 Preston v. City of Boston 204 Price V. Neal 483 Railroad Nat. Bank v. Lowell 423 Ralli V. Troop 246 Reeder/u. Anderson's Adm'rs. 289 Reid V. Rigby 417 Reina v. Cross 007 Richards, Adm'r v. Bickley, Adm'r 51 Richardson v. Duncan 201 Richardson v. Young 623 Robinson v. Bright's Ex. 458 Robinson v. Gumming 283 Roswel V. \aughan 471 Roth V. Palmer 122 Sceva V. True 75 Scott V. Stephenson 250 Scroggs r. Taylor 314 Serjeant Maynard's Case 473 Shearer r. Fowler 433 Sherwin v. Cartwright 42 Sinionds & Loder v. White 241 Skj'ring v. Greenwood & Cox 572 Smith V. Bromley 159 Smout I'. Ilbery 434 Solinger r. Earle 162 Sollers r. Lawrence 104 Speake r. Richards 29 Stanley Rule «i Level Co. i*. Bailoy 500 Starr Ca^h Co. r. Rcinhardt 118 Stcpliens V. Board of Kducation 535 Stevenson r. Snow 410 Stokes ft III. V. Lewis ct al. 285 XVI TABLE OF CASES PAGE Stowe r. Buttrick 729 Straton i;. Rastall 546 Swires v. Parsons 339 Talory v. Jackson 43 Tappenden v. Randall 6G3 Tarling v. Baxter 447 Taylor v. Hare 428 Tenant v. Elliott 681 Thompson v. Gould 453 Tilton V. Gordon 192 Tomkins v. Bernet 154 Towers v. Barrett 715 Turner & Otis v. Webster 348 Turner v. Robinson 752 Tutt r. Ide 177 U, S. V. Pacific R.R. Co. 303 U. S. V. Reid 74 Valentini v. Canali 437 Van Deusen v. Blum 415 PAGE 603 112 6G7 220 307 Watson V. Duykinck Watson V. Stever Webb V. Fulchire Wells V. Porter & Cronkhite Welsh V. Welsh Welston Coal Co. v. Franklin Pa- per Co. 729 Western Ass. Co. v. Towle 127 White's Case 26 White V. Franklin Bank 672 Wilbur V. Gilmore 141 Williams v. Gibbes 328 Williams v. Jones 20 Wilson et ux. v. Towle 46 Winchester (Bishop of) v. Knight 86 Woods V. Ayres 56 Wormleighton v. Hunter's Case 254 Wright V. Newton 609 Young V. City of Chieopee 652 Young V. Cole 450 CASES ON QUASI-CONTRACTS BOOK I. THE SOURCES, EXTENT AND NATURE OF QUASI-CONTRACTS. CHAPTER I. Sources of the Obligations. INSTITUTES OF JUSTINIAN (533 A.D.), BOOK III., TITLE XXVII. De Ohligationihus Quasi ex Contractu. Having enumerated tlie different kinds of contracts, let us now ex- amine those obligations also which do not originate, properly speaking, in contract, but which, as they do not arise from a delict, seem to be quasi-contractual. 1. Thus, if one man has managed the business of another during the latter's absence, each can sue the other by the action on uncom- missioned agency; the direct action being available to liim whose business was managed, the contrary action to him who managed it. It is clear that these actions cannot properly be said to originate in a contract, for their peculiarity is that they lie only where one man has come forward and managed the business of another without having received any commission so to do, and that other is thereby laid under a legal obligation even though he knows nothing of what has taken place. The reason of this is the general convenience; otherwise people might be summoned away by some sudden event of pressing importance, and without commissioning any one to look after and manage their affairs, the result of which would be that during their absence those affairs would be entirely neglected: and of course no one would be likely to attend to them if he were to have no action for the recovery of any outlay he might have incurred in so doing. Conversely, as the uncommissioned agent, if his manage- ment is good, lays his principal under a legal obligation, so too he is himself answerable to the latter for an account of his manage- ment; and herein he must show that he has satisfied the highest standard of carefulness, for to have displayed such carefulness as he is wont to exercise in his own affairs is not enough, if only a more diligent person could have managed the business better. 2. Guardians again, who can be sued by the action on guardian- 2 SOURCES, EXTENT AND NATURE OF QUASI-CONTRACTS. [bOOK I. ship, cannot properly be said to be bound by contract, for there is no contract between guardian and ward: but their obligation, as it certainly does not originate in delict, may be said to be quasi-contrac- tual. In this case too each party has a remedy against the other : not only can the ward sue the guardian directly on the guardianship, but the guardian can also sue the ward by the contrary action of the same name, if he has either incurred any outlay in managing the ward's property, or bound himself on his behalf, or pledged his own property as security for the ward's creditors. 3. Again, where persons own property Jointly without being part- ners, by having, for instance, a joint bequest or gift made to them, and one of them is liable to be sued by the other in a partition suit because he alone has taken its fruits, or because the plaintiff has laid out money on it in necessary expenses : here the defendant cannot properly be said to be bound by contract, for there has been no con- tract made between the parties; but as his obligation is not based on delict, it may be said to be quasi-contractual. 4. The case is exactly the same between joint heirs, one of whom is liable to be sued by the other on one of these grounds in an action for partition of the inheritance. 5. So too the obligation of an heir to discharge legacies cannot properly be called contractual, for it cannot be said that the legatee- has contracted at all with either the heir or the testator: yet, as the heir is not bound by a delict, his obligation would seem to be quasi- contractual. 6. Again, a person to whom money not owed is paid by mistake- is thereby laid under a quasi-contractual obligation ; an obligation, indeed, which is so far from being contractual, that, logically, it may be said to arise from the extinction rather than from the forma- tion of a contract ; for when a man pays over money, intending thereby to discharge a debt, his purpose is clearly to loose a bond by^ which he is already bound, not to bind himself by a fresh one. Still. the person to whom money is thus paid is laid under an obliga- tion exactly as if he had taken a loan for consumption, and therefore he is liable to a condiction. 7. Under certain circumstances money which is not owed, and which is paid by mistake, is not recoverable; the rule of the older- lawyers on this point being tha^- wherever a defendant's denial of his obligation is punished by duplication of the damages to be recovered — as in actions under the lex .\quilia, and for the recovery of a legacy — he cannot get the money back on this plea. The older- lawyers however applied this rule only to such legacies of specific sumf^ or objects as were given by condemnation ; but by our consti- tution, by which we have assimilated legacies and trust bequests, we have made this duplication of damages on denial an incident of all actions for their recovery, provided the legatee or beneficiary is a church. CIlAl'. I.] SOURCES, EXTENT AND XATlKi: OF QUASI-CONTRACTS. 3 or other holy place honored for its devotion to religion and piety. Such legacies, although paid when not due, cannot be reclaimed.* 'J. B. Moyle: Iniperatoris lustiaiiiani Institutioncs (2 vols. 4th ed. 1!Jbiteur est tenu (tenetur) quasi ex contractu : il est oblige de la m§me facon qu'en vertu d"un contrat; mais il est tr&s faux de dire, comme Gaius fait ailleurs et comme fait Justinien aprfes lui, qvie I'obligation nait (nascitur) quasi ex contractu, de parler avec le Code civil de quasi-contrat: le caract&re du contrat est I'accord de volontes, celui du pri'tendu quasi-contrat son absence, il n'y a done rien qui se resemble moins que leurs ma nitres de naltre." For the various questions of Roman Law the student is referred to Wind- scheid's Lehrbuch des Pandektenrechls (3 vols.), as the most scientific and satisfactory German work on the subject, where the whole literature is given on the various topics. Of this work, the eighth edition (1000-1901). by Dr. Theodor Kipp, is the most valuable, ns it incorporates in the text the cor- responding sections of the German Code (Das Biirgerliehe Gesetzbuch I . wliich went into efTect in 1900. Hunter's Roman Law in the Order of a Code (3d ed., 1897) : Ledlie's trans- lation of Sohm's Institutes of Roman Law (2d ed., 1901) will answqj- the needs of the English reader. See the section on Quasi-Contracts, pp. 423-429. Robinson's Selections from the Public and Private Law of the Romans (1905) is an excellent little work and might well be used in connection with any text book on Roman Law. — Ed. 4 MOSES V. MACFERLAN. [BOOK I. HENRY OF BRACTON : LAWS AXD CUSTOMS OF ENGLAND. (Book III., Fol. 100, ^ 10.) Having spoken of obligations which arise ex contractu, it is now necessary to consider obligations which arise quasi ex contractu. And it should be noted that actions arise quasi ex contractu in cases of negotioruni gestio, wardship, the division of common property, the distribution of an inheritance, on an action on a testament, a suit to recover money paid by mistake, and the like.^ MOSES V. MACFERLAN. King's Bench, 1760. [2 Burrow, 1005. "] Moses had four Notes of one Chapman Jacoh, dated 11th July 1757, Value 30s. each. Macplierlan. 7th November 1758, prevailed upon Moses, to indorse these Notes to him, upon an express written Agrc e- ment, to i ndemnify Moses againsi: all Consequences of such Indo rse- ment, ^nd that no Suit should be brought against Moses the Indorser, but only against Jacob the Drawer. Notwithstanding which, Mac- plierlan brought four Actions in the Court of Conscience, upon these very Notes against Moses; and, upon Trial of the first, the Commis- sioners refused to go into any Evidence of this Agreement ; where- upon the Plaintiff recovered, and the Defendant paid the whole £6. And now Moses, the Defendant below, ])roucrht Inrlrbitatits assu mpsit against Macplierlan, the Plaintiff below, for ]\Ioney had and received to his Use, and obtained a Verdict for £6 subject to the Opinion of this Court. Morion (for Defendant Macplierlan) argued, that Indebitatus assumpsit would not lie upon a Judgment recovered in an inferior Court of a final Jurisdiction ; and cited Cro. Jac. 218. and 1 Bulstr. 152. The Remedy in this Case being a special Action on the Case, for Breach of the Agreement. 'For the relation of Bracton to Roman and English Law, see Gutterboek's "Bracton and his Relation to the Roman Law," as translated into English by Brinton Coxe; 2 Pollock & IMaitland's History of En<,'lish Law, 206-210; Hunter's Roman Law (.3d ed.) 100-116. See also, Howe's Studies in tlie f'ivil Law, 172-178. — Ed. ^This statement of the case, incliidinfj the arguments of counsel and of the judges, is taken from 1 \Vm. Blackstone's Reports, 219. — Ed. CHAP. I.] MOSES V. MACFERLAN. 5 Xorlon, contra, that this Action would well lie, the Remedy by Action on Assumpsit being of the most liberal and beneficial Kind. On the Argument, Mansfield Chief Justice doubted if the Action would lie, after a Judgment in the Court of Conscience; but wished to extend this remedial Action as far as might be : To which Dexison Justice agreed, and inclined strongly that the Action would lie. Foster Justice was afraid of the Consequences of overhauling the Judgment of a Court of a competent Jurisdiction, Wilmot Justice was clear that the Action would not lie; because this Action always arises from a Contract of Repayment, implied by Law; and it would be absurd, if the Law were to raise an Implication in one Court, con- trary to its own express Judgment in another Court. He compared this Action to the Title de Solutione Indehiti. Inst. 3. 28. b. and de Condictione Indehiti in Cod. and Dig. L. iv, tit. 5. pecunicB per errorem, non ex causa judicati, solutce esse repetitionem condictionis non amhigitur, in which there was always an Exception Causa; Judi- cati; and this Reason given for it, Ne Actiones resuscitentur. The court, having heard the counsel on both sides, took time to advise. Lord Mansfield now delivered their unanimous opinion, in favor of the present action. There was no doubt at the trial, but that upon the merits the plaintiff was entitled to the money; and the jury accordingly found a verdict for the £6, subject to the op-nion of the court upon this question, "Whether the money might be recovered by this form of action,"" or "must be by an action upon the special agreement only." Many other objections, besides that which arose at the trial, have since been made to the propriety of this action in the present case. The 1st objection is, "That an action of debt would not lie here ; and no assumpsit will lie where an action of debt may not be brought;" some sayings at nisi prius, reported by note-takers who did not under- stand the force of what was said, arc quoted in support of that propo- sition. But there is no foundation for it. It is much more plausible to say, "That where debt lies an action upon the case ought not to be brought." And that was the point relied upon in Slade's case (4 Co. 92) ; but the rule then settled and followed ever since is, "That an action of assumpsit will lie in many cases where d ebt lies, and in many where it does not lie." A main inducement, originally, for encouraging actions of assumpsit \.as, "to take away the wager of law ;" and that might give rise to loose expressions, as if the action was confined to cases only where that reason held. 2d Objection. "That no assumpsit lies except upon an express or implied contract ; but here it is impossible to presume any contract to refund money which the defendant recovered by an adverse suit." Answer. If the defendant be under an obligation, from the ties of 6 MOSES V. MACFERLAN. [BOOK I. natural justice, to refund, the law inr glies a de btj_a rrl givos tV|i^ nptio^, founded in the equPFy of the phiintiff's case, as it were upon a contract {"quasi ex contractu/' as the J{oinan law expresses it). This species of assumpsit ("for money had and received to the plain- tiff's use") lies in numberless instances for money the defendant has received from a third person ; which he claims title to, in opposition to the plaintiff's right ; and which he had by law authority to receive from such third person. 3d Objection. Where money has been recovered by the judgment of a court having competent jurisdiction, the matter can never be brought over again by a new action. Answer. It is most clear "that the merits of a judgment can never be over-hauled by an original suit, either at law or in equity." Till the judgment is set aside or reversed, it is conclusive, as to the subject- matter of it, to all intents and purposes. But the ground of this action is consistent with the judgment of the Court of Conscience; it admits the commissioners did right. They decreed upon the indorsement of the notes by the plaintiff, which indorsement is not now disputed. The ground upon which this action proceeds was no defence against that sentence. It is enough for us, that the commissioners adjudged "they had no cognizance of such collateral matter." We cannot correct an error in their proceedings ; and ought to suppose what is done by a final juris- diction, to be right. But we think "the commissioners did right, in refusing to go into such collateral matter." Otherwise, by way of defence against a promissory note for 30s.. they might go into agree- ments and transactions of a great value ; and if they decreed payment of the note, their judgment might indirectly conclude the balance of a large account. The ground of this actio n is not "that the judgment was_ ^iQiig," but "that (t"or a reason w hich the now plaintiff could n ot avail him self of against that judgnienF) the defendant oiight noFTiTjustice to keep the money?' And at GuiTdhall I declared very particurarTy, "that tTie m"erlts of a question determined by the commissioners, where they had jurisdiction, never could be brought over again in any shape whatso- ever." M oney may be recovered bv a right and legal judgment; an d yet the ini r|uitv of keeping that mo ney may be manifest, upon grounds which could not be used byjvay of defence a o^i nstTtlie jii dgmei^ ^ Suppose an indorsee of a promissory note, having received payment from the drawer (or maker) of it, sues and recovers the same money from the indorser, who knew nothing of such payment. Suppose a man recovers upon a policy for a ship presumed to be lost, which afterwards comes homo ; or upon the life of a man presumed to be dead, who afterwards appears ; or upon a representation of a risk deemed to be fair, which comes out afterwards to be grossly fraudulent. ■CHAP. I.] MOSES V. MACFERLAN. 7 But there is no occasion to nother_acti on upon the agreement ; though he might recover more upon fhp agr ppmenf than he can by this form of action . And therefore, if the question was open to be argued upon principles at large, there seems to be no reason or utility in confining the plaintiff to an action upon the special agreement only. But the point has been long settled, and there have been many prece- dents; I will mention to you one only, which was very solemnly con- sidered. It was the case of Dutch v. Warren, M. 7 G. 1 C. B. An action upon the case for money had and received to the plaintiff's use. The case was as follows : Fpon the 18th of August. 17'-?0. on payment of £262 10s. by the plaintiff to the defendant, the defendant agreed to transfer him five shares in the Welsh copper mines, at the oi)ening of the books ; and for security of his so doing gave him this note : "18th of August, 1720. I do hereby acknowledge to have received of Philip Dutch £262 10s. as a consideration for the purchase of five shares; which I do hereby promise to transfer to the said Philip Dutch as soon as the books are open, being five shares in the Welsh copper mines. Witness my hand. Robert Warren." The books were opened on the 22d •of the said month of August. wIumi Uutch requested Warren to transfer 8 MOSES I'. ilACFERLAN. [BOOK I. to him the said five shares; which he refused to do, and told the plain- tiff "he might take his remedy." Whereupon the plaintiff brought this action for the consideration-money paid by him. And an objection was taken at the trial, "that this action upon the case, for money had and received to the plaintiff's use, would not lie; but that the action should have been brought for the non-performance of the contract." This objection was overruled by the Chief Justice, who notwithstand- ing left it to the consideration of the jury. Whether they would not make the price of the said stock as it was upon the 22d of August, when it should have been delivered, the measure of the damages; which they f did, and gave the plaintiff but £175 damages. And a case being made for the opinion of the Court of CoiUmon Pleas, the action was resolved to be well brought ; and that the recovery was right, being not for the whole money paid, but for the damages in not transferring the stock at the time; which was a loss to the plaintiff, and an advantage to the defendant, who was a receiver of the difference-money, to the plaintiff's use. The court said that the extending those actions depends on the notion of fraud. If one man takes another's money to do a thing, and refuses to do it, it is a fraud; and it is at the election of the party injured, cither to affirm the agreement, by bringing an action for the non-performance of it, or to disaffirm the agreement ah initio, by reason of the fraud, and bring an action for money had and received to his use. T l\e d 'lnirigp" ^"^"VPrQd i n that case show the liberality with which thiskind of action is considered; for though the defendant received froni the plamtitf n()Z lUs., yet the difference-money only, of £175, was retained by him against conscience; and therefore the plaintiff, ex cequo et bono, ought to recover no more ; agreeable to the rule of the Eoman law: "Quod condictio indehiti iion datur ultra, quam locuple- tior facttis est qui accepit." If the five shares had been of much more value, yet the plaintiff could only have recovered the £262 10s. by this form of action. The notion of fraud holds much more strongly in the present case than in that, for here it is express. The indorsement which enabled the defendant to recover was got by fraud and falsehood for one pur- pose, and abused to another. This kind of equitable action to recover l)aek money which ought not in justice to bo kept, is very beneficial, and llierofore much encouraged. Tj^lies nnlv Tor mnnny wlnVh or rrqun rl hono. the defendant ought t o r efund : it does not lie for money paid bv the plaintiff, which is claim ed o f him as payable in point of honor and h o nesty, although it could no t ha ve ))oen reco vered from him by any course of law, — as in paymnnt of aTleht barred by the statute of li in rtallonsrof' contracted during his infancy, or to the extent of principal and legal interest upon a usurious contract, or for money fairly lost at play ; because in all these CHAP. I.] MOSES V. MACFERLAN. 9 cases the dofendant may retain it with a safe conscience, though by positive law he was barred from recoverinfj. But it lies for m oney paid by jjiista ke, or upon a consideration whicli happe ns \a fnil^ ()Tn^^()TW TT(Tnpy ■j ot through imposition (express or implied), or extortion, or opj jres- .-ion, or an un due advantage taken of the plaintiff's situation, contra ry to Taws made for the protection of persons under t hose circumstances. Tn onc^word, the aJai-tiL ihis kind of action is, that the deiendan t, upon the circumstances of the case, is oblige d by the ties of n atural justice and equity to refund the money. 'ineretore we are all of us of opinion. That the plaintiff might elect to waive any demand upon the foot of the indemnity, for the costs he had been put to; and bring this action to recover the £6 which the defendant got and kept from him iniquitously. Rule. That the postea he delivered to the plaintiff.^ In discussing the source of Lord Mansfield's law. Sir William D. Evans says, in the appendix to Pothier on Obligations (1806) A^ol. II. pp. 321-324: But if there is any subject to which the doctrine of an universality of principle peculiarly applies, it is that of reclaiming money unduly paid ; not only upon the ground that there is no subject in its nature, more wholly referable to the general rules of natural justice, as dis- tinct from the laws founded upon local habit or municipal institution, but also upon the more favourite ground of precedent itself. It will be generally agreed that the system of law upon this subject, as ad- ministered in England, is chiefly to be deduced from the determina- tion of Lord Mansfield, and that the few cases respecting it of an earlier date are not of sufficient importance to form any regular sys- tem. But Lord ^[axsfield's own views upon the subject are peculiarly referal)le to the principles of universal jurisprudence, as illustrated and embodied in the Roman law, and the whole series of his conduct respecting it is a continued precedent of his recurrence to those prin- ciples. In the leading case of Moses r. Macfarlane, in which he embraced the earliest opportunity that occurred to him, of giving an exposition of the grounds and nature of the action for money had and received, he enters diffusely into the general doctrine respecting '"Altliouph the case of Moses v. Macferlan is constantly spoken of to-day as if it wore overruled, the writer knows of no case in which any doctrine differing from the decision of Moses r. Macferlan has been laid down. Un- doubtedly Lord Mansfield, in that case, u«ed many expressions which would not represent the law of to-day. but they were mere obiter dicta, and should not be confused with the ground upon wliich Lord ^Lvnsfielo in fact rested the decision in favor of the plaintiff."' Keener's Treatise on Quasi- C'ontracts, 41o. 10 MOSES V. MACFERLAN. [book I. it, and states several principles which have ever since been looked up to as the standard of authority (even by those who think that in the particular application of these principles, he did not allow sufficient consequence to others by which they ought properly to have been restricted and controlled). But it will scarcely be contended that he founded the materials of his exposition in any preceding volume of Reports; whereas a very slight comparison will evince the source of it to have been tlie judicial wisdom of ancient Rome: This kind of equitable action to recover money, which ought not in justice to be kept, is very bene- ficial, and therefore much encour- aged. It is only for money which, ex agquo et bono, the defendant ouorht to refund. Hagc condictio ex bono et aequo introducta, quod alterius apud alterum sine causa deprehenditur, revocari consuevit. 1. (iG. ft'. Lib. 13 Tit. 6. de Cond. Indeb. It does not lie for money paid by the plaintiff, which is demand- ed of him as payable in point of honour and honesty, though it could not have been recovered from him by any course of law. Naturales obligationes non eo solo aestimantur, si actio aliqua earum nomine competit : verum- etiam eo si soluta pecunia repeti non possit. ff. Lib. 44. Tit. 7 de Oblig. et Actio. 1. 10. Lib. 46. Tit. 1. de fide jussoribus, 1. 16. § 3. Naturaliter etiam servus obli- gatur, et ideo si quis ejus nomine solvat, vel ipse manumissus ex peculio, repeti non poterit. 1. 13. de Condictione Indebiti. ff. 12. Tit. 6. Naturale autem debitum in hac causa pro vero debito habetur, eoque etsi exigi non potest ; solu- tum tamen non repetitur. Vin- nius. Ad. Inst. Lib. 3. Tit. 28. 4. 6. As in payment of a debt, barred ])v the statute of limitations. Julianus verum debitorem post litem contestatem, manente adhuc judicio. ncgabat solventem repe- tere posse: quia ncc absolutus nee condenmatus repetere posset, licet enim absolutus sit, natura tamen debitor perinanet. 1. GO. de Cond. Indeb. CHAP. I.J MOSKS V. MACFERLAN. 11 Or contracted during his in- fancy. Hue item pleriquc referunt e.x- ceptionem Senatus Consulti Ma- cedoniani ; nam et filius familias si mutuam pocuniam aeceperit, et pater familias peperam solverit, non repetit. Vinnius. Quonian, naturalis obligatio manet. ff. Lib. 14. Tit. G. de Set. Maced. 1. 9. 10. It lies for money paid by mis- take. Quod indebitum per errorem .soIvitur,aut ipsuin aut tantumden repetitur, 1. 7. de Cond. Indeb. Is cui quis per errorem non de- bitum, solvit, quasi ex contractu debere videtur. Inst. Lib. 3. Tit. 28. Or upon a consideration which happens to fail. Or for money got by imposi- tion, express or implied, or extor- tion, or oppression. The whole title in the digest, de Condictioni Causa data, Causa, non secuta, is an amplified view of this proposition. Si puis dolo malo aliquem in- duxerit, aut metu illato coegerit, ut promitterit non possum adduci ut credam, solutum ex his causi^ retineri posse. Vinnius. Ex ea stipulatione, quae per vim extorta esset, si exacta esset pe- cunia, repetitionem esse constat. ff. Lib. 12. Tit. 5 de Cond. ob Turp. vel Injust. Caus. 1. 7. Or an undue advantage taken of the plaintiff's situation, con- trary to laws made for the pro- tection of persons, under these circumstances. Si naturalis obligatio jure civili improbata sit, aut destituta juris civilis auxilio, qualis est mulieris intercodontis. 1. 16. § 1. ad. Set. Maced. prodigi promittentes. 1. 6. de Verb. Oblig. pupilli sine tutoris contractu, licet hjBC admittunt ac- cessiones, ea non attendotur et perinde repetitio datur, ae si qu(^d ex causa solutum est nullo jure debitum esset. Vinnius, 22. 12 ADAM SMITH. [book I. In one word the gift of this ac- tion is that the defendant, upon the circumstances of the enao, is obliged by the ties of natural justice and equity, to refund the money. The damages recovered in the case of Dutch v. Warren, show the liberality of this kind of ac- tion: for though the defendant received considerably more, yet the difference only was retained against conscience, and therefore the plaintiff ex aequo et bono could recover no more, Hoc natura nequum est neminem cum alterius detrimento, fieri lo- cupletiorem. 1. 14. de Cond. In- deb. agreeably to the rule of the Koman law : Quod condictio in- debiti non datur ultra quam lo- cupletior est factus qui accepit. ADAM smith: lectures on justice, police, revenue and arms. (1763.) (Part 1, Justice, § 10, pp. 134, 135.) Quasi-contract is founded on the duty of restitution. If you find a watch on the way, you are obliged to restore it by the right of prop- erty, because a man loses not property with possession. But if vou and I balance accounts, and you pay me a sum which both think due, but you afterwards find you did not owe that sum, how will you claim it ? You can nn[ ;i^1.- it n^' ynni- pr^^pnT-fy f^^ y^" ii1i"^"' at('d tliat sum , n or can. yon r -1niiii it by pnnlriinj-., f o r t here n p.x er_ _was one made betwe en us (nam qui solvendi anlmo pccuniam dat, in hoc dare videtor, ut dis- frahai potius nngotinm quam, contrahat. Inst. lib. Ill, tit. xxvii. ^ C), vet it is evident that I a.m a gainer by your loss, and therefo re r estitution is_d u e . In the same manner, if a man was called away by a sudden order of the state without leaving an attorney to manage a lawsuit that he had going on, and a friend undertakes this office without commission, as flu- dcfcnpp is nocoi^snrv —mid tlip undertaking i t pru dent, res^t ituti on of his expenses ar e due ^ On the same principle were founded the nctiones conlranoe of the Roman law. If you lent me a horse which had cost me extraordinary exp(^nses, by the contract commodate you (ould redemand your horse in the same [state] in which you lent him. CHAP. I.] SIR WILLIAM D. EVANS. 1.3 but I could claim my extraordinary expenses by an actio contraria. The same principle takes place in many other cases. If a person borrows money,, and gets three of his acquaintances sureties for him, jointly and severally, and if he turn l)ankrui)t, the creditor pursues the ablest surety, who has a claim by the duty of restitution on the other two for their thirds. The Scotch law carries this still farther. If a bankrupt had two estates, and two creditors, A and B : A has a security on both estates, B has security only on the best: A has a liljerty of drawing his money from either estate he pleases, and draws from that on which B has his security. As B in this case is cut out, the law obliges A to give up his security on the other estate to B. The same was the case in the Roman law with regard to tutory.^ SIR WILLIAM D. EVANS : AN ESSAY ON THE ACTION FOR MONEY HAD AND RECEIVED. — INTRODUCTION ( 1802) . If one person receives a sum of money for the purpose of paying it over to another, his obligation to make such payment is too plain to require any comment. The general o1)ligation to refund money, which h as been paid under a nnstake, or obtained by fraud or extortion , or ^iven for a purpose to which it has not been applied, is equally ev ident . According, to the Roman law, actions of different denomt- nations were adapted to the several cases, in which such payment was unduly made. T])p_JRng]ish law has adopted a gencraLaiipjJOsition, t hat the monev which o ught to be refunded was received for the use o f the party bv whom it was paid, and that the person receiving it made a jjromise to pay it on request. And the action used for this purpose is called an action for money had and received. This action has also an extensive latitude as a mode of trying adverse rights; for if a person sells my property under a claim of title or otherwise, I may in point of form consider him as my agent and charge him with having received the money for my use and made a promise to pay. I have no intention at present of examining the different cases in which this is 'Tile lectures from which the above excerpt is printed, were delivered by Adam Smitli to his classes in the University of Glasjjow and reported by a student in 17G3. (See the valuable introduction of the editor, Jlr. Edwin Cannan, in which he recounts the discovery in 1895 of these interesting and exceedingly valuable lectures.) It may be of interest to note that. ;,t the very time Adam Smith was discoursing theoretically on Quasi-Contract to his classes in Glasgow, hia fellow Scot — the great I.,ord Mansfield — like him deeply read and learned in the Roman Law, was making the law of (>uasi-Contract from the bench. See Moses V. Macferlan (17liO) 1 Wm. Blackstone, 219 and 2 Burrow, 1005 ante. — Ed. ]4 SIi; WILLI A.M I). EVANS. [BOOK I. the proper form of action, where it is agreed that a right of action in some shape certainly exists. 1 shall only observe, that the extension of it has of late years been considerably favoured, and a party may now obtain redress upon this general allegation, in many cases where it was formerly deemed necessary to make a particular and circum- stantial statement of his demand, whereby the danger of failing from an error in the statement was considerably increased : and in the cases w here a person has his election to bring his action, as for a wrong , or^ ^^aiving the injury, to consider the conversion of his propc rty_as ail agency, and an oblig at_ion_to_ account, he must act consiste ntly t Hroughout, an d not treat the same act as licit for one purpose, an3~ tortious for another. If I charge a man with converting my corn or timber to his own use, and sue him for damages, it will be no justifica- tion that I owe him a sum of money; but if I proceed against him in an action for money had and received, in order to recover the produce, he may set off his debt, and I cannot oppose the argument that his being my creditor does not warrant his taking and disposing of my property. Where death or bankruptcy has taken place, the choice between these two remedies is often very important. The present essay will be chiefly confined to the action for money had and received, as enforcing an obligation to refund money which ought not to be retained. The Roman system of jurisprudence ranked this as a Quasi contract, being an intermediate order between contracts properly so called, which were founded upon actual consent, and wilful wrongs. And without particularising their technical distinctions, I shall, in referring to that law, in general consider the term Solutio indebili, as comprising the general distinctions arising from a liability to refund. This obligation was enforced according to the general principles of natural equity, the foundation of it being a retention by one man of the property which he had unduly received from another, or received for a purpose, the failure of which rendered it improper that he should retain it. The mere legal liability to the original payment was not the question in consideration, but the injustice of permitting the money or other property, under all the circumstances, to be retained. The introfluction of the action for money had and received into the English courts, is not novel, and several cases had occurred previous to the appointment of Lord Mansfield, in which it had been properly af)pli(Hl, so that it was familiar in point of practice. But it was reserved to that eminent judge to trace the nature and principles of the action, with a most instructive perspicuity, and to direct the general application of it in its proper channel. In some instances the particular decisions may be reasonably ques- tioned, but the utility resulting from his general discussions must be universally allowed. In the case of Moses v. Macferlan, 2 Burr. 1005, which gave him the first opportunity of expressing his opinion, upon CHAP. 1.] SIR WILLIAM D. EVANS. 15 this ground of action, he very compendiously stated the nature and principles of it, coinciding in effect with tlie institutes of the civil law. The following extract from his opinion, will furnish a proper introduction to a more minute examination of the subject: "This kind of equitable action to recover money, which ought not in Justice to be kept, is very beneficial, and therefore much encouraged. It lies only for money, which ex cequo et bono, the defendant ought to refund, it does not lie for money paid by the plaintiff, which is claimed of him as payable in point of honour and honesty, although it could not have been recovered from him by any course of law; as in payment of a debt barred by the statute of limitations, or contracted during his infancy, or to the extent of principal and legal interest upon an usurious contract, or for money fairly lost at play : because in all these cases the defendant may retain it with a safe conscience, though by positive law he was barred from recovering. But it lies for money paid by mistake ; or upon a consideration which happens to fail ; or for money got by imposition (express or implied), or extortion or oppres- sion ; or an undue advantage taken of the plaintiff's situation, con- trary to laws made for the protection of persons under these circum- stances. In one word, the gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity, to refund the money." The maxim of the civil law, that it is naturally just that one man shall not be enriched to the detriment of another, floe natura csquiim est, neminem cum alterius detrimento fieri lociipletiorem, is particu- larly applied to the claim which we are at present examining. The Commentary of Vinnius upon the title in the institutes, De sohitioiie indehiti. contains a very instructive view of the subject. His general exposition of it, which agrees in substance with the preceding observations of Lord Mansfield, is as follows: "In order to induce an obligation in favour of the person paying, and a right to reclaim what has been paid, two things are required. That what is paid should not be due; that it should be paid through error. In respect of the first; there is no repetition of what is really due: and nobody can suppose that there is a right of repetition if what was paid was due both in point of law and of natural justice. But supposing it only due according to one of these: if it is only by strictness of law, without any obligation in point of equity, and could be repelled by a perpetual exception, the right of repetition is allowed : as such a sum cannot be said to be due except in name. But what is due according to natural justice is considered as being r(>allv due; and although the pavment of it could not be enforced, yet if it is aotuallv paid, tboiigli by a person who supposes himself to l>e liable in point of Inw. it cannot be reclaimed. If a debtor has a perpetual excejition, but wliich is foimdeil upon some reason that does not remove his natural oblisjation. and not l)eing apprized of it, pays the debt, he has no claim to repetition. IG JOHN AUSTIN. [book I. Such is the exception of a judgment in his favour, as the sentence of the judge cannot destroy the obligation founded on the consent of the party, and therefore it was decided, tliat a person really indebted, but liberated by a judgment in his favour, could not insist upon a rei)etition. Also, if a person under the power of his father, borrowed money, from the payment of which he was protected by the Senatus consultum Macedonianum, and after he became his own master {pater familias) paid the money, he was bound, as there was a natural obligation subsisting.^ JOHN AUSTIN: LECTURES ON JURISPRUDENCE (1833), (3d ed., p. 944.) 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, without any promise on the part of the other to indemnify him or reward him for his trouble. Instances : Negotiorum gestio, in the Eoman 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 conse- quence 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 'Inasmuch as this Essay is an early, if not the first, conscious and systematic treatment in English of the Law of Quasi-Contract, Evans' classification may be of interest. Contents. — Introduction — Chap. I. Of Money paid by Mistake: Sec. I. Mis- takes of Law; Sec. II. Mistakes of Fact — Chap. II. Money paid on a consider- ation which has failed: Sec. I. Failure by Misconduct of the Defendant; Sec. II. Failure by change of Intention in the Plaintiff; Sec. III. A Failure from Accidental Circumstances — Chap. III. Money paid through imposition or ex- tortion — Chap. IV. Money paid on Illegal Contracts : Sec. I. Contracts attended with Criminality, Turpitude, or Oppression; Sec. II. Contracts which are Void, but not Criminal (Part I. Void Insurances, Part II. Wagers, Part III. Annu- ities) — Chap. V. Cases in which the Action is not maintainable: Sec. I. Mis- cellaneous Cases; Sec. II. Compromise — Chap. VI. The Effects of Judicial Pro- ceedings — Chap. VII. By what Persons the Action may be maintained — Chap. VIII. Against what Persons the Action may be maintained — Chap. IX. The Damages. — Ed. CHAP. I.] SIR IIEXUY SUMNER MAINE. 17 act — i.e., its general nature; since, without a general rule, the induce- ment 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 which 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 prominent idea in (juasi-contract seems to be an undue advantage which would ])e ac(juired by the obligor, if he were not compelled to relinquish it or to indemnify. SIR HENRY SUMNER MAINE: ANCIENT LAW (18G1). (4th ed., pp. 343-344.) The part of Eoman law which has had most extensive influence on foreign subjects of inquiry has been the law of Obligation, or, what comes nearly to the same thing, of Contract and Delict. The Romans themselves were not unaware of the offices wliich the copious and malleable terminology belonging to this part of their system might be made to discharge, and this is proved by their employment of the peculiar adjunct quasi in such expressions as Quasi-Contract and (^uasi-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 circumstances are the symbols of the same ingredients which are symbolized, in express contracts, by words; and whether a man employs one set of symbols or the other must be a matter of indiffer- ence so far as concerns the theory of agreement. But a quasi-contract is not 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, consulting 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, inas- much as the Convention, the most essential ingredient of Contract, is wanting. This word "quasi," prefixed to a term of Eonian 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 gonus. 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 ]8 JAMES BAKR AMES. [BOOK I. department of law may be transferred to the other, and employed without violent straining, in the statement of rules which would other- wise be imperfectly expressed. JAMES BARR AMES: THE HISTORY OF ASSUMPSIT (1888). (3 Harvard Law Eeview, pp. 63-64.) 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 we have seen, is a true contract. But the obligation created by law is no contract at all. Xeither mutual assent nor consideration is essential to its validity. It is enforced regardless of the intention of the obligor. 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 con- tractu 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 Roman law as obligations quasi ex contractu than by our ambiguous "iuii)lie(l 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. [(4) In Roman law, there were certain cases of ncgotiorum f/Cillo where defendant w^as liable, althoiigh there was no enrichment. There is nothing corre- sponding in English law, or, rather, there are only a few cases.^] 'From a manii-^cript note by Mr. Ames. The above statement of the origin and sources of Quasi- Contracts (adopted by Judge Keener in his Treatise on Quasi-Contracts) was judicially con- sidered, approved and adopted in Ingram v. U. S. (1S97) 32 Court of Claiin.s, 147, 107-108, per Xott, C. J. And see an article on the Law of Quasi-Contracts by the late Professor Wald in 14 Law Quarterly Review, 2r).'J-2.)0. The provisions < parties come within the cognizance of the laws of Eiujhtul: but that must be left to the 20 WILLIAMS V. JONES. [BOOK I. legislature. The plea allowed, and again on a rehearing, Reg. Lib. 1705, A. fol. 232). 1 WILLIAMS V. JONES. Court of Exchequer, 1845. [13 Meeson and Welshij, 638.] Debt on adjudgment of the county court of Carnarvonshire. To the declaration there was interposed a special demurr er, assigning for causes (inter alia) thjrHri law no aptimi 1ie&jiponjthe4udg ment of ji n inferior court not of re cord ; and that it is not stated in the declara- tion that tlie defendant was a resident within the said county of Carnar- von, or within the jurisdiction of the said court, or that he had been duly summoned to the said court. Joinder in demurrer.^ Parke, B. — The principle on which this action is founded is, that, where a court of competent jurisdiction has ad judicated a certain sum to be due frbnToiie person to another, alegal obligation arises to p ay th at sum, on _ which an action of debt to enforce the judgment may be m aintained . It is in this way that jh e judgments qfforeign and c olonial co]jLrtsjare~su pporfed a _nd^ejiforced, and the same rulc~ap p!res t o inf erior j;ourt s in this country, and applies equally whether they b e courts of record or not. That the present objection has not been taken in similar cases heretofore may not be a very strong argument, and yet is entitled to considerable weight, when it is considered how obvious the objection is. These observations apply to the nature of the remedy generally, and not to the mode of enforcing it. Alderson, B. — I am of the same opinion. The principle, that an 'Xotwithstandinp Chief Justice Holt's protest, in York v. Toun, 5 Mod. 444, aj^ainst the extension of indebitatus assiimpsit, "The new action," says Mr. Ames, "continued to be encourajired. Assumpsit was allowed upon a for- eign judgment in 1705, Dupleix v. De Roven, 2 Vern. 540, and the 'meta- physical notion' of a promise (Starke v. Cheeseman, 1 Ld. Eay, 5.38) implied in law become fixed in our law." The History of Assumpsit, 2 Harv. Law Rev. GO. "A judgment of a court of a sister state is e ntitled under the Constitu- t ion and Laws of the United States to all the dignity of a record in res pect to matters of pleading and evidence. Consequently an action of assumpsit wjll_jiofjieiipoirsifcT7 a judg ment. The declaration must be in debt, count ing upo n the judgm ents as a record. A certain early case advanced the opinion that the action Irnight be either debt or assumpsit, but could not be case. But it must be perfectly apparent that the only proper form is debt." Black on Judgments, § 873, and cases cited. — Ed. "The statement of the ease is shortened. Lord Chief Baron Pollock's opinion is omitted, and only that part of the opinions of Barons Parke and Alderson is given which relates to the nature of the obligation. — Ed. ClIAl'. II.] GRANT V. EASTOX. 21 action of debt may be brought upon a judgment of an inferior court, applies equally to courts of record and not of record, and cannot be limited by the consideration, that, in the case of a judgment of a court not of record, you are thereby giving a more extensive remedy against the defendant, because that would apply to both descriptions of judg- ments. There is no foundation for a distinction between the cases, '['he true principle is, that where a court of c(>iii])etent jurisdictio n adjudges a sum of money to be paid, an obliga tion to pay it is created thereby, and an action of debt may therefore be brought upon such judgment^ This is the principle on which actions on foreign judg- ments are supported. GRANT V. EASTON. Court of Appeal, 1883. [Law Reports, 13 Queen's Bench Division, 302.] The plaintiff, who resided in Egypt, had obtained against the defendant a judgment dated the 2nd of July, 1883, in Her Britannic Majesty's Vice-Consular Court at Cairo. The defendant resided in England. The plaintiff then commenced in the High Court of Justice an action founded upon the judgment obtained in the Vice-Consular Court at Cairo, and an order was made at chambers by a master, em- powering the plaintiff to enter judgment summarily. This order was affirmed on appeal by the judge sitting at chambers, and afterwards by the Queen's Bench Division. The defendant then appealed to this Court. Brett, M.R. [After citing Hodsoll v. Baxter, E. B. & E. 884.]— But if no authority had existed, I should have come to the same con- clusion. An action on a judgment has been treated as an action of debt. It has been suggested, however, that a difference exists between English and foreign judgments, but in the present case the question is, whether the defendant can shew any defence to the claim made against him. Upon principle what difference can there be between an English and a foreign judgment in this respect? A r; notion iipon a f oreign judgment may be treated as an action in either debt or as suinp - s it : th e liability of the defenTIant arises upon_ the_iinplied contract-to- pay the~aniounf of the foreign judgment.^ ^AGGALLAY and BoWENTTTJXTconcurred. .1 ppeal dism issed. Terliaps the clearest statement of the nature of a jiuljnnent to be found in the English reports is in the case of Ridleson v. Whytel (1764) 3 Burr. 1545, 1548 (apparently overruling T?id(lolph r. Semple (1009) 1 Lev. 260), in which Lord M.xxsfield, speaking for all the judges, said "that a judg- 22 PEERCE V. KITZMILLER. [boOK I. PEERCE V. KITZMILLER. Supreme Court of Appeals of West Virginia, 1882. [19 West Virginin Reports, oGl.] One Kitzmiller brought an action of trespass against one Peerce for damages sustained by the fact tliat Peerce had, during the civil war, taken and carried away certain cattle belonging to Kitzmiller, and in an action Kitzmiller recovered judgment in 1809 for $410. In 1873, Peerce presented a petition to the court, in which judg- ment was had, setting forth that petitioner is a citizen of the state of West Virginia ; that he aided and participated in the late war between the Government of the United States and a part of the people thereof, and that the said judgment was recovered against the petitioner for an act done by him according to the usages of civilized warfare in the prosecution of the said war. The prayer of the petition was that the judgment rendered might be set aside and a new trial awarded. The ])rayer was 'based upon section 35, article VIII of the Constitution of West Virginia, adopted Aug. 22, 1872, which reads as follows: "No citizen of this state who aided or participated in the late war between the Government of the United States and a part of the people thereof on either side, shall be liable in any proceeding, civil or criminal; nor shall his property be seized or sold under final process issued upon judgments or decrees heretofore rendered or otherwise because of any act done according to the usages of civilized warfare in the prosecution of said war by either of the parties thereto." The court found that the cause of action was based upon a tort committed according to the usages of civiMzed warfare during the civil Avar; set aside the judgment and awarded a new trial. To this order of the court Kitzmiller duly excepted, and a writ of error was allowed.^ mont is no contract, nor can be considered in the lipht of a contract: for jinliciiim redditvr in invitum." And see the admirable case of Jordan v. Robinson (18.38) 15 Me. 167. "According to the rule now prevailing in England and the United States, an action upon a foreign judgment may be brought either in debt or assumpsit, the liability of the defendant arising upon the implied contract to pay the amount of the foreign judgment. In Canada, however, the courts hold that assumpsit only, and not debt, is the proper form for an action on a judgment recovered abroad." Black on Judgments, § 848, and cases cited. As to the nature of jndgnipnts, domestic as well as foreign, and the re- sper-tive means of enforcing them, see the elaborate opinion of Mr. Justice Orav in TTilton v. Ouyot (1804) 1.59 U. S. 113.— En. '.\ short stntement of facts of the case is substituted and only a part of the opinion of the learned judge is printed. — Ed. ClIAl'. II.] PEEUCE V. KITZMILLER. 23 JojiNsoN, President, announced the opinion of the Court: So tlie only enquiry we have to make as to the validity of the consti- tutional provision we are considering is: Does it violate the obligation of a contract, and if not, does it deprive anij person of property witJiout due process of law? Is a judj^nient founded upon a tort a contract? In Fletcher v. Peck, 6 Cranch, 137 supra, Marshall, Chief Justice, defines a contract to be a "compact between two or more parties." In Charles River Brid^a' v. Warren Bridge, 11 Pet. 420, Mr. Justice Mi'Lka.n in his opinion, 572, said: "What was the evil against which the Constitution intended to provide by declaring that no State shall j)ass any law impairing the obligation of contracts ? What is a contract and what is the obligation of a contract? A contract is defined to be an agreement between two or more persons to do or not to do a particular thing. The obligation of a contract is found in the terms of the agreement sanctioned by moral and legal principles. The evil, which the inhibition on the States was intended to prevent, is found in the history of our revolution. By repeated acts of legislation in differ- ent States during that eventful period the obligation of contracts was impaired. The time and mode of payment were altered by law ; and so far was this interference of legislation carried, that confidence between man and man was well nigh destroyed." In Baltimore & Susquehanna R. R. Co. v. Xesbitt et al., 10 How. at page 398, Mr. Justice Daxiel, in delivering the opinion of the Court, said : "It must be certainly shown, that there was a perfect investment of property in the plaintiff in error by contract with the legislature and a subsequent arbitrary devestiture of that property by the latter body, in order to constitute their proceeding an act impairing the obligation of a contract." In Sturges v. Crowningshield, 4 Wheat. Chief Justice Makshall, at page 197, in speaking of the meaning of the Constitution of the I'nited States,said: "It would seem ditticult to suhstitutewonls.whichare more intelligible or less liable to misconstruction than those, which are to be explained. A contract is an agreement, in which a party undertakes to do or not to do a particular thing. The law binds him to perform his undertaking; and this is of course the obligation of his contract." In Todd V. Crumb, 5 McLean, 172, it was held, that a judgment is not an agreement, contract or promise in writing, nor is it in a legal sense a specialty. In Garrison v. Citv of Xew York, 21 Wall, at page 203. "Mr. Justice Field, in delivering the opinion of the Court, said : "It mav be doubted, whether a judgment not founded upon an agreement express or implied is a contract within the moaning of the constitutional pro- hibition. It is sometimes called by text-writers a contract of record, because it establishes a legal obligation to pav the amount recovered, and by fiction of law where there is a leeal obligation to pay. a promise to pay is implied. It is upon this iirinci]ile. savs Chittv, that an action in form ex contractu will lie on a judgment of a court of record. But 24 PEERCE V. KITZMILLER. [BOOK I. it is not perceived, how this fiction can convert the result of a proceed- ing not founded upon an agreement express or implied but upon a transaction wanting the assent of the parties into a contract within the meaning of the clause of the Federal Constitution, which forbids any legislation impairing its obligation. The purpose of the constitutional prohibition was the maintenance of good faith in the stipulations of parties against any State interference. If no assent be given to a trans- action, no faith is pledged in respect to it ; and there would seem in such case to be no room for the operation of the prohibition. In the proceeding to condemn the property of the plaintiif for a public street there was nothing in the nature of a contract between him and the city. The State in virtue of her right of eminent domain had authorized the city to take his property for a public purpose upon making to him a just compensation. All that the Constitution or justice required, was, that a just compensation should be made lo him, and his property would then be taken, whether or not he assented to the measure." In delivering the opinion of the court in Blount v. Windley, 5 Otto, at page 176, Mr. Justice Miller said: "The proposition of plaintiff in error is, that when he recovered the judgment against the defendant, he had a right to exact and receive in payment of that judgment gold or silver coin or the legal-tender treasury-notes of the United States, and that defendant had no right to pay him anything else; that the judgment was a contract, and the obligation of it is impaired by the statute, which authorizes payment in something else. It is undoubt- edly true in some sense and for some purposes, that a judgment has been treated and considered as a contract; and we are not disposed to deny, that the judgment in this case is evidence of a contract, but the judgment is only a contract, because it is evidence of a debt or obligation on the part of defendant due to plaintiff. The judgment itself presupposes and is founded on some antecedent o])ligation or contract and is only a higher evidence of that contract, because it now has the sanction of the judicial determination of its validity and amount by a court of law. The essential nature and character of the contract remains unchanged; and in deciding how far it may be affected by legislation we must look mainly to the original contract." Mr. Justice Swayne, in delivering the opinion of the court in Edwards v. Kearzey, 6 Otto. 590, said : "A contract is the agreement of minds upon a sufficient consideration that something shall l)e done, or shall not be done." It is clear, tliat a judgment founded upon a tort ca n in no case b e r egarde d as a contract 'there is no agreement of the parties; and there isno con«ifleration. It is founded upon no agreement of the parties, and there could have been no consideration moving the parties in such a case. Instead of harmony there was discord ; instead of agreement there was disagreement; and it would be absurd to say, that under such circumstances there could be a contract between CHAP. II.] PEEKCE V. KITZMILLER. 25. the parties. But it is insi.sted by counsel for plaintiff in error that "in Gunn v. Barry, 15 Wall. (JIO, the Supreme Court of the United States expressly affirmed, tluit a convention of the citizens of a State could no more set aside a judgment or destroy a vested right than a legislature." It was taken for granted in that case, and not controverted by any one, that the judgment was founded upon a contract, the obligation of which had been impaired. Mr. Jusi'ce Swayxe. at page 623, says : ''T he legal remedies for the enforcement of a contract, which belong : t0 4t_at the time and place, where it is made, are a part of its obliga- tion." This case decides, what has been conceded; tnlhis^pTnion, tHat the people of a State in adopting their Constitution cannot impair the obligation of a contract any more than a legislature can. If the judg- ment had been founded upon a tort, it would have been shown in the case; but it seems to have been conceded, tluit it was founded on con- tract. It was not intended by the Court to give any different definition to "contract," than had been so often by the same Court applied to the term. That case was not intended to and does not decide, that a judgment founded on tort is in any sense whatever a contract. We conclude, that the constitutional provision, which we are considering, does not impair the obligation of a contract. Judges Haymoxd and Green concurred. Judgment reversed. Petition dismissed.^ 'In accordance with tlie opinion of the court in tliis and many other cases, it would seem that the^[ udgment merel}- ascertains and esta klishps in a j udici a l prnfionHinfir ihn PvicitpnfP nf tin nhligntinn -ilrpifly oxi^^ in or ; that while tlie right is merge d in the ju dg ment the cause of action is not and renui i nsTInaTrected. As Chief Justice Shaw well said: "Although a judg- ment, to some purposes, is considered as a merger of the former, and as consti- tuting a new cause of action, yet when the essential rights of parties are influenced by the nature of the original contract, the court will look into the judgment for the purpose of ascertaining what the nature of such original cause of action was. Wyman v. Mitchell, 1 Cowen, 316. Any other decision would carry the technical doctrine of merger to an inconvenient extent and cause it to work injustice." Betts v. Bagley (1832) 12 Pick. 572, 580. If, therefore, the causejjf ^ action d o not arise upon a contrac t, or if it a'-''=o upon a statute imposing a mere dut y or obligation, then the judgment ren dere d i s not a contra ct within t he clause i mpairing 1 ho Qbligation o f contract (Const, of U. S., Art. 1. § 10). In accordance with this view are the following cases: Louisiana r. Aiayor (1883) 109 U. S. 285; Nelson r. St. Martin's Parish (1883) 111 U. S. 716, 720; Chase v. Curtis (1884) 113 U. S. 452. 464; Wisconsin v. Pelican Ins. Co. (1887) 127 U. S. 265. 2!)3 ; Freoland r. Williams (1888) 131 U. S. 405, 413; Morley r. Lake Shore Ry. Co. (1802) 146 U. S. 162, 168-170; Smith i\ Broderick (18!)5) 107 Cal. 644. 651: Wells r. Edmison (1885) 4 Dak. 46. 50. ("A judgment is essentially dilTorent from a contract in its nature and clement and is doomed in law an 'obligation of record.'") O'Brien r. Young (1884) 05 N. Y. 428; Remington Paper Co. r. O'Dougherty (18S4) 06 X. Y. 666 (affirming 32 Hun, 255; but see The Gutta-Percha Shoe 26 white's case, [book i. SECTION 11. Obligation Arises from a Duty. 1, customary. WHITES CASE. Hilary. Common Pleas, 1158. [Dyer, 158 h. p. 32.] One White brought trespa^s_onjthe case against an jnnkeeger of Uxbridge alleging the custom of the realm to keep safely the goods of his guests, &c. and that his goods were in the inn, and taken away, &c. And the defendant pleaded that they were not taken away by his default, or the default of his servants. And upon evidence Co.. V. Mayor (1888) 108 N. Y. 270) ; Sherman v. Langham (1897) 92 Tex. 13, 19. See, however, Bettman r. Cowley (1898) 19 Wash. 207, to the eflfect that a law limiting the duration of the liens of existing judgments is an impairment of contract. If the iudg mp"f ig hnsprl upon a c_n?traot^t.lieTT^the^iidgnient is a con - trac t, at least within the federal inhibition (Nelson v. St. Martin's Parish, supra), and althouglftlurjiiagment itself is conclusive as to the rights of the parties to it, yet the court may inquire whether the judgment is founded on a contract or not. Stewart o. Jefferson Police Jury (1885) 116 U. S. 135; State V. New Orleans (1885) 37 La. Ann. 13; Wisconsin v. Pelican Ins. Co. (1887) 127 U. S. 265, 292-293; Huntington v. Attrill (1892) 146 U. S. 657. From the above authorities it would seem that the Common is in accord with the Civil Law as to the effect or influence of a judgment upon a cause of action. "The doctrine laid down by the Supreme Court of Louisiana, in Gustine v. The Union Bank [12 Rob. La. 412, 418] in 1845, may be taken to represent the civil-law conception of a judgment. The court then said that a judgment does not create, add to, nor detract from, the indebtedness of a party; it only dechires it to exist, fixes its amount, and secures to th e sui tor the moans of enfoixTng payment. We recur then to tlie obligation on which the judgment is basVd. Thafobligation may have arisen from a contract, or from a quasi-contract, or from an offence, or from a quasi- offence, or, finally, from the mere operation of law; and such obligation is not added to, nor detracted from, by the decree of the court. It is declared to exist; it is interpreted; it is applied: it is put in the way of enforcement by the judicial power of the state." William Wirt Howe, Studies in the Civil Law, 189-190. For instances of recovery upon a recognizance, see State v. McGuire (1889) 42 Minn. 27, 28; Bodine v. Commonwealth (1854) 24 Pa. St. 09, 71. For the history, nature and effect of a recognizance, see People v. Kane (1847) 4 Den. 530.— Ed. CHAP. II. J CITY OF LONDON V. GOUEE. 27 it was agreed, per Curiam, that if a guest come to an innkeeper to harbour there, and he say that his house is full of guests, and do not admit him, &c. and the party say he will make .shift among the other guests, and bv there robbed of liis goods, the innkeeper shall not be charged, because he refused the guest. And if the cause of the refusal be false, the guest may have his action on the case for his refusal. And the evidence above well stands with the issue before joined. Quod nota} CITY OF LONDON v. GOREE. Trinity. King's Bench, 1677. [3 Kehle, 677.^] Special Verdict on non Assumpsit find there was no actual promise, but find prescription for the duty on Waiage. Symsoti for the Plaintiff, tliat in Carpenters Case here, and for the duty of Walter-Bailage In- debitatus lieth : And by Rainsford Chief Justice in the Exchequer on argument it was adjudged that Indebitatus lay upon acceptance of a Bill of Exchange, and on a Policy of assurance In- debitatus lieth, and Hob. on Sheriffs Receipt of ^loney, and against the E.xecutor on Devastavit, and all the actions for Wharfage, Cranage, and duties of the City are thus; and in Bradshair and Proctors Case 'A3 to the liability of an innkeeper see Cayle's case (1584) 8 Co. 32a, in which early authorities are collected; Morgan v. Ravey (1861) 6 H. & N. 265, 275 (Wharton's edition) and the elaborate note at end of tlie case in which the more modern cases are collated. In Morgan v. Ravey, supra, the action was by a guest against the executors of an innkeeper, whose property had been stolen during the night, and it was held that the action lay against the executors: "We think the eases have es- tablislied that where a relation exists between two parties, which involves the performance of certain duties by one of them and the payment of reward to liim by the otlier, the law will imply, or the jury may infer, a promise by each party to do what is to be done by him. We cannot distinguish tliis case from the case of a carrier. If so, the objection that such an action would not lie against executors because it is for a tort does not arise." (per Pollock, C. B.) For a ca.se of negligence resulting in an injury to the person, see Stanley r. Bircher's executor (188.3) 78 Mo. 245, holding that action does not survive against the executors. — Ed. -See also same case 1 Ventris. 2!)8. The case is reported in Levinz, 174, as follows: ".Assumpsit for money due by custom for scavage. L'pon non Afisumpait tlie jury found the duty to be due, but that no promise was expressly made. .\nd whetlier Assumpsit lies for this money thus due by custom without e.xpress promise, was the question. Resolved it does." — Ed. 28 JACXSOX v. KOGERS. [BOOK I. Indebitatus for Fees, as Judge of the Sheriffs Court, and this Term in Woodward and Ashtons Case, Indebitatus by one Clerk against the other for Fees; and the reason of Slades Case^ was not on the Wager of the Law, but because he was not indebted ; and by the Act of Parlia- ment confirming the custom, this is a duty that ariseth ex quasi Con- tractu, and not ex delicto, though it were originally but a charge upon the Subject, for it being agreed that debt lieth, a Fortiori an Indebita- tus. Judgment for the Plaintiff.- JACKSOX V. EOGERS. Michaelmas. King's Bench, 1683. [2 Shower, 327.] Action s ur le Case, for that whereas the Defendant is a Comm on Ca rrier i rom Lon don to Lymington & abindc retorsnm, and setting it forth as the Custom of England, that he is bound to carry Goods, and that the Plaintiff brought him such a Pack, he refused to carry them, though offered his Hire ; and held by the Lord Jefferyes, that the Acti on is ma hi tainable ^^as well as^itj^agaiiist^an^jmi^keepe^^ for refusing GfuestTor a Smith on the Eoad who refuses to shoe my Horse, being tendred Satisfaction for the same. Note, That it was alledged and proved that he had Convenience to carry the same; and the Plaintiff had a Verdict.^ 'For Slades' case and its importance in the history of assumpsit, see Mr. Ames' History of Assumpsit, 2 Harv. Law Rev. 55, 56. — Ed. -"The earliest reported case of Indebitatus Assujnpsit upon a customary duty seems to be the city of London v. Goree, decided seventy years later than Slades' case." lb. 65.— En. •■•Anonymous (Mich. Term. 2 Will. & Mary) 12 Mod. 3; "An action lies against a common carrier for refusing to carry money, if he do not assign a particular reason for it." "if a man takes upon himself a publick employment, he is bound to serve the publick as far as his employment extends; and for refusal an action lies, as against a farrier refusing to shoe a horse. Keilw. 50. against an inn- keeper refusing a guest, when he has room. Dier, L58, pi. 32, against a carrier refusing to carry goods when he has convenience, his waggon not being full. He had known such action brought, and a recovery upon it, and never dis- puted. So an action will lie against a sherifT, for refusing to execute process. The same reason will hold, that an action should lie against the post-master, for refusing to receive a letter, etc." Lane v. Cotton (1701) 1 Ld. Ray, 646, 654. See also the early cases of Upshare v. Aidee (1697) 1 Comyns, 25; Middleton v. Fowler (1698) 1 Salk. 282. In the case of a common carrier assumpsit lies, Orange Bank v. Brown (1829) 3 Wend. 158, 161; Patten v. Magrath (1839) 1 Rice 162; McCall v. Forsyth (1842) 4 W. & S. 179, although case is the most usual form of CHAP, II,] SrEAKli V. UICIIAUDS. ' 2(9 2. OFFICIAL. SPEAKE V. RICHARDS, Trinity. Common Pleas, 1618, [Hohart, 20G.] Hugh Speake brought an ajitmn ^ debt , of five hundred and twenty- three pounds and seventeen shillings, agai nst Edward Richards, lat e higlLsht^riff of the county of Southampton, and declared that one Paramour and others were bound ])y recognizance in chancery in two thousand pounds to the plaintiff, and that after other process and judgment, 10 Julii 14 Jac, the plaintiff sued a levari fac. to the defendant, returnable 15 Mich., which was delivered Aug. 1, where- upoti iho. d ofondarit Jevjedjjie sum, and at the day returned that he hadju^kiitlie sam€^sum,-^tuas par(Hos7i_abeoZSTi ^tjQt--dJ^ ^ it i n coiir t ; per quod, &c. The defendant, quoad 308, pleaded nihil debet, whereupon the plaintiff took issue ; and as to the rest he pleads, that after the issuing of the writ, and before the return, scil. Aug. 31, he did pay unto the plaintiff' the same siim, whereupon the plaintiff, by his acquittance, the same day, reciting that he had received it, did acquit him of it ; whereupon the plaintiff demurred in law. The first question^ in this case was, wbefhe j the nc tion of^dgbt would lie^ because there was no contract between the plaintiff and the sheriff. But that was resolved by the court that it_woul d lie; for though there were no actual contract yet there was a kind of contract in law, so it is ex quasi contractu. And therefore upon damages recovered in an action of trespass, the plaintiff shall have an action of debt ; and by the same reason when the money is levied by the sheriff, so as the action action, and see the somewhat anomalous ease of Dickinson r. Winchester (1849) 4 Cush. 114, per Sii.\w, C. J. The followin;^ passage gives the Roman Law, quasi-contractual in its origin and nature, on this branch of the subject : "A shipowner, innkeeper, or stablekeeper, who takes charge of property belonging to a traveller, is answerable for such property in like manner as though he had concluded an express contract to that effect. This liability was first introduced by the pra^or. If the property in question is lost or injured, the traveller can sue for full damages by the actio dc iTccpto, unless, indeed, the defendant (the shipowner, &c.) can prove that the loss was caused by the traveller's own negligence or by an unavoidable accident (vis major). L. 1 pr. D. nauta> caup. (4, !)) ; Ait praetor: Nautir, caupones, stabularii. quod cujusque sahnini fore receperint. nisi restituent. in eos judicium dabo." Led- lie's Sohm, 427. See also, 2 Windscheid's Pandektenrecht, § .384. — Kd. 'Only so much of the case is given as relates to this question. — Ed. 30 SPEAKE r. RICHARDS. [BOOK I. ceased against the defendant, the same action is ipso facto by law transferred to the sheriff, having both 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. Qimre, 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 corporations 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 custom for pound breach; and 34 H. 6. 36. & 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 a fieri fac. or elegit against the sheriff, to levy as much as his own: see Mich. 8 H. 8. Keports, Crooke, 187. 0. N. in the exchequer makes the sheriff debtor to the king, and the debtor himself 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 he received per auter mains, or the like.^ But then the action of account is necessary, when the first receipt ah 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 action of debt for all, I shall be barred in that action for the money bestowed, and charges, &c. ; but for the rest I shall recover. 4n Wheatley v. Lane (1G68-9) 1 Wms. Saunders, 216 and n., the Qucere was resolved in the afTirmative. In Dinf^ley v. TIalse (1(579) 2 Show. 55 it was said: "Debt against an executor ; no assets pleaded ; assets found ; and, upon o devastavit returned, there is judgment against him dc bonis propriis: the plaintiff brings a new action of debt upon that judgment, reciting all that matter, and laid it in the debet and detinet. "Resolved, that the defendant is bound to put in special bail, though an executor ; because there might have issued a fieri facias de bonis propriis. And though this be a now way to recite, etc., yet the court knew no inconvenience in it, it being now become the executor's own debt: the sole reason why executors are not bound to put in spe<-ial bail, is because non constat whether they have assets or no; but the jury having found assets, they ought to put in ape<;ial bail to an action of debt on such judgments. Piulcd by the whole court." — E». ^Debt was not concurrent formerly with account, but afterwards became so when the amount was liquidated. See Mr. Ames in 2 Harv. Law Rev. 66. — Ed. ■"For a description of this obsolete action, see C. C. Langdell: A Brief Survey of Equity Jurisdiction, 74 ct seq. — Ed. CHAP. II.] KING V. MOORE. 31 KING V. MOORE. Supreme Court of Alabama, 1844. [G Alabama, 160.^] King, the present plaintiff in error, was summoned as a garni- shee, at the suit of Moore against Tjewis, and answered, that he had in his hands 113 doHars belonging to the defendant, the remainder of the proceeds of a sale made by him as constable, after satisfying the fi. fas. directed to him. In a supplemental answer, he asserts the money had been demanded from him by the defendant in execution, and ihat he had received notice of a rule against him to pay over the money. The court rendered judgment against him for the amount of the judgment previously rendered against the defendant in attachment, which was less (lian the sum in his hands. He now assigns the judg- ment as error. - GoLDTinvAiTE, J. — In Zurcher v. Magee, 2 Ala. Rep. 253, we held, that mnTiPY pnllopfpfl hv a shoriff wti g nnf snhjpnt f o an atta ch- ment nfTflinst t hp phiintif F in the executio n ; but the principle of that case is supposed not to govern this. One reason why money, in this condition, cannot be reached, is, that it is in the custody of the law; and it would be greatly inconvenient to allow the final process of courts to be affected by other proceedings not under control of the parties to the execution. This reason does not apply to the excess which often- times must, necessarily^ rgmain 3vith_ th(L_e- '^ccutive _officer, af ter sa tis- f}^Tng_thc plaintiff's demamig. The ollicer is the agent appointed by the law, to sell the property of the defendant ; and if, in the discharge of this duty, a sum of money remains with him, it is the money of the defendant, in no way distinguishable from any other case of agency. Nor does the circumstance, that a statute authorizes the defendant, when his money is improperly detained from him, to proceed sum- marily against the officer, bring the case within the principle which exempts money, in cuslodid le{/is. from attachment, because no process is meddled with ; nor can any injurious consequences flow from con- sidering it in the same view as any other money in the hands of an agent. Let the judgment be affirmed. 'Rpportc.".. "It is essential," says Mr. Howe, "that the ticgotioruiti <;< Ktio should act for the benefit of another, in order that the obligation we are now discussing should arise. But it seems, in the opinion at least of the highest court of France. Dalloz, June 18, 1872, that there may be cases where he may, as a matter of necessity, act also for his own benefit without prejudice to his rights quasi ex eontraetu." Studies in the Civil Law, 175, 170. — Ed. For the n'de of vegotiorum gesiio in the law of Scotland, see Bell's Principles of the Law of Scotland, vol. 1, §§ 540, 541. For the Roman Law (and the provisions of the present German law) see 2 Windseheid, Pandektenrecht, 40 In re buyaxt's estate, [book i. In re BRYANT'S ESTATE. Supreme Court of Penxsylvaxia, 1897. [180 Pennsylvania, 192.] Opixiox by Mr. Justice Mitchell. When this case was first argued, 176 Pa. 309, the contention was over the corpus of the estate, for which there were five sets of claim- ants, and the claim of George Lodge for services was treated in the argument as collateral to the case of the English claimants and nat- urally failing when that failed. Our attention having been called more particularly to the situation of Lodge with regard to the prop- erty, we allowed a reargument on that point, and are now satisfied that our previous decision did him injustice. It appears that for several years before the death of Capt. Bryant, Lodge was his man of business for the collection of rents and the management of his real estate, as well as his confidential adviser in other matters. The sudden death of Capt. Bryant without known heirs left Lodge in charge and quasi possession as an agent without a known principal, and there- fore with at least a moral duty to look after the property for the real owner, whoever he might prove to be. This duty the orphans' court found that he had performed in good faith, and was entitled to be compensated for. That he accepted the English claimants as the true heirs and endeavored to forward their claim may be excused in view of the fact that the learned court below took the same view. One of ■the items which seemed most strongly to cast doubt on his good faith was his failure to mention the English heirs at the time the register was considering the subject of administration, but our attention has been called to the material bearing of the rest of his language on that occasion, which was that William and David Bryant, stepsons of the decedent, were the nearest of kin, and there were "no other heirs until further investigation." The reticency of Capt. Bryant about his early §§430,431; see French Code Civil (edition of Dalloz) arts. 1.372-1375; Italian Civil Code (French translation of Prudhomme) arts. 1141-1144 (annotated with references to various European and Spanish- American codes and laws) ; Spanish Civil Code (edition of Falcon) arts. 1888-1894 (likewise annotated with European and Spanish-American references) ; Civil Code of Louisiana, arts. 2273-2277, and the various Louisiana Digests, under heading Qmisi- Contracts. Inasmuch as the provisions of the French Code Civil have been widely- copied, a reference may well be given to a French treatise in which the French literature on the subject is elaborately considered: Baudry-Lacantinerie & Bardc, Trait6 de Droit Civil: des obligations (3d part) pp. 1043-1063.— Ed. CHAP. II.] In re bkyant's estate. 41 history and family connections might fairly excuse a witness in being cautious about answers on that subject. As the result of further consideration of this subordinate part of the case, we are not satisfied that the learned court below committed any error in holding that Lodge had rendered services to the estate for which he was entitled to be compensated, and in fixing the amount. So much of the order of this court heretofore entered, as reverses the decree of the court below upon the claim of George Lodge is now rescinded, and the decree as to that item is affirmed. This order how- ever to be without prejudice as to any intervening rights or action of the administrator, and in case the latter has accounted fully for the assets in his hands, the said George Lodge shall be entitled to retain the amount allowed him by the orphans' court and also the costs of this reargument out of any moneys of the estate in his hands from rents or other sources.^ 'J'or illustrations of a not dissimilar doctrine, see Howes' Studies in the Civil Law, 170-178, and cases there cited. — Ed. While ncgotionim gestio is somewhat of an exotic in the Common Law, it is perfectly familiar to the student of admiralty law, and of daily application the world over in courts of maritime jurisdiction. The doctrine is quasi- contractual in its nature and application. In Falcke v. Scottish Imperial Ins. (1880) L. R. 34 Ch. D. 234, 248, Lord Justice BowEN refused to recognize it in a common law case: "The general principle is, beyond all question, that work and labour done or money expended by one man to preserve or benefit the property of another do not, according to English law, create any lien upon the property saved or benefited, nor, even if standing alone, create any obligation to repay the expenditure. Liabilities are not to be forced upon people behind their backs any more than you can confer a benefit upon a man against his will. "There is an exception to this proposition in the maritime law. I mention it because the word 'salvage' has been used from time to time throughout the argument, and some analog\' is sought to be established between salvage and the riglit claimed by the Respondents. With regard to salvage, general average, and contribution, the maritime law differs from the common law. That has been so from the time of the Roman Law downwards. The maritime law, for the purposes of public policy and for the advantage of trade, imposes in these eases a liability upon the thing saved, a liability whicfi is a special consequence arising out of the character of mercantile enterprises, the nature of sea perils, and tlie fact that the thing saved was saved under great stress and exceptional circumstances. Xo similar doctrine ap])lies to things lost upon land, nor to anytliing except ships or goods in peril at sea." For tlie doctrine of salvage and its application, see Ames' Cases on Ad- miralty, 200-292.— Ed. CHAPTER III. Nature of the Obligation. SECTION I. Wherein Quasi-Contract Differs from a Pure Contract. 1. effect of statute of limitations. SHERWIN V. CARTWRIGHT. Trinity. Common Pleas, 1631. [Hutton, 109.] Shervin brought a Writ De_rati onahile __ parte h onorum against Cartwright, and counted of Custom in the County of Nottingham, and shew all specially, and the conclusion was, that he detaineth particular Goods of the party Plaintiff, which appertained to him as his part and portion : And upon Non detinet pleaded, it was found that the Plaintiff was intituled to this Action many years before the Statute of 21 Jac. and that he had not brought his action within the time limited by the said Statute. And upon the special Verdict, the Case being argued by Serjeant Ward for the Plaintiff, it was adjudged for the Plaintiff. First, because that this action is an. Original Writ in the Re gister. and is not mentioned in the said Act, anJThough that the Issue is Mon detinet, yet this islio action of Detinue, for a Writ of Detinue lies not for money, unless it be in bags, Imt Rationahile parte honorum lies for money in Pecuniis nnmeratis, vide the Book of Entries, Ration- ahile parte honorum: And this action lies not before the Debts be paid: And the Account was, that thereby it might be known for what it should be brought, and that in many cases requires longer time then tlie Statute gives. Another reason was. That Statutes are not made to extend to tli ose cases which seldom nT'jTiRypr_bfi pppTi. , aS - jhis case_ is, but to those that frequently happen. Al so this Statute tolls the Common Law, and shall not Jia-£xterula, the faLl«AA4ftg--a^hTrritiFS TTlay" be, in o"ur~ judgment, most confidently relied on: fith Bacon's Abridgment, new edition, 377. letter D. Limitation Personal Actions; Angell on Limitations, 82, 83; Ballantine on Limitation of Actions, 88; Comyn's Dig. 413, Temps. G. 15; Talory v. Jackson, Croke Car. 513; Jones V. Pope. 1 Saunders' Rep. 37: Pease r. Howard, 14 Johns. Rep. 480; Uullard r. Bell. 1 Mason's Rep. 243; CritVm r. Ileaton. 2 Baily's R. 58. In Ward V. Ruder. 2 Harr. & IMclT. Rep. 154. the court said: 'An aition grounded (//(OH a statiitf, cannot be barred, such as debt for an escape, etc' " Lane r. Morris (1851) 10 Ga. I(i2, 105. But see Harris r. Smith (1882) 68 Ga. 461. So also the liability for calls in a railway company. Cork & Bandon Rway. Co. V. Goode (1853) 13 C. B. 826: so also, the liability for maritime tolls. Shepherd v. Hills (1855) 11 Ex. 55, per P.\RKE, B. (but see Tobacco Co. v. Lodcr nS5n 16 Q. B. 765) : Atwond r. Bank (1850) 1 R. I. 376. In the fo llowing cases the liabilit;^-a£-a-^i«&kh4>h k'r waa hcld -to^he-jvithin 4-i JONES V. POPE. [book I. JONES V. POPE. Michaelmas. King's Bench, 1667. [1 Williams' Saunders, 37.^] Debt on an escape.^ — The plaintiff declares that he, on the 14th of June, 1654, prosecuted, out of the then court of the upper bench, a writ of testatum capias ad satisfaciendum, against one Fabian Hill, directed to the sheriffs of the city of Bristol, whereby the sheriffs were commanded that they should take the said Fabian Hill, to have his body before the late pretended Protector Oliver, &c. in the upper bench at Westmitister, on Saturday next after one month of St. Michael, to satisfy the plaintiff of £1000 debt and £7 6d. costs, by force of which writ the defendant and one Thomas Bull, then sheriffs of the said city, afterwards, to wit, on the 10th of August, in the year above- said, within the same city, took the said Fabian Hill in execution for the debt and costs aforesaid, and had him in their custody until after- wards, to wit, on the first of September, in the year 1654 aforesaid, the said now defendant and the said Bull, being then sheriffs, let_ihe_said Hill at large, and suffered him to escape, the plaintiff not being_s atis- fied his debt ffrKT^sTs,' and tKat afterwards Bull died, whereby an acfion accrued to the plaintiff to demand and have his debt of the defendant, being the surviving sheriff, yet the said, &c. The defendant pleads in bar, that the plaintiff's bill was exhibited against him on the 21st of November, in the 17th year of the reign of the now king, and that since the cause of action accrued, six years and more were elapsed before the day of the exhibiting the said bill. And this. &c. Where- fore, (Src. Upon which plea the plaintiff demurred in law. And Jones, of counsel with the plaintiff, argued against the plea, that an action of debt for an escape is not within the statute of limita- tions of 21 Jac. 1. c. 16. For the words of the statute are: "All actions of debt, grounded upon any lending, or contract, without specialty, all actions of debt for arrearages of rent, shall be brought within six years," &c. But he said, that an action of debt on an escape is not Avithin the statute, for two reasons. First, because the action is not founded upon any lendinrj or contract; and the statute does not limit all actions of debt generally, but only actions of debt founded upon a lendinq or contract without specialty; and this is a debt created by the law without any lending or contract, and therefore is not limited the Statute of Limitations: Corninp r. ISIfC'nlloiiLrli (1847) 1 N. Y. 47; Terry v. Calnan (1870) 13 R. C. 220; Carrol v. Groor (1875) 02 U. S. 500, .515, where Billiard V. Boll (1817) Mas. 24.3, fiupra, was exnressly disapproved. — Ed. 'Reported also in 1 Sid. 300, 2 Keb. 03. and 1 Lev. 101.— En. ^The latter part of the opinion on another point is omitted. — Ed. CHAP. III.] JONES V. I'oi'i::. 45 or restrained by the statute. Secondly, he said, that the action of debt on an escape is founded upon a specialty, namely, upon statute law, and so out of the statute of limitations. For at common law no action of debt lay against a gaoler for an escape out of execution, but only an action upon the case, as appears in 2 Inst. 382.^ Then the statute of 1 Kic. 2. c. 12. gives to creditors an action of debt against the warden of the Fleet upon an escape out of execution, and the statute by construction extends to all other gaolers and sheriffs. And so the statute is a specialty, upon which the action is founded ; and therefore it is clearly out of the words and intention of the statute of limitations, which only limits actions of .debt without specialty. And he further said, that although the words of the statute of limitations are general, as to the limitation of all actions of debt for arrearages of rent, yet it had been adjudged that an action of debt for the arrearages of rent reserved hy indenture was not within the intention of the said statute, llutton's Rep. 109. Freeman and Stacie's case. And so, he said, it had been adjudged upon the statute of 2 & 3 Ed. 6. c. 13. of tithes, that an action brought upon that statute was not within the statute of limitations, because it was founded upon a specialty, namely, the act of Edw. 6. Cro. Car. 513. 15 Car. 1. Talory and Jackson's case. And therefore he concluded the plea was bad. Saunders e contra. And that the plea was good. And he said, that the action of debt upon an escape was within the statute of limitations, because, although it is not founded upon a lending or contract properly, yet the law has made a contract, and the statute intends to limit all actions of debt founded upon a contract without specialty, and has not distinguished between contracts in law and in fact, but includes all. And he further said, that the action is not only founded upon the statute of 1 Ric. 2. but upon the escape, which is a naked matter of fact: for though the statute and also the judgment and writ of execution are of record, and so specialties, yet the escape, upon which the action is founded, is a mere matter of fact. For if the action were founded upon a record, the defendant could not plead nil debet; for "•In wliicli oaso the creditor niipht recover damages for the oflicer's miscoiiducl ; hut still an action lay against the original debtor. But the statutes Westminster 2. and 1 R. 2. c. 12. gave an action of dchi against the sherifF or gaoler to recover at once the sum for which tha prisoner was charged in execution. These being affirmative statutes do not take away the common law remedy; so that the creditor has still his election; if he adopts the action of debt, it is said, that he is entitled to recover the whole debt, and shei-iff's l»oundage; 2 Term Rep. 129. Ronafous r. Walker, per Bii.i.ek. Justice: 2 H. Black. 113. Alsept v. Eyles; 2 Black. Rep. 1048. Hawkins r. Rlomer: but if he brings an action upon the case, he will recover such damages as the jury are inclined to give. 2 Term Rep. l.'?2. Bonafous r. Walker; and in this action the defendant is at liberty to plead the statute of limitations, as well because the action lay at the common law. as because the words of the statute are 'all actions upon the case,' &c. 1 Sid. ."JOG." Williams' note. 46 WILSON & UX. V. TOWLE. [BOOK I. this is no pica to a specialty; but without doubt the defendant can plead nil debet. And so it seemed to him that the plea was good. But for the reasons of Jones, the c ourt held the ple a bad, and that the action was not within the statute of limitations.^ ~~ HODGSON V. HAREIS. Trinity. King's Bench, 1670. [1 Levinz, 273.] Debt on an Award ; the Defendant pleads the Statute of Limita- tions rOn^whTcFrilTe Plaintiff demurs, because by Saunders it is not a Debt upon a Contract or Lending within the Words of the Statute: To which it was answered by Jones, That the Submission to the Award is a Contract to pay the Sum awarded : and cited 3 Cro. 600. Bowyer against Garland. Th e Court inc lined to the Opinion, That it was not within the Statute : And Twysden saidTThat^Deljt for'liCopyhold Fine~tRrd-been adjudged not to be within the Statute ; whereupon Jones offered to waive the Demurrer and go to Issue, which Saunders refused; and it was adjourned.^ WILSOX & UX. V. TOWLE. Superior Court of Judicature of Xew Hampshire, 1848. [19 New Hampshire, 244.] Debt. The plaintiffs declared that Levi Towle, late of Epping, deceased, being seized in fee of certain lands described in the declara- 'Accord: Cockram v. Welby (1678) 2 Mod. 212. "It has been settled, that an action of deht. for an esfn pe is nnt wi thin the statute of limitations, because it is founded, not on any contra ^t^ in fapt , hut o n the legal liability imp osed by the st atutes o f__V^stminstcr 2 and 1 R. 2. c. 12, which gave an action of debt against the sherifl' or jailer, to recover the debt for which the prisoner had been committed to his custodj'^ in execution of a judgment ; and therefore the suit was founded on the statute alone, which is deemed in effect a specialty. Jones r. Pope, 1 Saunders, 36, 37, 38, and notes; Hodsden v. Harridge, 2 ib. 64, 65, and notes, and cases there cited." Hank of U. S. v. Dallam (1836) 4 Dana, 574, 577. See also, Angell on Limitations (0th ed.) 79 ct seq.; Buswcll on Limita- tions and Adverse Possession, 208 et scq. ; Wood on Limitations, sec. 33. — Ed. ^For the history of the subinission to an award and the implied or express promise contained therein, see ]\Ir. Ames in 2 Harv. Law Rev. 62. For the doctrine of tlio principal case, see Angell, 88; Buswell, § 152; Wood, sec. 33 and notes. — Ku. CIIAr. III.] WILSOX & UX. V. TOWLE. 47 tion, by his last will devised the same to the defendant and his heirs, he, the said Gardner Tovvle, paying the sum of one hundred dollars as thereinafter named; that in and by said will the testator afterwards gave to his daughter, the said Pema Wilson, fifty dollars in money, to be paid by said Gardner. Levi Towle afterwards, on the twenty- fourth of May, 1827, continuing so seized of the lands described, died, and his will was admitted to probate. That the defendant accepted the devise, entered the premises, remained in possession thereof, and thereby became chargeable to the said Pema to pay her the said sum of fifty dollars, according to the devise aforesaid, and the said Gardner still holds the premises, whereby an action hath accrued to the plaintiffs, &c. The defendant pleaded, among other pleas, that the supposed cause of action did not accrue to the plaintiffs at any time within six years next before the commencement of the suit. To this there was a demurrer and joinder therein. The writ was dated the fourth day of May, 1847. Woods, J. The question raised by the demurrer does not derive its solution from the chapter of the Revised Statutes relating to the limitation of suits. They had not been in force six years at the time this action was commenced, except with respect to those cases in which the period of limitation prescribed by former statutes had begun to run, and the same or a similar limitation is prescribed by the Revised Statutes. The inquiry, therefore, is whether this action was barred, or could have been barred, by a lapse of six years, by virtue of the statute of eJune 30, 1825, which was in force until repealed, with the qualification before noted, by the Revised Statutes, in 1842. The only clause in that statute which is supposed to affect this action, is that which limits to the period of six years next after the cause of such actions, "all actions of debt grounded upon any lending or contract not under seal." The act of June, 1791, in force previously to that time, contains the clause as it originally stood in the statute of 21 Jac. 1. ch. 16, "all actions grounded upon any lending or contract, without specialty," a broader expression and comprehending all actions, it would seem, which could possibly fall within the purview of the statute which has been cited as governing this case. There are two cases in Saunders which deserve to be cited as among the earliest in which this clause of the statute of 21 Jac. 1. was judicially drawn in question. The first is Jones v. Pope, 1 Saund. 34, which was debt against a sheriff of Bristol, for an escape. The defendant pleaded in bar that the plaintiff's hill was exhibited against him, on the 21st of Xoveml^er, in the 17th of the now king, and that since the cause of action accrued, six years and more were elapsed before the day of exhibiting the said bill. The plaintiff demurred, and it was argued in his behalf that the action was not within the statute, first, because not founded upon any lending or contract, and 48 WILSON & UX. V. TOWLE. [BOOK I. secondly, because it was founded upon a statute which was a specialty, the statute, namely, of 1 Kic. II. For the defendant it was argued that, although the action was "not founded on a contract or lending, properly, yet the law has made a contract," &c. But the court held the plea bad, for the reasons stated by the plaintiff's counsel. The other case referred to is Hodsden v. Harridge, 2 Saund. 63, which was debt on an award made by an umpire, under his hand and seal, in pursuance of a parol submission. The plea was, the statute of limitations, and upon demurrer, two points were made. 1. That the award was a specialty. 2. That the case was not one of lending or contract. The whole court were for the plaintiff; the Ch. Justice mainly upon the first point, Twisden upon the second, and the other judges upon both. The case of Cockram v. Welby, 2 Mod. 212, was debt to recover money of the sheriff of Lincoln, levied by Fi. Fa. It was argued for the defendant, on demurrer to a plea of the statute of limitations, that when the sheriff had levied the money, the law created a contract (without specialty) on his part to pay it over. The judgment was for the plaintiff, however. It lias likewise been held that an action of del)t for a legacy is not barred by the lapse of six years, not being within the statute. Com. Dig. Temps. 15. In Jordan v. Eobinson, 3 Shepley, 167, it was, upon the same grounds, held that a foreign judgment is not subject to the statute. In conformity with these decisions, it has been held as a general principle, that actions of debt founded upon a contract, without specialty, are such as are founded upon a contract in fact, and not created by construction of law. Pease v. Howard, 14 Johns. 479 ; Eichards i'. Brickley, 13 Serg. & Rawle, 395. Finally, in the case of Sanborn v. Sanborn, in this State, decided in Rockingham, July term, 1845, t he same question here jpresen ted _ar osc in an a ctjonof debt, for mon eycharged u]^on jnudbv a w ill. It was held upon demurrer to a^p[ea of the statute of limitations, that the case did not fall within it. It was not a case of lending or contract of any kind, within the meaning of the statute. T])D.JkiUt in this my p r om ltc fr n m ihn tenure of the laj jd. Tt is a charge upon it , into whose hands soever thej and passes c'^-^^''^^^ ^\y i^^<^ act of tlie owner. "ancr festmgTfrhoTiist sense upon any con tract, expre ss or implied. Although in England this charge would seem to be com- monly en1V)roed in equity, yet it has been held there that debt would lie against the terretenant for the recovery of the money so charged. Ewer V. Jones, 2 Salk. 415; 6 Mod. 25, S. C. It is, indeed, called a del)t, and owes its inception to the voluntary act of the terretenant or devisee, in accepting the devise, or a title under it. So, indeed, does the obligation to pay money resulting from the violation of a penal statute, which money, like this, is recoverable CHAP. III.] PEASE r. IIOWAUD. 49 in an action of debt, in favor of a private person. Yet, in neither case is the debt, in any reasonable sense, founded on any contract. The case, therefore, does not fall within the provisions of the statute of limitations, and the demurrer must prevail. Judgment for the plaintiffs on the demurrer. PEASE V. HOWARD. Supreme Court of Jurisdiction of New York, 1817. [14 Johnson, 479.] Van Ness, J., delivered the opinion of the Court. The words of the statute of limitations are, "that all actions upon the case, &c., and all actions of debt for arrearages of rent, or founded upon any contract without specialty, shall be commenced and sued within six years, &c." Whether a justice's Court is strictly a Court of Record, it is not material to determine in this case; for if it be not, it is settled, that a judgment rendered in it is conclusive evidence of a debt, and the merits of such a judgment, while it remains in force, cannot be over- hauled or controverted in an original suit at law, or in equity; and it is as final, as to the subject matter of it, to all intents and purposes, as a judgment in this Court. A foreign judgment, being prima facie evidence of the debt only, has been considered as of no higher nature than a simple contract ; and a necessary consequence of this is that the statute of limitations may be pleaded to it. But a judgment in a justice's Court is of a higher nature than a foreign judgment, because its merits cannot be controverted in a srni founded upon it. In the case of Walker v. Witter (Doug. 1), which was an action upon a judg- ment obtained in the Supreme Court of Jamaica, Lord Mansfield says, the question was brought to a narrow point ; for it was admitted, on the part of the defendant, that indehitatis assumpsit would have lain, and on the part of the plaintiffs, that the judgment was only prima facie evidence of the debt. "That," says he, "being so, the judgment was not a specialty, but the debt only a simple contract debt." From this it would seem to follow, that if the judgment had been conclusive evidence of the debt, it would have been a specialty, and that, of course, the statute of limitations could not Inve been a bar. This view of the question seems to derive great weight from the nature and effect of a specialty, which, being under seal, imports a considera- tion, and the want of one cannot be alleged by plea ; this, and the solemnity which attends the execution of it, are the only reasons why it ranks higher in the scale of contracts than a writing without seal, or a mere parol agreement. But it may be shown, that a specialty is founded upon an illegal consideration, and it is not always con- 50 PEASE V. HOWARD. [BOOK I. elusive evidence. In this respect, it is inferior to a justice's judgment, and the solemnities attending the rendition of the judgment are equal, at least, to the sealing and delivery of a specialty. A justice's jud g- ment is a debt of a higher nature than a simpl e^ contract d ebt, nnrl is as much a specialt '^'^lis'ayudgnient obtained in this Court, which, clearly, is not barred by the~statute of limitaTTons^ XeitHeFls a debt of tnis descHpHcn within the words of the statute ; and every statute of limitations, being in restraint of right, must be construed strictly. It is not a bar to every action of debt, but only to those brought for arrearages of rent, or founded upon any contract, without specialty. It has been held that debt on an indenture reserving rent, is not within the statute, notwithstanding the generality of its terms; (1 Saund. 38) and the settled constructio n of the statute is, that it applies solely to actinns' Trf-Tfetvrfo undedjip pn contx a xits in fac t. as^'"digtinguTsli o]I froni thos e arising J3y_co nstruction of_l aw. Now, in this case the action is not founded upon a contract in fact. It has been held that debt upon a recovery in trover or trespass in the county Court or Court baron, and in various other inferior tribunals in England, is not founded upon any contract in fact between the parties, and, therefore, not barred by the statute. (2 Saund. 64, 65, &c.. in notes and cases there cited.) Such, too, is th§ case of an action of debt founded upon a statute ; for which this reason is given, that a statute is a specialty. (1 Saund. 36, 37, in notes.) Upon the whole, therefore, I conclude, that anjiction of debt upon a juj^TueritJri a justice's Cou xMs jiot barre j^by t he statute~of"triIl tta- tions_; 1. Because aj_sucli-j-udg-meniis conclusive evidence of the debt, a s has been invariably determined by this Court7~ it~is a debt Iiv specialtv, and ^iotby simple contract merely, as a"^ofeign ju dgment is ; and, 2. B£ cause~the action is not founded upon a contract, in fact, within the meaning of the statute, and actions of that dcscri ption- only a're within its words , and ittyfc—aretitms' of'^ebT,' "without specialty, generally. Judgment reversed} ^"The judgment of a j ustice of the peace or o ther inferior tribunal (in a case where jurisdiction of the parties and subject-matter appears from the face of the proceedinpfs) , so. Jxirujjis^ jt remains unreversed, is, for every pur- p ose. as bi ndilig--aJ Kl c on c lu o iv o-betuu^ui^tlie parties^as "thtrt of the— hijjhcst cottrt-oLjccord in the state.'^ 2 IMack on Judgments, § 522, citing principal case. In Carshore v. Huyck (184!») P>;trb. 5S.3, r>HH, it is very properly said: "It is only since the adoption of the revised statutes that justices' judgments have been subject to the operation of the statute of limitations (Pease v. Howard, 14 John. 479)." See also, Angell, 79 et seq.; Buswcll, §§ 149-151 and notes; Wood, sees. 30, 31, 34 and notes. — Ed. CHAP. III.] RICHARDS V. BICKLEY. 51 RICHARDS, ADM'R, v. BICKLEY, ADM'R. Supreme Court of Pennsylvania, 1825. [13 Sergeant & Rawle, 395.] Duncan, J.^ The plea of causa actionis non accrevit infra sex annos, was first offered when the jury was impannelled, under the act of 1806. I recommended it to the counsel to put in the plea, and on demurrer, the question w hether in an action of debt on a ju dgmen t in Barhadoes, which judgment was fo unded on a specialt y, as'appearecnjy tlie Tteclarati on, the statute of limitations was a good plea, would be decided in bank. This has been done. r? this be a defence, the adjudged cases prove that it may be taken advantage of on the plea of nil debet, but the modern practice is to plead it specially, the debt, as is said, not being extinguished, but the remedy only barred. The statute of limitations of James, so far as regards personal actions, is re-enacted in our limitation act of 1713. The action on a foreign judgment was little known when the statute of limitations passed, and does not appear to have been in the view of the legislature of either country; and it has been said of that statute that it was not made to extend to those cases which seldom or never happen, but to those only which frequently happen, Hutton 109. The first and only case to be found in the English books of Reports, in which notice is taken of this plea to a foreign judg- ment, was the case in chancery, of Dupelin v. Roven, 3 Vern. 540, and where it was held to be pleadable, as the Lord Keeper said, because the only action that could be maintained was indrhiiatus n-'isinnpsit or insimul computasset. Even so late as the reign of George II., in Otway v. Ramsey, 2 Stra. 1090, in a writ of error, from Ircliind. the great question, as it was called, was whether debt would lie there, on a judgment in the Court of King's Bench, in England, nnd it puzzled the judges not a little; for after two solemn arguments upon A<-hich, the court strongly inclined that it would not, a third argument was appointed, but the plaintiff in error, who was defen- dant, and had judgment against him below, declining an argument, the judgment was affirmed, without any opinion delivered by the court, further than what was said on the breaking of the cause, at the former argument. I may repeat, with great confidence, what was said by Justice BuLLER, in Walker v. Witter, in 17TS, Douglass, 1, "that we meet with no instance in the books of an action of debt brought on a 'Statement of the case is omitted. — En. 52 RICHARDS V. BICKLEY. [BOOK I. foreign judgment;" and that was the first instance in which the action had been sustained. I only refer to this case to show how the law stood anterior to the American revolution, and to ascertain a point of time, and not as authority. The statute, it is fair to suppose, had run in that case, as the judgment was in 1766, the statute not pleaded. This act of limitations is to be construed as all statutes ought to be, without favour or disfavour. Courts ought not to exclude actions within its provisions, nor include those that neither fall within the letter or reason of the law. Without saying whether non assumpsit infra sex annos, would or would not be a good plea, where the action was assumpsit, J^jthinlr thnf _iiL_an_ action. of debt on a foreig n judgment, stating the foundation of the judg - ment to be a sp ecialty, the plea of the statute is uo tjj ^gnod otiq ] n.nd though the judgment be the gist of the action, yet the cause of the judgment may be laid by way of inducement in the declaration, as in debt against the sheriff on an escape, or in an action founded on a devastavit against an executor; the__2udgniaftt4fr-hu^ induceny 3nt, the escape and devastavit are the fouudjitimi of the nr-timi . — it IS true It IS not necessary to lay the cause of action which gave rise to, or was the consideration of the judgment, yet certainly it may be stated; and might under particular pleadings be material, and it was for some time a moot point, even in assumpsit on a foreign judg- ment, whether it was not incumbent on the plaintiff to state the origi- nal cause; for in Crawford v. Whittal, 13 Geo. 3, in the note to Walker V. Witter, there was a demurrer to such declaration, for the reason that it did not state the ground of the judgment abroad, and the cause of action there : the demurrer, however, was overruled. Aston, Justice, said : "We are not to suppose it was an unlawful debt." In 1771, in Plaistow v. Vanuxem, it was moved in arrest of judgment, for that it did not appear the judgment was given on account of a just debt, or for any good and sulficient cause of action; but the matter was overruled. It is said, that actions as well of debt as of assumpsit, are debts on simple contract and therefore within the words of the statute. The words arc, "All actions of debt, grounded on any lending or contract without specialty." If it had been all actions of debt, without specialty, this action would have been included ; but all actions of debt without specialty, are not limited, but those only grounded on a lending or contract, and this action is not founded on any lending, and therefore not limited, though it be without specialty. All actions of debt are founded on contracts in deed or in law; and if it had been intended to limit all actions of debt generally, the words "grounded on any lending or contract" would, have been superfluous. But the statute was only intended to limit those actions which are grounded upon any lending or contract in CHAP. III.] RICHARDS V. BICKLEY. 53 fact, and the word Iciuliiig explains the word contract to be of the same nature; and as early as 20 Car. 2., this construction was put on these words in Hodsden v. llarridgc, 2 Saund. 65, and this principle has ever since prevailed. It was the construction of the English statute when our act passed. The use of cases is said to be, to establish principles, and if the cases decide difterently from the principle, we must follow, as judges often have declared, the principle and not the decision. That ease was debt on award for the sum awarded. The award itself was under seal, though the submission was by parol, and held not to be a contract within the statute; though, if the action had been assumpsit to stand to the award, it had been within it; but the case was not decided, as has been supposed in the argument, on the ground of the award being under seal, for there it w^as contended, and so decided by the court, that if there had been no specialty at all, yet it was not an action founded on a contract; for the statute only restrains and limits actions on a lending or contract in fact, and this action is founded on a debt quasi ex contractu, as the civilians term it, where the law gives an action of debt, though there is no contract between the parties. This doctrine, as to parol awards, has been adopted, and is considered as settled law from that day until BaUcntine published his treatise on the statute of limitations, and never has been contradicted either by the decision or the dictum of any judge, or douI)ted in the speculations of any lawyer. One would suppose, that as the actions on foreign judgments would increase the commerce of the country, the case of limitations must liave frequently occurred, yet no such plea is to be found, except in this one solitary case, and there sustained on a reason that no longer exists, namely, that only the action of assumpsit could be maintained, and for this reason alone, the statute was pleadable. In all the books of practice and treatises on the law, this solitary case has passed unnoticed, except by Mr. Archhold, who notices it under the title of assumpsit, and the operation of the statute of limitations on that form of action. The actions of debt without specialty, to which the statute does not apply, are numerous: they will be found in the last London edition of Comvn's Digest, 7th vol. p. 415 ; and they will all be found to depend on this one principle, of the action not being grounded on a lending or contract in fact, or a contract having rela- tion to a record. Debt on escape against sheriff, debt on award, debt for a copyhold fine, debt on the statute for not setting out tithes, debt against sheriff for money levied on a fieri facias, debt against an attorney for money received by him : so if we are to confine the act to the enumerated actions, it does not fall within any of the denomina- tions of actions; it is neither trespass, nor detinue, nor trover, nor replevin, nor action of account, nor on the case, nor debt grounded on any lending or contract; but an action of debt on a foreign judg- 54 RICHARDS I'. BICKLEY. [BOOK I. inent is no more a debt on a contract in deed, than debt on a domestic judgment, and if one has obtained a Judgment against another for a certain sum, and neglect to take out an execution, he may after- wards bring an action of debt on tliis judgment; he shall not be put to proof of the original cause of action, but on showing the Judg- ment in full force, the law immediately applies, that by the original contract of society, he has contracted a debt or is bound to pay it. So that the obligation arises from an iinplied or iginal contract with s nciptyj and not with the individual, like forfeitures^in5}'-laws, amerce- ments, judgments recovered for a tort in an inferior court, penalties, inflicted by law, damages given by statute to the party grieved ; these immediately create a debt in the eye of the law, 3 Bl. 160 ; but they do not fall under the denomination of actions of debt grounded on a lending or a contract. It is not necessary to decide how this would be, on a count on the implied contract to pay the Judgment in the action of assumpsit. Yet there would s eem to be a sou nd difference between that action and debt, w here the pa rty has his choice^ of remedies, as assumpsit for not performing an award aj id de bt Oil the award, the - st atute may hejpteaded ^ to the~one form o f action and not to the other. So the creditor has his election for ~ C9cap e on Judicial process : he may bring debt where the statute will not apply, or he may bring case where it will. So, in the action for money received against the sheriff, as in Cochran v. Welby, 1 Mod. 245 : action on the case against the sheriff, for that he levied a sum of money and did not bring it into court on the return of the writ, — plea of the statute of limitations and demurrer, and the distinction was taken between assumpsit and case, and it was admitted that if it had been assumpsit, the statute would be pleadable, S. C. 2 Mod. 212; and the question, on that report of the case, is said to have been. — whether the action was barely grounded on the contract, or had relation to or was founded on a record. And in action of debt, brought by the same plaintiff against the same defendant, it was held that the action lay before the return of the writ. Yet the action is not within the statute of limitations ; for though it be not a record before the return of the writ, yet it is founded on a record and has a strong relation to it. 2 Show. 79. So, here, though the action is not immedi- ately founded on a specialty, yet it has a strong relation to it; and there seems to be a prevailing opinion (though I admit it has been questioned by some), that where the whole of a l)ond has been paid by one of the obligors, who brings an action of assumpsit for contri- bution, that he would be allowed the same limitation as on the bond itself. It is not unworthy of remark, that it was supposed that actions on promissory notes, which in some measure partake of the nature of specialties, particularly in the manner of declaring on them, were not within the statutes of 21 Jac. 1 ; for by statute 3 and 4 Anne, c. 9, CHAP. III.] RICHARDS V. BICKLEY. 55 s. 2, it was provided, that actions on promissory notes shall he hronght within the time appointed for commencing actions on the case hy that statute. Note to Hodsden v. Harridge, 2 Wms. Saund. 66. And that much depends on the form of action, as to the operation of the statute, appears by what was said in giving tlie opinion of the court in Beattie's Administrators v. Burns, 9 Cranch, 107. It was a question on the bar of the statute of limitations in an action for money had and received, brought under an act of asseml)ly of Maryland, respecting some local provisions as to lands within the District of Columhm, and it was, as Mr. Justice Story said, "a case where the action for money had and received was clearly within the act; but it was contended that the present suit, being a statute remedy, was not within the purview of the statute of limitations. We know of no difference between a common law and a statute right, each must be pursued according to the general rules of law, unless a different rule be prescribed by the statute ; and where the remedy is limited to a particular form of action, all the general incidents of that action must attach upon it." It is to be observed, as to Dupelin v. Eoven, that the origin of the debt was simple contract; the foreign judgment did not change it, — it still retained that ground, and composition and note given in 1676, and bill not filed for thirty years after, — from the length of time equity would presume all to have been satisfied without recourse to the statute of limitations. This appears to me as very clear; for the presumption of payment of a foreign judgment, un- less repelled by circumstances, would prevail at the end of twenty years, as it does in cases of legacies, mortgages, and all specialties, though not falling within the provisions of any statute. But the cases from 5 and 11 Johns. Kep., cited by the counsel for the defend- ant, weigh much more with me: they are, however, decided without argument, and without reference to any direct authority except the case in Yernon, or to any analogous principles; and it certainly was decided on a mistaken view of the constitution of the United States, as to the nature of a judgment in a sister state. Andrews v. Mont- gomery, 12 Johns. 173. The case of Pease v. Howard, 14 Jolms. 149, decided that a judg- ment in a justice's court was not within the statute of limitations ; for it was not like a foreign judgment, but it formed conclusive evidence of the debt, and is not therefore a debt by simple contract, but by specialty; yet, at the same time, it is observable, that it was not decided on that ground alone, but on an acknowledged principle, which pervades in the construction of all actions of debt, without specialty, "that the actions of debt, founded on any contract without specialty, which are barred by the act of limitations, are only actions of debt founded on a contract in fact, and not such debts as are created by the construction of law." This last reason leads to the certain conclusion, that actions of 56 WOODS V. AYRES. [BOOK I. (lpM_ nri forpicrn j iirlgnipnta are iio t_w ithin the limitation, — as they are neitlier within the words or intention of the legislature. They afe^not grouncti'- d on a lending o r— en a contract, in the _sense in which that word is used in the act; for that is a contract created hy a construction of law, — the action of debt limited is on a lending or contract in fact or in deed. The case in 5 and 11 Johns. Rep. have not been considered with that deep research for which the judges of that court were so highly distinguished ; and, with the greatest deference to those eminent men, these decisions appear to me to be at variance with principle, and with a principle acknowledged in the subsequent case of Pease v. Howard : a principle which fixes a general construction, without any exception, — a general rule, that knows no distinction. The court therefore direct judgment to be entered for the plaintiff. Judgment for the plaintiff.^ 2. SET-OFF AND COUNTERCLAIM, ATTACHMENT AND ARREST IN QUASI-CONTRACT. WOODS V. AYRES. Supreme Court of Michigan, 1878. [39 Michigan, 345.] Error to Huron. Assumpsit. Graves, J.- In the fall of 1871, a claim in favor of the firm of 'Accord: Jordan v. Robinson (1838) 15 Me. 167. On theory the principal case would seem to be correct and unanswerable, but the autliorities are in accord with Dupleix v. De Eovon (1705) 2 Vern. 540, ante. The law is stated in Black on judgments (§ 850) as follows: "It is well settled that the stat ute of limitations of the country of the forrner may be pleaded in b nr of n TT~nr^ti on nn n -frrrf4fm--jwl^nTTrT]y! This fol- lows necessarily from the doctrine that such judgments are not records. For if they possess no higher character than simple contract debts, it is obvious that they must be barred by the same period of limitation, which is that of the lex fori." "The statute of limitations of the state of the forum may be pleaded in defence to an action on a judgment of a sister state, if the statute is so framed as to include judgments. . . . The statute of limitations is available as a defence only against the judgment, not against the original cause of action" {ib. § 802). "In most, if not all, of the states the statutes of limitation either expressly prescribe a period within which suits on judgments nnist be brought, or are so framed as to include such actions by necessary implication" {ib. § 985, citing cases). — Ed. -Only that part of the opinion is given relating to the question of the plea of set-off and the nature of quasi-contracts. — Ed. CHAP, III.] WOODS V. AYRES. 67 Ayres, Learned & Wiswall arose against plaintiffs in error for four dollars per thousand feet upon a quantity of pine saw logs delivered by the linn to plaintiffs in error under an agreement for their delivery subject to that drawback, to replace others the firm had cut on lands of the plaintiffs in error. Second. Plaintiffs in error offered to gfmw liy \vny__nfspt-nff a d ojuiind in their favo r for moving certain lo^-s of ^^Vyrcs, Learned & W i swair' in the Pinnepog river in the season of 1871 pursuant to the act of 1861 as ame nded in 1863 to regulate the "floating of logs and timbers in the streams of this State" (Sess. L. 1863, p. 374) : and a further demand in their favor for moving logs of "Ayres, Learned & Co." in the same river in the season of 1872 and pursuant to the same law. L'pon objection by defendants in error the court ruled against the offer. Assuming that all the conditions were present to generate a liability under this statute, were the demands enforceable under the set-off law? If they were not, the ruling was correct. In order to decide upon this it is necessary to consider of what nature the demand is on which this statute impresses the right of enforcement, and whether the statute of set-off fairly comprehends it. 'rhe_jight ol- set-off at law is g-iven and li'mUprl by atntntp. The common law never recognized it. Bac. Ab. tit. "Set-off."^ The pro- "visions concerning set-off mustTherefore be consulted to see in what cases and in what circumstances the right is admitted. Unless a case is positively embraced by the specifications enacted by the Legislature, the remedy is al)solute]y denied and the claim will remain to be sepa- rately enforced as though there were no such statute. ^"At common Imv, if the ])laintifl" was as much, or even more indebted to the defendant than the defendant was indebted to him, yet he had no method of striking a bahince; the only way of obtaining relief was to go into a court of equity. To remedy this in convenience it was enacted by the statvite of 2 G. 2, c. 22, § 13, 'That where there are mutual debts between the plaintiff and defendant, or if either party sue or be sued as executor or administrator, where there are mutual debts between the testator or intestate, and either party, one debt may be set against the other; and such debt may be' given in evidence on the general issue, or pleaded in bar, as the nature of the case shall require, so as at the time of pleading the general issue, where any such debt of the plaintiff, his testator or intestate, is intended to be insisted on in evidence, notice shall be given of the particular sum or dvht intended to be insisted on, and upon what account it bwame due; otherwise such matter shall not be allowed in evidence upon the general issue.* " 8 Bacon's Abridgment (Bouvier's edition), 040. For the origin, nature and judicial construction of the statutory set-olT, see Collins V. Collins (1759) 2 Burr. 820; Green v. Farmer (170^) 4 Burr. 2214, jier Lord Mansfield, C. J.; and see Waterman on Setoff, Recoupment, and Counterclaim, 10 ct scq.; II. Kent's Com. 13th ed. *473 n (h) ; Sedgwick, Measure of Damages, c. xvii. — En. 58 WOODS V. AYRES. [BOOK I. Now the firsL pT'p-^fq nisitfijmJCT the law allowing set-off is that the demand has arisen "upon judgment, or u pon contract express or im - plied^ (Co"mp".Xi., § 579G, subd. 1), and unless it has originated in one of these ways it is incapable of being set off. The demands in question did not arise on judgment or upon express contract. So much may be taken for granted. If then, they were capable of being set off, it must be because they arose on implied contract. Did they originate in that way ? The question is not whether they constituted assumpsits in some metaphorical or artificial sense, — whether under the license allowed in modern times in applying forms of action they might not be sued in assumpsit, — but it is whether in the sense of the statute of set-off they were causes of action on true implied contract. In early times the want of a common law remedy suited to cases of non-performance of simple promises caused frequent recourse to equity for relief; but at length in the 21st of Henry VII it was settled by the judges that an action on the case would lie as well for non-feasance as for malfeasance, and in that way assumpsit was introduced. In theory it was an action to recover for non-performance of simple con- tracts and the formula and proceedings were constructed and carried on accordingly. Very early there were successful efforts to apply it beyond its import, and from the reign of Elizabeth "this action has been extended" — as Mr. Spence informs us — " 'conscience encroaching on the common law' — to almost every case where an obligation arises from natural reason, and the just construction of law, that is, quasi ex contractu;" and is now maintained in many cases which its prin- ciples do not comprehend and where fictions and intendments are resorted to, to fit the actual cause of action to the theory of the remedy. It is thus sanctioned whore there has been no actual assumpsit — no real contract — but where some duty is deemed sufficient to justify the court in imputing a promise to perform it and hence in bending the transaction to the form of action. 1 Spence Eq. Jur. 243, 244, 245 ; Hosmer i'. Wilson, 7 Mich. 294; Ward v. Warner, 8 id. 508; Watson v. Stever, 25 id. 386, and other eases in this court. This tendency to apply assumpsit to causes of action foreign to its original spirit and design is apparent in our legislation. The statute allows it to bo brought on judgments and sealed instruments (Comp. L., § 6194), also for penalties and forfeitures (§ 6841), and by com- missioners of highways for expenses laid out on bridges required to be maintained by private parties (§ 1311). There are other instances in the laws. The arbitrary use which has been made of the action has caused many incongruities and no little confusion. The practice of strained constructions and the invention of fictions and intendments to subject causes of action to the remedy which were foreign to it, has led some- what to a confounding of transactions which are not contracts with those which are and to a neglect of obvious and necessary distinctions. CHAP. III.] WOODS V. AYUES. 59 But it may be observed in passing that it is not the only occasion where inaccuracies have been generated by a too close adherence to the plan of studying causes of action through the forms of action. T hf circnip - sta nce that a ca use_o£jij[; tinn in point of factjto t ex contra ctu i s allow ed to be sued in jissinTi|)sit «^id jn \m dc^nri lwrl aa yy inttpr of mntr act^ and to' be loosely sp oken of as i mplied contract is of no more force to fix its actual character contrary "toThc-tru th thainsnTe~atlegation Of los s and finding in trover to convey the sense of a literal loss and finding. Permission to apply the action to a transaction not involving any real contract relation between the parties cannot change the true nature of the transaction and transform it into matter of contract. Courts cannot make contracts for parties. And the fictions and intendments per- mitted for the sake of the remedy are explainable whenever necessary. It seems scarcely necessary to add that the determination by a major- ity of the court (Chapman v. Keystone &c. Co., 20 Mich. 358) that the party moving logs as contemplated by the first section of the act of 1861 as amended in 1863, acquires a distinct right of action against the log owners enforcible in assumpsit, is of no force whatever to show that such a demand arises on implied contract. T ^pithpr an pvpr psa pnnt.rnnf nnr nno hy impliontinn nnn rnvnp into existence_ualesa_thc- parties sustai n contract rplntirins!^ imd thp difF pr- enc e between th e_twQ-ia r - m s oonoiats in the mode uf s ubijliiiitiation kYid n ot in the nature of the thing i tself. Marzetti v. Williams, 1 B. & Ad. 415; Bcirne v. Dord, 1 Seld. 95. To constitute either the one or the other the parties must occupy towards each other a contract status, and there must be that connection, mutuality of will and interaction of parties, generally expressed though not very clearly by the term "privity." Without this a contract by implication is quite impossible. Broom's Com. on Com. L. 317; Broom's Phil, of Law, 18. 23, 24, 25, 29, 34; 1 Austin's Juris. 325, 326; 2 id. 946, 948, 1018. Cases in illustration are numerous. Blandy v. DeBurgh, 6 C. B. 634. Where there is a spontaneous service as an act of kindness and no request, or where the circumstances account for the transaction on some ground more probable than that of a promise of recompense, no promise will be implied. The contract connection is not established. Bartholomew v. Jackson, 20 Johns. 28; James v. O'Driscoll, 2 Bay. 101 ; St. Jude's Church v. Van Denberg, 31 Mich. 287; Livingston v. Ackeston, 5 Cow. 531; Nicholson v. Chapman, 2 H. Black. 254; Smart v. Guardians of the Poor, 36 E. L. & E. 496; Otis v. Jones, 21 Wend. 394. 396; Ehle v. Judson, 24 Wend. 97: Ingraham v. Gil- bert, 20 Barb. 151 ; Eastwood r. Kenvon, 11 Ad. and El. 438; Hertzog V. Hertzog, 29 Penn. St. 465 ; LangeV. Kaiser, 34 :Mich. 317. The parties must be consenting bargainers personally or by delega- tion, and their coming together in contract relation must be manifested by some intelligible conduct, act or sign. If not, no contract is shown. Depperman v. ITubbersty, 33 E. L. & E. 88; Gerhard r. Bates, 20 E. 60 WOODS V. AYRES. [BOOK I. L. & E. 129; Williams v. Everett, 14 East, 583, 597, 598; Exchange Bank of St. Louis v. Rice, 107 Mass. 37; Mellen v. Whipple, 1 Gray, 317; Pipp V. Reynolds, 20 Mich. 88; Turner v. McCarty, 22 Mich. 265 ; Ashley v. Dixon, 48 N. Y. 430 ; Merrill v. Green, 55 N. Y. 270 ; Simson v. Brown, (58 N. Y. 355 ; Strong v. Phoenix Ins. Co., 62 Mo. 289; Bank of Republic v. Millard, 10 Wall. 152; First National Bank of Washington v. Whitman, 94 IT. S. 343 ; Starke v. Cheescman, 1 Ld. Raym. 538; Keller v. Holderman, 11 Mich. 248; Van Valkenburg v. Rogers, 18 Mich. 180; Cundy v. Lindsay, 38 L. T. Rep. (N. S.) 573; Plills r. Snell, 104 Mass. 173^ 177 ; Boston Ice Co. v. Potter, 123 Mass. 28; Sullivan v. Portland &c. R. R. Co., 94 U. S. 806. The privity essential to a contract must proceed from the will of the parties. There may be a privity by operation of law where no privity of contract exists. 4 Bouvier's Inst., No. 4237. Before leaving this part of the discussion it will be useful to quote somewhat liberally from the instructive opinion of Mr. Justice Lowrie, in Hertzog v. Hertzog supra. After a citation from 2 Blackstone's Comm. 443, the opinion proceeds. "There is some looseness of thought in supposing that reason and justice ever dictate any contracts between parties, or impose such upon them. All true contracts grow out of the intentions of the parties to transactions, and are dictated only by their mutual and accordant wills. When this intention is expressed, we call the contract an express one. When it is not expressed, it may be inferred, implied, or pre- sumed, from circumstances as really existing, and then the contract, thus ascertained, is called an implied one. The instances given by Blackstone are an illustration of this. But it appears in another place, 3 Comm. 159-166, that Blackstone introduces this thought about reason and justice dictating contracts, in order to embrace, under his definition of an implied contract, another large class of relations, which involve no intention to contract at all, though they may be treated as if they did. Thus, whenever, not our variant notions of reason and justice, but the common sense and common justice of the country, and therefore the common law or statute law, impose upon any one a duty, irrespective of contract, and allow it to be enforced by a contract remedy, he calls this a case of implied contract. Thus out of torts grows the duty of compensation, and in many cases the tort may be waived, and the action brouglit in assumpsit. "It is quite apparent, therefore, that radically different relations are classified under the same term, and this must often give rise to indistinctness of thought. And iliis was not at all necessary; for we have another well-authorized technical term exactly adapted to the oflico of making the true distinction. "The latter class are merely constructive contracts, whilst the former are truly implied ones. In (^ne case the contract is mere fiction, a form i mposed in order to adapt the~oapr'-t?T n--g iv(!U remedy ; in l.1it^,^tho r it is^ CIIAl*. III.) WOODS ('. AY HES. 61 a fact_ legitimately infacied. In one, the intention is disregarded; in the other, it is ascertained and enforced. In one, the duty defines the contract; in the other, the contract defines the duty. We have, there- fore, in law three classes of relations called contracts. "First. Constructive contracts, which are fictions of law adapted to enforce legal duties by actions of contract, where no proper contract exists, express or implied. "Second. Implied contracts, which arise under circumstances which, according to the ordinary course of dealing and the common under- standing of men, show a mutual intention to contract. "Third. Express contracts, already sulliciently distinguished." Further on it is also observed that "every induction, inference, impli- cation, or presumption in reasoning of any kind, is a logical conclusion derived from, and demanded by, certain data or ascertained circum- stances. If such circumstances demand the conclusion of a contract to account for them, a contract is proved ; if not, not." We may now turn to the statute under which the liability sought to be set off arose and on which it depends. It is part of the first section of the act and provides "that if any person or persons shall put, or cause to be put, into any navigable river, creek or stream of this State, any logs, timber or lumber, for the purpose of floating the same to the place of manufacture or market and shall not make adequate pro- visions, and put on sufTicicnt force for breaking jams of such logs, timber or lumber, in or upon such river, creek or stream, or for running or driving the same, or clearing the banks of such river, creek or. stream of the same, and shall thereby obstruct the floating or navi- gation of such river, creek or stream, it sliall be lawful for any other person, company or corporation, floating or running logs, timber or lumber in such river, creek or stream so obstructed, to cause such jams to be broken, and such logs, timber or lumber to be run, driven and cleared from the banks of such river, creek or stream, at the cost and expense of the person or persons owning such logs, timber or lumber, and such owner shall be liable to such person, company or corporation for such cost and expense." Laws of 1863, p. 374. Now the liability or cause of action here ordained and described is not to arise on contract, — is not to spring from any compact or privity of agreement or any coming together of the parties under any contract relation, or on the footing or in any view of any agreement. -Ihe o wner of tlie logs is to b ecornp liable without any regard to his will or his assent to the acts and things for which IreTrfTT^t-prriy: — His aiT ^ssu^n tOtrrr tiaris.icliuii is Jiot contemplated.- He is Ut tJecome debtor to a party with whom he has never had any contract relation whatever. T he statute s i mply im poses the duty to pay for services \y\vr']-, ^vitLnnf thg^rovisio n, would, a s being s ervices purely voluntary, be not recov er^ ablfijnany way or form. 62 GORDON V. BRUNER. [BOOK I. No case is presented to raise an inference or cause an implication tliat there was a contract. The demand arises upon statute, that is, upon a duty which the statute originates, and has no place in the law of contracts. The liability belongs to that class Mr. Justice Lowrie calls "constructive contracts," and which the civilians' denominate "quasi contracts," meaning transactions in which the parties make no agreement whatever, but on which the law grounds specific obligations. Poth. on Obligations, Pt. I., ch. 1, sec. 2. If the demand set up in this case should be considered as arising on contract within the meaning of the set-off law it will be very difficult to draw the line. The conclusion on this part of the case is that they did not so arise and hence were not lawful matters of set-off. In regard to set-off the right is tied down by the statute to demands arising on contract, but assumpsit is not so confined, but is allowed an expansive application to cases which do not arise on contract. The other Justices concurred.^ GOEDON V. BRUNER. Supreme Court of Missouri, 1872. [49 Missouri, 570.] Bliss, Judge, delivered the opinion of the court. In an action upon a promissory, note for $1,000, the defendant, by way of counterclaim, sought to set-off or recoup the value of a crop of corn taken by the plaintiff from his farm. It appears that the Tjlaintiff conveyed the ia vm to th(^ (l('f(MKlant without reserving the growing crops, and afterward luirvcstcij a crop of corn~w1llioul"*]iis consent. It also appears that plaintiff is a non-resident, and Tmtcss theTIeTendant can recover in this manner he is without present remedy. Under the statutory term "countor-elaim" is included what was before known as a matter of set-off and recoupment, and it is admitted that damages for a trespass cannot be set off against a contract. Our statute in regard to counter-claims makes no change in this regard in the law as it existed before. Hence, luU ^ss the liability for tak ing 'Rut soo, Allon r. U. S. (1872) 17 Wall. 207; Kotlischild v. Mack (1889) 11.') N. Y. 1; KI Paso Nat. Bank v. Fuchs (1890) 89 Tex. 197; Gould v. Baker (189(;) 12 Tex. Civil App. fiOH ; Fanson v. Linsley (1878) 20 Kas. 23.5; Hail Road Co. v. Phelps (1890) 4 Kas. App. 139; Challiss v. Wylie (1880) 3.5 Kas. 506,' Andrews v. Artisans' Bank (1863) 26 N. Y. 298; Ever.sole v. Moore (1867) 3 Bush 49.— Ed. CHAP. III.] GORDON V. BRUNER, 63 t he corn_can be treated as arising on contract, the defe rf^fjTif fnnnnt a V aiL hmficLLof it as a set-off projicr. It is, 1 believe, not disputed that when th ere is a con version of personal pro perty ,_ and that property has been sold an d conver ted into money, the owner may ratify the sale by suing_ the jzrongdoer as for money had and received for his use. But where the propert y htrs"not been sold but still remains in the hands of the wrongdoer, thefe-ts-ditference of Opinion, and there have been conflicting decisions uposnEe^ question whether the owner" may waive the tort an3~sue as tor goods sold and delivered. " ' . — t fl Ma L ^ f^ t tchngctts^ in Jones v. Hoar, 5 Pick. 285, to which there is a note to a former opinion, reviewing the English cases, it was held that no contract could be implied unless the goods were sold and converted into money; and the same doctrine was held in Pennsylvania in Willett v. Willett, 3 Watts, 277, and in "Morri- son V. Eogers, 2 111. 317. But such has not been the uniform ruling. In Putman v. Wise, 1 Hill. X. Y., the court holds (p. 240) that "according to the well-known right of election in such cases, the ])laintiffs might have brought assumpsit as for goods sold and delivered against those who had tortiously taken their property." To this the reporter, Mr. Hill, adds a note reviewing the cases, and disapproves the doctrine of Jones v. Hoar. See Hill v. Davis, 3 N. H. 384; Stock- ell t'. Watkins' Adm'r, 2 Gill & J. 326, there cited. The question was early brought before this court, and it was distinctly hold that the owner of personal property may bring an action as upon contract against ^ tort feasor. Floyd v. Wiley, 1 Mo. 430. "It does not lie in the mouth of defendant," says the court, "to say that he is a trespasser." The same case was again heard (id. 643), and the doctrine affirmed by it was also acknowledged in Johnson v. Strader, 3 Mo. 359. It may bo treated, then, as the doctrine in this State, that one who has converted to his own use the personal property of another, when sued for the value of that property as sold to him, will not be per- mitted to say in defence that ho ol)tained it wrongfully. The distinction between set-ofl' and recoupment is now important only from the fact that the former must arise from contract, and can only be used in actions founded upon contract; while the latter may spring from a wrong, provided it arose out of the transaction set forth in the petition, or was connected with the subject of the action. The answer may be somewhat ambiguous as to whether the pleader intended to set up his claim as a set-off or by way of recoupment. 1 f the former, it should have alleged a sale of the corn ; and tliough the defendant might deny the sale and ownership of the plaintiff, he could not rlefond by showing that he was a tort feasor. If the latter, it should show that the act complained of was "connected with the sul)ject of the action ;" and although before the adoption of the code 64 FIRST NAT'l bank of NASHUA V. VAN VOORIS. [BOOK I. it could only go to reduce the amount of the claim, a defendant now may recover any balance found to be his due, as well by recoupment as set-off. Hay v. Short, aiite, 149. In Grand Lodge v. Knox, 20 Mo. 433, it is held that one who is sued for the purchase-money of land may recoup damages arising from the removal of fixtures by the seller. The defendant charges that the note sued on was given for the purchase-money of land, that the growing crop passed the deed, and that the plaintiff, without his consent, removed the crop, and he seeks to recover the value of the crop so removed. Wp fhinV Jie is entitled to do so by way of recoup- ment, and even if the answer were ambiguous, it should not have been FtricJcenTout, but made more definite,_ For the error of the court in striking it out, the judgment should be reversed. I see no necessity for the application made to the equity side of the court, and the questions raised by such application will not be con- sidered. The cause will be remanded for trial under the counter- claim. The other judges concur.^ FIEST NATIONAL BANK OF NASHUA v. VAN VOOKIS. Supreme Court of South Dakota, 1895. [6 South Dakota, 548.] Kellam, J. This is an appeal from an order of the circuit court of Brookings county discharging an attachment. The leading question in the case is whether, withi n the meaning of o ur attachment law , a judgment of a sister state is a contract, without regard to the chara cter of the original cause of action "^vhich entered into it. The difficulty is not to find direct adjudications upon the general question of whether a judgment is or ought to be classed as a contract, for they are almost numl:)erless on both sides of the question. The embarrassment' is to determine which Ij ne of the s c_p^ases. so squarely opp osed to ear-b nth( , ^rj is most securely grounded upon good reason, and most likely to result in its practical application in the most good and the least harm. Although some elementary law writers, and some courts whose learning is so great and whose judgment is so nearly infallible as to almost foreclose further inquiry, have declared judgments to be con- tracts, and have so classed them, it is very obvious that ordinarily they lack tlie clement of consent, which is generally named as the very •A later decision of the same court, Sandcen v. Kansas City, etc. H. R. Co. ( 1883) 79 Mo. 278, refused to allow assumpsit where the goods had not actually been sold. Sec Starr Cash Co. v. Rcinhardt (1892) 20 N. Y. Supp. 872, post.— Kd. CHAP. III.] FIRST NAT'l BANK OF NASHUA r. VAX VOORIS. 65 life and spirit of a contract. It would look pedantic, and probably serve no useful purpo.se, to undertake in this oi)inion to rewrite the learning found in the opinions of other courts, and in the books of the text writers, upon this question of tlic contract character of a judg- ment. A very l)rief e.\aniination of the subject demonstrates the fact that the most learned, careful and thou<,ditful jud; not enti r ely: jime -fr om cmb arra^s- ment, we conclude that an action on a judgment i£an "action arising 68 PEOPLE V. SPEIR. [book I. (mcon tract," jvithin the meaning of that expression as used in ou r attachment law, and tlia t this is so whether the original cause _of action which entered into the judgment w as one on contract or tor t. This^view necessitates the conclusion that the court erred in dis- charging the attachment on the ground that the action was not one arising on contract, and the order appealed from is reversed. All the judges concur.^ THE PEOPLE ex rel. CHARLES DUSENBURY, APPELLANT v. GILBERT M. SPEIR AS JUSTICE, ETC., RESPONDENT. Court of Appeals of New York, 1879. [77 New York Reports, 144.] 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 defendant 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. Danforth, J. In the course of supplementary proceedings insti- tuted 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 'W here a st atute provides for attachment in actions on contracts express or implied, aj dijterence of opinion cxistTli sTo wh oTIior ~Y¥ "slioul d issiie i n actions quasi ex contractu. On strict throiy, iimlor llie aiiahigy of the statu - 'liiiy iiihTJiM'liiliitiii ii|i[ili((1 to the statute, nf IJTnifn tinng, spf-ofT s. count er- tory in claims ( see cases on these .subjects, stipra), and jiulgiii£jits, Black. Judgments, §11, unless the statute expressly provides for quasi-contract actions, an at- tachment shou](liioFl)e~p?n7rTttte^ so holdT Jjabcock v.'Hnggs (W1) .5-i Cal. M)i; P\Wi\t'M]\Tn Hank v. TurhTey (1836) TMiles, 312. But^there seems to he a growi rig tendency among courts to^ gran t an at - tachment in quasi-contract actions oven under such statutes. Farmers' Nat. Bank~ i;. FoM'X [l»W J- ) G r^ Wuh. 53.'> -r-RTweiri^. Martin (1850) .S2 Vt. 217; Nethery v. Belden (1889) Of> Miss. 490; El Paso Nat. Bank v. Fuchs (1896) 89 Tex. 197, approved and distinguished in Gould v. Baker (1896) 12 Tex. Civ. Ap. 669. And see, Drake, Attachments, c. II. — Ed. CHAP. III.] PEOPLE V. SPEIR. 69 the hands of Lane as chamberlain, to the credit of the action, and payment of the same to Ililer was forbidden by injunction; that afterwards Ililer, 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 Dusenbury, in trust for the benefit of certain creditors of Hiler; that Dusenbury, 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 fraudulent and void as against creditors, and the plain- tiff 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 l)y him. Issue was joined, and the trial court found, and decided 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 injunction 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 judgment was entered as stated in the affidavit hereinafter referred to. After the recovery of this judgment, the plaintiff upon the affidavit of his attorney, to which was attached a copy of the judgment roll in the action alcove 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 fraud- ulent debtors." Upon the return of the warrant a hearing was had, and the relator discharged. The General Term of the Supreme Court reversed the determination of the magistrate, and upon a rehearing, the respondent, following the rulings of that court, convicted the relator, and he removed the proceedings to the Supreme Court, where Iboy were affirmed, and from the order of that court the relator has appealed. The first question to be examined relates to the juris- diction of the officer who issued the warrant. His authority in this case was not absolute. It depended upon the existence of certain facts. He was required by the statute from which he derived his authority to have proof of these facts, and the same statute declared that he sliould not issue a warrant without that proof, which is there pre- scribed, and thus made indispensable to the exercise of his autiiority. His jurisdiction, and its limitation depend upon the provisions of the act above referred to. Under those provisions, no person can lawfully 70 PEOPLE V. SPEIR. [book I. 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 proceeding instituted for the recovery of any money due upon any judgment or decree founded upon contract, or due upon any contract express or implied, or for the recovery of any damages for the non-performance of an}"- 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 tift}'^ dollars, and specifying the nature and amount thereof, as near as may be, for which the defendant accord- ing to the provisions of this act cannot be arrested or imprisoned," and establishing one or more particulars, which are specified, but •which do not become at present, material in this inquiry. We are thus met at the outset with the question, whetlier the judgment, for the enforcement of which these proceedings 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-performance 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 con- tains 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 ISTew 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 disoljcdience of the injunction restraining him from receiving the same, and by fraud and imposition on the Court of Common Pleas, which court made the order on which he obtained the money, and this statement is made upon the judgment 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 ol^tain 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, ■CHAP. III.] PEOPLE V. SPEIR. 71 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. Wester- velt, 2G Barb. 2(;0; Broadliead v. McConnell, 3 Barb. 187. Every fact stated in the affidavit as to the cause of action, meagre as it is in facts, leads to an inference that there was no contract at the foundation of the action, nor any act or circumstance from which one could be inferred or implied. Indeed the facts charged indicate directly a cause of action resting in tort. That the defendant 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 liim 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 pro- visions 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 upon 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 defendant could have been arrested in that original action, and if so he cannot be prose- cuted under "the act to al)olish imprisonment for debt." And the learned judge who delivered the opinion of the General Term upon the first review, 12 Hun, 70, says: "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 basis 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 pa^nnent 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 that the express contract referred to in the statute is one which has l)een entered into l)y the parties, and upon whieli 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 circum- stances ; and in either case must be the result of the free and bona fde exercise of the will, producing the aggregatio mcntium, the joining together of two minds, essential to a contract at common law. There is a class of cases where the law prescribes the rights and liabilities 73 PEOPLE V. SPEIR. [book I. of persons who have not in reality entered into any contract at all ■^ith one another, but between whom circumstances have arisen which make it just that one should have a right, and the other should be subject to a liability, similar to the rights and liabilities in certain cases of express contract. Thus, if one man has obtained money from another, through the medium of oppression, imposition, extortion, or deceit, or by the commission of a trespass, such money may be recov- ered 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 opposite of his intention. Implied or constructive contracts of this nature are similar to the constructive trusts of courts of equity, and in fact are not contracts at all. Addison on Contracts, 22. And a somewhat similar distinction is recognized in the civil law, where it is said : "In contracts it is the consent of the contracting parties which produces the obligation; in quasi-contracts there is not any consent. The law alone, or natural equity produces the obligation ,b-y rendering obligatory the fact from which it results. Therefore these facts are called quasi-contracts, because without being contracts, they produce obligations in the same manner as actual contracts." 1 Poth. Ob. 113. And again at common law says Biackstone, 3 Bl. Com. 165 : "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 contract 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 protection 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 says: "The law implied a promise to pay over, as the judgment directed that to be done." So obligations are created in con- sequence 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 option 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 judgment 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 tho ol)jection before mentioned; in that the debt or obligation spoken of in the act of 1831 means a CHAP. III.] PEOPLE V. SPEIR. 73 contract resulting from the voluntary arrangement of the parties, and not one implied by law for the purpose of giving a remedy for a wrong sufTcrod. That the debt or obligation was fraudulently incurred is one of the particulars 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 assignment; and so, having wrongfully obtained the money, he refuses to pay it over, but the law says he ought to, therefore he shall be deemed to have promised, hence you ma}' sue on that assumpsit, but you cannot arrest because the non- imprisonment act says you shall not in an action on contract. There- fore you set out in an affidavit the very frauds in consequence 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 then resort to the fact which constituted the tort as a ground of arrest. Fassett v. Tallmadgc, 37 Barb. 436, 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 Tallraadge, on the ground that 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 considering whether he was liable to be imprisoned, the court say : ''The first section of the act to abolish imprisonment for debt, and the one hundred and seventy-ninth section of the Code, fourth subdivision, are expressly confined in their operation to cases of contract, or in which the debt is contracted, or an ol)ligation 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." x\s the complaint stated no cause of action upon contract, and as the affidavit presented to the judge contained no statement or assertion tending to establish a contract express or implied as the basis of the judgment, but on the contrary an action to recover the fund on the ground of its unlawful ajipropriation or conversion by the defendant, showing misfeasance or malfeasance on his part, rather than a con- tract liability, the case is not within the statute. Many otiior questions are raised by the appellant's points, but as the conclusion to wbicli w(> liav(> arrived in regard to the one above men- tioned go'.'s to the foundation of tlie proceedings, it is unnecessary to disr-iiss them. 'I'lu' order of tlie (icneral Term should be reversed, and the warrant of Juilge Si'i:iu for the arrest of the relator, dated 14th of November, 74 u. s. V. REiD. [book I. 1876, and all subsequent proceedings thereunder, vacated and set aside. All concur, except Miller, J., absent at argument. Ordered accordingly} U. 8. V. Reid, U. S. Circuit Court (1883) 4 N. Y. C. P. 1, 3, Wheeler, J. : Whether the execution could properly issue in such a case is to be determined by the laws of the State. "U. S. Eev. Stat. §§ 990, 991; Low V. Durfee, 5 Fed. Eep. 256. The law of the State directly applicable is foundT in the Code of Civil Procedure, section 549. That section allows process to issue against the body in actions : "1. To recover a fine or penalty "4. In an action upon contract, express or implied, other than a promise to marry; where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability," and in no other cases claimed to be applicable. The object of the government is not to prevent imports, but to collect its revenue. The statutes which work this forfeiture are remedial to that end. This is the mode of obtaining the duties when the goods are so proceeded with as to become forfeited. The value of the goods forfeited, when recovered, is no more a penalty than the duties would be if paid. Stockwell v. United States, 13 Wall. (80 U. S.) 531; In re Vetterlein, 13 Blatch. (U. S. Cir. Ct.) 44. The execution cannot be upheld on the ground that the recovery was a penalty. As to the other ground, this can hardly be said to be an action upon contract, either express or implied. Certainly there was no ex- press contract. By force of the law, the property ceased to be the property of the defendants, and became the property of the govern- ment, if the government should choose to take it, and the government became entitled to the value of it in lieu of the property, and not by 'Where a plaintiff waives the tort and sues by action in form ex contractu to recover money wrongfully converted to his own use by defendant, and the record shows that a tort has been actually committed, he is entitled, under the Illinois statute, to a ca. sa. or execution against the body of defendant, notwithstanding the form of action adopted. Barney v. Chapman (1884) 21 Fed. 903. While the tendency is evident to subordinate the letter to the spirit of the law in matters of oivil attachment, the relaxation should not extend to attachment of the person, inasmuch as statutes in restraint of personal liberty should be construed strictly and to the letter. It is therefore possible to sup- port First Nat'l Bank of Nas^iua v. Van Vooris (1895) G S. D. 648 ante, and People V. Speir, supra, on theory as well as in practice. — Ed. CHAP, in.] SCEVA v. true. 75 virtue of any contract. The action of debt could be maintained, because of the title or right created by the law, and not by virtue of any obligation to pay entered into by the defendants, or to be implied from their acts beyond what rests upon everybody to obey the law and to yield to all its requirements. The liability to be incurred within the meaning of this part of the Code is a liability upon contract between party and party, and not the general compact between each member of society, and all the others to support the laws implied from living under them. These views were well supported by the reasoning of Choate, J., in United States v. Moller, 10 Ben. (U. S. District Court) 189. Motion to set aside execution granted. 3. CONTRACT VERSUS QUASI-CONTRACT. SCEVA V. TRUE. Supreme Judicial Court of New Hampshire, 1873. [53 New Hampshire, 637.] 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. Assumpsit for the support of Fanny True under the circumstances which follow : One Fanny True, an insane person, lived from 1822 until Nov., 1871, in the family of her brother-in-law, one Sceva by name. Fanny's father, William True, died in 1822, leaving a life interest in his real estate to his widow, and conveyed by deed, executed on same day with his will, an undivided one-half of his real estate to Fanny and her sister Martha. Said Sceva, the intestate, carried on said premises in 1822, married ^lartha in 1823, and lived on the premises so conveyed to the sisters from 1823 until a month prior to his death in 1871. 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 maintenance 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. 76 SCEVA r. TRUE. [book I. or anything else. No application was made for the appointment of a guardian in the interest of said Enoch F. Sceva, because of the oppo- sition of his wife to any step looking to tliat end. She has been sup- ported during said forty years by said Sceva, his wife, and her mother, out of the avails of said real estate taken as aforesaid, and out of their own funds. Since 184-i her chief support has been from said Sceva. Said intestate was worth nothing when he commenced on said farm, and died worth about $1,600. Shirley, for the defendant. The foundation principle of the entire law of contracts is, that the parties 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 contract ? What does that term mean ? 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 com- plicated, 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 con- tract. 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 doctrines of waiver and estoppel. Our position is. that where there is no express 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, 29 N. H. 117. The reasons are apparent. It is another fundamental principle, that no one, by voluntarily perform- ing services for another, can make that other his debtor. If these prin- ciples apply to cases where the contracting mind is wanting, they settle this case. We know it is sometimes said, in such a case, "the law will imply a contract." What docs that mean ? 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 voluntary 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. Tlie court has no power to make con- tracts for people: it can only infer one where a jury might.^ Harnnrd for the plaintiff. 'Counsel here cited a number of cases. — Ed. CHAP, in.] scEVA v. true. 77 Ladd, J.^ The other facts stated in the motion (which is to be re- garded 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 mav 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 therefore 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 while in that unfortunate and helpless 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 circumstance that in such cases there can be no contract or promise in fact, no meeting of the minds of the parties. The cases put it on the ground of an implied contract ; and by this is not meant, as the defendant's counsel seems to suppose, an actual con- tract, — that is, an actual meeting of the minds of the parties, an actual, mutual understanding, to be inferred from language, acts, and circum- stances, by the jury, — but a contract and promise, said to be implied by the law, where, in point of fact, there was no contract, no mutual under- standing, and so no promise. The defendant's counsel says it is usurpa- tion 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, in- vented and used for the sake of the remedy. If it was originally usur- pation, certainly it has now become very inveterate, 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 promise 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 circum- stances, the language or conduct of the parties, from which a meeting of their minds is to be inferred, 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 off 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 ol)tained for it to save hiniself from total loss. The defendant, in such a case, may have the physical 'Part of opinion is omitted relating to service upon an insane person. — Ed. 78 SCEVA V. TRUE. [BOOK I. cai^acity 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 provocation, but from wanton cruelty or ca])rice, 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 authority have held that a promise to pay for necessaries furnished her while in this situation, in good faith, is im- plied by law against the husband, resting upon and arising out of his legal obligation to furnish her support. See remark of Sargent in Kay V. Alden, 50 N. H. 83, and authorities cited. So, it was held that tlie law will imply a promise to pay toll for passing upon a turnpike road, notwithstanding the defendant, at the time of passing, denied his liability and refused payment. Proprietors of Turnpike v. Taylor, G N. H. 499. In the recent English case of The Great Northern Eailw. Co. V. Swaffield, L. E. 9 Ex. 132,^ the defendant sent a horse by the plaintiff'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 plaintiffs, having no accommodation at the station, 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 pay- ment of charges, which were admitted to be reasonable. On the next day the defendant came and demanded the horse, and the station- master offered 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 defendant at S. without payment of any charges, but the defendant refused to receive it unless delivered at liis 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 th'im. 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 evidence of an actual contract is generally to be found either ^See post, p. 233 for report of this case. — Ed. CHAP. III.] SCEVA V. TRUE. 79 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 circumstances of each particular case. A contract implied by law, on the contrary, rests upon no evidence. It has no actual existence; it is simply a mythical creation of the law. The law says it shall be taken that there was a promise, when, in point of fact, 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 riglit. 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 obli- gationes quasi ex contractu of the civil law, which seem to lie in the region between contracts on the one hand, and torts on the other, and to call for the application of a remedy not strictly furnished either by actions ex contractu, or actions ex delicto. The common law supplies no action of duty, as it does of assumpsit and trespass ; and hence the somewhat awkward contrivance of this fiction to apply the remedy of assumpsit where there is no trte contract, and no promise to support it. 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 falling into error when the same term is used to designate two different things. If the term, implied contract, be used indifferently to denote (1) the fictitious creation of the law spoken of above; (2) a true or actual but tacit con- tract, that is, one where a meeting of the minds or mutual understand- ing 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 exainple, 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 hotter nomenclature is desirable. But wluitever terms are employed, it is indispensable that the distine^ion, 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, 51 N. II. 402, and authorities cited at page 40-i. 80 SCEVA V. TRUE. [BOOK I. Much may doubtless be said against supplying a remedy for the enforcement of a plain legal right "by so rude a device as a legal fiction" (Maine, Ancient Law, 26) — but, at this time of day, that is a matter for the consideration of the legislature rather than the courts. The remedy of indebitatus assumpsit~ean hardly be abolished in that large class of cases where it can only be sustained by resorting 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 part 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 inten- tion that 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, the relationship existing between the parties, the length of time the defendant 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 credited for the use and occupation of the land, — in short, all the facts and circumstances of her residence with the family that tend to show the intention or expectation of Enoch F. Sceva with respect to being paid for her support, are for the jury. Hunger v. Hunger ; Seavey v. Seavey ; Bundy v. Hyde. If these services were rendered, and this support furnished, with no expectation on the part of Enoch F. Sceva that he was to charge or be paid there- for, this suit cannot be maintained ; for then it must be regarded sub- stantially in the light of a gift actually accepted and appropriated by Ihe defendant, without reference to her capacity to make a contract, or even to signify her acceptance by any mental 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. 'Accord: Ilcrtzog v. ITertzog (1857) 29 Pa. St. 4(15, an excellent case largely quoted in Woods v. Ayios (1878) 39 Mich. .345, printed ante. In tliorou^di accordance, both as to the facts and tlie law, is In re Rhodes (1890) L. R. 44 Ch. D. 94.— Ed. CHAP, III.] AUGNER V. MAYOR. 81 Augner v. Mayor (1897) 14 Appellate Division (Supreme Court of New York) 4GG, Bartlett, J., dissenting: This action is upon what has been aptly termed a quad contract. It is not upon a genuine contract, that is, an agreement, in fact, between jjlaintifl' and defendant, either express or implied. It is simply upon a statutory liability, which is sufficient to sustain an action analogous to what was formerly called assumpsit. "That feature," as Judge Allen said, in McCoun v. N. Y. C. & H. R. R. R. Co., 50 N. Y''. 180, "does not suppose a contract, but simply a promise ex parte." \\\ the class ification of actions tlij^ i< iiii.lni;l»j..i11y :rn action ex cuiilractu and not ex de licto. But that does not selile the present question, which is, whethex an_ action upon an o])ligaiio n afismg solely ex lege — thougli proceeding in form ex contractu — is cohtemi5TaTed by section -12^0 of the Code of Civil Procedure. Tiiere are^many"actrons upon contract — actual even — which are not within this section. In fact the contracts, whether express or implied, which come within it are strictly limited. They are, prst, an express ccn- Iract to pay money fixed by its terms, or capable of being ascertained therefrom by computation only. That, certainly, is not this case. Second, an express or implied contract to pav money receive d or dis- bursed, or the value of property delivered, or of services rendered by, to or for the use of th e defejidant or a third person . This case cannot come within tlie two latter alternatives. It has nothing to do with property delivered or services rendered. The claim is, that it comes within the earlier specification, namely, "to pay money received or disbursed." As there is no charge in the complaint of the disburse- ment of money, the point is reduced to its receipt. Does the com- plaint, then, aver the defendant's breach of an "implied contract to pay money received" by it? There is no other possible phase of the section which bears upon the question presented. The complaint cer- tainly does not aver even an implied contract to pay money received "to, or for the use of" the defendant or a third person. It cither alleges money received "hy" the defendant, or it alleges nothing which is within the section. What, then, is the feature of the contract to which this language refers? Clearly, money received by the defend- ant to the use of the plaintiff, that is, money which, upon its receipt Ity the defendant, becomes due and payable to the plaintiff, and so becomes due and payable under some contract between them, either express or implied. This means a contract between the parties, an actual contract in fact, whether the promise to pay be direct or infer- ential. "A^i!n]ilied promise." to again quote Judge Allex in the case cited supra, ov contract is but an express promise prov ed by circum- stantial evidenceir It is clear that the codifier here was not dealing with legaTfictions invented to sustain remedies ex contractu upon lialulities which rest upon nauglit save statutorv mandate, pure and simple. The intention was to limit those cases where a plaintilf might 82 AUGXER V. MAYOR. [BOOK I. enter his judgment without the revisorv consideration of the court to breaches of the few simple and actual contracts carefully enumerated in the section. In other Code instances we find no such limitation. For example, a warrant of attachment may issue in an action for the breach of any contract whatever, express or implied, except a contract to marry. Code, § 635. But the construction given to even this unlimited provision favors the view that the contract, express or im- plied, referred to in this latter section is a contract founded upon consent, that is, upon the actual meeting of minds; in other words, a contract between the parties in the ordinary and proper sense of this term, and not a mere legal fiction which forces a party to do something which he has never agreed to do. Thus, in Eemington Paper Com- pany V. O'Dougherty, 96 N. Y. 666, affg. 32 Hun, 255, it was held that an attachment under section 635 would not lie in an action brought under section 3247 of the Code to recover the costs of a former action which was prosecuted by the defendant in the name of a third person for her benefit. The presiding justice (Smith) at General Term said that "the defendant has made no contract with the plain- tiff or its assignors; she is liable only by the provisions of the statute.'* A different view was subsequently taken by the Court of Appeals of an action upon a judgment (The Gutta Percha & Kubber Mfg. Com- pany V. Mayor, 108 jST. Y. 276), thus making a distinction — the point of which it is difficult to perceive — between the fiction of a promise founded upon a legislative mandate and that founded upon a judicial mandate. The same court had previously held that a judgment was not a contract within the meaning of an act reducing the rate of interest, but reserving from its operation "any contract or obliga- tion" made prior to its passage. O'Brien v. Young, 95 IST. Y. 428. It had also held in The People ex rel. Dusenbury v. Speir, 77 N. Y. 144 that the phrase "contract, express or implied," as used in the old Non-imprisonment Act (Laws of 1831, chap. 300), referred to a con- tract resulting from the voluntary arrangement of the parties, and not one implied by law for the purpose of giving a remedy for the wrong. Judge Danforth said in tliat case that the implied contract referred to in the statute is one where "the intention of the parties, if not expressed in words, may be gathered from their acts and from surrounding circumstances:" and. whether express or thus implied, "must be the result of the free and bona fide exercise of the will pro- ducing the 'aggregatio mentium' the joining together of two minds, essential to a contract at common law." The learned judge added : "'I'here is a class of cases where the law prescri])es the rights and liabilities of persons who have not in reality entered into any contract at all with one another, but between whom circumstances have arisen which make it just that one should have a right, and the other should be subject to a liability, similar to ilio riglits and lialiilitics in certain cases of express contracts. . . . Therefore, these facts arc called CHAP. III.] AUGNER V. MAYOR. 83 quasi contracts, because, without being contracts, they produce obli- gations in the same manner as actual contracts." The conclusion there was that the statute did not embrace obligations of the latter class. To the like effect are Louisiana v. Mayor of New Orleans, 109 U. S. 285 and Steamship Company v. Joliffe, 2 Wall. 450. The same point was directly involved in Inliabitants of Milford v. Commonwealth, 144 Mass. 64. The Superior Court was given jurisdiction by statute "of all claims against the Commonwealth which are founded in contract for the payment of money," and it was there held that this jurisdiction did not extend to an obligation imposed by law upon the Common- wealth to reimburse the expense incurred by a town in the support of a State pauper. Field, J., observed that "a contract is sornajimes said to be implied when there is no int ention to create a contract, an d no agreement ^f parties, but the la w has imposed an obligation which is enforced as.il it were an obligation a rising ex contractu. In such a case there is not a contract, and the obligation a rises ex lege." 'In England these quasi contracts are no longer contused with "im- plied- contracts." Lord Justice Cotton, in Rhodes v. Rhodes, 44 Ch. Div. 94, referring to the nature of the obligation incurred by a lunatic for necessaries supplied, declared that "the term 'implied con- tract' is a most unfortunate expression, because there cannot be a contract by a lunatic." "It is asked," observed that learned judge, "can there be an impl ied contract by a person who cannot himself contract i n express termF ? 'the answer is that what the law linpltes on the part of such a person is an obligation, which has been improp- erly termed a contract, to repay money spent in supplying neces- saries." See, also. Trainer v. Trumbull. 141 Mass. 527 ; Cunningham I'. Reardon, 98 id. 538 ; Read v. Legard, 6 Exch. 636. Thus it is apparent that the complaint nowhere alleges a breach of contract, express or implied, "to pay money received ... by the defendant." The latter phrase undoubtedly means to pay money received by the defendant for the plaintiff, or to which the plaintiff, upon the receipt of such money by the defendant, was in justice entitled. It does not mean to repay to the plaintiff money received from him by the defendant for the defendant's own use, which, owing to circumstances subsequently occurring, the defendant is required to return. W hat t h e complaint here_realh^ alleges is a statutory obliga- tion to restore to the plaintiff part of_the m onev orilririally recei ved by tlie tlelondant to its own use as ,stfitutory:.tms tee for public charit v ; whTch part, in equity and justice, as decreed by the Legislature, should now be refunded to the plaintiff. That right of action does not depend at all upon the receipt of the license fee by the defendant. The statute gives it whether the board of excise did its duty or not ; whether that board paid the fee into the city treasury or not ; whether, if it did. the city has applied the fee to the specified charities or not. The right of action depends solely upon the two facts, first, the payment of the 84 AUGNER V. MAYOR. [BOOK I. license fee to the board; and, second, the statutory termination of the license. Laws of 189G, chap. 113, § 4. Our conclusion is that this right of action is not upon a contract express or implied, within the meaning of that phrase as used in sec- tion 420 of the Code; that it is not, in fact, upon a contract at all, but upon the fiction of a promise implied by law from statutory com- pulsion; and that it certainly is not upon an im|J|ed contract to pay money received by the defendant. It follows that the nature of the plaintiff's action was such that he could not take judgment without application to the court. The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion ior judgment granted, without costs. Order affirmed, with ten dollars costs and dislnirsements.^ 'It should be said in this connection that wh jle th e U. S. Court of Claims recognizes the distinction between express and implied, i. e., quasi-contracts, it does not limit its fiVfis^dTg liun— H b ased as it is b_y AcL o f Cong' less Liputi "contracts expressFcT orTniplicd" — 1n express ((nitntT^tSTir contra(*ts implied in facL. Aa Llie Cuuil~rs"expressly forinrtrtm to take jurisdictioiroi actions "sound- ing in tort," it is reasonable, although rather unscientific, that the court should extend its jurisdiction to all forms of contract action so as to give the suitor a remedy against the Government. Or to quote from the Court: "With these questions of liability decided positively and negatively — against the Govern- ment and for the Government — through a course of many years, it seems to the Court that the primary subject of jurisdiction must now be regarded as well settled. There have been a few cases in the Supreme Court wliere the decision was against jurisdiction — cases requiring equitable remedies, or cases wherein the existence of a contract was negatived by peculiar facts and circumstances — and there have been many more cases where the decision was against liability on the part of the Government; but there has never been a case in form ex contractu [as distinguished from ex delicto'\ in which the liability of the Government has been maintained and the jurisdiction of the Court denied." Per Nott, C. J., in Ingram v. U. S. (1897) 32 Ct. CI. 147, 169. This case, exhaustively argTied and carefully considered, is in realitj' a short treatise on the sources, extent and nature of Quasi-Contract, and referen ce is rrrade. ^ it as a whj) le. Squarely contra is the ease of Milford v. Common- wealth (1887) 144 Mass. G4.— Ed. CU-Vr. 111.] TEKKIXSOX I'. GILl'OUD AND OTHERS. 85 SECTION II. Wherein Quasi-Coxtuact Differs from a Tort, PERKINSON V. GILFORD AND OTHERS. ^ King's Bench, 1640. [CroU, Charles, 539.] Debt against Gilford and others, executors 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 Pawlott a debt of one hundred pounds, and two and twenty pounds ten shillings for damages, the debt and damages de bonis testatoris, si, &c.; e,t si non, the said two-and-twenty pounds ten shillings de bonis propriis; and the record being removed into this court, the plaintiff had a f.eri facias directed to the said William Collier, sheriff of Dorset, for the levying of the said two-and- twenty pounds ten shillings damages of the goods of the said execu- tor : and by v irtue thereof he lc\led the_ said two-and- twenty poun ds 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 accrevit. The defendants pleaded 7ion debet; and found against them. The ForRTir Objection,^ Th at alt hmighjthe__ac tion lies ag ainst the sheriff himself, yet it lies not against_his_exccu tors ; for t he no n- ]^; T^viiient ii^ a personal wron g, wherewith his executors are not charge- alTle, 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 fourth objection they held, that the sheriff's executors are as well chargeable as himself: for, as Jones said, there is a diversity wh ere the sheriff is char geable in his life for a personal tort or m isfeasa nce; th ere his personjs^nly chargeable, and there actio morifur cum persona: but where^he is chin'jjT^)le for levying of money, and not paying it over^_t]iia t is f or a duty; and tiiere, if he dies, his executors^ are chargeable as well as 1 11 nisei t; 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 l)e lialile in this case; for the plaintiff had a duty due to him from the executors of Pawlett the first defend- ant, who paid it to the sheriff, and thereby was discharged thereof; and if the plaintiff" should not recover it against the sheriff's executors, he should be without remedy, which the law will not suffer. Wherefore they all agreed, that the action well lay. And rule was given to have judgment entered, unless, &c. 'Only so nuuh of the case is given as relates to this objection. — Ed. 86 BISHOP OF WINCHESTER V. KXIGIIT. [BOOK I. ANONYMOUS. Trinity Term, King's Bench, 1700. [12 Modern, 415.] Holt, Chief Justice. Trover lies for the master for a ticket or other writing entitling his apprentice to money earned by him during the apprenticeship.^ But here the troueiLj mis aga insjtjhc executor of th e apprentice for a ticket given out after the death of the apprentice, for money earned by him during the apprenticeship; and because it never was in the apprentice's possession, the action was not maintainable ; but after th e executor receives the money, the master may have a mim'P^^^ ^"^ so much ImoneyTecervedrWTns' use. BISHOP OF WINCHESTEK v. KNIGHT. High Court or Chancery, 1717. [1 Peere Williams, 406.] One held customary lands of the Bishop of Winchester, as of his manor of Taunton-Dean in Somersetshire, in which lands there was a copper-mine that was opened by the tenant, who dug thereout, and sold great quantities of copper ore, and died, and his heir continued digging and disposing of great quantities of copper ore out of the said mine. Lord Chancellor [Cow^per]. It would be a reproach to equity, to say, where a man has taken my property, as my ore, or timber, and disposed of it in his lifetime, and dies, that in this case, I must be without remedy. It is true, as^o the trespass of bre aking up m ppflnw nr n^ipiVnt pasture-ground ^it d i es with tlic person ; but asJLQ-iliG- 4>ro])orty o f the Qie-Qr.JIm"5er7it would be clear even at law^ ifjj;_enm p to t1io j ^en - tor^Jiands, that trover wo ul^lie for i t ; and if it Imt; homi flif^i^O'^i'd Qfjn_the_testator^s lifetime, the executor, if_assej;s_aj:£-b&r-oii^«hi. to aiiaa:er_fgr jj ; but it is strongeTtfl^thi^ case7 by reason that the tenant is a sort of a fiduciary to the Lord, and it is a breach of the trust which the law reposes in the tenant, for him to take away the property of the Lord ; so that I am clear of oj^inion, the executor in such case, is answerable. 'See Barber v. Dennis, Salk. 68; Hill v. Allen, Vezcy, 83; 1 Burn's Justice, 17th ed. 90. — Reporter's note. — Ed. CHAP. III.] HAMBLY V. TROTT. 87 As to the evidence that the tenant might do one sort of waste, as to cut down and dispose of the timber, this might be by special grant ; but it is no evidence that the tenant has a power to commit any other sort of waste, (viz.) waste of a different species, as that of disposing of minerals; but a custom empowering the tenants to dispose of one sort of mineral, as coals, may be an evidence of their right to dispose of another sort of mineral, as lead out of a mine. But this question being doubtful, and at law, let the Bishop bring his action of trover as to the ore dug and disposed of by the present tenant. HAMBLY AND ANOTHER, ASSIGNEES OF MOON v. TKOTT, ADMINISTEATOR. Hilary. King's Bench, 1776. [Cowper, 371.] In trover agai nst an administrator cum testamento annexo, the declaration laidTlie conversion by the-testator in his lifeti me. Plea, that the testator was not guilty. Verdict for the plaintiff. Mr. Kerhy had mo^jodinjirrest of judgment upon the ground of this being a personal tort, which dies with the person ; upon the^auTlTorTly oT Collins v'. i'ennerell, Trin. 22, 33, Geo. 2, B. R., and had a rule to shew cause. Mr. Buller last term shewed cause. — The objection made to the plaintiff's title to recover in this case is founded upon the old maxim of law which says, actio personalis moriiur cum persona. But that objection does not hold here; nor is the maxim applicable to all per- sonal actions; if it were, neither debt nor assumpsit would lie against an executor or administrator. 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 probably 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 88 HAMBLY V. TROTT. [BOOK I. 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 ; therefore, this action does not die with the person. Mr. Kcrhy contra for the defendant cited Carter v. Fossett, Palm. 330, wliere 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 execu- tor for trover fait par luy." 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 executor but not against him. Hughes v. Eobotliam ; Le Mason V. Dixon, Popham, 31. Lord Mansfield. If this case depends upon the rule, actio per- sonalis moritur cum persona, at present only a dictum has been cited in support of the argument. Tr©*eiJs.in fp^m of_ a tort, but i n sub- stance an action to try property. Mr. Kerhy. The executor is answerable for all contracts of the testator, but not for torts. Lord Mansfield. The fundamental point to ])e considered in this case is, w hether if a man gets the propert y of another into lus ha nds it may be recov ered ag ainst his executors in th e form of an acti on o f trover. wTiere there is a n_actirm agm'Tisf tVip pvppiito^ rs in anotli er 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. Suppose the testator had consumed them, and had eaten the sheep ; what action would have lain tlion ? 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 right. Aston, Justice. Suppose the executor had had a counter demand against tlie 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, AsiiiiURST, Justice. The maxim does not hold as a universal propo- CHAP. III.] HAMBLY V. TROTT. 89 sition, because assumpsit lies. As to the case of Collins v. Fennerell, all the court considered it as unargued, and given up rather pre- maturely by Mr. Henley. Lord Mansfield. The criterion I go upon is this: Can justice possibly be done in any other form of action? Trover is merely a sub- stitute of the old action of detinue. 2 Keb. 503; Ventr. 30; Sir T, Eaym. 95. Tlie court ordered it to stand over. Upon a second argument this day, Mr. Duiuiing cited Cro. Car. 5 40 ; 1 Sid. 88. Lord Mansfield. Many difficulties arise worth consideration. An action of trover is not now an action ex maleficio, though it is so in form ; but it is founded in property. If the goods of one person come to another, the person who converts 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 assets to be in no respect liable? It will require a good deal of con- sideration before we decide that there is no remedy. Aston, Justice. The rule is, quod oritur ex delicto, non ex contractu shall not charge an executor. Bac. Abr. 444, 445. tit. Executors and administrators. 2 Bac. Abr. 280, tit. Trover, ^^^^ere 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. Cur. advisare vnU. Afterwards, on Monday, February 12th, in this term. Lord ^Ians- FiELD delivered the unanimous opinion of the court as follows : — This w^as an action of trover against an administrator, with the will annexed. The trover and conversion were both charged to have been committed by the testator in his lifetime; the plea pleaded was, that the testator was not guilty. A verdict was found for the plaintiffs, and a motion has been made in arrest of judgment, because this is a tort, for wliich an executor or administrator is not liable to answer. The maxim, actio personalis moritur cum persona, upon which the objection is founded, not being generally true, and much less uni- versally 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 form a fiction, and in substance founded on property, for the equitable purpose of recovering the value of the plaintiff'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 carefully looked into all the cases upon the subject. To state and 90 HAMBLY V. TROTT. [BOOK I. go through them all would be tedious, and tend rather to confound than elucidate. Upon the whole, I think these conclusions may be drawn from them. First, as to actions which survive against an executor, or die with the person, on_ account of the cause of a ction. Secondly, as to actions which survive against an executor, or die with the person, o n accoun t of the form of action. ~Ks to the" first ;"where_the cause o f act ionjs money due, or a contract tojj e per form ed, gain or a cquisiti on of thp'tiktato r by the work a nd labor_or_property of another, or a promise of the testator express or im plied ; _ where_ these are the causes of action, the action survives against the_executor. But where the cause ora^ ctronls~a~ tui l, u i ar ises e x del icto, as is said in Hole v. Blandford, Sir T. Eaym. ^TT^upposed to be by force and against the King's peace, there t he nptinn dj es^ — as battery, false imprisonment, trespass, words, nuisance, obstructing lights, diverting a water-course, escape against the sheriff, 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. NpLiictiQn.Jw;here in form the declaration must be quare vi et armis, et contra pacem, o r w-liere the plea must be, as in this case, that the testator was not guilty, canli^^gaTnst the~executor. Upon the fVice of the record, the" cause of action arises ex delictojimd all private criminal injuries or wrongs, as well as all public crimes, are buried with the offender. But in most, if not in all the cases jwhere _t rover lies against t he testatof7~anqthcx action might be brought a gainst t^Iic_cxe cutor whic h wouTd"answer the purpose. . An action on the custom of the realm agamSt a cummuTrcarrfeFls 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 executor, though it would againsi him ; but an action for the use and hire of the horse will lie against the executor.^ ^"Lot lis now suppose the case of a person who takes possession of and uses another's horse, wagon and team, or threshing machine, without his knowledge, consent, or authority. In such a case, the laAV provides common law remedies, in which the defendant is afforded the constitutional right of a trial hy jury. In such a case, the owner may recover damages in trespass for the tort, or he may waive the tort, and sue in assumpsit on the implied promise to pay what is equitably due for tlie use and possession of the prop- erty," per Hughes, J., in Rayles v. Rielimond, Fredericksburg & Potomac R. R Co. (187!)) 4 Ban. & A. 2:?!), 245. In the interesting case of Stockett v. Watkins (18130) 2 G. & J. 32G, it was CHAP. III.] HAMBLY V. TROTT. 91 There is a case in Sir Thomas Raymond, 71 (Bailey v. Birtles et uxor, executrix of llichard Bailey), which sets this matter in a clear light: There, in an action upon the case, the plaintiff de- clared, "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 testator 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 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-feasance 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 notwithstanding this the court held "it was a tort, and that the executor ought not to be chargeable." Sir Thomas Raymond adds, "vide Savillo 40, a differ- ence taken." That was the case of Sir Henry Sherrington, who had cut down trees upon the Queen's land, and converted them to his own use in his lifetime. Upon an information against his widow, after his decease, Man-wood, 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 executor shall be chargeable ; but where the action is for damages only, in satisfaction of the injury done, there his execu- tor shall not be liable." These are the words Sir Thomas Raymond refers to. Here therefore is a fundamental distinction. I^j t is a sor t of injury by w hich the offender_firqnirp^ no p in to himself at the expens e of t he sufferer, as beating or imprisoning a man, etc.. the re the person injured has _onlv a reparat ioTLio£-th.C-ir//'r:///.;u.in--damage;^ to^hc. assessed by a jtTTT. But wWoJ^es'^l'^g tliP prime p rnperty is a cquir e d which ben efits il-^n fncfi for, tbPTP iiu actjon for the value of the property shall survi ve aga inst the oxeci- itor. As for instance, the executor shall not be cliarge- able for the injury done by his testator in cutting down another man's trees, but for the benefit arising to this testator for the value or sale of the trees he shall. So far as the tort itself goes, an executor shall not he liable; and therefore it is, that all public and all private crimes die with the held that whore negroes tortio\isly possessed were returned to the owner, the hitter niiplit waive the tort and reeover the value for their time in assumpsit. As this was a case of Administrator ai^ainst Administrator, it would seem tliat Lord jMan.sfielo's dictum is not witliout adjudged support. See also MeSorley V. Faulkner (1802) IS N. Y. Supp. 400.— Ed. 92 HAMBLY V. TROTT. [BOOK I. offender, and the executor is not chargeable ; but so far as the act of the offender 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, 17-i, Palm. 330. There is no saying that it does. The form of the plea is decisive, viz., that the testator was not guilty; and tbe_js:^np is tn try the crnilt nf t1i e testator. And no mis chief ij done ; for so far as the caus^ * ^f a^^-inn rlnot; imf t^yi^o^- dpMrinj) r(ir mnl ^^ci o of the testator, but is founded in a duty wh ich the testator owes the plaintiff, upon pirinciples of civil obligation, anot her form of act ion may be brouglrtj as an action for monev"~h ad aniLr£C£i5^d. Therefore, we are all of opinion that the judgment must be arrested. Judgment arrested} 'In Kirk v. Todd (1882) L. R. 21 Ch. D. 484, 488, action was begun against one Todd, who died, and more than six months thereafter the action was continued against his executors. Sir George Jessell, M. R. : "I cannot help feeling that this is a very hard case, and that no doubt is the reason why the appeal was brought, but we must not allow hard cases to make bad law. The plaintiffs sued the original defendant for damages and an injunction. It 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 under- stand the rule at common law, it was this — you could not sue executors for a wrong committed by their testator for which you could only recover unliqui- dated damages. That rule has never been altered except by the Act 3 & 4 Will. 4, c. 42, which allowed the executors to be sued in certain cases, but with the limitation that the injury must have been committed not more than six months before the death of the testator. That was not so here; therefore the statute did not apply, and the rule of the common law remained in its simplicity." But if the tortfeasor sustain a fiduciary relation, courts of equity allow the' action to survive agains.> the estate. In Warren v. Para Rubber Shoe Co. (1896) IGG Mass. 197, 104, it is said: "We may assume that the injury to the corporation and the benefit to the estate of Coolidge were too indirect to furnish of themselves a reason for the survival of the remedy, Read v. Hatch, 19 Pick. 47; Cutting v. Tower, 14 Gray, 18.3; Cummings v. Bird, 115 Mass. 346; Leggate v. Moulton, 1L5 Mass. 552; Cutter v. Hamlen, 147 Mass. 471; Phillips v. Homfray, 24 Ch. D. 439, 454, 463; Finlay v. Chirney, 20 Q. B. D. 494. But wh ere a relation has ex i S ited which involved t he performance of certain duties for pay, and especially where that relation wa^~or~a fiduciary character and tliere was a failure to perform those duties, the remedy has been held to sjiryiye. The decision most closely Tirp(5tnt of any wlncTi has come lo our notice is Concha v. Murrieta, 40 Ch. D. 543. But this exception to the application of the maxim. Actio personalis moritur cum persona, has often been stated. Batthyany v. Walford, CHAP. III.] OSBOUN V. BELL. 93 OSBORX V. BELL. Supreme Court of New York, 1848. [5 Denio, 370.»] A:5;iL.m:^T, tried at the Rensselaer circuit in November, 1844, before J'akkeu. Cir. J. The suit was originally commenced in January, 1843, by the plaintiff's intestate, but he dying after issue joined, t he prese nt pL ajntiff was appoin ted his administratrix, and by an order of the court was substituted as plaintiff. The declaration contained the general counts in indebitatus assumpsit for goods sold, and money had and received. Plea, non-assumpsit. The plaintiff claimed to recover for certain factory machinery, namely, a lathe and two hat carders. By the Court, Beardsley, Ch. J. Assuming that the lathe and bat carders, when levied on by the defendant, were the property of G. K. Osborn, an action of trespass, if the taking was tortious, would have been an appropriate remedy for him while living, and after his decease a similar action might have been brought by the plaintiff as administratrix. The last proposition was not true at common law, the maxim being actio personalis morilur cum persona (1 Ch. PI. 78, 9, ed. 1837; Broom's Legal Max. 400) ; but the statute is explicit that trespass may, in such case, be brought by the personal representative. 36 Ch. D. 209, 279-281; Phillips v. Homfray, 24 Ch. D. 439, 465; Morgan v. Ravey, 6 H. & N. 205; Sollars v. Lawrence, Willes, 413, 421." In the ease alhided to in the passage quoted. Concha v. Murrieta (1889) L. R. 40 Ch. D. 543, 553, it is said: "It was urged upon us that to allow this claim would be coatrary to the maxim of the English law, 'Actio personalis moriiur cum persona.' lt^_ia_triie that no action for a tor t can be revived or commenced against the rpprespntatives_of t^iie person who committed it ; but the case i s quite diffcre nt_Avhere the act is not a mere tort, but is a breac h of a quasi contract, where the clai m is fi)unded on breach of a fiduciary rel a- tion, or on failur e^to perform a duty. Here the father, though I do not call him a trustee, was in a position in which he owed duties of a fiduciary character to his daughter. In the very careful judgment of Lord Justice BowEN, in Phillips v. Homfray, 24 Ch. I>. 439, cases depending on breach of contract, express or implied, are excepted from the judgment. Here there is what we call quasi contract, the law implying a contract that a man will faillifully perform the duties which he has undertaken. Juan Jose Concha undertook a duty in consequence of his position, and losses arising from his breach of it can be followed up against his estate." And see further Houghton V. Butler (1890) 100 Mass. 547; Parker v. Simpson (1902) 180 Mass. 334. 343. For a case of a quasi-contractual duty arising from a position not unlike that in Concha v. Murrieta, supra, and for the efTect of the statute of limita- tions upon such duty, see Wilson r. Towie (1848) 19 X. H. 244, ante. — Ed. 'S. C. 49 Am. Dec. 275, with note.— En. 94 OSBORN V. BELL. [BOOK I. 2 R. S. 114, § 4. The present, however, is not an action of trespass, but assumpsit, and if that remedy existed in favor of the intestate there can be no doubt it survived to the present plaintiff as administratrix. The declaration contained general counts for goods sold and money had and received, and it appeared on the trial that the rlpfenrlmitj ^ o ^^^ti^^j^'S'^^f^-^'^^^ ^^ ^'«^e^i ^'TJ spT'^'^^1 anrl^V] the property in questio n to sa tisfy ce rtam taxes ~w-hich^i±.jvasjiis duty to collect. Itwasnot shown that the defendant received any money Tm the" s ale ; nor was th^ riglTTto maintain this~action placed on the ground tliat the plain- tiff might waive the tort and bring assumpsit for the money thus received by the defendant. Theggneral rule, where property has b een wrongfully taken and converted into m o ney, certainly is, that the owner of the property_max^ waive the tort and bring his action directlylor th£jncmey,i£cdz£dj3yJ.b£_wrongflopr7aan(rthe^ of Young vT Mar- shall, 8 Bing. 43, is a strong authority for the position that this may be done, under some circumstances, where the property was taken and sold by a public officer in the supposed performance of his duty, the money having been paid to and received by him in that character and capacity. It is not unlikely that the money bid on the sale of this property was paid to the defendant as collector, and, in that event, he also, probably, paid over the whole or some part thereof in satisfaction of the tax for which the sale had been made. If this action had been brought for the money so received by the defendant, as collector, the fact that he had notice, before the money was paid over, of the claim of the intestate to the property sold, might have been indispensable in order to show a right of action for the money. But i n all these re spects this_billof- exceptions is deficient : it does not show that the defendant re ceived or paid over a ny money, or thaThe ever heard of the claim of the intestate, until this~acti mi was broug ht The case then7"gn " f ai »s 'respects a right t o recove r for money iiad^nd receivedTisTjuTpartiaTIy pres^ntei^ancrthat queslion"not~ being -for ma l ly mad e on -the-4yiai, will be"~TtTw»issed without the expression of any opinion upon it. jin_exc_e]2t jon was taken by the de fen dant, a nd t his p resents the point to be considere d. There was no pretence on the trial or the argument, that the de- fendant ever, in fact, made a purchase of these goods, or expressly agreed to pay for them. He was a collector of taxes, and as such seized and sold the goods to satisfy a tax in his hands for collection. As _to the intestate, what was done may have been wr ong ful, but ther e w fl^R pnthing 1iVp _ a purchn^e. in fnet. of th e - go ods by th e defendanl. He was not acting in a personal and private capacity, but as a public officer; and although what he did may have been, as to the intestate, wholly unauthorized, it was done for the public and not for the benefit and advantage of the defendant. The question then arises^ can a pi 'Tj^tin , whose - ffooda arc wrongfull y-take n by a publi c officer, .ac ting CHAr. III.] OSBORN V. BELL. 95 as such and not for h is own benefit, w aivf^ fVip fort nnd mm'nt,?iin as snnrpsit f or goods soldX It is entirely settled that where--gnods are wrong full^t aken an d CQUxfiited intomone y by a person acting for his own benefi t, the owner max_waixeJ:h e to rt a nd-briag assumpsit for iJiagnonev thusTeceived hy UiP wrnngrlopr Chit, on Cont. G07, 23, 34, ed. 18T27T5rcmTrP. 3; 1 Hill, 240, note; 3 id. 283, note; 5 id. 584, note, and the authori- ties referred to in these books. There are also resjyx^ta^e^a uthorities for the position that wh ere goods haye_thus Wti tnVpn^ bnt nnt tnrnpfl infQ _money^ the own er niay _ waive the to rt, and recover as for goods sold. Hill v. Davis, 3 N. H. 384, and the books last above referred to. "Rnt upon this point th e authorities _are,nQi agreed, some holding that the tort can only be waived where the property has been sold and converted into money by the wrongdoer, in which case the owner may affirm the sale and sue for the money as had and received to his use. Jones v. Hoar, 5 Pick. 285 ; Willet v. Willet, 3 Watts, 277; Bennett v. Francis, 2 B. & P. 554; see also the books above referred to. It is unnecessary in this case to say how that point should be determined, and no opinion is intended to be expressed upon it. If £ji ac t ion f r. r g^n^^- ^n] , ] \\' \ ]]]]i ' ' \]\^^vy case, for a mere tortious taking, th e goods not having been turned intoTn oneyT 2_fcJ3:§-in!QBgd^^^j ^'^ mnst bpT)p?^ iTrrap the law will. In s'uch c ase, imply a pr om ise to pay_for them ; for assumpsit can only be maintained_ upon a p romi^£^exp ress or implied. Where thfi-goods"have been applied to the use of the wrongd oer, it ma y not be unreason able, an' d^ certa inly not unjust, to iniplyajjromise to pay for them, without regard to the manner in which the goods we re orTginallv acgiili'p rn The wrongdoer is responsible^m some form of action for their value, and he eanmd received is said to resemble a bill in equity, and to lie whenever niojiey has been received by one pers on which m justice and equity belo ngs to_ another. In every such case an" agreement to pay over the money thus received is implied by the law. 2 Stark. Ev. 82, ed. of 1842; Jestons v. Brooke, Cowp. 795; Foster v. Stewart, supra; Browne on Actions at Law, 515, 518. ^But this principle is not applicable in its f ull ext e nt, to an i \ oi\n-n for g nndt? soW, as tlTe~law^does not imply an agreement to pay for all goods of whicli a party may become possessed. "It is a principle well settled," says Chief Justice Mellen, 5 Greenl. 322, "that a promise is not implied against or without the consent of the person attempted to be charged by it. Whiting v. Sullivan. 7 Mass. 107. And where one is implied it is because the party intended it should be, or because natural justice requires it, in consequence of some benefit received." It was not shown on the trial of th is case that the defendant h ad received "any benefit from j]ii8_seizure_and_^ alc of the property in questioii^ Ko express promise to pay for the goods was pretended, aiKTeVCTy feature of the transaction repels the idea that the defend- ant intended to have one implied from what he did. He may have been a trespasser, but I see no ground on which he can bo held liable for these goods as sold to him. I f he can be, such an action is, in a 1 T>TOsf_pvpry imnffinnblp pasp^ a nnnpur rent reiuedv with trover, re-- plevin and trespass fo r person al proper ly. It_inavJ)e a concurrent r emedy where jthe ^pxaperty has been --appxQpa!iai£4__byI]a_wrongdoer to his own use, b ut unless that fact is shown, I think no case will b e found m which it has been beTdJTintj_ prnriisp tn pny for tJ2 12_£'^"ds is miijlied by law . That was not^hown on the trial of this cause, and therefore, as it seems to me, the judge erred in holding that the action for goods sold was well brought.^ 'Accord: People v. Gibbs (1832) 9 Wend. 29; Elliot v. Cronk's Adm's (1834) 13 Wend. 35. In Gloucestershire Banking; Co. v. Edwards (1887) L. R. 19 Q. B. D. 575, the action was held to lie ajrainst an under-sheriff and his executors to re- cover sums wronfTfully retained, and in U. S. r. Daniel (1848) G How. 11, the Supreme Court held that the action against marshal or deputy-marshal would 98 HURLEY V. LAMOREAUX. [BOOK I. HUKLEY V. LAMOKEAUX. Supreme Court of Minnesota. [29 Minnesota, 138.] Appeal by defendants from an order of the district court for Hen- nepin County, Young, J., presiding, overruling their demurrer to the complaint. The entire complaint is recited in the opinion, excepting the description of the real estate. Berry, J. The complaint is that on May 1, 1881, the plaintiff "was, and ever since has been and now is, the owner in fee-simple" of certain described premises ; that defendants have used and occupied the same from said first day of May; and "that said use and occupa- tion of said premises for said time was and is reasonably worth the sum of $800." For this sum judgment is demanded. This action is in the nature of assumpsit for use and occupation. It lies only where the relation of landlord and tenant subsists be- tween the parties, founded on agreement express or implied. Taylor on Landlord & Tenant, § 636 ; Abbott, Trial Ev. 351 ; Carpenter v. United States, 17 Wall. 489; City of Boston v. Binney, 11 Pick. 1; Mayo V. Fletcher, 14 Pick. 525; Ackerman v. Lyman, 20 Wis. 454; Holmes v. Williams, 16 Minn. 164. As the complaint contains no allegations of any facts showing that the relation of landlord and ten- ant subsisted between the plaintiff and defendant at the time of the alleged use and occupation, or any part thereof, it fails to state a cause of action, and defendants' demurrer was therefore well taken. The plaintiff appears to claim that he has framed his complaint upon the theory of waiving a tortious entry and occupation of the premises by defendant, and suing upon an implied contract to pay for use and occupation. One obstacle in the way of this claim is that no tortious entry or occupation is in any way alleged. But the insuperable an- swer to it is found in the authorities above cited, which hold, in effect, that a_trespa sser cannot be converted into a tenant without his con- sent In other"\Voids,4«-4ftaiH4ain-tiu aeliun for us-e 'JiicTbccupation, there must have been an agreement, expfesH" or imprlied, h^ wtlicli fIie~~relation of landlord and tenant is created between the parties. Privity of coTTlracL belueen them is indispensable. ' Order reversed.^ lie against his executors if assets from the deceased had come to their hands. And see the admirahle opinion of Mr. Justice Brem'er in Patton v. Brady, Executrix (1901) 184 U. S. 608, 612-615. And so are the authorities gen- erally. — Ed. 'The opinion of the court in Burdin v. Ordway (1896) 88 Me. 375 is as follows : "Assumpsit for rent. No express promise is shown, and the law does not CHAP. III.] HEAD V. PORTER. 99 HEAD V. PORTER. Circuit Court of the United States, 1895. [70 Federal Reporter, 498.] Colt, Circuit Judge. This is a motion to dismiss a bill in equity upon the ground that by reason of the death of the defendant the suit has abated, and cannot be revived. The bill i^ jr nyntrht for the in- f ringem ont of a patent, and co ntains the usual prayer for an mjunc- tio n andan a ccount of pTohts. The usual mode of procedure where the defendanrcTTes^pending suit is for the complainant to bring a bill of revivor, and for the defendant to raise the question of the survival of the action by demurrer to the bill; but, since the question has been fully argued on the present motion, I will proceed to consider it. The present bill prays for an injunction as well as an account of profits, and is, therefore, a case within the jurisdiction of a court of equity. It not only asks for an injunction against future infringe- ments, but it calls upon the wrongdoer to refund the profits he has made, "as it would be inequitable that he should make a profit out of his own wrong." Profits arp the gains or savings made by th e Avro ngdoer by the invasion of the complainant's property right in his imply one from the facts in the case. The defendant was tenant of the plaintiff's father. He died, and the tenant denies the title of the plaintiff, who claims to hold as heir. As to him, the tenant has become a disseizor. There was no re- lation of landlord and tenant between them from which the law implies assumpsit for rent or use and occupation. Eogers v. Libbey, 35 Me. 200; Howe V. Russell, 41 Me. 446; Emery v. Emery, 87 Me. 281. Title to land should not be tried in assumpsit." See also Lloyd v. Hough (1843) 1 How. 153; Hill v. U. S. (1892) 149 U. S. 593; Adsit v. Kaufman (1903) 121 Fed. 355; Lathrop v. Standard Oil (1889) 83 Ga. 307; Henderson v. Detroit (1886) 61 Mich. 378; Dixon v. Ahem (1887) 19 Nev. 422; Preston v. Hawley (1886) 101 N. Y. 586; Downs v. Finnegan (894) 58 Minn. 112. For the history and statutory origin of the action for use and occupation, see the article on the subject by Mr. Ames in 2 Harv. Law Rev. 377. The case of Phillips v. Homfray (1883) L. R. 24 Ch. D. 439 (followed with evident regret in Leslie v. Calvin (1885) 9 Ont. 207, but approved in in re Duncan, L. R. [1899] 1 Ch. 387) contains an elaborate discus- sion of the English law on this subject, and an analysis of the cases. Lack of space prevents its insertion. The dissenting opinion of Bag- GALLY, L. J., is especially valuable on the subject of "negative enrich- ment." See also the carefully considered judgment in Batthyany v. Walford (1SS7) L. R. 36 Ch. D. 269. On principle, assumpsit should lie in these cases and should therefore survive against the executors of the tortfeasor. To the lay mind a penny saved is indeed a penny earned ; but it will probably be some time before the court catches up with the people. The case of Sellers v. Lawrence (1743) Willes, 413, post, is a precedent in point. — Ed. 100 HEAD V. PORTER. [BOOK I. patent. They are the direct pecuniary benefits received, and are capable of a definite measurement. Calling them the "measure of damages in equity" does not mean that they are the same as damages in an action at law. They are clearly not the same. "Profits in equity are the gain, or saving, or both, which the defendant has made by employing the infringing invention. This gain or saving is a fact. It is an actual pecuniary benefit which has resulted directly from the defendant's wrongful use of the plaintiff's property, which he has had and enjoyed, and to which, on equitable theories, the plaintiff is entitled." 3 Eob. Pat. § 1062, note 7, par. 3. At law da mages may inc lude _profitSv,^ut they also include other elements necessar y to make jip_^e a^ctual loss, aiid to give~lull compensation to'THe injuredjarty. They may be still further increased Sy^way of'pums^hment for the wrong. But e^quityj_unless by statute, exacts nothing by way of loss o r punish me nt from the wrongdoer except his acHirgatns:~TirErizabeth v. Pavement Co., 97 U. S. 126, Mr. Justice Bradley, speaking for the court (page 138), said: "But one thing may be affirmed with reasonable confidence, — that, if an infringer of a patent has realized no profit from the use of the invention, he cannot be called upon to respond for profits. The patentee, in such case, is left to his remedy for damages. It is also clear that a patentee is entitled to recover the profits that have been actually realized from the use of his invention. ... It may be added that, where no profits are shown to have accrued, a court of equity cannot give a decree for profits, by way of damages, or as a punish- ment for the infringement. Livingston v. Woodworth, 15 How. 559. But when the entire profit of a business or undertaking results from the use of the invention, the patentee will be entitled to recover the entire profits, if he elects that remedy." Referring to that case in Eoot v. Railway Co., the court (page 203) said: "Accordingly, in that case, the bill was dismissed as to the city of Elizabeth, which had infringed, because it appeared that it had made no profit from the use of the patented improvement, while a decree was rendered against the contractor who had laid the pavement which was the subject of the patent, because he -was shown to have made profits from the infringement. The municipal corporation, of course, remained liable to respond in damages in an action at law for any loss which the plaintiff could have established by proof." By the act of July 8, 1870, c. 230, 16 Stat. 206, the complainant in a bill in equity brought for the infringement of a patent is entitled to recover, in addition to the profits, the damages he has sustained. In referring to this statute in Birdsall v. Coolidge, 93 U. S. 64, the court (page 69) said: "Gains and profits are still the proper measure of damages in equity suits, except in cases where the injury sustained by the infringement CHAP. III.] HEAD V. PORTER. 101 is plainly greater than the aggregate of what was made by the respond- ent ; in which event the provision is that the complainant 'shall be entitled to recover, in addition to the profits to be accounted for by the respondent, the damages he has sustained thereby.' " In referring to that case in Root v. Railway Co., it is (page 201) declared : "The whole force of the change in the statute consists in conferring upon courts of equity, in the exercise of their jurisdiction in admin- istering the relief which they are accustomed and authorized to give, and which is appropriate to their forms of procedure, the power not merely to give that measure of compensation for the past, which con- sists in the profits of the infringer, but to supplement it, when neces- sary, with the full amount of damage suffered by the complainant, and which, if he had sued for that alone, he would have recovered in another form." The general rule that personal actions die with the person does not apply where property is acquired which benefits the testator. In the language of the supreme court in U. S. v. Daniel, 6 How. 11, 13: "Where, by means of the offence, property is acquired which benefits the testator, there an action for the value of the property shall survive against the executor." In the case of Bishop of Winchester v. Knight, 1 P. Wms. 406, where the bill prayed for an account of ore dug by the ancestor of the defendant, and the argument was that, this being a personal tort, it died with the person. Lord Chancellor Hardwicke (page 407) said: "It would be a reproach to equity to say, where a man has taken my property, as my ore or timber, and disposed of it in his lifetime, and dies, that in this case I must be without remedy. It is true, as to the trespass of breaking up meadow, or ancient pasture ground, it dies with the person ; but as to the property of the ore or timber it would be clear, even at law, if it came to the executor's hands, that trover would lie for it ; and, if it has been disposed of in the testator's life- time, the executor, if assets are left, ought to answer for it." In Lansdowne v. Lansdowne, 1 Madd. 116, which was a bill for an account of profits for equitable waste, the vice-chancellor (page 139) said : "This I take to be a just exposition of the qualifications under which the maxim, 'Actio personalis moritur aim 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 wlicther it was a naked injury, by which his estate was not benefited. . . . And as at law, if legal waste has been committed, and the party dies, an action for money had and received lies against his representative, so, upon the same principle, in cases of equitable waste, the party must, through his representatives, refund in respect to the wrong he has done." 102 HEAD i". POKTEK. [BOOK I. In the case of Phillips v. Homfray, 24 Ch. Div. 439, Justice Bag- GALLAY (page 476) said: "The general result of these cases, and of others to the like effect, may thus be stated : that a court of equity will give effect to a deman d against th e estate of a deceased person in resp pct of a wrnno-fnl apt f]opp byU uffl- if the wrongful act has resulted in a benefit capable of bei ng measuredpecuniarily, and if the demand is of such a nature as can be properiyentertained by the court. The principle s thus acted u pon by ^courts of equity are in accordance with the conclusi ^Tia p-pnnpiatn ^ byJ liOrd Mansfield with reference to actions at common Ino: which survive or die on account of the cause of action ; buty-aa-CEgardiUlose acti ons which at com mon law survive or die on account of th e form jjf action, courts of equity will not permit the justice of t he casfi— lo_be__defeated by reason of the technicalities of particular p rocedure. " In Sayles v. Railroad Co., 4 Ban. & A. 239, Fed. Cas. Xo. 12,424, which was a suit for the infringement of a patent, Judge Hughes (page 245, 4 Ban. & A., Fed. Cas. No. 12,424) said: "Let us now suppose the case of a person who takes possession of and uses another's horse, wagon, and team, or threshing machine, without his knowledge, consent, or authority. In such a case . . . the owner may recover damages in trespass for the tort, or he may waive the tort, and sue in assumpsit on the implied promise to pay what is equitably due for the use and possession of the property. . . . The case I have supposed is, in principle, precisely the case we have at bar ; for there is no magical quality in the property of the patentee in his patent to distinguish this case from the one just supposed. . . . The act of the defendant was nothing but the simple one of a person taking and using another's property Avithout authority, to his own advantage, and incurring a liability to compensate the owner for such use of the property. The case is, in principle, precisely identical with that of such use of a horse, or a boat, or a wagon and team, or threshing machine, giving a right of action in assumpsit." In Stone-Cutter Co. v. Sheldons, 15 Fed. 608, which was a patent suit. Judge Wheeler (page 609) observed: "When the Windsor Manufacturing Company sold machines em- bodying these inventions to the defendants for use, it invaded the orator's rights, and converted the orator's property to its own use. These acts were tortious, and an action would lie for these wrongs. As that company received money for the orator's property, the orator could waive the tort, and sue in assumpsit for the money, or, what is the same in effect, proceed for an account of the money received." In Jones v. Van Zandt, 4 :McLean, 599, Fed. Cas. No. 7,503, the court (page 600, 4 McLean, Fed. Cas. No. 7,503) said: "But, except l)y statute, actions of torts, replevin, etc., do not survive against the e.xecutors or administrators, unless the estate of the de- CHAP. III. J HEAD V. PORTER. 103 oeascil received some gain from the wrong, when some form of action will lie." May r. Logan Co., 30 Fed. 250, was an action at law against the county of Logan for the infringement of a patent, which came before Judges Jacksox and Welker. Judge Jackson, in the opinion of the court (page 259), said: "It would be a strange anomaly in the law if a county, which had thus wrongfully appropriated a patentee's invention and property, could escape liability for damages thence resulting to the owner by the simple device of calling the illegal act a tort, or by saying that the remedy by an action on the case, which congress had provided, was appropriate or applicable only to torts. . . . The patentee's rights and remedies are created and defined by congress, which has, under the constitution, the exclusive control of the subject. The right is given and remedy created by federal statute, which does not except counties from the obligation to respect the exclusive grant to the patentee of making, selling, and using his invention. Judicial refine- ments and distinctions upon the character of the remedy prescribed by congress for violations of the patentee's rights, conferred by statute of the general government, should not be resorted to either to defeat the right or impair the remedy. If congress had not directed that an action on the case should be the renietTy for the recover}' of damages for the mirmgement of a patent, the patentee could, in cases like tlie ]3resent, waive what is called the tortious act, and bring asTnm jjsil upon the i mplied contract against the county to recover the value of his propertv appropriate d. It is refini ng too much to allow the natu re of the action to defeat the actual and substantial rights." ^^n~tn\eiiliun iii\olves the conception of means, wnicn, when em- bodied in a concrete form, may become the subject of a patent. ''It is a mental result, . . . and the machine, process, or product is but its material reflex and embodiment." Smith v. Xichols, 21 Wall. 112, 118. A patent is an incorporeal property right in an invention, created by statute. Property rights, whether corporeal or incor- poreal, are governed by the same principles, and should receive equal protection. When a person wrongfully <'\ppropriates a patented in- vention, it is an invasion of the patentee's right of property, and the gains or profits derived from such piracy belong to the patentee. Be- cause the machine in which the wrongdoer may have embodied his piracy may not belong to the patentee does not affect the real char- acter of the act. I can see no difference in principle between a suit by the owner of a patent against an infringer to recover the profits he has made and a suit by the owner of land or of a mine against a wrong- doer to recover the value of timber or ore taken. I cannot assent to the proposition that the profits actually made by an infringer, for which recovery is sought by a bill in equity, are the same as damages in an action of libel, slander, diversion of a water course, trespass in 104 SOLLERS V. LAWRENCE, [BOOK I. breaking up meadow or pasture land, and similar actions of tort. The. former arc the actual, direct, pecuniary benefits, capable of defi- nite measurement, acquired by the wrongdoer; the latter are pri- marily the loss suffered by the injured party where the wrongdoer realizes no pecuniary benefits, or only such as are indirect, indefinite, or rest in speculation, compromise, or arbitrary adjustment. For these reasons I am of opinion that this cause of action survives, and that the motion to dismiss should be denied. Motion denied.^ SOLLERS V. LAWRENCE. Court of Common Pleas, 1743. [Willes, 413.2] The opinion of the Court was delivered, as follows, by Willes, Lord Chief Justice. Debt. The plaintiff declares upon the judgment of fixfi ^f the commissioners ^who are made a court of record, and are appointed to hear and determine~all differences and disputes touching and concerning the rebuilding of houses and other buildings in the town of Blandford burned down or demolished by the late dreadful fire b y an act made 5 Geo. 2. c. 16 . As to the merits; the only objections are, 1st, That this house being burned in the general conflagration, and it not being pretended that Riley was in any default, there- fore he was not obliged to contribute anything to rebuild the house, and consequently his representatives could not bo obliged ; for as they stand only in his place they cannot be liable farther than he was. 2dly, It was said that if he were obliged, no suit could be brought against his executors or administrators, for that actio 'personalis (as this is) moritur cum 'persona. 3dly, It was objected that there was no foundation for the rule and measure of damages, which the commissioners plainly went by, to give the fifth part of the profits during the life of Riley. These being questions properly belonging to the Ecclesiastical Courts, and the books which were cited being very dark in relation to these matters, it was thought proper to hear civilians, and from the best lights that we could get from them the objections seem to be of no weight. To be sure if Riley were not liable, his executors or administrators were not. 'Accord: Kirk v. DuBois (188G) 28 Fed. 460; Hohorst v. Howard (1888) 37 Fed. 97; Griswold v. Hilton (1898) 87 Fed. 2.56. Contra: Child v. Boston & Fairhaven Iron Works (1884) 137 Mass. 516; Leslie v. Calvin (1885) 9 Ont. 207. 'Only part of the opinion is given. — Ed. CHAP. III.] SOLLERS V. LAWRENCE. 105 It is proper therefore to consider in the first place whether he was liable. It is certain that if a parsonage or vicarage-house be burned down, there must be some way of rebuilding it for necessity's sake and the good of the public ; for there must be parsons and vicars, and they must have houses to live in; it follows therefore that when they are burned down they must be built up again. If the suit be brought ex officio in the lifetime of the incumbent, (and it must be so because no one is interested to bring it,) Dr. Paul informed us that the constant rule is to order a fifth part of the profits of the living to be set apart in order to rebuild the house. This must plainly be for necessity's sake and when the incumbent is in no default : for if he be in fault, he ought (as in the general case of dilapidations) to pay the whole. Several cases were cited by Dr. Paul to this purpose; the case of the Deanry-house and the Chancellor's house at Chichester, and the case of the vicarage-house of Worminghall in Berlshire; which though not cases directly in point yet plainly shewed that the Ecclesiastical Courts usually went by this rule, and they founded their determinations on the injunctions of Ed. VI. and Queen Elizabeth, and an injunction of Archbishop Cranmer, enforcing the same and ordering them to be observed ; which though perhaps not strictly law were very proper measures for the Ecclesiastical Courts to govern themselves by, when they otherwise must judge arbitrarily and without any rule at all. As therefore the commissioners were under a neces- sity of giving some damages, as this is a very equitable rule, as it is observed in the ecclesiastical courts and founded on the authorities before mentioned, and as the common law is quite silent in relation to this matter, I do not see what better rule the commissioners could govern themselves by. Therefore the first and third objections seem to be of no weight. As to the second, that the action will not lie against the executors though there might be a remedy against Riley, it is contrary to all the rules laid down concerning dilapidations and the constant practice in relation to suits of this sort ; for both in the ecclesiastical and temporal covirts, since tliese suits have been retained here, multitudes of suits, nay most of them, have been against the executors or admin- istrators, and have been always holden to be good, because it_is not c onsidered as a t ort i n the testator, but as a duty which he ought t o h ave p erformed, and 'tlier efore his re presentatives, so far as bereft as sets7"s Kari be equally liable as himself^ An d for this reason, it is not contrary to t he~rule thatlictio personalis (which is always under- stood of a tort)~wo?T7//r ciTnTJiersona; as actions on the case for all sorts of debts and duties are now daily l)rought against executors, though this was formerly doubted. But the law has been now so settled at least 150 years. We think tlierefore that the commissioners had a jurisdiction; and as nothing appears upon the record to shew that they have determined 106 . FERRILL V. MOONEY. [BOOK I. wrong, we must intend that it appeared before them that the testator left assets, otherwise that they wonld not have made a personal decree against the defendants; and therefore we are of opinion that judg- ment must be for the plaintiff. -N. I and my Brother Burnett only were present in court at the time of giving this opinion ; my Brothers Fortescue A. and Abney not having heard the arguments : but Lord Chief Baron Parker, who heard the arguments and consulted with us, gave me authority to say that he was of the same opinion.^ FERRILL'S ADMINISTRATRIX v. MOONEY'S EXECUTORS. Supreme Court of Texas, 1870. [33 Texas, 219.] Morrill, C. J. The points for adjudication, and which are raised by the pleadings in this case are : First — Whether a claim for killing and butchering and using^ certain animals, against a party thus trespassing, abates by the death of the trespasser or claimant, or of both. Second — Whether the statutes of limitation apply when there is no administration on the estate of the party claiming the damages. Third — AYhether it is necessary to present the claim for the damages to the administrators of the estate of the one taking the animals. As the injuries complained of did not affect the person injured, either physically, morally or mentally, but only in his property, and as the pleadings do not raise or seek vindictive or exemplary damages for a tort, but simply seek to recover the value of property, lliisj s^not a persona l action. ! ^ is simply j in action to reco ver property £ its value. _ The wrongfuT method of obtaining the property cannot be considered, but simply the value of the property, in the same manner as if it had been obtained by consent of the owner. In the case of Taney v. Edwards, 27 Texas, 225, the court say : "That in all cases of injuries to the person, whether by assault, battery, false imprisonment, shmder or otherwise, if either the party who received or committed the injury flie, no action can be supported either by or against the executors or other personal representatives," by the common law of England. 'Accord: Bryan v. Clay. Executor ( 18,52) 1 B. & E. 38. See also, Battliyany V. W-jvWord (1887) L. R. 3G Ch. D. 2G9, 280, where the principal case is cited Avitli approval. — Ed. -i'lie italics are the editor's, and only a part of the opinion relating to first question is printed. — Ed. BOOK 11. THE OBLIGATION OF QUASI-CONTRACT. CHAPTER I. Where there is no Contract, Actually or in Contemplation OF THE Parties. SECTION I. Where the Plaintiff has Suffered a Tort. 1. waiver of tort action. LAMINE V. DORRELL. Court of King's Bench, 1705. [3 Lord Raymond, 1216.] In an indehitatus assumpsit for money received by the defendant to the use of the plaintiff as administrator of J. 8. on non assumpsit pleaded, upon evidence the case appeared to be. that J. 8. died intes- tate possessed of certain Irish debentures ; and the defendant pretend- ing to a right to be administrator, got administration granted to him, and b}^ that means got these debentures into his hands, and disposed of them: then the defendant's administration was repealed, and administration granted to the plaintiff, and he brought this action against the defendant for the money he sold the debentures for. And it being objected upon the evidence, that this action would not lie, because the defendant sold the debentures as one that claimed a title and interest in them, and therefore could not he said to receive the money for the use of the plaintiff, which indeed he received to his own use; but the plaintiff ought to have brought trover or detinue for the debentures : the point was saved to the defendant, and now the court was moved, and the same objection made. PoAVELL, Justice. It is clear the plaintiff might have mainta ined detinue or tro ver for the debentures ; but when the act that is done is In its nature tortious, it is hard to tnrn that into a contract, and against the reason of assumpsits. But t he plaintiff' may dispense wjt h the_wrong, and suppose the sale made by his consent, and bring an 108 LAMINE V. DORKELL. [BOOK II. a ction for the money they were sold for, as money received to his use. _ It has been carried thus far already. Howard and Wood's case, 2 Lev. 245 is as far : there the title of the office was tried in an action for the profits. Holt, Chief Justice. These actions have crept in by degrees. I remember, in the case of Mr. Aston, in a dispute about the title to the office of clerk of the papers in this court, there were great coun- sel consulted with; and Sir William Jones and Mr. Saunders were of opinion, an indebitatus assumpsit would not lie, upon meeting and conferring together, and great consideration. If two men reckon together, and one overpays the other, the proper remedy in that case is a special action for the money overpaid, or an account; and yet in that case you constantly bring an indebitatus assumpsit for money had and received to the plaintiff's use. Suppose a person pretends to be guardian in socage, and enters into the land of the infant, and takes the profits, though he is not rightful guardian, yet an action of account will lie against him. So the defendant in this case pretending to receive the money the debentures were sold for in the right of the intestate, why should he not be answerable for it to the intestate's administrator ? I f an action of trovpr shoulrl bp hrnugbt by t.bej )Tain- ti ff for these debentures aftfn^ij^nTiPTr Liri tbis indebitatus assumps it. he,.may.jiLead tlws^i££flv£ixin_bar o f the action of trover, in the s ame manner, as it would have been a good plea in bar for the defendant tolTave pleaded to the action of trover, that he sold the debentures, and paid to the plaintiff in satisfaction. But it may be a doubt if this recovery can be pleaded before execution. This recovery may be given in evidence upon not guilty in the action of trover, because by this action the plaintiff makes and affirms the act of the defendant in the sale of the debentures to be lawful, and consequently the sale of them is no conversion. Afterwards the last day of the term, upon motion to the court, they gave judgment for the plaintiff. And Holt said, that he could not see how it differed from an indebitatus assumpsit for the profits of an office by a rightful officer against a wrongful, as money had and received by the wrongful officer to the use of the rightful.^ *In an able and instructive article "On the right to waive a tort and sue in assumpsit," 3 Albany Law Journal, 141 et seq., Judge Cooley says: "The right to waive a tort and sue in assumpsit, seems to have been first distinctly recognized in Lamine v. Dorrell." For the various steps by which assumpsit swallowed up account and debt, see Mr. Ames in 2 Harv. Law Rev. 67. Cummings v. Vorce (1842) 3 Hill, 282 (valuable as to plaintiflF's various remedies); Roberts v. Evans (1872) 43 Cal. 380; Fiquet v. Allison (1864) 12 Mich. 328 (assumpsit against tenant for removing wheat) ; McGoldrick v. Willits (1873) 52 N. Y. 612; Bowman v. Browning (1856) 17 Ark. 599; Huganir v. Cotter (1899) 102 Wis. 323; Krump v. First State Bank (1898) CHAP. I.] HINDMARCH V. HOFFMAN. 109 HINDMAECH v. HOFFMAN. Supreme Court of Pennsylvania, 1889, [127 Pennsylvania State, 284.^] Mr. Justice Sterrett delivered the opinion of the court : On the morning of October 10, 1885, R j^chard_ Savanack stole fro m, plaintiff, in Buffalo, N. Y., a large sum of money, four hundred dollars of which he afterwards, on the same day, de finsited with d eferid- _ant^ to be returned to him or upon his order. WheiL—dfifend^nt re ceived the money, he was ignorant of the fact that it had been s tolen from plaintiff by Savanack, but, while it was still in his possession and under his control, Vip wag x jotified o f that fact by plaintiff's attorney, and that plaintiff claimed it as his property. yo_twithsta nding t hejiotice^ejiXterward^ pnirl fhp Timnpy "upon the order of Savanack, to Messrs. Brundage, Weaver & Bell, of Buffalo, receiving from them a bond to indemnify him against any liability to any other person for the money." Afterwards, upon defendant's refusal to pay the amount to plaintiff, this action of assuTnps it was brought to recover the same. It does not appear to have been even questioned in the court below, that, upon the established facts, plaintiff had a good cause of action, but the learned judge was of opinion that he could not recover in the present form of action, and he accordingly entered judgment for defendant. His conclusions of law were duly excepted to, and they now constitute the specifications of error before us. As found by the learned judge, the money sued for as money had and received by defendant to the use of plaintiff, never belonged to Savanack, nor could he have legally recovered any part of it. On the contrary, it was plaintiff's money, stolen from him by Savanack, and by the latter left with the defendant. While it was thus in his custody and under his control he was fully informed of the theft, and also that plaintiff, as owner of the money, claimed it. Under these 8 N. D. 75; Downs v. Finncgan (1894) 58 Minn. 112; Phelps v. Conant (1858) 30 Vt. 277; Timber & Land Co. v. Brooks (1891) 109 N. C. 698.— Ed. S o money re ceived by defendant for on e purpose, if used by \\\m for another , may be recovered in assumpsit. Core's case (1537) Dyer, 20a; De Bern- ales V. Fuller (1790T~14 Easf, 590 note; Murray v. Clay (1848) 9 Ark. 39; Hotchkiss V. Judd (1866) 12 Allen, 447; Kerrigan v. Kelly (1852) 17 Mo. 275; Strong v. Bliss (1843) 6 Met. 393; Boston Bank Cases (1874) 10 Ct. CI. 515, 545; Bahnsen v. Clemmons (1878) 79 N. C. 556; Catlin v. Richard (1865) 13 Mich. 110; Parker v. Fisher (1860) 39 HI. 164; Critzer v. McConnel (1853) 15 111. 172.— Ed. 'Reported also in 88 Law Times, 86; S. C. 14 Am. St. Rep. 842 and note.— Ed. no HIXDMAECH V. HOFFMAN. [bOOK II. circumstances, it was clearly his duty to hold it for plaintiff, and, upon satisfactory proof of ownership, to pay it over to him. From the existence of that duty the law raised an implied promise by defend- ant to do so, but, in disregard of his duty in the premises, he paid it over, on the order of the thief, to parties who had no right whatever to receive it. Justice demands that he should now be compelled to pay the amount to the rightful owner, and there is no good reason why it should not be recovered in the present form of action. In Clarke v. Shee, 1 Cowp. 197, it was held that case, for money had and received, will lie by the true owner of money against a third person into whose hands it came mala fide, provided its identity can be traced or ascertained. Eeferring to the form of action in that case. Lord Mansfield characterized it as "a liberal action in the nature of a bill in equity ; and if, under the circumstances of the case, it appears that the defendant cannot in conscience retain what is the subject-matter of it, the plaintiff may well support this action." In 2 Greenl. Ev. 13 ed. §§ 102 and 120, the principle is thus, stated : "Where the defendant is proven to have in his hands the money of plaintiff, which ex »quo et bono he ought to refund, the law conclusively presumes that he has promised to do so, and the jury are bound to find accordingly, and after verdict the promise is presumed to have been actually proved." "So, if money of the plaintiff has in any other manner come to the defendant's hands, for which he would be chargeable in tort, the plaintiff may waive the tort and bring assumpsit on the common counts." x\ssumpsit was also sustained in Mason v. ^Yaite, 17 Mass. 558, upon the following facts : Bank notes, done up in a package, were delivered by the owner to a carrier, who, without authority, paid them to a third party for a loss at a faro table. In an opinion sustaining a judgment in favor of the owner of the notes, against the party to whom they were thus paid, the chief justice, after remarking that trover would have been the better action but for the difficulty of identifying bank notes, said : "We do not see, however, why the action for money had and received will not lie. The notes were paid and received as money, and as to any want of privity or any implied promise, the law seems to be that where one has received money of another, and has not a right conscientiously to retain it, the law implies a promise that he will pay it over." The defen dant, in the case at bar, did not better_ his posit ioiL.by impro perly handing o ver thp iTTohpy ifrqTipsFoTi to'thos e who had no i Mght whatever to receive it, after he knew it had been sto len and that plainti ff was its true owner. The undisputed facts connected wiTh his^possesSion of the money, immediately before he parted with it, are quite sufficient to raise such an implied promise as will support assumpsit. ' We are therefore of opinion that the court erred in not entering judgment in favor of plaintiff for the amount claimed, viz. : CHAP. I.] MILLER V. MILLER. Ill four hundred dollars with interest from May 24, 1886, the time suit was commenced before the city recorder. Judgment reversed and judgment is now entered in favor of the plaintiff and against the de- fendant for four hundred dollars with interest from May 24, 1886, and costs.^ MILLEE et al., EXECUTOKS v. MILLER. Supreme Judicial Court of Massachusetts, 1828. [7 PicJcering, 133.] Assumpsit fr>r mnney-lw^-fma-rpppiyfl^l Pleas, the general issue and the statute of limitations. It appeared at trial that testator and defendant were tenants in common of a lot, and that the defendant cut and sold some wood from the lot so held. For some of the wood sold, the defendant received in payment real estate. There was no evidence of any request by the testator to the defendant to account, or to pay the money received by him, nor that the real estate received in payment for wood had been sold by the defendant. Upon this evidence the jury were instructed to find a verdict for the plaintiff for one-half of the amount which the defendant had received in payment for wood sold from the lot owned in common, within six years before the commencement of this action, whether the payment was made in money or real estate, or otherwise. They were also instructed to include all the payments made upon the note within that period, and the credits given to the defendant at the furnace, pro\dded they were satisfied that he availed himself of them. A verdict was found for the plaintiff, and the defendant excepted to the above instructions. - The opinion of the court was drawn up by Parker, C. J. It does not appear that at the trial there was any controversy about the title of the parties to the land from which the wood was taken, the price of which was sued for in this action. If ^So action for money had and received will lie against an infant for money embezzledT" Bristow t\ Eastman (1794) 1 Esp. 172; Elwell v. Martin ( 1S59 ) 32 Vt. 217. See also: Howe v. Clancy (1865) 53 Me. 130: Boston R. R. Co. v. Dana (1854) 1 Gray, 83; Gould v. Baker (189G) 12 Tox. Civ. App. 699 (where the authorities are well considered). To recover f rom the defendant in the action nf innnev li;n] nnd rpceived . money must have come to the hands of the defendants. Manahan v. Gibbons et al. (1822) TTT Juhiis. 427; De\U-y v. Sup ervisors (1875) 62 X. Y. 294 (hold- ing defendant liable for benefit actually received) ; X. Y. Guaranty Co. v. Gleason (1879) 78 X. Y. 503. ^Short statement substituted for tliat of the original report. — Ed. 113 WATSON V. STEVER. [BOOK II. that had been the point in dispute, the plaintiff might have been non- suited, and turned over to his writ of entry or petition for partition. The action proceeded on the admitted fact, that the plaintiff and defendant were tenants in common of certain land, and the question was, whether the wood was taken from that land, and if so, whether the defendant was liable for a moiety of the proceeds. We think the objection since raised, that the action involved the question of title to real estate, cannot now be made. As to tlie objection founded on the statute of limitations, we think the jury were instructed right, viz., that the^ stat ute began to run from the time when the mnTipy was_rgp.pivpd^ and Tiot from the tim e of^ the sale of~the wood . Jn ^ this act ion the plaintiff afhrms fhe sale and asks for his share of the jprqceeds^ He had a right to waive his actioii oftrespa ss^given JbyiJhe statutp nnrl jTL.£mTsirlpr the defendant as his agent _in__di&P-0.aing: ol thfi-JEoM. This isfor the Benefit of the defendant, as he can deduct all reasonable charges, and is answerable only to the extent of funds which he has received. In regard to the objection that the price of some of the wood was received in real estate, we think, flS-thg^salf was made f or money, the defendantwas_aiisw erable for the pricp when he discharged_JjiR_ pur- cj^aser,^ wHjtlie i. hereceived ca sh_or^ any thing else. He may be con- sidered as the purchaser of the real estate with the money for which he sold the wood. The plaintiff consents to the sale for money, but not that real estate shall be substituted. Suppose after selling the wood for money to be paid at a future day, the defendant had set off a debt which he owed the purchaser, for the price; he would virtually have received the money. So he has by taking the real estate.^ WATSON V. STEVEK. Supreme Court of Michigan, 1872. [25 Michigan, 386.] CooLEY, J. Stever, as assignee of one Sheldon, sued Watson in ass uinpsit to recover t he__£aliL£— ^ log s wh i ch Watson ha d, taken p ossession o f, claiming to have bought of third persons. There is no dispute that, if the logs belonged to Sheldon, Wat son. was-14»bk-^r thcir_ yalue in t respass or trover ; buLth cre had never bcenjLa y prom ise on hjs_part to p ay Sheldon for them, and, on the contrary, he had always denied hTs~right. If there was any exception to this statement, ^An action for money had and received will noj ^lie to renover mnnpy p v- pended on account of the tortious act of the defendant. Foster v. Dupre (1817T~5 Martin, T7. And see on the general question Ainslie v. Wilson (1827) 7 Cow. 662; 17 Am. Dec. 532, 537, note. CHAP. I.] WATSON V. STEVER, 113 it was on one occasion when Sheldon's agent demanded certain logs, and Watson said, if the agent could identify any in his possession as belonging to Sheldon, he would pay for them. One was identified and paid for, and the agent said more of them belonged to Sheldon, but as he could not identify them, Watson refused to recognize any further right. Tt was nn t shown that W«atso n had s old any of the , logs. The circuit judge charged the jury, that if they found Sheldon owned the logs, and they were used by Watson without Sheldon's consent, Watson was liable for the value, in this form of action. And he refused to charge, as requested by defendant, that if Watson took and retained the property under a bona fide claim of title in himself, the plaintiff could not recover in this action. There are not wanting decisions which support the rulings of the circuit judge ; but the great weight of authority, as well as the tendency of recent decisions, is the other way. If one jias taken possession of property, and sold or disposed of it, and rpneivprj^ money or mnney ^s woffh therefor, the^ wne r is not compellable to treat him as a wrong - d oer, but in ay affi rm the sale, as made on his behalf, and demand in this form of action the benefit of the transaction. But we cannot safely say the law will go very much further than this in implying a promise, where the circumstances repel all implication of a promise in fact. D amages fo ratrespass are not in general recoverable in assumps it ; and in the case of the taking of persona l property, it is generally J ield essential that asale by the defendant shfluld be shown . — Jones v. Hoar, 5 Plck:"2857 Glass Co. v. Wolcott, 2 Allen. 227 ; Stearns v. Dilling- ham, 22 Vt. 627; Mann v. Locke, 11 N. H. 248; Smith v. Smith, 43 N. H. 536; Willet v. Willet, 3 Watts, 277; Pearsoll v. Chapin, 44 Penn. St. 9 ; Guthrie v. Wickliffe, 1 A. K. Marsh. 83 ; Fuller v. Duren, 36 Ala. 73 ; Sanders v. Hamilton, 3 Dana, 552 ; Barlow v. Stalworth, 27 Geo. 517; Pike v. Bright, 20 Ala. 332; Tucker v. Jewett, 32 Conn. 563 ; Emerson v. McNamara, 41 Me. 565 ; Morrison v. Eogers, 2 Scam. 317; O'Eeer v. Strong, 13 111. 688; Elliott v. Jackson, 3 Wis. 649. The case of Fiquet v. Allison, 12 Mich. 330, on which reliance was placed by defendant in error, is clearly distinguishable from this. There the parties stood in contract relations as tenants in common in respect to the property in question ; and when the defendant appropriated his co-tenant's share, and refused to recognize his right therein, he was, as the court pointed out, guilty of breach of a duty which the law implied from his express contract. This case present? no correspond- ing feature, and to sustain an action as upon an implied contract here would be to disregard the primary distinctions in the forms of action. The judgment must be reversed, with costs, and a new trial ordered. Campbell and Graves, JJ., concurred. Christiancy, Ch. J., did not sit in this case.^ 'Pike V. Bright (185G) 29 Ala. 332; Sandeen v. Kansas City R. R. Co. (1883) 79 Mo. 278; Miller v. King (1880) 67 Ala. 575; Fuller v. Duren (1860) 114 NOEDEX V. JONES. [BOOK II. NORDEN V. JOKES. Supreme Court of Wisconsin, 1873. [33 Wisconsin, 600. J Dixon, C. J.^ The question presented on the rejection of the $6.00 item is an interesting one, upon which there exists considerable con- trariety of opinion and decision, botli in England and this countr}'. It was a charge of jhat sum made by the d efendant agninst the phiirit ifp f or pasturing th e plaintiff's cattle, which the defendant testified th e pTaiutitf JinrMp t inl-n h l§:^ the clefe ndailt's^ field^Jiy laying rln wn dp fmirl- anFsTence for that purpose. T b^ objpption su stain pri by thp j jistice was^_jhat_the^ laying dow n nf tbp fpnf;^ and turning in of the ca. ttle was a trespass on the part aflhe-plaintiff. j v^hich could not be broj ight in or proved as a set-off or _cross-demand in this form of action, but tha t the defendant must resort to his action of trespass against the plaintiff to recover the damages which he has sustai^eH". It is not to be denied that there are numerous decisions of most respectable courts sustaining this view, while on the other hand there is an equal weight of most respectable authority also for holding that a promise to pay will be implied under such circumstances, upon which an action of assumpsit may likewise be maintained. The question being new in this court under our present statutes, we are at liberty to adopt such rule as in our judgment will best subserve the ends of justice, which is or ought to be the object of all rules laid down in the course of judicial proceedings. The cases of Conklin v. Parsons, 1 Chand. 240, and Pierce v. Hoffman, 4 Wis. 277, were controlled by the language of subdivision 3 of sec. 1, ch. 94, R. S. 1849, then in force. That subdivision was omitted altogether in the present revision, thus making a material change in the law of set-off. R. S. 1858, ch. 126, sec. 1 (2 Tay. Stats. 1448, § 1). The language of the court in Conklin v. Parsons favors rather than disfavors the general right to waive the tort and sue in assumpsit for a mere conversion of property. And see Keyes v. Railway Co., 25 Wis. 691. 36 Ala. 73 (exchaTi;ts in coutrnct, a sjwgll jorjthe43urpo se of makin g it a caus_e_ of action arising on co ntract within the statute regulating co untercl aims as for other purposes. In fact, thesole object in waiving the tort is often for the purpose of enabling the injured party to set up his claim as an offset, when, without such waiver, he could not, be- cause of its tort nature, use it as a counterclaim. Norden v. Jones, 33 Wis. 600; Coit v. Stewart, 50 N. Y. 17; Brady v. Brennan, 25 Minn. 210; Car Co. v. Reinhardt (Com. PI. N. Y.) 20 N. Y. Supp. 872; Wood v. Mayor, 73 N. Y. 556; Barnes v. McMullins, 78 Mo. 260; Becker v. Northway, 44 Minn. 61, 46 N. W. Rep. 210; Evans v. Miller, 58 Miss. 120; Pom. Rem. & Rem. Rights, § 801.^ STARR CASH COMPANY v. REINHARDT. . Common Pleas of New York City and County, General Term, 1892. [20 New York Supplement, 872.] Pryor, J. The action is for the purchase price of 15 cash carriers, sold and delivered by the plaintiff to the defendants. The answer, by not denying, admits the price and the sale and delivery of the cash carriers, and then proceeds to plead a counterclaim, as follows : That there was on the premises of the defendants a certain car system ; that when the plaintiff placed its service in the store of the defendants it took to itself the old service of the defendants, and applied the same to its own use and benefit, without the knowledge of the defendants; that the reasonable value of the said old service was $150 ; that the defendants have demanded from the plaintiff a deduction to that amount from its bill, and have tendered to the plaintiff the sum of 'See Newman v. Olney (1898) 118 Mich. 545; Florida Cent. Co. v. Scarlett (1899) 91 Fed. 349.— Ed. CIIAr. I.] STARR CASH COMPAXY V. REIXIIARDT. 119 $150, and hereby offer to allow judgment to be taken against them for the sum of $150, with interest and costs. At the trial plaintiff moved for judgment upon the pleadings, "on the ground that the answer did not deny any of the allegations of the complaint, and did not set up a counterclaim which could properly be interposed in this action." The motion was granted, and judgment directed for plaintiff for the full price of the cash carriers, to which order and direction defendants duly excepted. The sole question for decision is whether the facts alleged constitute a valid counterclaim. Undoubtedly the facts stated in the answer constitute a cause of action for conversion. But "if, upon the facts alleged, a cause of action in tort, as well as one on contract, may be spelled out," the pleader may elect to stand either upon tort or contract. People v. Wood, 121 N. Y. 532, 24 N. E. Eep. 952. Do the defendants in their answer rely upon tort or contract? Manifestly upon contract. Tlic ir claim i s_not damages for the conversion, but the specific value of the good s ajjpl ied by the plaintiffjo its use and benefit ; and t hat value they plea d as a counterclaim, wh ich would be inadmissible were the cla im of dam - agei^for a tort. Beyond all controversy, the defendants elect to treat their cause of action as a claim upon contract. But it does not appear that the plaintiff has sold the thing taken, — the contrary, rather; and the question remains wh ether the own er o f a chattel converterl. bnt not parted with, for money or its equivalent , , mav^^[ve tjie^tort^ and sue the wronorlo er in assumpsit as upon an implied contract of sale_ It is conceded that in England, and m many states of the Union^ tjie query must be answered in the negative. See eases collected by Mr. FreenianTn his note to VVe5"ster v. Drinkwater, 17 Amer. Dec. 242. N'ay, more, in this state the law was that trover could not be turned into assumpsit, for money had and received, until the thing converted was exchanged by the wrongdoer for money or money's worth. McKnight v. Dunlop, 4 Barb. 3G, 42 ; Harpending v. Shoemaker, 37 Barb. 270, 291 ; Osborn v. Bell, 5 Denio, 370; Tryon v. Baker, 7 Lans. 511, 514; McGoldrick v. Willits, 52 X. Y. 614, 620. "When the tort is waived, and assum-psit is brought, the receipt of the money on the sale of the goods gives the cause of action." Schroeppel V. Corning, 6 IsT. Y. 107, 112. Meanwhile, however, the current doc- trine was subjected to destructive criticism as well by courts as by commentators. jSTotes of jSTicholas Hill to Putnam v. Wise, 1 Hill, 234, and Berly v. Taylor, 5 Hill, 584; 2 Greenl. Ev. § 108, note 5; Cooley, Torts, 95; Hil. Torts, 42. "A more liberal, and, we think, a more sensible, rule, is laid down by the later text \\Titers, and sustained by many courts, to the effect that t he tort may be waived, and assump - si t maintained, when the property tjik en has been converted either int o mo ney or in to any other Jieneficial use by the wron gdoer." Evans v. Miller, 58 Miss. 120. "We see no reason why the right to waive the tort and maintain assumpsit should not be as well applicable to the 120 STARR CASH COMPANY V. REINHARDT. [BOOK II. case where the defendant has actually appropriated to his own benefit and used up the plaintiff's goods himself as where he has sold them to another and received the money, though in the former case the action must be for goods sold arid delivered, and not for money had and received." Talcott, J., in Abbott v. Blossom, 66 Barb. 353, 356. "If the defendant had taken the wheat tortiously, the plaintiff, accord- ing to the well-known right of election, might have brought assumpsit for goods sold and delivered." Cowex, J., in Putnam v. Wise, 1 Hill, 234, 240. "Butts has therefore an election against Collins. He can maintain trover or assumpsit, and in the latter action recover the value of the flannels under the common counts for money had and received, or for goods sold." Maisox, Senator, in Butts v. Collins, 13 Wend. 139, 154. At last, in Hawk v. Thorn, 54 Barb. 164, it was expressly ruled that, "where one has unlawfully taken possession of another's property, the tort may be waived, and an action brought for its value." And in Terry v. Hunger, 121 N. y. 161, 24 N. E. Rep. 272, the court of appeals, per Peckham, J., said : "The owner of personal property which has been wrongfully converted by another man, although the property is retained by the wrongdoer, may waive the tort, and sue for and recover its value, upon an implied contract of sale." The rule as thus held finds support in the adjudications of other states. Hill v. Davies, 3 N. H. 384; Stockett v. Watkins, 2 Gill & J. 326, 343, 343; Halleck v. Mixer, 16 Cal. 574; Fratt v. Clark, 12 Cal. 89; Barker v. Cory, 15 Ohio. 9. It is commended, however, to acceptance by the analogies of the law and the interests of justice. A consent induced by fraud is no consent ; and yet the vendor in a fraudulent sale may waive the tort, and sue for goods sold. It is conceded that upon a conversion, if the goods be parted with by the wrongdoer, he may be held as for money had and received ; his promise to pay being arbitrarily forced upon him by implication of law. So^ if h e retain the goods, the own er should be allowed_to Jxeatjthe transaction as a sale.,, and the law should irtrpTy"a promise to pay their value._ In such case the tort feasor will noFbe allowed to set up his own wrongful intent, in disavowal of the implied promise which the law would otherwise raise against him. Hill V. Perrott, 3 Taunt. 274, 275; Lightly v. Clouston, 1 Taimt. 112, 114, per Mansfield, C. J. The rule is advantageous to a defendant, since, being sued on contract instead of in tort, he is exempt from arrest, and may plead an offset. "ISTo party is bound to sue in tort when, by converting the action into an action on contract, he does not prejudice the defendant ; and, generally speaking, it is more favorable to the defendant that he should be sued in contract, because the form of action lets in a set-off, and enables him to pay money into court." TiNDAL, C. J., in Young ;;. Marshall, 8 Bing. 43. Finally, by con- verting the tort into a contract, and so opening the case to a counter- claim, all the controversies between the parties may be adjusted in a single litigation. The conclusion is that the defendants had an option CHAP. I.] FERGUSON V. CARRINGTON. 121 to waive the conversion, and to claim as f or goods snlrl nnr l t]o]\Y(^s(»r\ ^ and that, by their answer, they elected to proceed upon contract. -The result is that the coun ter cla im is^ valid, and the judgment overruling it erroneous. Judgment reversed, ajid a new trial ordered, with costs to appellants to abide the event. All concur.^ FEKGUSON AND ANOTHEE v. CAKRINGTON". King's Bench, 1829. [9 Barnewall & Creswell, 59.] Assumpsit for .goods ^sold and delivered. Plea, general issue. At the trial before Lord Tenterden, C. J., at the London sittings after last term, it appeared that the plaintiffs, between the 29th of March and the 12th of May, 1828, sold to the defendant various quantities of goods, amounting in the whole to £282, which, by the contract of sale, were to be paid for by bills accepted by the defendant ; and that such acceptances were given, but had not become due at the time when the action was commenced. It appeared further, that the defendant imme- diately after receiving the goods, sold them at reduced prices to other persons. It was contended, under these circumstances, that it was manifest that the defendant purchased the goods with the precon- ceived design of not paying for them ; and that, as he had sold them, the plaintiffs might maintain an action to recover the value though the bills were not due. Lord Tenterden, C. J., was of opinion, that if the defendant had obtained the goods with a preconceived design of 'n9t_paying for them, no pTOpei^y ^passecT't^o him by thp c"utrnct of sale, and that it was competent to the plaint iffs to hav e brought trover, and toTiave treated the contract as a nullity, and to have considered the defendant not as a purchaser of the goods, but as a person who had tortiously got possession of them ; bji t that the plaintiffs by brin ging a ssumpsit had affi rmed^th at, at the jlim£._o£jLhe_action^bxoj3gjit . there was a contract existing between them and the defendant. The only contract proved was a sale of goods on credit. The_time of credit had noi_e_xpired^ and consequently the action was brought too soon. " F. Pollock now moved for a new trial, and contended, that the plaintiffs might sue for the price of the goods without waiting until the expiration of the credit given; that credit having been obtained in pursuance of a fraudulent design to cheat the plaintiffs. Bayley, J. The plaintiffs have aflfirmcd the contract by bringing this action. The contract proved was a sale on credit, and where there is an express contract, the law will not imply one. ^And see the excellent case of Abbott v. Blossom (1873) 66 Barb. 353, referred to in principal case. See also, Pomeroy's Code Remedies (3d ed.) 653, 654. — Ed. 122 EOTII V. PALMER. [BOOK II. LiTTLEDALE, J. At the time when this action was brought, the defendant was not bound by the contract between him and the plain- tiffs to pay for the goods. The plaintiffs claim to recover for breach of the contract. Parke, J. As long as the contract existed, the plaintiffs were bound to sue on that contract. They might have treated that contract as void on the ground of fraud, and brought trover. By bringing this action, they affirm the contract made between them and the defendant.^ EOTH AND OTHERS v. PALMER. TOBEY AND OTHERS v. PALMER. Supreme Court of New York, 1858. [37 Barbour, 653.] By the Court, Hogeboom, J. The complaints in these actions con- tain two or more counts confessedly on contract and well pleaded, and another count which sets forth, substantially, that the jlain tiffs sold and_d elivered to the,_d£fendant goodsto a certain amount, on a.credit of si^months; that the ^defendant was insolvent at the time of the said sales, and p urchased said go ods withoui_any intent to pay for them a nd with intent J;^ o defraud the plain t iffs of their value; and that by reason ofsaM fraud the defendant became liable to pay for the goods immedi- ately upon their delivery. They therefore (the goods not having been paid for) demand judgment for the amount of said sales, with inter- est. The actioJi is brought4>efore tl^e-expfration &f the time-of credit. The jlcfendant demurs, for the joinder of improper causes of action in one complaint7^d for the want of any sufficient cause of action being set forth in the last count. The judge at special term held the complaint good, and the defendant appeals from his order to the general term. To avoid the objections presented by the demurrer, the plaintiffs must satisfy the court, 1. That the cause of action set forth in the last count of the complaint is upon contract. 2. That fraud is sufficiently set forth therein to justify a rescission of the contract. 3. That no specific act on the part of the plaintiffs, other than bringing this action, was necessary to be done to manifest the plaintiff's intent to rescind the contract. 4. That the facts justify the plaintiffs in making their election to sue in assumpsit rather than tort. 5. That in making such election they do not thereby adopt the express contract, but rely on the 'The followirifj nisi prius decisions of Eyre and Kenyon, C. JJ., were contra: De Symons v. IMinchwich (1795) 1 Esp. 430; Hogan v. Shec (1796) 1 id. 522.— Ed. CHAP. I.] ROTH V. rAL:siER. 123 implied contract to pay, arising from the delivery and the defendant's possession of the goods. 1. I think the plaintiffs meant to bring their action upon contract, and that the terms employed favor the conclusion that the count is on contract, rather than in tort. It alleges a sale and delivery of the goods:, a fraud simply to avoid the term of credit, a liability to pay for the same upon delivery, and a demand of judgment for the price or value, with interest from the time of delivery. The words bear that construction rather than the other; and perhaps some significance should be given to the fact that the other causes of action are plainly upon contract, and that the pleader could scarcely have intended to couple inconsistent causes of action in the same complaint. 2. The count also alleges, in effect, a fraudulent purchase; an intent not to pay when the purchase was made ; and a design then formed to cheat the plaintiffs out of the value of the goods. If such an intent is established by sufficient evidence, it will justify a rescission of the contract, and would have authorized an action of replevin, or of trover, for the goods. Gary v. Hotailing, 1 Hill, 311 ; Ash v. Putnam, id. 302; Root v. French, 13 Wend. 570. 3. As the plain tiffs had received n othing from the defendant on_ tlie purchase, except a worthless verbal promise, there was not hing which th£yLlverc"l5ound to f efii'rn" as a condition precedent to the right to recover. If they had received a note, or goods, or part payment in money, they would probably have been obliged promptly on discovery of the fraud to restore everything which they had received under the repudiated contract. Masson v. Bovet, 1 Denio, G9 ; Boughton i'. Bruce, 20 Wend. 31; Wheaton v. Baker, U Barb. 591. But I do not see what they could possibly do in this case previous to bringing the action, to manifest their intent to rescind, unless it was to give notice to the defendant. I think that was not necessar}'. If the action had been in tort, and the original purchase fraudulent, and the possession of the defendant consequently wrongful, an action of replevin or of tort would have lain, without any demand or notice. Colville v. Besly, 2 Den. 139 ; Hawkins v. Appleby, 2 Sandf. 121 ; Ash v. Putnam, 1 Hill, 302. x4.nd it is difficult to see why it should any more be required simply because, not the facts, but the form of action is changed. The defendant cannot complain, because he is supposed to know that his fraud avoids the express contract, and makes him, by implication of law, liable to pay immediately upon delivery of the goods. See also Des Arts v. Leggett, IG X. Y."Eep. 582. 1. Xor do I see how, after the repeated adjudications of this court on the question, it is possible to say that the plaintiffs, on repudiating the contract for the fraud, had not their election between contract and tort, as to the fonn of action. It is a question of form and not of substance. The adoption of the ex contractu form of action is in every respect more favorable to the defendant. It prevents a preliminary 124 ROTH V. PALMER. [bOOK II. arrest; it allows a set-off; it defeats final process against the body. Our courts hold that he shall not be permitted to take advantage of his own wrong to bet up a formal objection against the plaintiff's recovery. Originally, and particularly in the English courts, and in Massachusetts, a distinction was attempted to be established as to the cases in which the plaintiff should be allowed his election, and to con- fine it to cases where the fraudulent purchaser had parted with the goods and received money on his sale of the same, which the courts allowed the plaintiffs to treat as money had and received to the plain- tiff's use. Bennett v. Francis, 2 Bos. & Pull. 550, 555 ; Jones v. Hoar, 5 Pick. 285. But the cases in our own courts recognize no such distinction. They seem to allow it to be done in all cases where the plaintiff would have been allowed to pursue his remedy in tort^andTThe decisions" in fFis court have been too numerous and too uniform to allow us now to set up any distinction or limitation, even if it were desirable on principle. Putnam v. Wise, 1 Hill, 234 and note; Cummings v. Vorce, 3 id. 283 and note ; Berly v. Taylor, 5 id. 577 ; Brownell v. Flagler, 5 id. 282; Baker v. Robbins, 2 Denio, 136; Osborn v. Bell, 5 id. 370; Camp v. Pulver, 5 Barb. 91; Hinds v. Tweddle, 7 Howard, 278; Butts v. Collins, 13 Wend. 154. See also Lightly v. Clouston, 1 Taunt. 113; Hill v. Jerrott, 3 id. 274; Young v. Marshall, 8 Bing. 43. There is scarcely a case in this state which holds a contrary doctrine. The only one that has been presented to my notice in conflict with these is that of Moffatt v. Wood & Fry, appended to the defendant's points but not reported. I think we must regard this last case as a departure from the line of authority established by our own courts, and therefore not to be follow^ed. The case of Moffatt v. Wood went up to the Court of Appeals and was affirmed. I have not had access to the opinions pronounced upon such affirmance, but the note of the decision contained in the supplement to Clinton's Digest, page 24, would lead to the conclusion that the affirmance was placed upon a different ground, as it well might be. to wit, that there being an express valid contract in the case, the plaintiff could not be permitted to repudiate it, nor would the law imply a different one. The suit was indebitatus assumpsit for goods sold, and the goods received by the .defendants were received upon a contract to sell them on commission. There was an alleged subsequent fraudulent conversion of the goods; and this fraud, under the authorities, justified the plaintiffs in disre- garding the sale made by the defendants to other parties, which was in effect a fraudulent conversion, but not in disaffirming the original contract, Avhich was subject to no imputation of fraud. There is nothing in the case to show that an action for a breach of the contract to sell on commission, if a breach of that contract had been prosecuted for and proved, would not have been sustained. 5. The remaining question is, what is the effect of a waiver of the CHAP. I.] ROTH V. PALMER. 135 tort? DoQ S it restore the e x])ress contract which has been repudiated for^he fraud ; or dpes-lLleajrathe parties iiLilie_ja me concHfro h asit n o ex£ress contract had been luiidiv in^^nph rolntimis as rpsultTTy impli- cation of law, from the delivery of^lhe_ goods by the plaintiffs, an d their possession by the defendant? On this subject the decisions are conflicting, but I think the weight of authority, as well as the true and logical effect of the various acts of the parties, is t^ j eave th e parties to stand upon the rights and obligations resulting fro m a delivery and possession of the goods, ^illson v. Force, G John. 110; Butts V. Collins, 13 Wend. ISTTC^amp v. Pulver, 5 Barb. 91. Indeed I think the plaintiff might properly and preferably have prosecuted simply for goods sold and delivered, and allowed the rest of the trans- action to come out as a matter of evidence. If he had done so, the order of proof would have been as follows. The plaintiffs would have proved that they delivered goods of a certain value to the defendant, and that the latter received the same or that they were afterwards shown to be in his possession. From this evidence the law would imply a promise to pay the value, and the plaintiffs might properly have rested. The defendant would then have shown the express contract by which he was to have a credit of six months on the purchase. This would have established a defence. The plaintiffs would then show by the declaration of the defendant antecedent or subsequent to the pur- chase, or by other proper evidence, that the defendant's purchase was fraudulent, without means or intent to pay for the goods, and with the design to defraud the plaintiff, and would properly claim that this justified him in repudiating the contract. On this evidence the plain- tiff would rest and the proof would be closed. The only remaining questions would be questions of law ; whether this state of facts justified him in prosecuting in assumpsit, and whether adopting that form of action would reinstate the express contract. These questions, as already suggested, ought, I think, to be decided in favor of the plain- tiffs. Under the old form of pleading, they might readily be prose- cuted by declaration, plea and replication, and a demurrer to the replication; under the new form of pleading by a complaint and answer : the answer setting up the express contract, and the remaining facts being presented on the trial by denial or avoidance of the facts set up in the answer. The plaintiffs have chosen, perhaps in stricter analogy to the theory of the present system of pleading, to present all the facts in their complaint. The defendant admits those facts by the demurrer, and presents the questions of law arising thereon for the adjudication of the court. The result is. I think, that the plaintiffs must have judgment, and that the order of the special term must be affirmed with costs.^ 'Accord: Willson v. Foree (1810) G Johns. 110; Weigand v. Sichel (1866) 4 Abb. Ap. Dec. 592; Baker v. Bobbins (184G) 2 Den. 136, but see Nichols v. Michael (1861) 23 N. Y. 265; Barrett v. Koella (1857) 5 Biss. 40.— Ed. 136 KIKKMAN V. PHILIPS. [bOOK II. ELIZABETH KIEKMAX, EX'X v. THOS. PHILIPS'S HEIKS. Supreme Court of Tennessee, 18T2. [7 Heiskell, 222.] Nicholson, C. J., delivered the opinion of the court. Elizabeth Kirkman, as executrix, on the 18th of June, 1870, filed her attachment bill against the heirs and devisees of Thomas Philips, citizens of Ohio, t o recover the value of certain machinery, iron, e^ ., alleged t o have been t ortiously taken in 1863 or 1864 by one Gibsoji, iSy him conveyed to Cincinnati, Ohio, and there delivered to one Moore, and by Moore sold to Thomas Philips and his son, George Philips. The property so taken and converted by Gibson, Moore, and Philips, is alleged to have been worth twelve or fifteen thousand dollars. Philips has died testate, and his devisees are made defendants. Lands in Stewart county belonging to the devisees of Philips have been attached, and the bill prays that they may be sold, and the proceeds applied in satisfaction of the debt due the complainant for the machinery, iron, etc., so converted by Philips. The bill was dismissed by the Chancellor upon demurrer, the cau se of demur rer bei ng that the recovery sought by the bill bein g for a to rt, the^ same was barred by the statute of limitation of three years. The allegations of the bill make a case of tort in the taking of the machinery and iron, and a conversion by Moore and Philips, but they show clearly that co mplainant is seeking t o recover the value of th e property, and not the property its elf, or damages for the tort_or con - version. The value so sought to be recovered is claimed to be a debt due from Philips originally, and now from the devisees of Philips, who is charged with the last conversion. The bill is therefore main- tainable, t he tor t being^v forc 6 ot the language of the bill waive d, an^Hhe value of the prop erty claimed_asa debt . Alsbrooks v. Hatha- way, 3 Sneed, 454; Campbell v. Eeeves, 3 Head, 228; Bennett v. Ken- nedy, ih. 675. Although there are many authorities in other States holding that it is only after property has been converted into money that the tort can be waived, and an action for the money maintained, yet in our own State the doctrine is fully settled, that in a case of conversion the complainant has an election to insist either upon dam- ages for the conversion, or to waive these and sue for the value of the property. If the original owner of the property elect to sue for the property, or for damages for the conversion, the action will be barred by the statute of three years : Code, sec. 2773. But if the party elects to sue for the value of the property, the action will be barred in six years: Code, sec. 2775. It is true, as argued, that a wrongd oer jaav obtain- a title to the property by three years' adverse possession, and CHAP. I.] THE WESTERN ASSURANCE CO. V. TOWLE. 127 yet be liable for three years after his title^is perfected jtoL^pay Hie original owner the value thereof. This is a necessary consequence of the right which the original owner has to elect whether he will sue for property or its value. During six years his right to sue for the value is as perfect as his right to sue for the property within three years. Thisj-jght is not interfered wit h by the pr oxisions of the Cod e abolishing the distinctions _in th e forms of actions . TliiL_statute_of lini'tations applicable to the cause de pends upon the natur e and ch ar- ax?teF~oTThe actioTi; and iro fupon'its form. In the case" before us, the complainant Iia¥l)Teetcd to waive the t^rt and to sue for the value of the property converted, and in so doing he is entitled to the benefit of the six years statute. It does not appear on the face of the bill that six years have elapsed from the time of the purchase of the property by Philips until the filing of the bill. The demurrer was therefore erroneously sustained. The decree sustaining the demurrer and dismissing the bill is re- versed with costs, and the cause remanded for answer and further proceedings.^ THE WESTERN ASSURANCE COMPANY v. TOWLE. Supreme Court of Wisconsin, 1886. [65 Wisconsin, 247.] Taylor, J.- This action was brought by the insurance company,.to_^ ro rnvor from tb e^ajjpel lant and Swan about $1,000, which the company liad^paid to th em i^ pon ji jolicy o f fire insurance issued by said com- pany to Towle & Swan as partners, upon an alleged loss by fire of prop- erty covered by said policy. The complaint charges that the payment of the $1,000 was procured by the defendants from the company by makiiig, false an-dSjiuxlulcnt_proiif&,fl£1oa,s and by false swearing' oB~the pai't of the defendants, Towle & Swan, as to the extent of their losses ; and that, relying upon such false statements and proofs of loss, and not knowing of their falsity at the time, the plaintiff paid the $1,000 to the defendants; that afterwards, upon ascertaining the falsity of their statements and proofs of loss, and that they did not in fact sustain the losses claimed by them, and that there was in fact but a ^For the doctrine that_J;he-tor:L-fea.aar by^ exjiiration of^tatiitory period of limitation obtains adverse title to the chattel so that his disposition of the property thereafter passes ah indefeasible title, see Currier r. Stiulley (1893) 159 ^lass. 17, '22, and authorities there cited. And see Mr. Ames' article on "'J'lie Disseisin of Cliatlels" in 3 Harv. Law Rev. 321, 32-2.— Ed. ■I'acts omitted and only that ])ortion of the opinion is printed relating to the measure of the recovery. — Ed. 128 THE WESTERN ASSURANCE CO. V. TOWLE. [BOOK II. very small portion of said $1,000 due to them for losses under said policy, the plaintiff demanded of said defendants the $1,000 so paid to them by reason of said false and untrue proofs of loss and fraudu- lent representations; that the defendants have neglected and refused to pay the same. Judgment is demanded for the said sum of $1,000 with interest from the 27th day of September, 1881, that being the date of the payment thereof to them by the company. The first complaint filed in the action was demurred to as not stating a cause of action; and thereupon the plaintiff filed an amended complaint, to which the defendant Towle answered, and Swan suffered a default. For the details of these complaints a reference must be had to the printed case. After the summons was served, and before any complaint in the action was made or served upon the defendants, or either of them, the plaintiff procured to be made a sufficient affidavit for a writ of attachment against the property of the defendants, and upon such writ the property of the defendant Towle was attached. Towle there- upon, and before the service of any complaint in the action, gave an undertaking, as authorized by sec. 2742, R. S., conditioned as therein required, and the property attached was released from said attachment. When the action was called for trial, and a jury impaneled to try the cause, the defendant Toivle moved to dismiss the amended com- plaint and strike it from the files, for the reason that the action was begun as upon a contract and the amended complaint sounds in tort. This motion was overruled, and defendant excepted. The defendant then objected to the reception of any evidence under the amended complaint, on the ground that it did not state facts sufficient to constitute a cause of action. This objection was also overruled, and defendant excepted. After trial the plaintiff had a verdict in its favor for $1,205.36, upon which judgment was rendered against both defendants. Toivle alone appeals from the judgment. The verdict was the amount paid by the company to the defendants on the 27th of September, 1881, with interest from that date to the date of the verdict, and no more. This^ction Jo t money ■ h a d and-ieceiyed to the plaintiff's use is in^no way founded upon the contract of insurance. TrnTiifpon th'e'tact that false and fraudulent representations were made by the defend- ants in order to induce the plaintiff to pay the same. This was so expressly held in Northwestern Life Ins. Co. v. Elliott, 10 Ins. Law J. 333 ; S. C. 5 Fed. Eep. 225. In that case the policy upon which the money had been paid was void and illegal under the laws of Oregon. Still the company had paid the loss on the false claim of the deatli of the party whose life was insured. It was afterwards ascertained that the person whose life was insured was not dead, and the com- pany thereupon brought an action to recover the money paid. It was insisted on the trial tliat the claim for the money was founded on CHAP. I.] THE WESTERN ASSURANCE CO. V. TOWLE. 139 the void and illegal contract of insurance, and for that reason no recovery could be had. Judge Deady, in deciding the case, says (5 Fed. Rep. 229, 230) : "True, the plaintiff might, at common law, upon the facts, have maintained assumpsit for money had and received by the defendant to plaintiff's use ; and the law, in the interest of justice, and by way of promoting the remedy, which was in form ex contractu, would have implied a promise on the part of the defendant to pay. But this would not have been a contract arising out of the void and illegal one, nor in any respect in affirmance of its validity, but only an implication or fiction of law that upon the facts — the plaintiff being entitled ex a^quo et bono to recover the money which the defendant had wrongfully obtained from it — he promised to repay the same." Catts v. Phalen, 2 How. 376, holds. the same doctrine. The plaintiff in the case at bar, in order to avail itself of the right to sue out an attachment in this action, ele_cted to waive the action for the wrong committed by the defendants , and bring its a c tioii_ for money had and received to its use, upon the im^Hied assum psit to repay the saine^^rn this action it recovers the money, if it recovers at all, on the ground that it has paid for a loss which did not in fact occur. If the loss did in fact occur to the extent of the payment made, then in equity and good conscience the money ought not to be refunded, and no promise to refund the same could be presumed in favor of the plaintiff; and if there was a loss, though not as great as the money paid, and the excess of payment was made on account of the fraud of defendants, as to such excess there would arise an implied promise on the part of the defendants to refund the excess. The fraud consist s iil^falsely overestimating the ^clainv-andr-demanding and -r^eeiving tbn_PY£Ps.c i bpyond _the_a ctual loss, and not in receiving the money which was justly due for a real loss sustained. We think, therefore, that this__action for money had and received, which has always been considered an action at~Ia\v which is maintainable upon equitable principles, can__only avail the plaintiff for the purposejof ^ecover ing wlmt^it has paid in exce5s"15rf!Te" Te'alrtoss,'" if aiiyT^vhich was sustained by the defendants, unless the jury should find that the fire which destroyed the property was caused, either directly or indirectly, by the wrongful acts of the defendants, or one of them. If the latter fact was made to a]3pear, there would be no loss under the policy which the plaintiff ought to pay. If, on the other hand, there was in fact an honest loss under the policy, and the plaintiff has paid more than such honest loss by reason of the fraud of defendants, that fact does not entitle the plaintiff to recover back in this action the amount of money which is covered by the honest loss. The only case we have found which would seem to question the soundness of the conclusions we have arrived at upon the question of the amount the plaintiff ought to recover in this action, if there was an honest loss, is Hartford L. S. Ins. Co. v. Matthews, 102 Mass. 130 THE WESTERN ASSURANCE CO. V. TOWLE. [BOOK II. 221. This v/as, however, an action of tort to recover money obtained by false representations, upon an insurance of live-stock. There were- two points in the case: first, that there were false representations made at the time of procuring the policy, which rendered it void; and similar false representations made in making proofs of loss, upon which the money was paid. The case was, however, disposed of in favor of the insured and against the company upon another point not involving the question as to tlie amount which the company ought to recover in case a recovery was had by it. The complaint of the plaintiff admits that some of the property burned was covered by the polic}^, and the proofs show the same fact ; so that there was something due the defendants from the plaintiff upon the policy, after the fire took place, unless they wrongfully caused the fire ; and in determining the amount the plaintiff ought ' to recover, the amount of such actual loss should have been considered, if they were entitled to recover at all on the ground of fraudulent representations as to the amount of the actual loss sustained. The learned circuit judge instructed the jury that if they found from the evidence that the loss of defendants was small, and materially less than the amount of the policies of insurance, and that the defendants knew that fact when they made their proofs of loss, and intentionally and knowingly stated the amount of the loss to be matefially greater than they knew it to be, for the purpose of unjustly procuring from the plaintiff more than the amount of the loss, and the plaintiff paid the loss relying upon such proofs and in ignorance of its falsity, then the jury should find a verdict for the plaintiff for the full sum paid by it, with interest from the date of payment. This instruc- tion was excepted to by the defendant Towle. As stated above, this in- struction was erroneous, and did not state the true rule for establishing the amount the plaintiff should recover in this action upon that branch of the case. As there was only a general verdict in the case, we cannot determine that the verdict was not based upon the fact that there was a fraudulent overvaluation of the amount of the losses of the defendants. This erroneous charge may have induced the jury to render a verdict for the whole sum paid by the plaintiff, notwithstand- ing they found in favor of the defendant Towle on the charge that the fire was wrongfully set by the defendants, or one of them. By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial. A motion for a rehearing was denied February 23, 1886. CHAP. I.] ASHER V. WALLIS. 131 ASHEE V. WALLIS. King's Bench, 1708. [11 Modern Reports, 146.^] A 31 AX haying a wifn in England go es to Jamaica, and there marries a rich woman, and lets her hinds, rese rving rent to himself, a nd receh'es the-same divers years ; hut after some time, they both coming into England, shg_j)erceived that he had another wife living : and thereupon brings an indebitatus assumpsit against him for the sai d rentSj^jis so much money received t)y him t odier— use. At the trial at Guildhall, London, this point was saved to be argued by Counsel, Whether an indehitatus assumpsit would lie in this case? which was argued this Term. Dee^ the Common Serjeant, said. It was like the case of a disseisee. who could not maintain an indehitatus assumpsit against the disseisor, as for money received to his use; and in this case there was another and a proper action; for if the rents were received with her consent, she might have an action of account against him as receiver;^ if with- out her assent, trespass lies. 'The principal case is reported more briefly under the name of Hasser v. \Yallis in 1 Salk. 28, from which report the following is taken : "Upon this the plaintiff, discovering the former marriage, brought an indebitatus assumpsit against Wallis for so much money received to her use. And after verdict on non assttmpsit, it was objected, that Wallis having no right to receive, the tenant was not discharged, and therefore an action lay against the tenant, who has his remedy over against Wallis. But the court held Wallis was visibly a husband, and the tenant discharged; at least that the recovery against Wallis in this _a ction would discharge the tenant, for this would be a satisfaction to Hie lessor." And see the valuable note on money had and received appended to this case in Evans' Edition of Salkeld. On the effect of payment operating as extinguishment of tenant's rents, that is extinguishment of a debt, see Dumois v. Still (1895) 32 N. Y. Supp. 164; Sergeant v. Stryker (1838) 1 Harr. 464, in which the principal case is dis- cussed. Accord in Chancery: Hele v. Stowel (1670) Ch. Cas. 126; In re Bowes (1887) L. R. 37 Ch. D. 128. See also Mercantile Co-op. Bank v. Frost (1898) 62 X. J. 476. 'In Tottenham v. Bodingfield (1573) 2 Leon. 25; Ow. 35, 83; Dal. 99, "the case was, the plaintiff had a lease of a parsonage, and the defendant being no lessee, nor claiming any interest, takes the tithes being set forth, and carries them away, if the plaintiff could have this action was the question." The defendant pleaded he was never his "baily for to render account." Tlie court held the action not maintainable because the action of an accoii nt presupposed a privity "baseJ upon fiduciary relationship as in the case of a 132 ASHER V. WALLIS. [bOOK II. Eyre also for the defendant said, that an indebitatus assumpsit will not lie, but where money is due on some contract; therefore where one man enters on another, and sells his goods, &c. he who has the property in them cannot have an indebitatus assumpsit for the money received, as for money received to his use; but must have his action as for a wrong done, viz. trespass, assize, &c. Whitacre for the plaintiff said, that the action lies; for the plaintiff was consenting, and often present when the money was paid; that where deljt will lie, an indebitatus assumpsit will also lie^ in many cases, so not confined to a particular action. But here it cannot be said, that the defendant was a wrong-doer, because it was done with her consent: besides, an indebitatus assumpsit will lie, though there was no contract; as for the profits of an office wrongfully received, though received by one who pretended a title.^ proctor, a bailiff or a receiver, whereas the defendant was a tort feasor and "wrongs are always done without privity." It was admitted, however, that if the defendant had received plaintiff's rents, then upon ratification, the action would have lain. — Ed. ^See Slade's Case, 4. Co. 92. ^See the Case of the City of London, 9. Co. . See also Sir William Saunderson v. Bignal, 2 Stra. 747; Duppa v. Gerrard, Salk. 78; Stockhold v. Collington, Salk. 330. In Arris v. Stuckley (1678) 2 Mod. 2G0, it was held inler alia that "If a man received the profits of an office on pretence of title, the person who has a right to the profits may recover them hj an action of indebitatus assumpsit, as for monies had and received to his use." In the course of the argument it was said by counsel: "For where one re- ceives my rent, I may charge him as bailiff or receiver; or if* any one receive my money without my order, though it is a tort, yet an indebitatus will lie, because by reason of the money the law creates a promise ; and the action is not grounded on the tort, but on the receipt of profits in this case." To which the court answered: "An indebitatus assumpsit will lie for rent received by one who pretends a title; for in such case an account will lie. Wlipvever the plaintiff may- have an account, an indebitatus wilj He." This was new doctrine, but was expressly followed as a precedent in Howard v. Wood (1079) 2 Lev. 245, T. Jones, 126, 2 Show. 23, although the court, per ScnoGGS, C. J., said: "If this were now an original case, we are agi'eed it would by no means lie." As reported by T. Jones, 126, 128: "Bvit it was resolved that the action lay, ■ ^ |or it is an expeditious remedy, and facilitates the recovery of just rights." ^f^jjdfr Oji/A^J' As late as 1697, Holt, C. J., was loath to allow indebitatus for fees, but ' admitted the action lay. Constable's Case (1697) Comb. 446: Kessel v. Zeiser (1880) 102 N. Y. il4uiLc£itz.i^,_Bohronsnicyer (1894) 149 111. 490; Nichols v. MacLean (1886) 101 N. Y. 526; Fitzsinllfirons v. Brooklyn (1886) 102 N. Y. 636 (one wrongfully deprived of an office is entitled to full salary, although while ousted he earned other money) ; U. S. v. Addison (1867) 6 Wall. 291; Crosbie v. Harley (1833) Ale. & N. 431; contra, Stuhr. v. Curran (1882) 44 N. J. L. 181 (but see C. J. Beasley's admirable dissenting opinion). Wliile therefore it is established by authority that fees of an office may be CHAP. I.] ASHER V. WALLIS. 133 Darnel also for the plaintiff, that there is no need of a contract to maintain an indehitatus assumpsit;^ for where money is overpaid, this action will lie for the surplus.- If the wife lend her husband's money to J. S. the husband may have either indehitatus assumpsit (or trover. Q.). If rents arc received by false toJcens/eithcT account or indehitatus assumpsit lies.^ And BY THE WHOLE CouRT it was agreed, that an Jji^ehitatus assumpsit w ould well lie . But Holt, Chief Justice, said, that trover would not lie in this case, because she was never possessed of the money ;* and when she married the defendant, she consented that he should manage her estate. He cited a case, where if money be over-paid, either deht or indebitatus assumpsit lies.° If two lay a wager, and stake down the money, the winner shall have an indehitatus assumpsit against him that holds the stakes, as for money received to his use." And the judgment was given for the plaintiff.'^ recovered in this action, it is equally well settled that only the fees or perquisites incident to the office, not gratuities may be recovered, unless such fees or perquisites be known and customary. Boyter v. Dodsworth (1796) 6 T. R. (581.— Ed. '3 Mod. 260. ^See Moses v. Macfarlane, 2. Burr. 1012; Grove v. Dubois, 1. Term Rep. 112; Bize V. Dixon, 1. Term Rep. 281 ; Robinson v. Eaton, I. Term Rep. 59; Clark v. Shee, Cowp. 197. •'See Whip v. Thomas, Bull. N. P. 130; Clark v. Shee, Cowp. 197. ^Blackham's Case, Salk. 290. n. Co. 'See Bovey v. Castlemain, 1 Ld. Raym. 69; Hard's Case, Salk. 23; Jones v. Randal, Cowp. 37. — Reporter's note. 'See Mayor v. Saunders (1832) 3 B. & A. 411, for the case of stallage or tolls. If, however, the defendant claims adverse title. to the land or fund in question tlie presumption of agency is overtlirown and a recovery in assumjisit is not allowed, as in Clarence v. Marshall (1834) 2 C. & M. 495 (following in this respect Tottenham v. Bedingfield (1573) Ow. 35, 83, in note ante). See also Nolan v. Manton ( 1884) 46 N. J. L. 231 ; Brown v. Brown (1886) 40 Hun, 418; Fowler v. Bowery Savings Bank (1889) 113 N. Y. 450; Casey V. Pilkington (1903) 83 App. Div. (N. Y.) 91, 93; Butterworth v. Gould ( 1869) 41 N. Y. 450; Foley v. Mutual Life Ins. Co. (1892) 18 N. Y. Supp. 615; Webb V. Meyers (1892) 18 N. Y. Supp. 711; Murphy v. Ball (1862) 38 Barb. 262.— Ed. 134 EADES V. VANDEPUT. [BOOK II. i CUETEIS V. BRIDGES. Teinity. King's Bench^ 1697. [Comherhach, 450.] If the Master of one Ship takes a Servant that belongs to the Master of another Ship, whatsoever Wages he receives from the King upon his Account, shall be to the Use of his first Master, being acquired by the Labour and Industry of his Servant.^ BARBER V. DENNIS. Trinity. Queen's Bench, 1704. [1 Salkeld, 68.-] A waterman's widow took an apprentice, who went to sea and earned two tickets, which came to the defendant's hands. The widow brought trover for the tickets, and had judgment; for what the apprentice gains, he gains to his master ; and whether legally appren- tice or not, is no ways material, for it is enough if he be so de facto. EADES V. VANDEPUT. Guildhall, King's Bench, 1785. [5 East, 39 a, 39.] This was an action against the captain of a ship of war by the master of an apprentice, to recover wages for the service of his appren- tice, who, having been impressed, was detained on board the Defend- ant's ship. The only witness to charge Captain Vandeput with knowl- edge was the apprentice boy himself, who swore that after he had been impressed and carried on board the ship he told the Defendant, the captain, that he was an apprentice, and required his discharge, which was refused. The Plaintiff having recovered a verdict before Buller, J., at the sittings after the last term at Guildhall. ^In the earlier ease, Anonymous (IROo) Skin. 579, Holt, C. J., held that an action on the ease for money received by the defendant lay under like circumstances. — Eu. 'Likewise reported in 6 Mod. G9, where the opinion is ascribed to Holt, C. J.— Ed. CHAP. I.] LIGHTLY V. CLOUSTOX. 13.J Erskine mored for a new trial, grounded on affidavits of Captains Vandeput and Ommaney of tlie navy, which stated that, according to the custom of the navy, if an apprentice be pressed he must send his indentures to the Admiralty, or bring evidence of them to the captain of the vessel on board of which he is taken. And here he observed that the boy had never shewn his indentures; and that if a captain were to discharge a boy on his bare word that he was an apprentice, every boy on board his ship when he was tired of the service would make that excuse. The Court, however, were of opinion that the evidence was sufficient, and that the captain ought to have made inquiry into the truth of what the boy said; for after that information he detained him at his peril; and it was admitted that if the indentures had been produced the Defendant would have been bound to have discharged the boy. Rule refused. LIGHTLY V. CLOUSTOX. CoMMOx Pleas, 1808. [1 Taunton, 113.] This was an action of indebitatus assumpsit "for work and labor performed for the defendant at his request, by one Thomas Sinclair, the apprentice of the plaintiff legally bound to him by indenture for a term of years, at the time of the work and labor so performed existing and unexpired, and to the profits and receipts of whose work and labor, the plaintiff was, as the master of the said apprentice, by law entitled." The defendant seduced the apprentice from on board the plaintiff's ship in Jamaica, and employed him as a mariner to assist in navigating his own ship from Port Royal, home. The cause was tried at the sittings after Trinity term last, before Maxsfield, C. J. The jury found a verdict for the plaintiff, subject to the opinion of the court on the following objection, namely, that the plaintiff ought to have declared in a special action on the case, and that indebitatus assumpsit would not lie. Accordingly Best, Serjt., having on a former day obtained a rule nisi for setting aside the verdict and entering a nonsuit, Shepherd, Serjt., now showed cause. It has been decided that this declaration is good, in the case of Eades v. Vandeput, 5 East, 39, which was an action brought expressly for the wages earned by the plaintiff's apprentice, who had been improperly impressed, and com- pelled to serve on board a ship of war ; and the court there held that the plaintiff might recover. Barber v. Dennis, 1 Salk. 6S. The widow of a waterman was held to be entitled to two tickets which had been earned by her apprentice during his service at sea. In Smith v. 136 LIGHTLY V. CLOUSTON. [BOOK II. Hodson, 4 T. E. 217, the court expressly determined, that although trover would have lain for the goods, yet the assignees might affirm the fraudulent contract of the bankrupt, and recover the price as upon a sale made by themselves. Best, Serjt., contra. The case of Eades v. Vandeput, as it is now stated, cannot be law. An action might perhaps have been maintained in that case to recover the wages in the shape of damages for the tort ; but all the work and labor which the apprentice there did must have been done for the king; since even the services of such servants as are allowed to the captain of a king's ship are wholly gratuitous to him. And if the apprentice worked for the king, that action could not be maintained against the captain. Macbeath v. Haldimand. 1 T. K. 172. Barber v. Dennis was a case of trover, which can furnish no authority for this form of action, and it is of the less weight because one point which is there reported cannot be law, namely, that it is immaterial whether the person who performed the service was legally an apprentice or not. The analogy drawn from that class of cases, in which goods have been tortiously taken and sold, and the plaintiffs have been permitted to waive the trespass and sue for the proceeds of the sale, as money had and received to their use, is not applicable here. It is of pernicious tendency more largely to extend this form of action, in which the defendant is not apprised by the declaration of the nature of the claim that is made on him. It is necessary to preserve the distinction between causes of action which arise ex delicto, and those which arise ex contractu^ or there would be no limits to the perversion that would ensue. A cause was tried before Eyre, C. J., in which the plaintiff declared in assumpsit, that the defendant under- took not to beat him in a voyage to the East Indies. Eyre, C. J., held he could not recover. Mansfield, C. J. It is difficult upon principle to distinguish this case from those that have arisen on bankruptcies and executions, and in which it has been held that trover may be converted into an action for money had and received, to recover the sum produced by the sale of the goods. I should much doubt the case of Smith v. Hodson, but that I remember a case so long back as the time of Lord Chief Justice Eyre in the reign of George the Second, in which the same thing was held. I should have thought it better for the law to have kept its course; but it has now been long settled, that in cases of sale, if the plaintiff chooses to sue for the produce of that sale, he may do it; and the practice is beneficial to the defendant, because a jury may give in dam- ages for the tort a much greater sum than the value of the goods. In the present case the defendant wrongfully acquires the labor of the apprentice; and the master may bring his action for the seduction. But he may also waive his right to recover damages for the tort, and may say that he is entitled to the labor of his apprentice; that ho is consequently entitled to an equivalent for tliat labor, which has been CHAP. I.] HITCIIIN [or kitchen] V. CAMPBELL. 137 bestowed in the service of the defendant. It is not competent for the defendant to answer, that he obtained that labor, not b}' contract with the master, but by wrong; and that, therefore, he will not pay for it. This case approaches as nearly as possible to the case where goods are sold, and the money has found its way into the pocket of the defendant. Heath, J. So long back as the time of Charles the Second, it was held that the title to an office, under an adverse possession, might be tried in an action for the fees of the office had and received ; and Holt^ C. J., held it clear law, that if a person goes and receives my rents from my tenants, I may bring my action against him for money had and received. It is for the benefit of the defendant that this form of action should be allowed to prevail, for it admits of a set-off, and deductions, which could not be allowed in an action framed on the tort. Rule discharged} 2. ELECTION OF REMEDIES. HITCHIN [OR KITCHEN] v. CAMPBELL. Common Pleas, 1772. [2 William Blachstone, 827.-] This cause proceeded to trial in the sittings after Trinity term, 1771, on the two issues joined on the first and third pleas, when this special case was stated for the' opinion of the court : That Richard Anderson, being indebted to the defendant Campbell in £2000 for money lent, gave two bonds and judgment for the same; which judg- ment was entered up. And on the 9th March, 1769, a writ of execu- tion was sued out and delivered to the sheriff of Surrey the same ^In Foster v. Stewart (1814) .3 M. & S. 191 — a case involving the same principle — the court squarely followed Lightly f. Clouston, supra, so that the doctrine of waiver may be regarded as thoroughly established in this class of cases. See the following early cases: Treswell r. Middleton (1022) Cro. Jac. 653; Parish v. Parish (1724) 1 Str. 582; Co. Lit. 17a (Hargrave's note). Equity early recognized the legal right of the master to the services of the appren- tice, and therefore refused to grant relief on a bill by the apprentice for his earnings. Meriton v. Hornsby (1747) 1 Ves. Sr. 48; Hill v. Allen (1747-8) 1 id. 83. See also, James v. Le Hoy (1810) (i Johns. 274: Stockett r. Watkins (1830) 2 G. & J. ?12C), 343. So in the case of an infant. Thompson r. Howard (1875) 31 Mich. 309; Ilopf r. V. S. Bakins To. (1892) 27 N. Y. Supp. 217.— Ed. "Likewise reported in 3 Wils. 304. — Ed. 138 HITCHIN [or kitchen] V. CAMPBELL, [BOOK II. day, by virtue of which the slieriff tlie same day levied of the goods of Anderson by making a bill of sale thereof to the defendant, to the value of £3155 6s. 5d., for debt and costs. On the 9th April, 1769, a commission of bankrupt was awarded against Anderson, and the plaintiff api)ointed assignee, who in Michaelmas term, 1769, brought trover in this court against the sheriff of Surrey and the defendant for the goods levied under the execution. On trial whereof in Hilary term, 1770, there was found a verdict for the defendant, and judg- ment accordingly. In Easter term, 1770, the plaintiff brought an action in the King's Bench against the defendant for money had and received to [his] use as assignee, and recovered £860 10s., as mentioned in the plea, upon a different cause of action from the present ; namely, for certain notes delivered to the defendant after the act of bank- ruptcy, which was proved in the present cause to have been committed in February, 1769. It was admitted that the defendant received the money levied under the execution before the action in the King's Bench was brought. And this action being brought to recover back that money, Qu. whether under these circumstances they are entitled to recover? This case was argued in last Hilary term by Gh/n for the plaintiff, and Jephson for the defendant; and again in Easter term, by Davy for the plaintiff, and Burland for the defendant. For the defendant it was insisted, 1. That this action of assumpsit would not lie, the cause of action being in the nature of a tort, and not a contract. 2. That the plaintiff, having made his election by bringing trover in the King's Bench, in which he failed, is barred thereby from bringing under another suit for the same cause of action. For the plaintiff it was replied, 1. That general use and modern resolutions have now settled this point, and it is not to be disturbed. 2. That the plaintiff, not having had the fruit of his remedy in the King's Bench, shall not be precluded by it. And now, in this term, De GT?Ey, C. J., delivered the opinion of himself, Gould, Blackstone, and Wares, JJ. The legal effect of an act of bankruptcy committed by a trader is to put it in the power of the commissioners, by relation, to divest the property of the bank- rupt from that time, in case a commission be afterwards issued. This relation takes place in every instance but three, excepted by statutes 1 Jac. 1, 21 Jac. 1, and 19 Geo. 2, c. 32. Executions are not among these excepted cases, but are expressly declared void by the statute 21 Jac. 1 ; tlie commission being in the nature of an execution for the whole body of the creditors. By the old acts of Hon. 8 and Elix.. commissioners had a power of acting themselves in recovering the bankrupt's effects. Afterwards it became the practice to assign, wliich is allowed by 1 Jac. 1, c. 15. It was not till the 5 Anne that assignees wore directed to be chosen, which was revived by 5 Geo. 1. Yet, not- withstanding this transfer of the property by relation, the sheriff is CHAP. I.] IIITCIIIX [or KITCHEX] r. CAMPBELL. 139 certainly no trespasser by taking the goods in execution after the act of bankruptcy, and before the commission issued. So ruled in Letch- mere V. Thorowgood, in Comb, and Show., Comb. 123; 1 Show. 12; 3 Mod. 236; and in Cooper v. Chitty, in Burrow, 20. But by selling, the sheriff converts the goods ; and then trover is maintainable against the sheriff, or his vendee, or the plaintiff in the original action. But a question was made in this cause, whether indebitatus assumpsit would lie against the defendant for the money arising from the goods thus taken in execution, seeing that if the debt was illegally levied it was a tort, and if the tort be waived the whole is waived; for you cannot affirm one part of a transaction and disaffirm the rest. Wilson V. Poulter, 2 Stra. 859. It is true, this matter was considered formerly in that light, as in Philips v. Tompson, 3 Lev. 191, and Holt, 95, 12 Mod. 324. And in Billon v. Hyde (well reported, 1 Ves. 326), Lord Hardwicke said that this action was never allowed by Lord Parker, Lord Eaymoxd, or himself, but that the practice had been since altered. And practice has certainly much extended this action of assumpsit as a very useful and general remedy. The same prin- ciple which supports this action against one who receives money from the bankrupt himself will support it against another who receives it under the bankrupt. In both cases it is the property of the assignees ; and though while this action was in its infancy (2 John. 126; 2 Lev. 2-15) the courts endeavored to find technical arguments to support it, as by a notion of privity, etc., yet that principle is too narrow to support these actions in general to the extent in which they are admitted. Besides, if it were necessary, there is in this case a privity between the defendant and the bankrupt, the judgment being volun- tarily given. Another, and a much stronger objection taken, was that though the assignees may have their election to bring either an action of tort or contract, yet they cannot bring both; and having elected to bring trover, the judgment in that bars the action of assumpsit. This depends upon two considerations: 1. ^^Tiether a man's having once elected to proceed upon the tort bars him from proceeding upon the contract. 2. "Whether his proceeding dowTi to judgment does not bar him from trying the same cause of action again. 1. As to the first, cases have been cited to show that where there are two different kinds of remedies, real and personal, or otherwise specificallv dis- tinguished, a man's election of one prevents him from using the other. He may distrain, or bring assize, but not both (Litt. s. 588) ; may bring writ of annuity, or distrain (Litt. s. 219) ; and his election is determined, even though he should not recover after he hath counted thereon (Co. Litt. 145fl). But where both remedies are merely real or merely personal, there the election is not determined till the judgment on the merits. For a nonsuit on an action of account is no bar to an action of debt. Co. Litt. 146 a. And so must Holt, in 12 Mod. 324, be understood to mean, "that if they bring one they 140 HITCHIN [ok kitchen] V. CAMPBELL. [BOOK II. shall not afterwards bring the other," i.e., if the first be brought to a due conclusion. 2. But in the present case the action of trover went on to a verdict and judgment, and appears by the case stated to have been for the same cause of action. And upon this it is that the opinion of the court is founded. The rule of law is, Nemo debet his vexari pro eadem causa.^ And in Ferrers' case (6 Co. 7; Cro. Eliz. 668) it is held that where one is barred in any action, real or personal, by judgment or demurrer, confession, verdict, etc., he is barred as to that, or the like action of the like nature for the same thing, forever. In personal actions the bar is universal ; upon real actions he may have an action of a higher nature. But a bar in one assize, etc., is a bar in every other. Here, by "actions of the like nature" must be meant actions in a similar degree, not merely those which have a similitude of form. All personal actions are of the same degree; therefore each is a perpetual bar. 5 Co. 61, Sparry's case, gives the history of this rule, and shows when it commenced, its progress, and legal distinctions. There are many exceptions to this rule : as, where the first action is not competent; where the plaintiff has mistaken his character, and sued as executor, not as administrator; or where the judgment is given for faults in the declaration or pleadings. 1 Mod. 207. But the principal consideration is, whether it be precisely the same cause of action in both, appearing by proper averments in a plea, or by proper facts stated in a special verdict or a special case. One great criterion of this identity is, that the same evidence will maintain both the actions. Putt v. Royston, 2 Show. 211; Eaym. 472; 3 Mod. 1; Pollexfen, 634; Mortimer v. Wingate, Moor, 463; Bro. Acton on the Case, pp. 97, 105. These relate to the whole of the demand. But the same reasoning extends to part of it only; as 4 Co. 92 h, Slade's Case ; and Pike v. Aldworth, in Scacch., T. 5 W. & M., and Hil. 7 & 8 W. 3. In the present case, as there was clearly a conversion before the action of trover, the only question could be on the property. In this second action of assumpsit there arises the same question of prop- erty. The first action has determined the goods not to be the assignee's. He shall not now try whether the money produced by those goods is his or no. On the state of the case therefore now found, the court think the former action a bar. When this case was first before the court on demurrer, there were not sufficient averments to support the plea in bar. Though the goods were averred to be the same, it did not appear that the question was the same ; and therefore trover might not have lain for the goods them- selves, though indehUatiis assumpsit might afterwards lie for the value. Nor is there any injustice in the present case. The money is in the hands of a hona fide creditor, who has got an advantage at law, ^On this point see an article by Mr. Ames on the Disseisin of Chattels, 3 Harv. L. R. 326-328.— Ed. CHAP. I.] WILBUR V. GILMOilE. 1-41 by his diligence, over the body of the creditors; and he has a right, in conscience, to keep it. Therefore, per tot. cur., • Judgment for the defendant. WILBUR V. GILMORE. Supreme Judicial Court of Massachusetts, 1838. [21 Pickering, 250.] Trespass quare clausum. The action was submitted to referees, under a rule of court. They awarded to the plaintiff the sum of $5, as the actual value of wood and timber cut and carried away by the defendant, and submitted to the determination of the Court the legal questions arising in the case. The trespass was committed in the lifetime of the plaintiff's testator. In the year 1 835, the plaintiff commenced a suit against the defendant for the same cause of action. To that suit there was a general demurrer, and joinder in the Court of Common Pleas, and judgment was there rendered that the declaration was bad and that the defend- ant recover his costs. The defendant insisted that those proceedings were a bar to the present action. The present action was commenced by the executor after the Revised Statutes went into operation, and another question submitted to the Court by the referees was, whether it could be legally commenced by the executor. Morton, J., delivered the opinion of the Court, Two questions are referred to the Court by the report of the referees. 1. Can this action be maintained by the executor? 2. Was it barred by a former judgment between the parties ?^ 2. The former judgment was rendered on a general demurrer to the declaration, and is no bar to this action. The general rule undoubtedly is, that the judgment in one action shall bar all other suits between the same parties and for the same cause of action. Interest reipuhlicce ut sit finis litium. But this rule is limited to judgments rendered on the merits. If the plaintiff be nonsuit for want of proof, or because his allegata and probata do not agree, or for anv other cause, he may commence another action. 1 Chitty on PI. ("5th ed.) 227; Gould on PI. 478. Even a judgment of nonsuit on the merits, or on an agreed statement of facts, has been hoi den to be no bar to another action.. Knox v. Waldoborough. 5 Greenl. 185 ; Bridge et al. v. Sumner, 1 Pick. 371. So if the plaintiff mistake the form of his action, as if he bring trespass instead of trover, and his Avrit be adjudged bad on demurrer, the judgment will not bar an action of trover. \ Chit. PI. (5th ed.) 227; Gould on PL 'Only the opinion of the court on the second question is given. — Ed. 143 MARSH V. PIER. [BOOK II. 4T8, § 46. So if the plaintiff mistake his cause of action and the defendant demur and have judgment, this will not preclude the plain- tiff from commencing a fresh action, correctly setting forth the right cause. So also if the declaration be demurred to, or a bad plea be pleaded and demurred to, and a judgment be rendered against the plaintiff for the insufficiency of his declaration, it will not estop the plaintiff from bringing another action to enforce the same right; because the case as stated in the last declaration was not tried in the first. In all these cases, if the defendant plead the former judgment in bar, the plaintiff may reply that it was not obtained on. the merits. 1 Chit. PI. (5th ed.) 227; Gould on PL 478, § 45; Vin. Abr. Judgment (Q. 4) ; Lampen.v. Kedgewin, 1 Mod. 207. In this last ease. North, C. J., says, "there is no question but that if a man mistakes his declaration and the defendant demurs, the plaintiff may set it right in a second action." It is apparent from the record, that the former judgment between these parties was rendered upon the insufficiency of the declaration and not upon the merits of the case, and therefore can be no bar to the present action. Award of referees accepted. MAESH V. PIER. Supreme Court of Pennsylvania, 1833. [4 Rawle, 273.] One Pier owned the brig Sally Barher, of which one Marshall was master, and in 1828 the brig sailed from New York to Tabasco with a cargo of copper. On arrival at the port, a cargo of logwood was put on board on account of plaintiff, and the brig proceeded on the return voyage to New York. After being at sea three or four days, she became leaky and unfit to continue the voyage, whereupon the brig changed her course, and entered New Orleans, where she was regularly surveyed, condemned and sold. By direction of the master, the logwood in question was sold through W. Nott & Co., who gave tlie master a draft for the proceeds. The logwood was thereafter shipped to Phihidelphia and sold through original purchaser to Marsh, who took bona fide and without notice. . Pier disaffirmed the sale at New Orleans, but ultimately, in 1829, brought suit against Wm. Nott & Co. in a New York court for the proceeds of the logwood, in which suit the defendants Wm. Nott & Co. had judgment. In 1832, Pier brought an action of replevin against Marsh in CHAP. I.] MARSH V. PIER. 143 the District Court of Philadelphia for the logwood in question, to which Marsh pleaded "property." From judgment in favor of the plaintilf in this suit Marsh aj)pealed.^ The opinion of the court was delivered by Kennedy, J.^ From this exemplification of the record of the judgment of the Superior Court of the City of New York, it is manifest that the value or price of the logwood which forms the subject-matter of the dispute in this action, was a part of the claim of the plaintiff below in his suit against William Nott and John Parker in that court. They sold the logwood to Samuel P. Morgan & Co., who shipped it on board of the barque Hercules consigned to C. Price & Morgan at Philadelphia, who sold it again to the plaintiff in error. Now, as the sale of logwood by Nott and Parker at New Orleans, when, as is admitted by both parties, it was the property of Sylvester Pier, and avowedly sold by them as such, are facts alleged and admitted on both sides in this action, it necessarily follows, that on the trial of the cause in the Superior Court of the City of New York, either the authority of Nott and Parker to make this sale, and that they had faithfully accounted to Pier for the proceeds thereof, must have been established to the con- viction of the court and jury, or otherwise, if made without legal authority, that they had satisfied Pier for his claim and loss of property in the logwood, in some way, so that he was not entitled to recover of them in that action. And it appears to me, that being decided against Pier, on either of these grounds, he was thereby pre- cluded from the further maintenance of this action. In short, I am unable to perceive any ground upon which that action could have been determined, as it appears from the exemplification of the record to have been, that would not have made it a bar to the further prosecution of this suit by him. The evidence to support both actions was the same; that being so, the cause of action must be the same, notwithstanding the actions are grounded on different writs. This was held in Kitchen v. Campbell, 3 Wils. Eep. 308, to be the test by which we are to ascertain whether a final de- termination in a former action is a bar or not to a subsequent action ; and it is there said, that this principle runs through all the cases in the books, both in real and personal actions. It was resolved in Ferrers' Case, 6 Co. 7, "That when one is barred in any action, real or personal, by judgment upon demurrer, con- fession, verdict, &c., he is barred as to that, or the like action of the like nature for the same thing forever," for expedit rcipuh- Jiccr lit sit finis Utium; which is also supported by another maxim. nemo debet his vexari, si constet curies quod sit pro una et eadem *A short statement of facts is substituted for that of the report. — Ed. 'A part only of the opinion is given. — Ed. 144 MARSH V. PIER. [book II. causa. Sparry's Case, 5 Co. 61. In Slade's Case, 4 Co. 946, it was held, that a judgment in an action of debt was a bar to an action of assumpsit brought on the same contract. In Bardwell V. Kersey et al., 3 Lev. 179, it was decided that a former action of trespass by the plaintiff against the defendants was a bar to a subsequent action on the case for the same cause. Also in Kitchen v. Campbell, 3 Wils. 308, 309 ; S. C. 2 Bl. Rep. 827, it was ruled, that a judgment rendered in favour of the defendant in a former action of trover, was a bar to the plaintiff's recovery in a subsequent action of assumpsit for money had and received for the plaintiff's use, from a sale made of the same goods by the defendant. In like manner a judgment rendered for the defend- ant in trespass de bonis asportatis, was determined to be a bar to the plaintiff's recovery in a subsequent action of assumpsit to recover the money received by the defendant as the price of the same goods upon a sale made of them by him. Eice v. King, 7 Johns. 20. The principle settled by these, and many other cases, is, that the plaintiff cannot have a second investigation of the same original matter when it has passed once in rem judicatam. And this is in conformity to the rule laid down and deduced by the judges from the cases on this subject in the Dutchess of Kingston's Case, 20 State Trials, 535, "that the judgment of a court of concurrent jurisdiction directly upon the point, is as a plea, a bar, or as evidence conclusive, between the same parties upon the same matter directly in question in another court." From the same cases, as well as others, it may be seen, that the plaintiff may frequently at his election bring either trespass, trover, replevin, detinue or assumpsit, to recover compensation for the loss of his goods. Feltham v. Tyrrel, Lofft's Eep. 207, 320; Lamine v. Dorrell, 2 Ld. Raym. 1216; Lindon v. Hooper, Cowp. 419; 20 Vin. Abr. tit. Trespass, page 540, and the cases there referred to. And if the plaintiff elects to bring an action of trespass or trover against the defendant, who has sold his goods without authority, and obtains a judgment covering the value of the goods, the right of property in them, I take it, from the weight of the English authorities on this subject, is thereby changed from the plaintiff, so that he could not maintain an action afterwards for the goods, against the vendee of the defendant. Brown v. Wootton, Cro. Jac. 73, per Fenner, Justice, "the property of the goods is changed," page 74; S. C. Yelv. 67, 68, and note (1) by Metcalf; Moore, 762 ; Adams v. Broughton, 2 Stran. 1078 ; S. C. Andr. 18 ; Bull. X. P. 47 ; 1 Cromp. Prac. 184. Per Lord Hardwicke, in Smith v. Gil)son, Rep. Temp. Hard. 319. "It is a sale of the thing to the defendant, which vests the property in him." 3 Starkie's Ev. part 4, page 1281. So judgment for the plaintiff in replevin in the d&tinet for damages, vests the property of the goods in the CHAP. I.] MARSH V. PIER. 145 defendant. Moor v. Watts, 1 Ld. Raym. G14; 12 Mod. 428. In Xew York, however, it is held, that the property of the plain- tiff in the goods in such cases, is not changed, until the defendant shall have paid, or satisfied the judgment, in conformity to the rule solutio pretii, emptionis loco liabetur, which seems to be sanctioned by what is laid down in Jenk. cent 4, case 88, page 189. Curtis v. Groat, G Johnson, 1G8; Osterhout v. Roberts, 8 Cowen, 43. But in Virginia, in Murrell v. Johnson's Adm., 1 Henning and Mun. 449, the court seemed to think, that A, whose slave had been sold without his authority, by B to C, and by C delivered to D, having brought an action of detinue, and obtained a judgment in it against C, could not afterwards maintain an action of detinue against D for the same slave, notwithstanding his judgment against C still remained unsatisfied. So if the plaintiff brings an action of assumpsit, instead of trover or trespass against the defendant, who has sold his goods without authority, as he may do according to many of the foregoing cases, and recovers a judgment, I apprehend that he cannot afterwards sustain an action of any kind against the vendee of the defendant, or any person claiming the goods under him. And this not merely for the reason assigned in the cases cited above, but for an additional, and perhaps still more forcible one, which is, that by thus claiming the money arising from the sale made of the goods by the defendant, he thereby affirms it, for the money arising from the sale of the goods is all that the plaintiff can claim and recover in the action of assumpsit, and by taking a judgment for it. it does appear to me, that he thereby ratifies and confirms the sale made of the goods, and he shall not afterwards be permitted to gainsay it. Omnis ratihahitio retrotrahitur et mandato seu licenti(P aequiparatnr. Lamine v. Dorrell, 2 Ld. Raym. 1216; Bennitt v. Francis, 4 Esp. Rep. 28. Accordingly, in Brewer v. Sparrow, 7 B. & C. 310; S. C. M. & R. 2, it was held, that a person having once affirmed the acts of another, who wrongfully sold his property, cannot afterwards treat him as a wrongdoer, and maintain trover against him. And should the plaintiff fail, on trial of the action of assumpsit, and have a verdict and judgment given against him, still he would be precluded thereby from maintaining another action for the same goods, involving the same evidence, and in' effect, the same cause of action, for the question, or subject-matter of dis- pute, having passed once in rem judicatam,, he shall not again vex the defendant or those claiming under him with a second action. Young v. Black, 7 Cran. 567. Xeither is it material in such cases, that botli actions were com- menced on the same da}', or at different dates, and were both pending afterwards, at the same time, and the action last brought, tried first, and judgment rendered in it; still the plaintiff will be bound by it, and be precluded from further maintaining the action first entered. 146 MARSH V. PIER. [BOOK II. and so vice versa. This was the case in Garvin v. Dawson, 13 Serg. & Eawle, 2-16, where the second action between the parties commenced about one month after the first was tried, and a judgment rendered in it in favour of the defendant, which was afterwards held to be a bar to the plaintiff's further maintenance of his first action. This is according to the rule, nemo his vexari dehet, which allows to every one the opportunity of having his complaint fairly investigated, and fully hoard before the judicial tribunals of the state, but being once decided by the proper court, after such investigation and hearing, the peace and quiet of the community require that there should be an end of the dispute. If we disregard this rule we have no other, and every controversy must become interminable. From the views which I have taken of this part of the case, it appears to me, that the exemplification of the record of the Superior Court of the city of New York, was not only pertinent to the issue joined, and therefore admissible, but would have been conclusive evi- dence against the plaintiff's right of property to the logwood, had it been received, unless he had shown that the logwood for which he made a claim in that action, was not the same claimed in this, or that he had on the trial of that, withdrawn that part of his claim which con- sisted of the logwood. The defendant below in this action, pleaded property in the logwood, and the judgment of the Superior Court of the city of New York, showing that the plaintiff had been divested of his right to it, by a sale made thereof, under which the defendant below in this action, claims to derive his right, established greatly the most important link in the chain of his title. And although the judg- ment of the Superior Court of the city of New York was rendered during the pendency of this action, still I think it was not necessary to plead it, in order. to make it admissible evidence, because it was, in effect, the decision of a competent court of concurrent jurisdiction, given in affirmance of the sale of the logwood, mentioned in the record of the judgment made by the defendants therein named, before the commencement of this action, under which the defendant here claims a right to the logwood. Neither do I conceive that it was necessary to plead it, in order to make it conclusively binding upon the jury against the plaintiff bolow; for if it was properly admissible under the plea of property, of which I entertain no doubt, as it went directly to establish the validity of the sale of the logwood, under which the defendant below claimed it, it being the judgment of a competent court, must be considered the conclusion or sentence of the law on tlie facts of the case, and therefore not to be set aside, reversed or disregarded, by either court or jury in this action. This doctrine, as I conceive, is not inconsistent with the rule laid down by a majority of this court, in Kilheffer v. Herr, 17 Serg. & Rawle, 322, but comes within the qualification there mentioned, but wlierever the party is not bound to plead specially to enable him to give the CHAP. I.J MARSH V. PIER. 147 record of a former recovery in evidence, it will, when given, in evi- dence, although not pleaded, be conclusive and binding upon the plain- tiff, the court, and the jury. 1 Phil. Ev. 223, 224 (New York, 1816). Where a subject or question in controversy has been once settled by the judgment of a competent tribunal, it never ought to be permitted to be made the ground of a second suit between the same parties, or those claiming under them, as long as the Judgment in the first suit re- mains unreversed. The peace of the community is a great desideratum, and nothing ought to be tolerated, that would disturb it unnecessarily. Before the rendition of a judgment, the court is presumed to be made acquainted by one or the other, or by both of the parties, with every- thing that is necessary to be known, in order to procure a correct decision upon the case; so that the judgment of the court not being pronounced until after it has been so informed, must be taken and considered as corresponding and answering fully to the claims of justice. It is therefore altogether inadmissible to say, that a renewal of the contest shall or ought to be permitted, because the first decision was not just or right. The propriety of those decisions which have admitted a judgment in a former suit, to be given in evidence to the jury on the trial of a second suit for the same cause, between the same parties or those claiming under them, but at the same time have held that the jury Avere not absolutely bound by such judgment because it was not pleaded, may well be questioned. The maxim, nemo debet his vexari, si constet curice quod sit pro una et eadam causa, being considered, as doubtless it was, established for the protection and benefit of the party, that he may therefore waive it; and unquestionably, so far as he is individu- ally concerned, there can be no rational objection to his doing so. But then it ought to be recollected, that the community has also an equal interest and concern in the matter, on account of its peace and quiet, which ought not to be disturbed at the will and pleasure of every individual, in order to gratify vindictive and litigious feelings. Hence, it would seem to follow, that wherever on the trial of a cause, from the state of the pleadings in it, the record of a judgment rendered by a competent tribunal upon the merits of a former action for the same cause, between the same parties or those claiming under them, is properly given in evidence to the jiiry, that it ought to be considered conclusively binding on both court and jury, and to preclude all further inquiry in the cause; otherwise the rule or maxim, expedit reipuhlicce tit sit finis litium, which is as old as the law itself, and a part of it, will be exploded and entirely disregarded. But if it be part of our law, as seems to be admitted by all that it is, it appears to me that the court and jury are clearly bound by it, and not at liberty to find against such former judgment. A contrary doctrine, as it seems to me, sub- jects the public peace and quiet, to the will or neglect of individuals, and prefers the gratification of a litigious disposition on the part of 148 MARSH V. PIER. [BOOK II. suitors, to the preservation of the public tranquillity and happiness. The result, among other things, would be, that the tribunals of the state, would be bound to give their time and attention to the trial of new actions, for the same causes, tried once or oftener, in former actions between the same parties or privies, without any limitation, other than the will of the parties litigant, to the great delay and injury, if not exclusion occasionally of other causes, which never have passed in rem judicatam. The effect of a judgment of a court having jurisdiction over the subject-matter of controversy between the parties, even as an estoppel, is very different from an estoppel arising from the act of the party himself, in making a deed of inden- ture, &c., which may, or may not be enforced at the election of the other party ; because, whatever the parties have done by compact, they may undo by the same means. But a judgment of a proper court, being the sentence or conclusion of the law, upon the facts contained within the record, puts an end to all further litigation on account of the same matter, and becomes the law of the case, which cannot be changed or altered, even by the consent of the parties, and is not only binding upon them, but upon the courts and juries ever after- wards, as long as it shall remain in force and unreversed. Judgment reversed, and a venire facias de novo awarded.^ 'A considerable diversity exists as to when an election to sue in tort or contract is made. If the judgment obtained in one form of action has bePH satisfied, it is clear tKe electrdiT has been made, and a subsequent recovery in the other form of action should not be permitted. Hawkins v. Hatton (1818) 1 Nott & Me. 318; Hepburn v. Sewell (1821) 5 Harris & J. 211; Thomas v. Rumsey (1810) 6 Johns. 26; Stone v. Dickinson (1862) 5 Allen, 29; Ware v. Percival (1872) 61 Me. 391; Walker v. Fuller (1874) 29 Ark. 448, S. C. 10 Am. St. Rep. 479 (with note on election). See also Cooper v. Shepherd (1846) 3 M. G. & S. 266. Aa to a mere judgment, unsatisfied,_^ being a binding election, Shaw, C. J., in Norton v. Doherty (1855) 3 Gray, 372, says: "When a plain- tiff elects one [remedy] and pursues it to judgment, such judgment is a bar to another action. ... In all cases where the plaintiff has his option, in the outset, to bring tort or contract, to recover damages for one and the same injury, upon a state of facts which will support either, an ad- judication in one, whichever he may elect, is, upon principle, a bar to the other." Goodrich v. Yale (1867) 97 Mass. 15; Prince r. City of Quincy (1889) 128 111. 443; Brown v. Bowen (1856) 42 Me. 44: Duncan v. ,Stokes (1873) 47 Ga. 593; Smith v. Way (1864) 9 Allen, 472; Walsh v. Canal Co. (1882) 59 Md. 423; Black, Judgments, § 729 and cases cited; though it has been held that a judgment on demurrer is not a bar. Wilbur v. Gilmore (1838) ante; White v. Waste Corp. (1901) 178 Mass. 20; and it would seem immaterial whether the first action is tort or assumpsit. Rice v. King (1810) 7 Johns. 20; Kitchen v. Campbell (1772) 3 Wils. 304, S. C. 2 W. Black. 827. I A closely allied question arises here as to whether or not a judgment, in tort, passes title. It is generally understood that in England title does pass CHAP. I.] HUFFMAN V. HUGIILETT & PYATT. 149 HUFFMAN V. HUGHLETT & PYATT. Supreme Court of Tennessee, 1883. [11 Lea, 549.] Appeal in error from the Circuit Court of Scott County. Cooper, J., delivered the opinion of the court. ^ On March 12, 1881, Hughlett & Pyatt sued out an original attach- ment against the estate of H. P. Springer, a non-resident of the State, the affidaviLfmL-tlia, writ stating thatrSpringer was indebted to them in the sum of seventy dollars "due by account for black walnut lu"mber that the said H. P. Springer wrongfully took from them, and converted to his own use." The attachment was issued and levied, and publication made requiring the said Springer to appear on April by the judgment, and the following authorities are usually cited to establish the~view. Bishop v. Montague (1600) Cro. Eliz. 824; Brown v. Wootton (1605-6) Yelv. 66, S. C. Cro. Jac. 73, Moore, 762; Adams v. Broughton (1737) 2 Stra. 1078, S. C. Andrews, 18; King v. Hoare (1844) 13 M. & W. 494; Buekland v. Johnson (1854) 15 C. B. 145; Brinsmead v. Harrison (1872) L. R. 7 C. P. 547; [but see Morton's Case (1584) Cro. Eliz. 30; Ferrer v. Arden (1599) Cro. Eliz. 668; Sir John Heydon's Case (1612-13) 11 Co. 5a; Brooke, Judgments, p. 98; Cocke v. Jenner (1703) Hob. 619; Corbet v. Barnes (1636) Wm. Jones, 377; Shower, arguendo, in Claxton v. Swift (1684) 2 Show. 441, S. C. (1685) id. 494; Lord Ellenborough's opinion in Drake v. Mitchell (1803) 3 East, 251, 258. And see also the opinions of Kent, C. J., in Livingston v. Bishop (1806) I Johns. 290, and Hosmer, C. J., in Sheldon v. Kibbe (1819) 3 Conn. 214]. In America, satisfaction of the judgment is usually considered ne cessary to pass title. Eovejoy v. Murray (1865) 3 Wall. 1; Livingston v. Bishop (1806) 1 Johns. 290; Miller v. Hyde (1894) 161 Mass. 472; Atwater v. Tupper (1877) 45 Conn. 144; Sheldon v. Kibbe (1819) 3 Conn. 214; Sanderson v. Caldwell (1826) 2 Aiken, 195; Elliott v. Porter (1837) 5 Dana, 299, — (in all of which cases the subject is carefully considered) ; and see also Turner v. Brock (1871) 6 Heisk. 50; Osterhout v. Roberts (1827) 8 Cowen, 43 (and note-case in Waterman's edition) ; 2 Kent's Com. 388 and note; 1 Greenleaf, Evidence, § 533; but see, contra, Floyd v. Browne (1829) 1 Rawle, 121 (cf., the court apparently attempting to limit the doctrine of this case, Fox v. Northern Liberties (1841) 3 W. k S. 103, but later reverting to the .first doctrine, Merrick's Estate (1842) 5 W. & S. 1, 17); Rogers v. Moore (1838) 1 Rice, 60 (allowing creditor of defendant to proceed against the prop- erty after judgment, and before satisfaction) ; Norris i;. Beckley ( 1818) 2 Jlill's Const. 228; Bogan v. Wilburn (1842) 1 Spears, 179; and see Freeman. Judg- ments, § 237. Otlier_courj,s have held that though the judgment does not vest title, suing out execution will, Curtis r. Groat (1810) 6 Johns. KIS. 109, even though there~b?5~TiTr satisfacTion. White v. Philbrick (1827) 5 Greenl. 147; Fleming i;. ^McDonald (1875) 50 Ind. 278. For a critical survej' of the ques- tion and the principles involved, see "The Disseisin of Chattels," by James 'Only a part of the opinion is given. — Ed. 150 HUFFMAN V. HUGHLETT & PYATT. [BOOK II, 21, 1881, before the justice who issued the writ, for a hearing. On April 31, 1881, Hughlett & Pyatt, upon an athdavit that Springer was either the partner or agent of M. J. Huffman, sued out a summons against H. P. Springer and M. J. Huffman to answer them in an action of debt in a sum under $100. This summons was issued by the same justice of the peace, executed upon Huffman, and made returnable before the justice on the same day. The plaintiffs appealed from the judgment rendered by the justice. In the circuit court, the case was tried by the judge without a jur}-, who rendered a judgment in favor of the plaintiffs against both of the defendants for the value of the lumber sued for. Huffman alone appealed. The bill of exceptions shows that after the papers in the case were read, the plaintiffs and the defendant Huffman introduced oral proof showing the following facts, viz. : "Plaintiffs were, as partners, the Barr Ames, 3 Harv. Law Rev. 23, 313, 317 (particularly at p. 326 et seq.) ; ''Transfer of Personal Property by Judgment," 3 Am. L. Mag. 49; an article by Mr. Maitland on an allied topic, "Seisin of Chattels," 1 Law Quarterly Rev. 324; and the well-considered opinions in Miller v. Hyde (1894) 161 Mass. 492. 1 But the authorities are even less uniform as to what will constitute an election before judgment. "If he [one whose goods have been taken] bring^ah action for money had alid received, this is a conclusive waiver of the tort, and if he bring trover, that is an election to treat the matter as a tort." Smith V. Baker (1873) L. R. 8 C. P. 350, S. C. 42 L. J. P. 155, citing Buck- land V. Johnson (1854) 15 C. B. 145, S. C. 23 L. J. N. S. C. P. 204; and in Smith V. Hodson (1791) 4 T. R. 211, S. C. Smith's Leading Cas. (9th ed. Am. Notes) 1372, and notes, Lord Kenyo^ held that a plaintiff, by bringing an action in assumpsit for goods fraudulently assigned by a bankrupt to the defendant, had affirmed the transaction as a sale. To the same effect Shaw, C. J., in Butler v. Hildreth (1842) 5 Met. 49. T he question really_i nvolves several points: £irs*j_the power of amending pleadings, either as a matter, of. ^ course, or by the discretion of the court. Some courts refuse any amendment that will change the cause of action from one ex contractu to one ex delicto, and vice versa, Supervisors v. Decker (1874) 34 Wis. 378; Stevenson v. Mudgett (1839) 10 N. H. 338, S. C. 34 Am. Dec. 155, and note; People v. Circuit Judge (1865) 13 Mich. 206; but generally the rule is not so strict. Changes have been permitted after trial begun and the preliminary evidence given, Culp v. Steere (1892) 47 Kan. 746, on the theory that the restrictions as to amend- ment do not refer to the form, but to the general identity of the transaction forming the cause of complaint. Spice v. Steinruek (1863) 14 Ohio St. 213; and New York permits any amendment which does not necessitate the issuance of a new summons. Brown v. Leigh (1872) 12 Abb. Prac. N. S. 193; Hopf. v. U. S. Baking Co. (1892) 21 N. Y. Supp. 589 (where, after verdict for the plaintiff was set aside, he was permitted to amend a complaint which alleged a wrongful harboring of his son, so as to seek recovery for the services) ; and see on the general topic, Pomeroy, Remedies, § 566, and cases cited; Bliss, Code Pleading, § 429, and authorities. CHAP. I.] HUFFMAN V. HUGHLETT & PTATT, 151 owners of three walnut logs in New Eiver containing 2,000 feet, and worth seventy dollars. These logs floated down the river to Eussell's mill, and were then taken and converted by the defendant Springer, and sawed into lumber, and afterwards sold by him to the defendant without authority from plaintiffs, and the facts were so found by the court. The court adjudges that these facts constituted a trover and conversion of said property by each of said defendants, and that both of them were liable to plaintiffs for the value thereof by reason of said facts ; and that plaintiffs, having waived the tort, and sued defendants for the value of said lumber, were entitled to the same." The suit was commenced by foreign attachment against Springer alone for the value of the lumber in controversy, based upon the implied assumpsit arising from the wrongful conversion of the prop- erty by the defendant. The suit was converted into a joint action against Springer and Huffman by a summons based upon the same SeconcV;/, the power of a plaintiff voluntarily to discontinue one cause of action and begin another of a different kind. This has been permitted. Cooper r Smith (1896) 109 Mich. 458; Equitable Foundry Co. v. Hersee (1884) 33 Hun, 169; Peters v. Ballister (1826) 3 Pick. 495 [where the suit was discontinued before trial, Smith v. Hodson, supra, being before the court. Shaw, C. J., later restricted the decision to cases where the first action was entirely misconceived. This view was affirmed in White v. New Bedford, etc., Corp. (1901) 178 Mass. 20]. The principle has been applied where an unauthorized suit in assumpsit has been brought by an agent, on a sale induced by fraud. The principals, on learning of it, were permitted to discontinue the assumpsit and bring replevin. Lee v. Burnham (1892) 82 Wis. 209. Thirdly, fqr_ a Jbinding election, the tw;o— ccmedie.s _ must be coexistent. While a man having an election must elect or affirm the whole transaction, Vjt merely that which is for his benefit. Smith v. Hodson, supra, 2 Smith Lead. Cas. (9th Am. ed.) 1372 and note, yet where the defendant received goods tortiously, and sold part, the fact that for the part sold, the plaintiff had recovered in an action for money had and received, was no bar to a subsequent action in replevin for the part unsold. Browning i\ Bancroft (1844) 8 Met. 278; and see Singer v. Schilling (1889) 74 Wis. 369; Kynaston V. Crouch (1845) 14 M. & W. 266; Freeman, Judgments. § 238. Fourthly, the binding effect of any act of thej)laiiitiff before suif^brxiught. 'If tKe^pa*4y-eleeti^^g^^ras^6ne— whether he intended it or not — £yi_uneqin vocal ^ct, i. e., an act which would be jiistifiable if he had elected one way, and would not bo justifiable if he had elected the other, the fact of his having done that unequivocal act to the knowledge of the persons concerned is an election,' per Lord Blackburn, Scarf v. Jardine (1882) 7 Ap. Cas. 345, 361. The receipt of proceeds of goods tortiously taken is such an act of election and bars an action in tort, Brewer v. Sparrow (1827) 7 B. & C. 310, tho\igh a mere demand for them is not, Valpy v. Sanders (1848) 5 C. B. 886; and even a receipt of part of them is not in all cases an election. Burn v. Morris (1834) 2 Cr. & M. 579; but see Lythgoe v. Vernon (1860) 5 H. & N. 180. For this whole doctrine consult 10 Law Ouarterlv Rev. 100. — Ed. 152 HUFFMAN V. HUGHLETT & PTATT. [BOOK II. implied promise. The affidavit upon which the phiintiff was permitted to make Huffman a party assumes the ground that Springer was his agent or partner. This affidavit, although in the record, is no part of it, not being incorporated in any bill of exceptions. The trial judge finds that in an action against the defendants, based on the facts of the case, as all of our civil actions are now under the Code, for the value of property wrongfully converted. Springer took and converted the^Jogs of plaintiffa^_saAve d the m into lumber, and sold^the lUJWber to Huffman without authority of the plaintiffs, and that both defend- ants are liable to the plaintiffs for the value of the property, it is now i nsisted for t he defendant Huffman, that the suing out of the original attachment agains t Springe r was a waiver of the tofflh'Theljri^inal faking, the result of which was to turn Springer into a purchaser ot flie"chattels, and to validate the sale by him to Huffman. The argument in support of the position thus taken is rested partly on the decisions of this court, which give to the action on the implied promise arising from a conversion of personality all the incidents of any other action ex contractu, and partly on the holdings of the court, as to the effect of the waiver of a tort on the rights of action of the injured party. But the fact that a suit in a particular form of action must have all the incidents attached by law to that form of action, can have no necessary bearing on the effect of the form of action on the rights or remedies of the plaintiffs. And the holdings of the court on the effect of the waiver of a tort, which have been cited, only go to this extent that if the aggrieved party after a technical con- version resume possession of the property as owner, or otherwise assents to the tortious taking, the remedy in trover is gone. Trayner v. John- son, 1 Head, 51; Bell v. Cunmings, 3 Sneed, 275; 2 Greenl. Ev., sec. 642, note 3. He may still sue in case for the tort which he might have treated as a conversion, or in assumpsit upon the implied promise. Scruggs V. Davis, 5 Sneed, 262; Railroad v. Henderson, 1 Lea, 1. If the_actiQDLl)e in contract, it is not strictly a waiver of the tort, for the tort is the very foundation of the action, but, as Nicholson. C. J., has more accurately expressed it, a waiver of the "damages for_the conversion," and a suing for the value of the property. Kirkman v. i?hilips, 7 Heis. 222, 224. ItUs simply an election b etween remedies for an act done, leaving the rights of the injured party againsLt^ie wrongdoers unimpaired until he has obtained legal satisfaction. _ If it were otherwise, the suing of any cne of a series of tort feasors, even the last, on the implied promise, where there was clearly no contract, would give him a good title and release all the others. No authority has been produced sustaining such a conclusion, and we arc not in- clined to make one. The trial judge finds that Springer was guilty of a conversion of the property. Of course, he could communicate no title to a third person, even if he were a bona fide purchaser for value and without notice. CHAP. I.] HUFFMAN V. HUGHLETT & PYATT. 153 Even in such a case the right to recover the property, if in existence, or its value if disposed of by the purchaser, would be clear. Price v. Jones, 3 Head. 85. Whether a demand and refusal are necessary to establish a conversion in such cases is left in some obscurity by the authorities. They are only evidence of a conversion, and are unneces- sary where there is other evidence of the conversion. Houston v. Dyche, Meigs. 76. The tendency of our decisions is to limit the requirement to cases where the possession was rightfully acquired, and dispense with it where the act of taking possession was itself a conversion. Mer- chants' National Bank v. Trenholm, 13 Heis. 520. The trial judge in this case does not find that Huffman was a bona fide purchaser without notice. He finds that the property was sold to him by the first wrongdoer without authority from the plaintiffs. The dominion or control thus acquired would necessarily be in his own right, and adverse to the right of the true owner. And the facts would warrant the conclusion reached by the trial court. The findings are not in the nature of a special verdict to w^hich the court is to apply the law, but facts from which the judge, acting as a jury, might draw the necessary conclusions for a general verdict. Affirm the judgment.^ 4n determining the liability of a second tort feasor, after action brought or judgment obtained against a first, two points must be kept in mind: First, the nature of the liability of co-tort-feasors, whether joint, or joint and several ; and, secondly, the question as to when there has been an election of remedies (for which see note to Marsh v. Pier, supra). In England the liability is considered joint only. Lendall v. Pinfold (1854) 1 Leon. 19 [ouwre]; Brown v. Wooton (1605-6) Yelv. 66, S. C. Cro. Jac. 73, Moore, 762: Warden v. Bailey (1811) 4 Taunt. 67, 88; King v. Hoare (1844) 13 M. & W. 494; Brinsmead v. Harrison (1872) L. R. 7 C. P. 547; 1 Chitty, Pleading, 100; Buller, >;. P. 20; Comyn's Dig., title Action, K (4); [but Williams in a note to 1 Saunders, 207a, says: "It seems clear, that where any action founded upon a tort, such as assault and battery, false imprison- ment, trover and the like, is brought against several defendants, though they all join in the same plea, and be found jointly guilty, yet the plaintiff may after verdict enter a nolle prosequi as to some of them, and take his judgment against the rest. 1 Ld. Raym. 397, Coux v. Lowther; 1 Wils. 306, Dale V. Eyre; and the reason thereof seems to be, because these actions [are] joint and several." And see Morton's Case (1584) Cro. Eliz. 30; Anonymoiis (1585) 3 Leon. 122; per Showers, arguendo, in Claxton v. Swift (1684) 2 Show. 494; Lord Mansfield, in Bird v. Randall (1762) 3 Burr. 1346, 1353; Mitchell V. Tarbutt (1794) 5 T. R. 649; Martin v. Kennedy (1800) 2 B. & P. 69; Sutton V. Clarke (1815) 6 Taunt. 29; Day r. Porter (1S.3S) 2 Moo. & R. 151; opinions of Kent, C. J., in Livingston r. Bishop (1806) 1 Johns. 290, and of HosMER, C. J., in Sheldon v. Kibbe (1819) 3 Conn. 214, where the early English authorities are discussed; Freeman, Judgments, § 236] ; and so, under a declared analogy to join obligors. King v. Hoare, supra, it was properly held that an unsatisfied judgment in tort against one tort-feasor, was a bar to an action, sounding in assumpsit against the other. Buckland i\ Johnson 154 TOMKINS V. BERNET. [BOOK II. SECTION II. Money Paid by Plaintiff under Compulsion. 1. under duress^ legal or equitable. TOMKINS V. BEENET. Nisi Prius, 1693. [Salkeld, 22.^] Three were bound in an usurious obligation; one of them paid some part of the money, and afterwards the obligee brought debt against another of the obligors, who pleaded the statute of usury, and avoided the bond ; and now the obligor that had paid some part of the (1854) 15 C. B. 145, though Parke, B., in King v. Hoare, suggests that the first judgment would not be a bar if the liability were joint and several. In A merica, genera ll y , "tv»o UnKi'^ifj -^Pft^ ^ . i v j c . » ■■■,. . n i ^ l u. i Hi y ■ i-&-iJann one person is always several as, well ns joijit." Creed v. Hartmann (1864) 29 N. Y. 591, 597; "for all or any may be siied at the election of the plaintiflf." Blann v. Crocheron (1851) 19 Ala. 647, S. C. 54 Am. Dec. 203, and notes; Chamberlin v. Murphy (1868) 41 Vt. 110, 118; Livingston v. Bishop (1806) 1 Johns. 290; Sheldon v. Kibbe (1819) 3 Conn. 214; Atwater v. Tupper (1877) 45 Conn. 144; Sanderson v. Caldwell (1826) 2 Aiken, 195; Rose v. Oliver (1807) 2 Johns. 365; Smith v. Rines (1836) 2 Sumn. 338; Ayer v. Ashmead (1863) 31 Conn. 447, 453; Brady v. Ball (1860) 14 Ind. 317; Whitaker v. English (1784) 1 Bay, 15; Jones v. Lowell (1853) 35 Me. 538. But see, Wilkes v. Jackson (1808) 2 Hen. & Munf. 355; Floyd v. Browne (1829) 1 Rawle 121; Rogers v. Moore (1838) 1 Rice, 60; Hunt v. Bates (1862) 7 R. I. 217; see also. Freeman, Judgments, § 236. Accordingly, a plea in abatement for non-joinder of co-tort-feasors does not lie. Bloss v. Plymale (1869) 3 W. Va. 393 [see Mitchell v. Tarbutt (1794) 5 T. R. 649]; nor will judgment be arrested because all were not joined, Rose v. Oliver, svpra, though joint tenants of real property involved must be joined. Low v. Mumford (1817) 14 Johns. 426. Therefore, if the concurrent remedies are con siste nt and c ompatible, Rawsoni^T Turner (1809) 4 Johns. 4697 liote to Smith v. Hodson, 3 Smith's Lead. Cas. (6th ed.) 198, jmless there has been full satia.- f actioiij^Hawkins V. Hatton (1818) 1 Nott&Mc.318; McGehee v. Shafer (1855) 15 Tex. 198; Hepburn v. Sewell (1821) 5 Harris & J. 211; Thomas v. Rumsey (1810) 6 Johns. 26; Stone v. Dickinson (1862) 5 Allen, 29; Livingston v. ^This case is likewise reported in 1 Skinner, 411, as tried before Holt, C. J., in which that learned judge reiterated his deep-rooted opposition to the extension of the action of assumpsit: "And if they will make such [usurious] contracts, they ought to be punished; and he was not for encouraging such kinds of indelitatns assumpsits." — Ed. CHAP. I.] TOMKINS V. BERNET. 155 money without cause to the obligee, brought an indebitatus assumpsit against him to recover back that money. Treby, C. J., allowed that where a man pays money on a mistake in an account, or where one pays money under or by a mere deceit, it is reasonable he should have his money again; but where one knowingly ^^ ays_iQim ey upon an i ll egnl- consideration, the party that_receives it ought to be punished f orjiis o5eiTCU','Tmd~tITe party that pays it is particeps criminis; and there is no reason thar he should have his money again, for he parted witlj if freely, and volenti non fit injuria^ This case was cited: One bound in a policy of assurance, believing the ship to be lost when it was not, paid his money, and it was held he might bring an assumpsit for the money. One was employed as a solicitor, and had money given him to bribe the custom-house officers; and he laid out the money accord- Bishop, supra, a judgment aga inst one tort fea sor is generally no bar to an action against another, the actions Jtieiiig_the same. White v. Waste Corp. (lt)Cri) 178 Mass. 20 (assumpsit); Rawson v. Turner, supra (debt, the latter action against a sheriff for an escape, judgment and execution having issued against his predecessor). Sharp v. Gray (1844) 5 B. Mon. 4 (detinue) ; Osterhout v. Roberts (1827) 8 Cowen, 43; Atwater v. Tupper, supra (trover) ; Wright V. Lathrop (1825) 2 Ohio, 33 (elaborately argued); Knott v. Cun- ningham (1854) 2 Sneed, 204; Griffie v. McClung (1872) 5 W. Va. 131; Collard v. Railroad Co. (1881) 6 Fed. 246 (trespass); Sheldon v. Kibbe, supra; Wilkes v. Jackson, supra (assault and battery). Where the two actions have been different, the rulings have been various.^^ Sanderson " v. Caldwell (1826) 2 Aiken, 195 (recovery allowed, trespass and trover), contra, Johnson v. Packer (1817) 1 Nott & Me. 1; Hunt v. Bates (1862) 7 R. I. 217 (recovery denied, trover and trespass) ; Elliot v. Porter (1837) 5 Dana, 299 (recovery permitted, detinue and trover); Du Bose v. Marx (1875) 52 Ala. 506 (recovery permitted, detinue and trespass); Floyd v. Bro^vne (1829) 1 Rawle, 121 (recovery refused, tort and assumpsit, but in Pennsylvania a judgment passes title, s^tpra) ; Hyde v. Noble (1843) 13 N. H. 494 (first assumpsit for breach of contract), Du Bose v. Marx, supra, Ins. Co. v. Cochran (1855) 27 Ala. 228 (on the theory of ratification), Terry v. Munger (1890) 121 N. Y. 161 (in all, recovery refused, assumpsit and tort). It ^ has be en he ld that partial satisfaction for a tort^ do^s not bar a recovery for the balance. Chamberlin v. Murphy (1868) 41 Vt. 110; Lovejoyinsriifray'(TSB5) 3 Wall. 1 (see latter for discussion of the general principle) ; Marlborough 17. Sisson (1863) 31 Conn. 332. But a partial satisfaction on a judgment con- clusively determines, as to both parties, the measure of damages. United Society of Shakers v. Underwood (1875) 74 Ky. 265. Execution, without satis- faction has been held to bar a second suit, White v. Philbrick (1827) 5 Greenl. 147; Campbell v. Phelps (1822) 1 Pick. 62; but execution against the person has been deemed insufficient. Osterhout v. Roberts, supra; Sheldon v. Kibbe, supra. And a discharge of one has been held a discharge of all, unless the contrary clearly appears. Eastman v. Grant (1861) 34 Vt. 387; Ayer v. Ashmead (1863) 31 Conn. 447; Allen v. Wheatly (1834) 3 Blackf. 332; Irwin V. Scribner (1860) 15 La. Ann. 583; Baker v. Lovett (1809) 6 Mass. 78.— Ed. 156 BOSANQUETT V. DASHWOOD. [BOOK II. ingly. ' Assumpsit was brought against the solicitor for this money, and held it lay not.^ BOSANQUETT v. DASHWOOD. High Court of Chancery, 1735. [Cases Tempore Talbot, 37.] The plaintiffs being assignees under a commission of bankruptcy against the two Cottons, brought their bill against Dashwood the defendant, as executor of Sir Francis Dashwood, who had in his life- time lent several sums to the Cottons, the bankrupts, upon bonds bearing £6 per cent, interest, being the then legal interest, and had taken advantage of their necessitous circumstances, and compelled them to pay at the rate of £10 per cent., to which they submitted, and entered into other agreements for that purpose ; and so continued pay- ing £10 per cent, from the year 1710 to the year 1724. It was decreed at the Eolls that the defendant should account ; and that for wh at had been really lent, legal interest sh ould be compu ted an d allowed : and what had been paid over aiKTabove legal interest should be deducted out of the principal at the time paid; and the plaintiffs to pay what should be due on the account : and if the testator had received more than was due with legal interest, that was to be - TpfiiT^flpfl by t.bp defendant , and the bonds to be delivered up. Lord Chancellor [Talbot]. There is no doubt of the bonds and contracts therein being good : but it is the subsequent agreement upon which the question arises. It is clear that more has been paid than legal interest. That appears from the several letters which have been read, and which prove an agreement to pay £10 per cent., and that from Sir Francis Dashwood's receipts; but whether the plaintiffs be entitled to any relief in equity, the money being paid, and those pay- ments agreed to be continued, by several letters from the Cottons to Sir Francis Dashwood, wherein are promises to pay off the residue, is now the question. The only case that has been cited that seems to come up to this, is that of Tomkins v. Bernet, 1 Salk. 23, which proves only, that where the party has paid a sum upon an illegal contract, he shall not recover it upon an action brought by him. And though a court of equity will 'When the principal case was cited in argument in Clark v. Shea (1774) Cowp. 197, Lord Mansfield interposed "That case has been denied a thousand times," and in his delivering judgment the same learned judge said: "The case of Tomkins v. Bernet has been long exploded. In Bosanquett v. Dash- wood, Lord Hardwicke and Lord Talbot both declared their disapprobation of it; for in that case there was not par delictum." See further criticism of the ease in Smith v. Bromley, post. — Ed. CHAP. I.] BOSAXQUETT I'. DASHWOOD. 157 not differ from the courts of law in the exposition of statutes; yet does it often vary in the remedies given, and in the manner of applying them. The penalties, for instance, given by this act, are not to be sued for here; nor could this court decree them. And though no indebitatus assumpsit will lie, in strictness of law, for recovering of money paid upon an usurious contract; yet that is no rule to this court, which will never see a creditor running away with an exorbitant interest beyond what the law allows, though the money has been paid, without relieving the party injured. The case of Sir Thomas Meers, heard by the Lord Harcourt, is an authority in point, that this court will relieve in cases, which, though perhaps strictly legal, bear hard upon one party. The case was this : Sir Thomas Meers had in some mort- gages inserted a covenant, that if the interest was not paid punctually at the day, it should from that time, and so from time to time, be turned into principal, and bear interest : upon a bill filed, the Lord Chancellor relieved the mortgagors against this covenant as unjust and oppressive. So likewise, is the case of Broadway, which was first heard at the Rolls, and then affirmed by the Lord Kixg, an express authority that in matters within the jurisdiction of this court it will relieve, though nothing appears which, strictly speaking, may be called illegal. The reason is, because all those cases carry somewhat of fraud with them. I do not mean such a fraud as is properly deceit; but such proceedings as lay a particular burden or hardship upon any man : it being the business of this court to relieve against all offences against the law of nature and reason: and if it be so in cases which, strictly speaking, may be called legal, how much more shall it be so, where the covenant or agreement is against an express law (as in this case) against the statute of usury, though the party may have sub- mitted for a time to the terms imposed on him? — Tjie payment of th&-iQ0 iiey will not alt er the ca se in a court of e quit}'' ; for it ought not to4**ve-beejQj2iiid : and the maxims of volenti non fit injuria will hold as well in all cases of hard bargains, against which the court relieves, as in this. It is only the corruption of the person making such bar- gains that is to be considered ; it is that only which the statute has in view ; and it is tliat only which entitles the party oppressed to relief. This answers the objection that was made by the defendant's counsel, of the bankrupts hemgjparticeps criminis ; f or th ey axe^joppifissfid., and their necessities obliged them to submit to those terms. Nor can it T5e"said in any case of oppression, that the parEy~oppfessed is particeps criminis; since it is that very hardship which he labors under, and which is imposed on him by another, that makes the crime.^ The ^"The rule is, in pari delicto, potior est conditio defendentis : and there are several other maxims of the same kind. . . . But, w^here contracts or tr^as- actions are prohibite d by positive statute, for th e sake of protecting one set ofTnen from another set of men ; the one, from their situation and condition, 158 BOSANQUETT V. DASHWOOD, [BOOK II. case of gamesters,, to which this has been compared, is no way parallel ; for there, both parties are criminal : and if two persons will sit down and endeavor to ruin one another, and one pays the money, if after payment he cannot recover it at law, I do not see that a court of equity has anything to do but to stand neuter; there being in that case no oppression upon one party, as there is in this. Another difficulty was made as to the refunding: but is not that a common direction in all cases where securities are sought to be redeemed, that if the party has been overpaid, he shall refund ? Must he keep money that he has no right to, merely because he got it into his hands ? — I do not deter- mine how it would be, if all the securities were delivered up; this is not now before me: I only determine what is now before the court; and is the common direction in all cases where securities are sought to be redeemed.^ And so affirmed the decree, &c. beXn^ liable to be oppressed or imposed upon by the other; f^ere, the parties are not in pari delicto ; and in furtherance of these statutes, the person injured, after the transactToTTls finished and completed, may bring his action and defeai^ the contract. For instance, by the statute of usury, taking InbreTIian 5 per cent, is declared illegal, and the contract void; but these statutes were made to protect needy and necessitous persons from the oppression of usurers and monied men, who are eager to take advantage of the distress of others; whilst they, on the other hand, from the pressure of their distress, are ready to come into any terms, and, with their eyes open, not only break the law, but complete their ruin. Therefore, the party injured may bring an action for the excess of interest." Per Lord Mansfield, in Browning v. Morris (1778) Cowp. 790, 792, post 669.— Ed. ^Accord: Fanning v. Dunham (1821) 5 Johns. Ch. 122. In the absence of a statu te to the contrary "this r epresent" thq gpne ial view . Heacock v. JSwart- wout, 28 111. 291 [1862]; Sutphen v. Cushman, 35 111. 186 [1864]. For the rule applied in cases where the mortgagor is defendant, see Kuhner v. Butler, 11 la. 410 [1861]; Union Bank r Bell, 14 Oh. St. 200 [1863]; Snyder v. Griswold, 37 111. 216 [1865]. Compare Hunt v. Acre, 28 Ala. (N. S.) 580 [1856]." Note to Kirchwey's Cases on Mortgages, 233. For the efYeet of a statute upon the right of recovery and the relief granted, see Williams v. Fitzhugh (1868) 37 N. Y. 444; Marvin v. Mandell (1878) 125 Mass. 562; Gist v. Smith (1880) 78 Ky. 367. As to whether a trans- action tainted with usury may be split up, so as to permit recovery, see Shaw v. Carpenter (1881) 54 Vt. 155. In discussing the efTect of the statute of limitations upon usurious pay- ments the court said in Albany u. Abbott (1881) 61 N. H. 157, 159: "E:tery_time the plaintiffs paid the defendant usury, a cause of action accrued ( Breckenridge V. Churchill, 3 J7 J. ivrarih. 15^), against which the statute immediately com- menced to run (Rushing v. Rhodes, 6 Ga. 228, Davis v. Converse, 35 Vt. 503), and consequently the plaintiffs can only recover the illegal interest actually paid as such within six years next before the commencement of this suit." — Ed. CUAP, I.] SMITH V. BROMLEY. 159 SMITH V. BEOMLEY. King's Bench, 1760. [2 Douglas, 696.] A ction for money had and received to jthe pla intiff 's use ; upon this case: The pla intiff's brother having cmnmit.ted nn act o f bankrup tcy, the defendant, being his chief creditor, took out a commission against him, hut, af terwards, frndtng no dividend likely to be made, reused to~sign his certificate. But on frequent application and earnest entreaties, made by the bankrupt to one Oliver, e. tradesman in town, who was an intimate friend of the defendant, who lived in Cheshire, he got Oliver to write to the defendant several times, and he at last prevailed on the defendant to send him, Oliver, a letter of attorney, empowering hi m to sign JJie cprtifipatp, whinh Dliver jgQ uld not jd o, unless the bankrupt, or somebody f a^^ Kixn..^ wnnlr] nrlvancp £40 a jid give a note for £20 more, and which, on Oliver's signing the certificate for the defendant, the plaintiff (who was the bankrupt's sister), paid, and gave to Oliver accordingly, who thereupon gave her a receipt for the money, promising to return it if the certificate was not allowed by the Chancellor. The certificate was allowed. The j)laintiff after- wards brought her action nanmst Qlivpr fr> rf^nnvf^r hanlr t^ie-^jfl fr^m him, but, that action coming on to be tried before Lord ^Iansfield, at Guildhall, at the sittings after last Trinity term, and it then appear- ing that Olix er had actually paid over, nr nccnnnted_ for^h e £40 j o Bromley, and his lordship being clearly of opinion that this action woulrt— not lie against the plaintiff's own agent, who had actually applied the money to the purpose for which it was paid to him, the plaintiff was nonsuited in that action ; and now sheJ)rought this action against Bromley hirnself ; which coming on to be tried, it was^pFoved that the money was received by Oliver, and paid over to the defendant. It was contended for the plaintiff, that this money was paid either without consideration, or upon one that was illegal, and, in either case, was recoverable back by this action. For the defendant, it was argued, that there was certainly a con- sideration for the payment of the money, to wit, the signing of the bankrupt's certificate; That, if this consideration was illegal, the plaintiff' was particeps criminis, had paid it voluntarily and knowingly, and without any deceit, and so was within the case of Tomkins v. Bernet, H. 5 Will. 3, at N. Pr., before Tkeby, Chief Justice, 1 Salk. 22; but that there was nothing illegal in it; for it was the money of a third person, and so no dimimition of the bankrupt's effects, or fraud upon his creditors; in which case only, whereby the distribution becomes unequal, is there any iniquity in receiving a consideration for siji^ninff the certificate. 160 SMITH V. BROMLEY. [BOOK II. But Lord Mansfield was of a different opinion. He said, it was iniquitous and illegal in the defendant to take, and, therefore, it was so to detain this £40. If a man makes use of what is in his own power to extort money from one in distress, it is certainly illegal and oppres- sive, and, whether it was the bankrupt or his sister that paid the money, it is the same thing. The taking money for signing certificates is either an oppression on tli e_bankrupt or his fa mily or a fraud _oiL his^other creditoiu. It was a thing wrong in itself, before any pro- vision was made against it by statute; for if the bankrupt has con- formed to all the law requires of him, and has fairly given up his all, the creditor ought in justice to sign his certificate; but, on the other hand, if the bankrupt has been guilty of any fraud or concealment, the creditor ought not to sign for any consideration whatever. If any near relation is induced to pay the money for the bankrupt, it is taking an unfair advantage, and torturing the compassion of his family; if it is the money of the bankrupt himself, it is giving one creditor his debt to the exclusion of the others, and a fraud upon them. As to the case cited from Peere Williams, that only affected the person who petitioned. There might have been sufficient of the creditors in number and value to sign without him, and he had a right to compro- mise it upon what terms he pleased. The petitioning, or not, was entirely in his own power, and not like the present case. Itjs argued, that, as the plaintiff founds her claim on an illega l a ct, she shaTTj iot have relief in a court ^T justice. But^e did not apply to the defend- arTTor his agent tTT^sign the certificate on an improper or illegai consideratTonJ but, as the" defehdiiir^ Insisted up"on""it, s he, in _cpm- "passion to her brother, paid what lie required. If the act is in itself immoral, or a violation of the general laws of public policy, there the party paying shall not have this action ; for where both parties are equally criminal against such general laws, the rule is potior est con- ditio defendenils} But there are other laws, which are calculated for the protection of the subject against oppression, extortion, deceit, &c. If such laws are violated, and the defendant takes advantage of the plaintiff's condition or situation, there the plaintiff' shall recover ; and it is astonishing that the Reports do not distinguish between the violation of the one sort and the other. As to the case of Tomkins v. Bernet, it has been often mentioned, and I have often had occasion to *" 'The true test for determining whether or not the plaintiff a nd the defg n- dantjwerein pafr-tf^tiiiclci, iij b^t-^onsiderti^g wheth er thV^l a i n t i ff_ c ould maj ce gut his_case otherwise than "tTTfoupTi tlie medium and by the aid of the illeg3,l transaction to wTiTcTi Fe was himself a party .{Simpson -y. Bloss, 7 Taunt. 246; ^rivaz v. 3IichTJl^--& C. B. IHTTTT^Mellgb, J., in Taylor v. Chester, L. R. 4 Q. B. Div. 309, 314. " 'It is argued on the plaintiff's behalf that the claim which he makes is for money had and received, traced distinctly to Thaxter's hands, and held by a contract tainted with no illegality; that the defendant in order to resist CHAP. I.] SMITH V. BROMLEY. 161 look into it; l)iit it is so loosely reported, and stuffed with such strange arguments, that it is ditlicult to make anything of it. One book says it was determined by Lord Holt; another, by Lord Treby. Certain it is, it was only a Xisi Prius case. I think the judgment may have been right, but the reporter, Salkcld, not properly acquainted with the facts, has recourse to false reasons in support of it. The case must have been, as I take it, an action to recover back what had been paid, in part of principal and legal interest upon an usurious contract; and therefore, the action would not lie, for so far as principal and legal interest went, the debtor was obliged in natural justice to pay, therefore he could not recover it back. But for all above legal interest, equity will assist the debtor to retain, if not paid, or an action will lie to recover back the surplus, if the whole has been paid. The reporter, not seeing this distinction, has given the absurd reason, that volenti noil fit injuria; and, therefore, the man, who from mere necessity pays more than the other can in justice demand, and who is called, in some books, the slave of the lender, shall be said to pay it willingly, and have no right to recover it back, and the lender shall retain; though it is in order to prevent this oppression and advantage taken of the necessity of others, that the law has made it penal for him to take ! This kind of reasoning is equally applicable to the case of a bailiff who takes garnish-money from his prisoner. It is wrong for the bailiff to take it, and it is therefore wrong for the other to tempt him, and volenti, etc. and therefore he shall not recover it back; but this has been determined otherwise. The case of money given to a solicitor to bribe a custom-house officer, cited in that of Tomkins v. Bernet, is against his own agent, and, therefore, he cannot recover. But the present is the case of a transgression of a law made to prevent oppres- sion, either on the bankrupt, or his family, and the plaintiff is in the case of a person oppressed, for whom money has been extorted, and advantage taken of her situation and concern for her brother. This does not depend on general reasoning only; but there are analogous cases, as that of Astley v. Eeynolds, B. E. M. 5 Geo. 2, 2 Str. 915. There, the plaintiff having pawned some goods with the defendant for £20 he refused to deliver them up, unless the plaintiff would pay him £10. The plaintiff had tendered £4, which was more than the legal interest amounted to; but, finding that he could not otherwise the claim is obliged to set up an illegal agreement, and rely upon it, and that this necessity is the test as to the equality of the delict. However ingenious this suggestion may be, it can hardly prevent the court from taking the whole transaction together and considering what it is in substance and effect. The supplication of the maxim in pari delicto, etc., does not depend upon anv technical rule as to~tthich party is Ihe fiisl lu uige it upon the court in the pleadTngs. Tn practice, it is usually inststed^ ponT)y~the defendan t in answer to a jtrima fflct' c case .'— WELLS, J., in Sampson v. Shaw, 101 Mass. 145, 151." Keener's note. — Ed. 163 SOLINGER V. EARLE, [BOOK II.. get his goods back, he at hist paid the whole demand, and brought an action for the surplus beyond legal interest, as money had and received to his use, and recovered. It is absurd to say, that any one transgresses a law made for his own advantage, willingly. Put the case, that a man pawns another's goods ; the right owner might be obliged to pay more than the value, and would have no relief, if this action will not lie. As to the case of usury, it was decided both by Lord Talbot, and Lord Hardwicke, in the case of Bosanquett v. Dashwood, Cane. M. 8 Geo. 2, Ca. temp. Talb. 38, on a bill brought to compel the defendant to refund what he had received above principal and legal interest, that the surplus should be repaid. Upon the whole, I am persuaded it is necessary,, for the better support and maintenance, of the law, to allow this actionjfor no man will venture to take, if he knows he is liable to refund. Where there is no temptation to the contrary, men will always act right. The jury, under his lordship's direction, found a verdict for the plaintiff, with £40 damages.^ SOLINGER V. EAELE. Court of Appeals of New York, 1880. [82 New Yorh, 393.] Andrews, J. The complaint alleges in substance that the plaintiff,, to induce the defendants to unite with the other creditors of New- man & Bernhard in a composition of the debts of that firm, made a secret bargain with them to give them his negotiable note for a portion of their debt, beyond the amount to be paid by the composition agree- ^In an action for money had and received to recover money paid in excess of the legal rate of interest upon a usurious contract, Richardson, C. J., said: "That wh^ijeiierJlms^ been illegally^ taken Jjy^ tl2e_defendant may_b£-X££flv- e red b y the plaintiff, in this form of, action, has not been seriously conteste d ; indeed the law on the subject is too clear to be disputed. Cowp. 792, Browning V. Morris; 8 East 378, Williams v. Hedley." Willie v. Green (1821) 2 N. H. 333, 339. In this latter case of Williams v. Hedley (1807) 8 East 378, it was held by Lord Ellenborough, on the authority of Smith v. Bromley, supra, and Browning v. Morris, ante, that money paid by A to B to compromise a qui tam action of usury brought by B against A on the ground of a usurious transaction between the latter and one E may be recovered in assump- sit. The prohibition and penalities of the statute 18 Eliz. c. 5, attach only on the "informer or plaintiff, or other person suing out process in the penal action, making composition," etc., contrary to the statute; and not upon the party paying the composition. The latter, therefore, does not stand in pari delicto, nor is he particeps criminis with the compounding informer or plaintiff. — Ed. CHAP. I.] SOLINGER V. EARLE. 163 iiiont. He gave his note pursuant to the bargain, and thereupon the defendants signed the composition. The defendants transferred the note before due to a bona fide holder, and the j)laintiff having been compelled to pay it brings this action to recover the money paid. Tlie complaint also alleges that the plaintiff was the brother-in-law of Newman, and entertained for him a natural love and affection, and was solicitous to aid him in effecting the compromise, and that the defendants knowing the facts, and taking an unfair advantage of their position, extorted the giving of the note as a condition of their becoming parties to the composition. We think this action cannot be maintained. TJie. agreem ent betwe en the plaintiff and_tliejlefenilants to secure to the latter payment pf_> part of their debt in exce ss of the ratable proportion pa^'ahie. Jinil^r th£_composition,_.w-a& a fraud-up o - n the ot be^ereditors. The_^fact that the agreement to pay such excess was not made by the debtor, but by_a thirdl ^person, does not divest the transaction of its fraudulent character. ~A_,composition agreement is an agreement as well l)etween_jthe cjigditors themselves, as between tTie~crediT6rs"arid^lheir debtor. Each creditor agrees to receive the sum fixed by the^B:gre'eTnmiL in full for his debt. The signing of the agreement by one creditor is often an induce- ment to the others to unite in it. If the composition provides for a pro rata payment to all the creditors, a secret agreement, by which a friend of the debtor undertakes to pay to one of the creditors more than his pro rata share, to induce him to unite in the composition, is as much a fraud upon the other creditors as if the agreement was directly between the debtor and such creditor. It violates the principle of equity, and the mutual confidence as between creditors, upon which the agreement is based, and diminishes the motive of the creditor who is a party to the secret agreement, to act in view of the common interest, in making the composition. Fair dealing, and common honesty, condemn such a transaction. If the defendants here were plaintiffs seeking to ^enforce the note, it is clear that they could not recover.^ Cockshott v. Bennett, 2 Term R. 763; Leicester v. Rose, 4 East, 373. The illegality of the consideration upon well-settled prin- ciples Avould be a good defense. The plaintiff, although he was cognizant of the fraud, and an active participator in it, would never- theless be allowed to allege the fraud to defeat the action, not, it is true, out of any tenderness for him, but because courts do not sit to give relief by way of enforcing illegal contracts, on the application of a party to the illegality. But if he had voluntarily paid the note , he could not, acc ordin g to the^eneral principle applicable to executed contracts void for illegality^ have maintained an action to recoverlTacIc the-money paid. The same rule which would protect him in an action to enforce the note, protects the defendants in resisting an action to recover back the money paid upon it. Nellis v. Clark, 4 Hill, 429. 164 SOLINGER V. EAKLE. [BOOK II. It is claimed that the general rule that a party to an illegal contract cannot recover back money paid upon it does not apply to the case of money paid by a debtor, or in his behalf, in pursuance of a secret agreement, exacted by a creditor in fraud of the composition, and the cases of S.nith v. Bromley, 2 Doug. 696; Smith v. Cuff, 6 M. & S. 160 and Atkinson v. Denby, 7 H. & N. 934 are relied upon to sustain this claim. In Smith v. Bromley the defendant, being the chief creditor of a bankrupt, took out a commission against him, but afterward finding no dividend likely to be made, refused to sign the certificate unless he was paid part of his debt, and the plaintiff, who was the bankrupt's sister, having paid the sum exacted, brought her action to recover back the money paid, and the action was sustained. Lord Mansfield in his judgment referred to the statute (5 Geo. 11, chap. 30, § 11), which avoids all contracts made to induce a creditor to sign the certificate of the bankrupt, and said : "The present is a case of a transgression of a law made to prevent oppression, either on the bankrupt or his family, and the plaintiff is in the case of a person oppressed, from whom money has been extorted and advantage taken of her situation and concern for her brother." And again : "If any near relation is induced to pay the money for the bankrupt, it is taking an unfair advantage and torturing the compassion of his family." In Howson v. Hancock, 8 Term R. 575, Lord Kenyon said that Smith v. Bromley was decided on the ground that the money had been paid by a species of duress and oppression, and the parties were not in pari delicto, and this remark is fully sustained by refer- ence to Lord Mansfield's judgment. Smith v. Cuff was an action brought to recover money paid by the plaintiff to take up his note given to the defendant, for the balance of a debt owing by the plaintiff, which was exacted by the latter as a condition of his signing with the other creditors a composition. The defendant negotiated the note and the plaintiff was compelled to pay it. The plaintiff recovered. Lord Ellenborough said: "This is not a case of par delictum; it is oppression on the one side and submission on the other; it never can be predicated as par delictum where one holds the rod and the other bows to it." Atkinson v. Denby was the case of money paid directly by the debtor to the creditor. The action was sustained on the author- ity of Smith V. Bromley and Smith v. Cuff. It is somewhat difficult to understand how a debtor who simply pays his debts in full can be considered the victim of oppression of extortion because such payment is exacted by the creditor as a condi- tion of his signing a compromise, or to see how both the debtor and creditor are not in pari delicto. (See remark of Parke, B., in Higgins V. Pitt, 4 Exch. 312.) But the cfls.es reie rred to g o jio further than to rhold—th*t the^ debtor- hims©ll^ ^r .a -near lelatisje.. who__ o^ut_j)f CQjftpas&i^n for him pays money ^uppn the exaction of th e cr editor, as a ^condition of his signing a^ composition,"^naynBe~lregarded CHAP. I.] SOLINGER V. EARLE. 165 as having paid under duress and as not equally criminal with the creditor. These decisions cannot be upheld on the ground simply that such payment is against public policy. Doubtless the rule declared in these cases tends to discourage fraudulent transactions of this kind, but this is no legal ground for allowing one wrong-doer to recover back money paid to anotlier in pursuance of an agreement, illegal as against public policy. It was conceded by Lord Mansfield, in Smith V. Bromley, that when both parties are equally criminal against the general laws of public policy, the rule is potior est conditio defend- entis, and Lord Kenyon^ in Howson v. Hancock, said that there is no case where money has been actually paid by one of two T)arties to the other upon an illegal contract both being particeps crimmis, an action has been maintained to recover it back. It is laid down in Cro. Jac. 187, that "a man shall not avoid his d£ed by duress of a stranger, for it hath been held that n one sha ll avoid his own bond~Tor the Imprlsonment^ox danger of -an.yLjme_than h mTsctt 'ontv.'^'" And in Robinson v. Gould, 11 Gush. 57, the rule was applied wliere a surety sought to plead his own coercion as growing out of the fact 'that his principal was suffering illegal imprisonment as a defense to an action brought upon the obligation of the surety given to secure his principal's release. But the rule in Gro. Jac. has been modified so as to allow a father to plead the duress of a child, or a husljand the duress of his wife, or a child the duress of the parent. Wayne v. Sands, 1 Freeman, 351; Bayley v. Glare, 2 Browne, 276; 1 KoU. Abr. 687 ; Jacob's Law Die, "Duress." We_see no grou,nd_upoBr- w hich it c nn be hpld _JjiRMji^plRintiff in this case was not in par delictum in the transaction with the def end- 4nfs7 So far as the complaint shows he ^ttas-_a_. volunteer in en tering intonie fraudulent agreement— It is not even alleged that he acted at the request of the debtor. Andjn respect to the claim of duress, upon which Smith v. Bromley was decided, we are of opi nion that the doctrine of that and the subsequent cases referred to can only be asserte d i n belra lf 0'f~ tlie d e b l ui ]iIm.sclf 7"'ar'of~ a:~WTfg or husba i iH. o r Hgar_relative of the blood of the debtor , who int ervenes in^his behalf, and that a person in the situation of the plaintiff, remotely related by marriage, with a debtor, wlio pays money to a creditor to induce him to sign a composition, cannot be deemed to have paid under duress, by reason simply of that relationship, or of the interest which he might naturally take in his relative's affairs. The plaintiff cannot complain because the defendants negotiated the note, so as to shut out the defence, wliieh he would have liad to it in the hands of the defendants. The negotiation of the note was contem- plated when it was given, as the words of negotiability show. It is possible that the plaintiff, while the note was held by the defendants, might have maintained an action to restrain the transfer, and to 166 DAIMOUTH V. BENNETT. [dOOK II. compel its cancellation. Jackson v. Mitchell, 13 Yes. 581. But it is unnecessary to determine that question in this case. The plaintiff having paid the note, although under the coercion resulting from the transfer, the law leaves him where the transaction has left him. The judgment should be affirmed. All concur. Judgment affirmed. DAIMOUTH V. BENNETT. Supreme Court of New York, 1853. [15 Barhour, 541.] This action was originally brought in a justice's court. The plaintiff alleged in his complaint that the defendant was justly in- debted to him in the sum of thirty dollars, for money had and receive4 by-the defendant to the plaintiff's use. The answer deaied the indebtedness, and set up matters of defence upon the merits. The justice rendered judgment in favor of the phiintiff, for the amount claimed, with costs. This judgment was affirmed by the county court. The facts of the case are as follows : The plaintiff's son WilHam was charged by the defendant with liaving passatLto hiin a l:en do jilar counterfeit or alte red bank_ notej a warrant had been issued against him,, and he hadjjgen _arre sted on said j^liarge. ^Yhile he was under such arrest, the. parties to this action made "an agreement, by which the^j)laintiff promised to pay and did pay the" de fendant thirt y dollars^ to settle~tTre criminal prosecution against the plaintiff's son, on said cKarge. Tlie"defendant7Tli~cunsTde'ration thereof. 'ag reeTT to let the prisoner go and not to prosecute him further on said charg e, and he was accordingly discharged. Prior to commencing this action, Ihe plaintiff called on the defendant and demanded the repayment of the thirty dolhirs. It also appeared from the testimony of the pla in- tiff' s son William, that he never pass H Ih^ hill ixt-JE^T^^j^mLint ; l^eitherj iadjiejpasscd any bill to hi m,. prepai d him any money at a ny \Sm9. prior to said complaint . There was no conflict of evidence in the case. When the plaintiff closed his proof, the defendant moved for a nonsuit, on the ground that the plaintiff had failed to make out a legal cause of action, which was denied. By the Court, Crippex, P. J. This case presents the single point, whetlicr ffr^f foj^ p^''"* "P^^ t h e pnrpnsn of sottling or pompo iirnlino- a supposed felony can be recovered back by tbe- party pa yin g it. It was iEsisted by the plaintiff's counsel that there is no statute, or principle of the common law, declaring the payment of money to compound a CHAP. I.] DAIMOUTH V. BENNETT. 167 felony a crime, in the party thus paying the money; that it is the taking or receiving of the money, and not the payment of it, that constitutes the offence. It is true that the statute only declares the party guilty of a crime, who knowing of the actual commission of a felony, shall take any money or property of another, upon an agree- ment or undertaking to compound or conceal such felony or crime, or to abstain from any prosecution thereof. 2 R. S. -ith ed. 8871, § 18, also page 875, § 13. The offence of compounding a crime created by statute, is undoubt - _edl y confined to the party receiving the money or property, and does not exteh d~t D the party _paj iTrg:^ it." "This^pDsitioh of the plaintiff's counsel, however, falls far short of reaching the whole difficulty in his case. Another important principle is involved, which to my mind is a conclusive answer to this action. The contract made between the parties, and the payment of the money'under it, was immoral^and ille gal^ 'I'iie^fatute nbove cited declares the party receiving the money under such circumstances a criminal. The common law declares all contracts to do acts that are indictable or punishable criminally, to be illegal and void. It is a fundamental rule of the common law, that whenever a contract is il legal as against morality or publ ic policy, neither j. emi r t of law "nor a court of equi ty will interpose to granFxeliif to the parties thereto. It is manifest that the contract under which the plaintiff paid his money to the defendant, was malum in se, involving criminality and moral turpitude; it rendered the defendant liable to indictment and criminal punishment. If a con- tract be evil in itself, involving criminality and moral turpitude, neither party to such contract can have any remedy against the other ; nor can money paid upon such contract be reclaimed by law or in equity. Story on Cont. §§ 489, 490. The same author also lays down the rule of law, that if a sum of money be paid by way of compounding a felony, it cannot be recovered back, on the refusal of the other pnrty to perform his part of the contract; nor can an action be main- tained to enforce the performance of such contract. If the money cannot be recovered back for a refusal of the party receiving it to perform his part of the agreement, it would seem very clearly to follow, that where the contract has been fully performed as agreed upon between the parties, no action can be maintained to recover back the money. No proof was given on the trial that the defendant did not keep his agreement with the plaintiff. It appeared that nothing further was done with the criminal prosecution against the plaintiff's son ; the payment of the money by the plaintiff to the defendant, put an end to the whole matter; the strong arm of the law was paralyzed thereby, and the plaintiff's son was discharged from the arrest on the warrant. Where a contract is mahim prohibitum — merely evil because it is prohibited by statute, and does not involve any moral turpitude or 1G8 DAIMOUTH V. BEXNETT. [bOOK II. criminality — one party may have a remedy against the other, unless they are in pari delicto. But no relief will he granted even in such a case if the parties are both involved in moral guilt. Agreements to do acts which are indictable or punishable criminally, or to conceal or compound such acts ; or to suppress evidence in a criminal prosecution, are utterly void. Story on Cont. § 569. Also all agreements which contravene public policy are void, whether they be in violation of law or morals, or obstruct the prospective objects flowing from some posi- tive legal injunction. Story on Cont. § 545. The money paid by the plaintiff to the defendant was intended to obstruct, and as the proof shows, did in fact obstruct and put an end to the prosecution of the plaintiff's son, who had been accused and even arrested for a high crime. The plaintiff was a party to the agreement; he paid the money to the defendant; he_was a particeps cr iminis with the defenda nt, connected with him in committing an'act declared by statute to be criminal, and which subjected the defendant, if not the plaintiff, to criminal punishment. Whenever a contract is forbidden by the common law or by statute, no court will lend its aid to give it effect. Chitty on Cont. 570. The same author also says that an agreement for suppressing evidence, or stifling or compounding a criminal prosecution, or proceeding for a felony or for a misdemeanor of a puhlic nature, is void. Chitty on Cont. 583. Itmatters not whether the plaint iff's son was guilty or innoceni„ of tbe char ge madeagainst him by the defendant; Tie had been arrested on a criminal warrant, charging him witn a felony; while thus a prisoner the plaintiff compounded the offence and stifled the prosecution, by the payment to the defendant of the money now sought to be recovered back in this action. It was undoubtedly immoral, nay, criminal in the defendant to take the plaintiff's money under the agreement upon which it was paid to him; this, however, furnishes no legal ground to the plaintiff for recovering back the money. He is too deeply implicated in the wrong committed, by compounding the alleged felony, to command the aid of the law and of the courts, in restoring him to what he has wrongfully and foolishly paid to the defendant. There were some cases at an early day which seemed to hold the doctrine that where a party paid money upon an illegal transaction, he might recover it back again in an action for money had and received. But it has been holden in numerous cases, both in l*]ngland and in this country, that in cases where money has been paid upon a consideration like that established by the proof in this case, it cannot be recovered back in an action for money had and received. In the cases of Smith v. Bromley, Doug. HOG, and Brown- ing V. Morris, Cowp. 790, Lord Mansfield decided that where certain acts were declared unlawful by statute, intended to protect the unwary and the ignorant from the oppression and extortion of the more designing and cunning, there, although both parties were guilty of CHAP. I.] DAIMOUTH V. BENNETT. 169 violating the law, yet they are not equally guilty; and in such cases the money might be recovered back by the party from whom it had been extorted, as in case of taking usury, &c. The learned judge also says that these cases are distinguishable from those which have held that money })aid on account of the immorality of the consideration, involving moral turpitude, or hostile to public policy, cannot be recovered back. There are many cases which maintain the doctrine, and such no doubt is the settled law, that where a contract is made having for its ultimate purpose and intent, to aid in violating a positive law or principle of pul)lic policy, or to commit a breach of good morals, the courts will not assist in enforcing it, whatever may seem to be the justice of it as between the parties. In such a case the courts treat both parties as having trodden upon forbidden ground, equally in the wrong, and as being unworthy alike to ask for or receive their aid. In this case the parties deliberately agreed to violate the laws of the land; the plaintiff by paying and the defendant by receiving the sum of thirty dollars to compound an alleged felony ; to stifle and discontinue a prosecution already commenced against the accused, for a high crime. A party who thus illegally and improp- erly pays away his money, and afterwards repents of his folly, and attempts by an. action to recover it back, cannot receive the aid of a court of justice in such attempt. I have come to the conclusion, from a careful examination of this case, that the plaintiff fgilod i^i PstghUghing f\ 1egal_ca iise of actio n against the defendant. The judgment of the justice^^ourt and of the county court musf" be reversed, with costs of the appeal in the county court and in this court. [Otsego General Term, July 12, 1853. CuirrEN, Shankland and Gray, Justices.]^ ^Accord: Haynes v. Rudd (1886) 102 N. Y. 372 and the authorities cited. In the absence of a statute permitting a recovery, it is clear on principle for the reasons given in Daimouth v. Bennett, that no recovery should be had; it seems equally clear that no recovery should be allowed, in the absence of a statute, on any unlawful executed contract when the parties stand in pari delicto, for in such cases the court should leave the parties where they have placed themselves, rendering aid to neither of the delinquents. If, however, the contract is exccutoiy, the court might well leave the parties to any extra- judicial remedies they may have. But suppose that the performance of the contract or agreement is secured in any way, as by a mortgage. In such a case, the illegality of the original consideration should be a good defence to foreclosure, but in the meantime the very existence of the mort- gage would be a cloud on the mortgagor's title. To grant affirmative relief to the mortgagor by a bill in oqiiily for the cancellation or delivering up of the mortgage instruniont would r('li(\(' cue ])arly at the expense of the other. A failure to do so would indirectly tend to enforce the agreement; but the wisest course is, perhaps, to refuse ailirmative relief in any such a case. The follow- ing cases indicate the various attitudes of the courts on questions of this 170 LINDON V. HOOPER. [BOOK II. ASTLEY V. EEYNOLDS. King's Bench, 1732. [2 Strange, 915.] In an action for money had and received to the plaintiff's use, the case reserved for the consideration of the court was, that above three years ago, the plaintiff pawned plate to the defendant for £20 and at the three years' end came to redeem it, and the defendant insisted to have £10 for the interest of it, and the plaintiff tendered him £4, knowing £4 to be more than legal interest. That the defendant refusing to take it, they parted; and at some months' distance, the plaintiff came and made a second tender of the £4, but the defendant still insisting upon £10 the plaintiff paid it and had his goods, and now brings this action for the surplus beyond legal interest. Per curiam. The cases of payments by mistake or deceit are not to be disputed; but this case is neither, for the plaintiff knew what he did, in that lies the strength of the objection ; but we do not think the tender of the £4 will hurt him, for a man may tender too much, though a tender of too little is bad ; and where a man does not know exactly what is due, he must at his peril take care to tender enough. ^Ye think also, that this is a payment by compulsion; the plaintiff might have such an immediate want of his goods that an action of trover would not do his business : where the rule volenti non fit injuria is applied it must be where the party had his freedom of exercising his will, which this man had not; we must take it he paid the money relying on his legal remedy to get it back again. The plaintiff had judgment; and the defendant dying pending the argument, judgment was ordered to be entered nunc pro tunc. LINDON );. HOOPER. King's Bench, 1776. [Cowper, 414.] Upon a rule to show cause why a new trial should not be granted in this case, Mr. Justice Ashhurst read his report as follows : This was an action for money had and received brought by the plaintiff against nature: Raguet v. Roll (1835-6) 7 Oh. pt. 1, 76; pt. 2, 70; Williams v. Engel- brecht (1881) 37 Oh. St. 383; Cowles v. Raguet (1846) 11 Oh. 38; Pearce v. Wilson (1885) 111 Pa. St. 14; Atwood v. Fisk (1869) 101 Mass. 363; Got- walt V. Neal (1806) 25 Md. 434.— Ed. CHAP. I.] LIXDOX V. HOOPER. 171 the defendant Hooper, who had distrained the plaintiff's cattle. The plaintiff insisted he had a right of common, and demanded his cattle to be restored, which the defendant refused to do, unless the plaintiff would pay him 20s. for the damage done. Upon this, the plaintiff paid the money in dispute for the release of his cattle ; and the action is brought for that money. At the trial the question was, whether the plaintiff was entitled to recover back the money so paid, by this species of action? j\Iy opinion was, that he could not; for it would be extremely inconvenient and hard if a defendant should upon his parol be obliged to come and defend himself against any right that a plaintiff might set up, without giving him notice; and accordingly the plaintiff was nonsuited. Mr. Mansfield showed cause. Mr. Morris and Mr. BuIIer, contra. Lord Mansfield now stated the case from the report of l\Ir. Justice AsHHURST, from which I collected this additional circumstance not before mentioned; namely, that the defendant agreed to return the money if the plaintiff should make out his right; and then his lordship proceeded to deliver the opinion of the court as follows : — The particular circumstances of a promise or agreement to return the money, if the plaintiff should make out his right, do not dis- tinguish this case from the general question : they relate to an amicable settlement which never took place. The question then is general : Whether the proprietor of cattle dis- trained, doing damage, who has paid money to have his cattle delivered to him, can bring an action for that money as had and received to his use? Though, after the cause is brought before the jury, an objection to turn the plaintiff round, if the merits can be fully and fairly tried in the action brought, is unfavorable; yet, if founded in law, it must prevail. We were extremely loath to allow it without full consider- ation. The present case is singular, and depends upon a peculiar system of strict positive law. Distraining cattle doing damage is a summary execution in the first instance. The distrainer must take care to be formally right ; he must seize them in the act ; upon the spot ; for if they escape, or are driven out of the land, though after view, he cannot distrain them. He must observe a number of rules in relation to the impounding and manner of treating the distress. The law has provided two precise remedies for the proprietor of cattle which happened to be impounded. 1st, He may replevy; and, if he does, upon tlie avowry, he must specially set out a right of common, or some other title, as a justifica- tion of the cattle being where they were taken. Or, 2dly, If he does not choose to replevy, but is desirous to have his 172 LINDON V. HOOPER. [BOOK II. cattle immediately re-delivered, he may make amends, and then bring an action of trespass for taking his cattle; and particularly charge the money so paid by way of amends as an aggravation of the damage occasioned by the trespass. If to such an action the distrainer pleads that he took them doing damage, the plaintiff must specially reply the right or title which he alleges the cattle had to be there. If instead of an action of trespass, an action to recover back the money so paid by way of amends might be brought at the election of the plaintiff, the defendant would be laid under a great difficulty. He might be surprised at the trial ; he could not be prepared to make his defence; he could not tell what sort of right of common or other justification the plaintiff might set up. The plaintiff might shift his prescription as often as he pleased; or he might rest upon objec- tions to the regularity of the distress. The plaintiff can never be suffered to elect to throw such a difficulty upon his adverse party. Besides, as applied to the subject-matter of this question, the action for money had and received could never answer the equitable end for which it was invented and deserves to be encouraged. For the point to be tried and determined in this action is, Whether the plaintiff's cattle trespassed upon the defendant's land ? That may depend upon the plaintiff's right, or the defendant's right, or the fact of trespass- ing ; or it may depend upon mere form. If the distress was irregular, the amends must be recovered back again. So that, allowing the owner of the cattle to substitute this remedy in lieu of an action of trespass would, as between the parties, be unequal and unjust, and upon principles of policy would produce inconvenience. It would break in upon that branch of the common and statute law which relates to distresses. It would create inconvenience, by leaving rights of common open to repeated litigation, and by depriving posterity of the benefit of precise judgments upon record. As to prescriptive rights of common, the money paid by way of amends is a special damage; and is always so alleged in the declara- tion of trespass, which in every view is the action peculiarly proper for this kind of question. An action for money had and received is a new experiment. No precedent has been cited. This objection alone would not be con- clusive; but upon principles of private justice and public convenience, we think the method of proceeding used and approved for ages, in the case of distresses, ought to bo ndhored to. There is a material distinction between this and the instances alluded to at the bar, where the plaintiff is allowed to waive the trespass, and bring the action for money had and received. In those instances, the relief is more favorable to the defendant. He is liable only to refund what he has actually received, contrary to conscience and equity. In this, informalities in taking or treating the distress would avoid the amends, though the defendant had a right to distrain. CHAP. I.] LINDON V. HOOPER. 173 But, which is more material, in those instances, the plaintiff, ])y elect- ing this mode of action, eases the defendant of special pleading, and takes the risk of being surprised upon himself. In this, he eases him- self of the difficulty and precision of special pleading, and the burthen of proof consequent thereupon, and exposes the defendant to uncer- tainty and surprise. The case of Feltham v. Terry, Pasch. 13 Geo. 3, B. E., relied on in the argument, was a case of goods taken in execution, and sold under a warrant of distress upon a conviction. The conviction was quashed ; consequently there could be no justification. The plaintiff, by bring- ing his action for money had and received, could only recover the money for which the goods were sold. But, if trespass had been brought, the defendant must have pleaded specially, and the plaintiff might have recovered damages far beyond the money actually received from the sale of the goods. So, where goods are taken in execution which are not the property of the persons against whom execution is taken out; the owner may waive the trespass, and bring his action for the amount of the money which the goods sold for. We think this case not within the reason of any, in which hitherto the plaintiff has been allowed to waive the trespass, and bring this action. We think, to allow it would not tend to the furtherance of liberal justice, but would be a prejudice to the defendant, and in a public view inconvenient. Therefore, we agree that the plaintiff was rightly nonsuited at the trial. Per Cur. Rule for a new trial discharged.^ 'In Gulliver v. Cosens (1845) 1 C. B. 788, it was held that the owner can- not without tendering amends recover, in a count for money had and received, an excessive sum demanded for damage where cattle are distrained damage feasant; that the remedy is replevin or trespass, if sufficient tender is made before distress; if after distress (and before the impounding) the remedy is detinue. In the course of his judgment, Tindal, C. J., said: "This I should be disposed to hold upon principle, and independently of the authority of Liiidon v. Hooper, which I am unable to get over, and which I am not aware has been overruled. . . . The cases of Knibbs v. Hall (1794) 1 Esp. 84, and Skeate v. Beals (1840) 11 A. & E. 983, follow the doctrine of Lindon v. Hooper." And see Chase v. Dwinal (1830) 7 Greenl. 134, 139; Colwell v. Peden (1834) 3 Watts. 327, for an explanation of the principal case. As the title to real estate cannot be tried in an action of assumpsit. King V. Mason (1806) 42 111. 223, it follows that if the title to land be not involved, a recovery in this form of action may be liad as in Hills i\ Street (1828) 5 Bing. 37; Newsome v. Graham (1829) 10 B. & C. 234.— Ed. 174 IRVING V. WILSON. [BOOK II. lEVING V. WILSON. King's Bench, 1791. [4 Term Reports, 485.] This was an action on the case to recover the sum of £2 lis. as money had and received by the defendants to the plaintifE's use. At the trial at the last Carlisle assizes before Thomson, Baron, it appeared that the defendants, who are custom-house officers, had seized some hams near Carlisle, which the plaintiff was sending in three several carts from Scotland to Carlisle. The plaintiff obtained one permit for the whole, but owing to some accident two of the carts were at the distance of two miles behind the other when the defend- ants met the first and demanded the permit ; the driver informed them that the permit was with the other carts, which came up in an hour and a half afterwards, before the first reached Carlisle, but not till the officer after waiting some time without seeing the other carts had made the seizure. They were all three driven to the custom-house at Carlisle, the defendants saying they could not release them unless the collector were applied to. When the whole was explained to the col- lector, he said he would have no concern in the taking. And the defendants then refused to give up the carts with the cargoes, unless the plaintiff would give them £2 lis.; which he accordingly did. It was objected on the part of the defendants that the plaintiff, by this transaction with revenue officers, had incurred a penalty of £50, and that he could not recover back the money which he had paid to have the goods, which had been seized, returned to him; and the plaintiff was non-suited, with leave to move to set that non-suit aside, and to enter up a verdict for him, if this Court should be of opinion that the plaintiff could maintain this action. A rule having been obtained on a former day by Law to shew cause why the non-suit should not be aside. Lord Kenyon, Ch. J. The revenue laws ought not to be made the means of oppressing the subject. H'ej:e;r-ac42eiTOifJiavingJi£^^ for the whole quantity of goods, and which was with the other cajts "Behind at the time of the seizure, the seizure was clearly illggal. The permit, for the entire quantity, could not be separated and dis- tributed to each of the carts. And therefore whatever ground of prob- ability there was for stopping the first cart, yet a:^tsijthe_mattei-jEa^ cleared up, there was no pretence for makings a seizure; and it was higlTty-rnrpropcr'Tirihe officers to take the money. If goods liable to a forfeiture be forfeited, the officer is to seize them for the king ; but he is not to be permitted to abuse the duties of his station, and to make it a mode of extortion. Her^ the defendants took the money under circumstances, which could by no possibility justify them; and tFere- CHAP. I.] GATES V. HUDSON. 175 fom this could not be called a voluntary payment : but it was extorted from the plaintiff, and in that case no notice to the defendants was necessary. AsHHURST, J. I agree that if-this uioneyhad been |mid"a:y a 'bribe, both parties would have been in pari delicto, and the plaintiff would not be entitled to recover. But heFe" the pi am tiff was in no fault whatever; this^mo ncy was not paid as a bribe ;for_ the goods w ere not liable to seiziirfL- Neither vrasU a voluntary payment; forwEen~the defendants had stopped the goods, the plaintiff was in their power. The defendants acted right in stopping the goods at first; but when the permit came up, there was no pretence to detain them ; still less to take the money. It_was a p&yment by coercion; and which the plaintiff may recover from the defendantslis money unconscfentiously received~by tlieiiT Grose, J.^ If an officer seize goods as forfeited, he does it colore officii: but if he takes money for delivering up the goods, there is no pretence to say that that is done colore officii: and such money may be recovered back again in an action of this kind. Eule absolute.- OATES V. HUDSON". Court of Exchequer, 1851. "^ [6 Exchequer, 31G.^] Assumpsit for money had and received. — Plea, non assumpsit. At the trial, before Cresswell, J., at the last York Spring Assizes, it appeared, that a Mrs. Dungworth, being possessed of certain free- hold property, devised the same to the plaintiff's wife, then a minor. ^Absent, Buller, J. 'Accord: Ripley v. Gelston (1812) 9 John. 201; Clinton v. Strong, id. 370; Chase v. Dwinal (1830) 7 Greenl. 134; Ogden v. Maxwell (1855) 3 Blatch. 319 (digesting the authorities) ; Hooper v. Mayor (1887) 56 L. J. Q. B. 457. And so in cases of an illegal or excessive fee exacted by sheriff for serving^ a Ayrit,^ Dew v. Parsons (1819) 2 B. & Aid. 562; an illegal sum exacted by authorities for a license, Morgan v. Palmer (1824) 2 B. & C. 729; and so where money is illegally exacted by the cusodian of documents for permission to copy the same in a case where the law onlj- required a fee for a certified copy, Steele v. Williams (1853) 8 Ex. 625. And on this subject generally see, especially the sound and Unanswerable dissciittiTg opinion of Story, J^in-Cary V. Curtis (1_845) 3 How. 236, 252-259, which inllucnced Congress, then in session, to repeal the obnoxious statute destroying the common-law right as appears from Arnson v. Murphy (1883) 109 U. S. 238.— Eo. '^This case is likewise reported in 5 English Law and Equity, 469, with an excellent editorial note. — Ed. 176 GATES V. HUDSON. [BOOK II. Mrs. Dungworth resided with a Mrs. Hudson, the aunt of the defend- ant; and after she had made the will in favour of the plaintiff's wife, she delivered to Mrs. Hudson the title deeds of her property, telling her to keep them, as she should destroy her will, and leave all her property to her. In consequence of this assurance, Mrs. Hudson had allowed Mrs. Dungworth to reside with her until her death in 1835, and had paid the expenses of medical attendance and of the funeral. It was then discovered that the will in favour of the plaintiff's wife was the only one in existence. The executors of Mrs. Dungworth received the rents of the land during the minority of the devisee, but the deeds were retained by the defendant, to whom Mrs. Hudson had delivered them as her attorney, and the expenses of the funeral, &c., had not been repaid to her. The plaintiff, having married the devisee under Mrs. Duckworth's will, made inquiries of Mrs. Hudson respect- ing the deeds, when she said that she would give no information unless she was paid what she had expended ; and she ultimately referred the plaintiff to the defendant as her legal adviser. The ^l_aintiff_af ter- wards called on the defendant, and asked him to give up the deeds, when^he refused to do so, except upon payment of £63, the amount of tl^e expenses incuTredJjy Mrs: HiidsiiLon^iccount- of- MTS;-Bunggorth. TliijjDiaintiff at first objected, to pay this sum; but he subsequently paid^itj, and obtained the deeds, at the same time saying to the defendant, "You shall hear of this again_" The defendant afterwards paTxTover the amount to Mrs. Hudson. It was objected on the part of the defendant, that the plaintiff was not entitled to recover, on the grounds, first, that the defendant acted merely as the attorney of Mrs. Hudson; secondly, that, the defendant having no right to retain the deeds, this was a voluntary payment by the plaintiff in his own wrong. The learned Judge overruled the objections, and a verdict was found for the plaintiff. Watson now moved for a new trial, on the ground of misdirection. — He argued, first, that the action was improperly brought against the defendant, who had merely acted as the attorney and agent of Mrs. Hudson; secondly, that the defendant having no right whatever to retain the deeds, the money was paid by the plaintiff voluntarily and in his own wrong. Parke, B. — There ought to be no rule. If the money had been paid to Mrs. Hudson, or to the defendant for her, voluntarily, and in order to satisfy the funeral and other expenses, it could not have been recovered back; in fact, however, it was not so paid, but only for the purpose of getting possession of the deeds. In Atlee v. Back- house, 3 M. & W. 633, it is correctly laid down, that, ia-nrder to avoid a .contract by reason of duress, it must be duress of a man'sj)erson, nAt^^rTTtir:goods.rt)ut^hat ishere a sum of money is paid simply" to olitain. possession of goods which arc wrongfully detained, that rim' be recovered backj.for it is aot a voluntary payment. Pratt v. Tizard, CHAP. I.] TUTT V. IDE. 177 5 B. & Ad. 808, E. C. L. R. vol. 27, is an authority to the same effect. Here the money was not paid to the defendant in his eharacter_of agent, so as to prevent the plaintiff from having a remedy against him. Snowden v. Davis, 1 Taunt. 359, decided, that, in order to en^hte-an agent to set up the defence that he lias paid over the money, it is neces- sary that the money should have been paid to the agent expressly for the use of the person to whom he has so paid it over. There Mans- field, C. J., points out the distinction between such a case and where a person pays money under compulsion to redeem his goods, and not with intent that the money should be paid over to any one in particu- lar. So that the present case does not fall within the rule as to pay- ment to an agent, but it is a payment under a species of duress, and the person who received the money is bound to pay it back. Pollock, C. B., Platt, B., and Martin, B., concurred. Eule refused.^ TUTT V. IDE. Circuit Court of the United States, 1855. [3 Blatchford, 249.] Defendants as common carriers agreed with plaintiffs to receive at Boston and carry to St. Louis 1,216 cases of boots and shoes at the rate of $1.25 freight per hundred pounds. The goods were carried as per agreement to St. Louis, but the defendants refused to deliver them to the plaintiffs unless the plaintiffs paid the sum of $2,202.57, '"Money paid to obtainjthe possession of go ods illegally and wro ngfully detained, may be recovered back in assum psit f o r money had and receive d. Bates V. The New York Ins. Co. 3 Johnson's Cases, 238; Ripley v. Gelston, Johnson, 201 ; Clinton v. Strong, ih. 370; Hearsey v. Pruyn, 7 id. 179; Chase V. Dwinal, 7 Greenleaf, 134; Chase v. Taylor, 4 Harris & Johnson, 54; Henry V. Chester, 1,5 Vermont, 460; IMarriott v. Brune, Howard, 619; Maxwell v. Criswold, 10 id. 242; Hendley v. Call, 30 Maine, 9; Joyner i'. The Third School District, 3 dishing, 567. Amljthis rule applies to a payment to a publi c or private officer or agent. Bipley v. Gelston; Frve ?\ Lockwood, 4 Cowen. 454; unloss it is made for the use of_the principal, and p aid over to him without notice of the intention to reclaim it. "It has been said that where a restraint is imposed in good faith,^ with_a view to enforcing a supposed legal right, money paid to remove it cannot be recovered back. Lindon v. Hooper, Cowper, 414; Atlee v. Backhouse, 3~lM. & W. 633, 6461 Colwell r. Pedon. 3 Watts, 327; Webber r. Aldrich, 2 New Hampshire, 461 ; but in these cases, the goods had been distrained for rent, and were within the rule, that a payment made under compul sion of legal process cannot be disputed. Newell r. ilarch, 8 Iredell. 441 : unless on tUe 178 TUTT V. IDE. [book II. being $1,087.91 more than the sum for which the defendants had agreed to convey and deliver the goods. To obtain possession of their goods the phiintilfs paid the sum demanded, and brought suit to recover the sum paid in excess. To this money count there was a general demurrer and joinder.^ Hall, J, It was insisted by the defendants, upon the argument, that the plaintiffs paid the excess which they seek to recover back, without legal coercion, — not by mistake, but with a full knowledge of the facts; and that the payment was therefore voluntary, and could not be recovered back. On the other hand, the plaintiffs insisted that the payment was compulsory, and that they were entitled to recover back the excess, beyond the sum due under the contract, which was paid by them to obtain possession of their goods. It was conceded by the counsel for the defendants, that the case of Astley v. Eoynolds, 2 Strange, 915, was in point as an authority for the plaintiffs; but he insisted that that case had been overruled by the Courts of this State, and that the rule of law in this State was well established, and was directly opposed to the doctrines of that case. The earliest case cited to sustain this position is that of Hall v. Shultz, 4 Johns. 240. The case of Astley v. Reynolds, and also the case of Ivnibbs v. Hall, 1 Esp. 84, in which the principle of the case of Astley v. Eeynolds was said to have been overruled, were referred to in that case. But Spencer, J., in delivering the opinion of the Court, without adverting to the case of Bates v. The New York Ins. Co., 3 Johns. Cas. 238, which will be hereafter referred to, and "with- gfouiid of a mistake of facts. Pool v. Allen, 7 Iredell, 120; see 2 Smith L. C, 4th Am. ed., 338, 344." So where a mortgagor pays the moiitgage debt and the mortgagee refuses to deliver the title-deeds except upon payment of an unfounded claim, Wake- field V. Xewbon (1844) 6 Q. B. 276; or where a mortgagee of land threatens to sell in foreclosure under a power of sale unless an exorbitant sura is paid, Close V. Phipps (1844) 7 M. & G. 580: or where a corporation refuses to make a transfer of stock unless the assignee of the stock pays a debt due from plaintiffs' assignor to the corporation, Bates v. N. Y. Ins. Co. (1802) 3 Johns. Cas. 238 (but see De La Cuesta v. Ins. Co. (1890) 136 Pa. St. 02, contra) ; so where a broker in possession of goods distrained for rent demands, as a condition for extension of time, an undertaking to pay expenses of keeping a man in possession and the undertaking is given and enforced, Hills v. Street (1828) 5 Bing. 37; so where a broker in possession of goods refuses to deliver to the owner, goods unsold unless nil commissions for goods sold as well as unsold are paid, and the owner theriMipon jiays the entire claim under protest, Briggs V. Boyd (1874) 56 N. Y. 28!): so where executors refused to deliver l)onds unless certain commissions (disallowed by the court) were paid, Scholey V. Mumford (1875) 60 N. Y. 498, 501 (where the authorities are collected). And see Cobb v. Charter (1805) 32 Conn. 358 (digesting authorities). — Ed. 'The statement of the case is slightly abridged. — Ed. CHAP. I.] TUIT V. IDE. 179 out undertaking to pronounce between the cases cited," Astley v. Reynolds and Knibbs v. Hall, declared that the case then before him differed materially from both. In the case then under consideration, the defendants had purchased the lands of the plaintiff on execution, under a verbal agreement to convey them to him on the repayment of tlie amount advanced, with interest, and a reasonable compensation for the defendants' trouble. Afterwards, when the plaintiff applied to have the agreement reduced to writing, they required him to execute an agreement in which the compensation for their trouble was fixed at $300, which was deemed extortionate and unjust. The agreement was executed, and the $300 subsequently paid, and the conveyance to the plaintiff made; and he then brought his action to recover back the $300. In concluding his opinion, Mr. Justice Spencer said: "On the ground that there existed no legal right on the part of the plaintiff to demand or enforce a conveyance, that he must be considered in the light of any other purchaser, and that the defendants might make tlieir own terms, and that the plaintiff has voluntarily and with his eyes open, fixed the compensation claimed by the defendants, and paid them the money, he can have no claim to call on the Court to aid him in getting rid of what he conceives an unconscientious advantage. But, if there did exist a legal remedy to enforce a reconveyancer-fls the measure of the defendants' claim to compensation rested in arbitrary discrelion, the plaintiff, by voluntarily acceding to the terms pro- posed by the defendants, has lost any right to call on a jury t o relT eve him fronL.an allowance deliberately fixed:1)y Miiisetf.^ ~lt is, 1 think, quite clear that this case of Hall v. Shultz does not overrule the case of Astley v. Reynolds, or the case of Bates v. The New York Ins. Co., above referred to; and I think the same remark applies to the cases, cited by the defendants' counsel, of Ripley v. Gelston, 9 Johns. 201; Clarke v. Butcher, 9 Cowen, 681 ; Supervisors of Onondaga v. Briggs, 2 Denio, 39, 40; Wyman v. Farnsworth, 3 Barb. S. C. R. 371; and Elliott V. Swartwout, 10 Peters, 137. The manuscript opinion of Mr. Justice Nelson, in the case of Con- verse V. Coit, appears to favor, if it does not directly sanction, the position assumed by the defendants. But, on looking into the bill of exceptions in that case, it appears that the flour on which the excessive charges of freight were demanded and paid had been delivered two or three days prior to such payment; and that there was no formal demand made of the flour, and no refusal to deliver it up, and no threat made of detaining the flour because of a refusal to pay. The question now raised was not presented in that case, and, therefore, the decision therein is not an autliority for the position assumed by the defendants in this case. The case of Astley v. Reynolds was decided by the King's Bench, in Michaelmas Term, 5 Geo. 2 (1732). It is admitted that, if that case is to be followed, the question presented by the demurrer must be 180 TUTT V. IDE. [book II. decided in favor of the plaintiffs. But, it is contended, as before stated, that Astley v. Keynolds has been overruled by the Supreme Court of this State, in the cases before cited. Those cases have been fully considered, and, having reached the conclusion that they have not expressly overruled the case in 2 Strange, I now propose to refer to other cases in the Courts of this and other States and in England, which are supposed to bear directly upon this question. In Bates v. The New York Ins. Co., 3 Johns. Cas. 238, decided in 1803, the plaintiff had purchased, from one ISTorman Butler, fifty shares of the stock of the defendants, subject to some future calls. Those calls were paid by the plaintiff, and he became entitled to a transfer of the stock upon the books of the Company. The defend- ants refused to transfer this stock to the plaintiff until the plaintiff paid a debt due to them from Butler, the original owner of the shares. This the plaintiff paid. He afterwards brought his action to recover it back; and the Court held, after a verdict taken subject to the opinion of the Court upon the facts stated, that the plaintiff was not liable for the payment of $4G5 of the amount paid by him to procure the transfer, and that he was therefore entitled to recover back that amount, in an action for money had and received. Thompson, J., delivered the opinion of the Court, and referred with approbation to Astley V. Eeynolds, and to Irving v. Wilson, 4 T. E. 485, and also to Munt V. Stokes, Id. 561, in which he said the principles of the case of Astley v. Reynolds were fully recognized and adopted. In Fleetwood v. The City of New York, 2 Sandf. S. C. R. 479, Mr. Justice Sandford refers with approbation to the case of Chase v. Dwinal, 7 Greenl. 134, and says: "There are cases of duress of personal property, in which payments for its relief are deemed invol- untary, and the money may be recovered back. Most of these cases have arisen upon seizures of goods under revenue or excise laws, and by public officers acting under process or warrant of law. The prin- ciple has been extended, occasionally, to cases where bailees or others, who came into the possession of goods lawfully, have exacted more than was due, before they would relinquish such possession. It is founded upon the movable and perishable character of the property, and the uncertainty of a personal remedy against the wrong-doer." The general rule undoubtedly is, that this action for money had and received, being an equitable action, lies whenever money has been received by the defendant, which, ex cequo et hono, belongs to the plaintiff. Buel v. Boughton, 2 Denio, 91. In the case of Chase v. Dwinal, 7 Greenl. 134, it was held, that money paid to liberate a raft of lumber detained in order to exact an illegal toll, might l)e recovered back. Weston, J., in delivering the opinion of the Court, refers to the remark of Spencer, J., in Hall V. Shultz, that Astley v. Reynolds had been overruled by Lord Kenyon CHAP. I.] TUTT V. IDE. 181 in Knibbs v. Hall, and says: "There" (in Knibbs v. Hall) "the plain- tiff had paid, as he insisted, five guineas more rent than could have been riglitt'uUy claimed of him, to avoid a distress which was threat- ened. Lord Kenyon held this to be a voluntary payment and not upon compulsion, as the party might have protected himself from a wrongful distress l)y replevin. His Lordship does not advert to the case of Astley v. Eeynolds; and subsequently, in CartwTight v. Rowly, before cited" (from 2 Esp. 723), "he refers, with approbation, to an action within his recollection, for money had and received, brought against the steward of a manor, to recover money paid for producing at a trial some deeds and Court rolls, for which he had charged extravagantly. It was urged that the payment was voluntary; but, it appearing that the party could not do without the deeds, and that the money was paid through the urgency of the case, the action was sustained." In Chase v. Taylor, 4 Harr. & Johns. 54, it was held, that money improperly demanded as a condition of the release of a ship pledged to the party receiving the money, might be recovered back, in an action for money had and received. The cases of Alston v. Durant, 2 Strobhart, 257, and Richardson v. Duncan, 3 X. H. 508, are also strongly confirmatory of the case of Astley V. Reynolds ; and other cases of a similar character are to be found in the reports of the different States. In respect to the English cases, it may be observed, that the decision in Astley v. Reynolds, made in the King's Bench sitting in banco, ought not to be considered as overruled by a nisi prius decision, though made by a judge of such distinguished ability and learning as Lord Kenyon. But the case of Astley v. Reynolds and not that of Knil)bs v. Hall has, since the decision of Lord Kenyon, been followed in England. In 1827, in Shaw v. Woodcock, 7 Barn. & Cress. 73, it was held by Lord Chief Justice Tenteuden, and Justices Bayley, Holroyd and LiTTLEDALE, of the King's Bench, that a payment made in order to obtain possession of goods or property to which a party was entitled, and of which he could not otherwise obtain possession at the time, was a compulsory and not a voluntary payment, and might be recov- ered back. In 1844, in the case of Parker v. The Great Western Railway Co., 7 Mann. & Gr. 253, it was held by the Court of Common Pleas in P^ngland, Chief Justice Tindal delivering the judgment of the Court, that money paid by the plaintiff to a common carrier, to obtain possession of the plaintiff's goods, beyond the amount to which the carrier was entitled, might be recovered back: such payment not being considered as a voluntary payment. And this doctrine I under- stand to have been again acted upon in the Court of Exchequer, in Parker v. The Bristol & Exeter Railway Co., 7 Eng. Law & Eq. R. 528, in the year 1851. 183 CKAXDLEK V. SANGER AXD AXOTHER. [BOOK II. I am entirely satisfied, as well upou the authority of these cases, as upon principle, that the payment alleged in the count demurred to, cannot be held to have been a voluntary payment. The demurrer is, therefore, overruled.^ CHANDLEE v. SANGEE AND ANOTHER Supreme Judicial Court of Massachusetts, 1874. ' [114 Massachusdis, 364,] Contract for money had and received. At the trial in the Superior Court, before EockwellJT.V tlie^laintiff, in opening his case, stated that he expected to prove that the plaintiff was a dealer in ice, and furnished ice each week-day to parties in Boston, under contracts to furnish a certain amount daily, upon all week days; that his custom was to have his carts loaded by twelve o'clock on Sunday night, in order to start early Monday morning; that any failure on the part of the plaintifE to furnish his customers with ice on ]\Ionday would be a great injury to him; that Monday morning, July 12, 1869, he had standing in his sheds at Brighton, adjoining his ice-house, five heavy two-horse teams loaded with ice, ready to start for Boston before light ; that -tfee-def eTrdant^Sanger held Iris prom iss^^ry not-©-a»d-feaft-frroved if ,-affflinst his pstafp. in insnlv eTiey ; that in the insolvencx43£aceeding he had obtained his discharge ; that the defendants knew these facts ; ^The case was subsequently tried, on issues of fact, before Hall, J., and a jury, when a verdict was found for the plaintiffs, the Court ruling, as to the law, in accordance with this opinion. On a motion, before Nelson, J., made by the defendants, for a new trial, he said (September 1st, 1859) : "I am entirely satisfied with the opinion of Judge Hall in this case, delivered on the decision of the demurrer to the declaration, and which he followed on the trial of the issue of fact, and must, therefore, deny the motion for a new trial, and give judgment for the plaintiffs upon the verdict. The opinion in the case of Converse v. Coit, delivered by me in the State Court, and referred to on the argument, turned upon a different question from the one involved in this case." Accord: Ashmole v. Wainright (1842) 2 Q. B. 837; Parker v. Gt. Western Railway Co. (1844) 7 M. & G. 253 (authorities collated and analyzed by Tixdal, C. J., pp. 293, 294) ; Harmony v. Bingham (1854) 12 X. Y. 99; Beck- with V. Frisbie (1860) 32 Vt. 559 (digesting authorities). And on this whole subject, see the opinion of Green, J., in \Y. Va. Trans- portation Co. V. Sweetzer (1885) 25 W. Va. 434, 441-465— one of the most elaborate and carefully considered discussions to be found anywhere in the reports — in which the authorities are collected and analyzed in a masterly way. — Ed. CHAP. I.] CHANDLER V. SANGER AND ANOTHER. 183 that the defendiint Sanger and the other defendant, who was an attorney-at-law, brought an action on this promissory note, under circumstances which would satisfy the jury that the action was com- menced and carried on by them fraudulently, with the purpose of extorting money from the plaintiff by duress, under color of legal process; that in pursuance of this purpose, they went abouH;wo o^lock on_Monday morning with a writ jn the^handsljif!. an nfficer and made an attachment of the carts, horses, and harnesses; that the attorney- at-law, wlio had been with the officerTtrmalang the attachment, went to the plaintiff's house and informed him of the attachment, and told him that none of the property so attached could go to Boston unless the claim should first be settled by the payment of $300; that the plaintiff told the attorney that he did not owe anything, and said he would dissolve the attachment by giving a bond ; that the attorney then told him that it would take three days to dissolve it, and that for that time the property would be held under it, and that his dis- charge in insolvency did not cut off the claim; that tbe-plaintiff belieigd^ these statements, and being ignorant of tlie me thod of ^is- solving-attachments .and being in fear of great loss in his bu siness , t o rel ieve the j)roperty from attachment he^ai d t h e $300 to_the attornev under protest, stating tha t he should claim and enforce h is rights, and recover back the money, "ThQ^residing judg-e beings of the opinion that these fa cts, if p roved, w ould not s ustain the action, so ruled; whereupon, by consent of the parties, he reported the case to this court for their decision. It was agreed that if the court should be of opinion that these facts, if proved, were sufficient to sustain the action, then it was to stand for trial; otherwise judgment was to be entered for the defendants. Gray, J. This is not an action of tort, to recover damages for malicious prosecution, or abuse of legal process, but an action of con- tract, in the nature of assumpsit, for money had and received by the defendants, which they have no legal or equitable right to retain as against the plaintiff. . ^Uhnngh the process sued out for the defenda nt was in due form, yet if, as was offered to be proved at the trial, J ie frauclulently, and^^knowmg that he had no just claim against^he plaintiff^ arrested his body or seized hi& goods thereon, for tlie jiur- pose of extorting money from him, then, according to all the author- itios^^thg payment of_nioj[Kn l)y n^ e ^pia mtiffjjJLgl^^^gilg^gj}^^ or his goods from such fraudulent and wrongful detention, was not Voluntary, l)ut by compulsion ; and the money so ]iaid may be recovered back, witlwut preef-of-srrdT a termination of the former suit as would bo necessarv to maintain an action for malicious prosecution. Watkins V. Baird, 6 Mass. 506; Shaw, C. J., in Preston v. Boston, 12 Pick. 7, U; Benson v. Monroe, 7 Cush. 125. 131: Carew v. Rutherford. lOG Mass. 1, 11, et seq.; Eichardson r. Duncan. 3 X. H. 508: Sartwell v. Horton, 28 Vt. 370; Gibson, C. J., in Colwell v. Peden, 3 Watts, 327, 184 JOANNIN V. OGILVIE, [bOOK II. 328 ; Cadaval v. Collins, 4 A. & E. 858 ; Parke, B., in Oates v. Hud- son, 6 Ex. 346, 348 ; and in Parker v. Bristol & Exeter Railway Co., 6 Ex. 703, 705. New trial ordered.^ JOANNIN V. OGILVIE. Supreme Court of Minnesota, 1892. [49 Minnesota, 564.] Ogilvie was owner of real estate in Duhith, and erected certain buildings on his property. One Thompson furnished doors, sash and other goods for the buildings, and Ogilvie only paid for the various goods bought from Thompson. It appeared that Thompson had pur- chased these goods with others from Joannin, but Ogilvie knew nothing of this fact. Joannin made and filed for record a lien statement, claiming to be due him from Thompson $682.50, and that he was a contractor with Ogilvie to furnish material for the buildings on the lots. .This claim was incorrect and the lien invalid.. Ogilvie was largely indebted, and pressedrfdf money, and was negotiating for a loan of $15,000, to be secured by his mortgage on this real estate. The lenders refused to make the loan unless this lien was removed. Plairrtrffis refused to discliarge it of record unless Ogilvie paid Thompson's debt to them. H€^-^paidr~it^under protest llarch 19, 1890, and in this action asked judgment against plaintiffs for the amount so paid, and for a return of his stocks." ]\Iitchell, J. The findings in this case are so specific as to con- stitute a sufficient statement of the facts, and an examination of the record satisfies us that, on all material points, they are fully justified by the evidence. ^The doctrine is well established that p^^iment to protect one's bii^ess is not voluntary and so may be recovered in an assumpsit count. Button v. St. Louis (1882) 77 Mo. 47; Panton v. Duluth Gas & Water CoT(1892) 50 Minn. 175; Lehigh Coal & Navigation Co. v. Brown (1882) 100 Pa. St. 338; Swift Co. V. U. S. (1883) 111 U. S. 22. Carew v. Rutherford (1870) 106 Mass. 1, cited in the principal case, is interesting from the fact that the— injury threatened to plaintiff's business arose from a conspiracy to strike, and the money extorted to protect plaintiff's biisiness was held to be recoverable. The declaration counted in tort and assumpsit, and the court allowed a recoA^ery, but it is not entiiely clear upon which count. The authorities are cited and carefully considered and there can be no reasonable doubt of the correctness of the decision. — Ed. -Statement substituted for the original report and immaterial facts are omitted. — Ed. CHAP. I.] JOANNIN V. OGILYIE. 185 That plaintiff's claim of a lien on the land of the defendant Ogilvie was wholl}^ unfounded is conceded. Merriman v. Jones, 43 Minn. 29 (44 N. W. Rep. 526). Therefore the only question is \^diatheiLthe payment of the. claim wa^^-olttntaTy7^oi^^w4 ^her it was m adiLjyider su^hMComp ulsion or constraint that it is to .be djeemedj ii law invol un- tary^o that the mnney may hs jecOYered Imok. "^ In examining the authorities upon the question as to what pressure or constraint amounts to duress justifying the avoiding of contracts made, or the recovery back of money paid, under its influence, one is forcibly impressed with the extreme narrowness of the old common- law rule on the one hand and with the great liberality of the equity rule on the other. At common law, "duress" meant only duress of the person, and nothing short of such duress, amounting to a reason- able apprehension of imminent danger to life, limb, or liberty, was sufficient to avoid a contract, or to enable a party to recover back money paid. But courts of equity would unhesitatingly set aside contracts whenever there was imposition or oppression, or whenever the extreme necessity of the party was such as to overcome his free agency. The courts of law, however, gradually extended the doc- trine so as to recognize duress of property as a sort of moral duress, which might, equally with duress of the person, constitute a defence to a contract induced thereby, or entitle a party to recover back money paid under its influence. And the mQdern^uthorities.^generally hold that such pressure or constraint as compels a man to go agai nst his-wilL, and virtually takes away his free agency, and destroys tjie po^^ of refusing to comply with the unlawful demand of another, will constitute duress, irrespective of the manifestation or apprelTen- sion of physical force. ^ TFe rule is that-nxoney paid Yolunt arily ^_with X ^^l knowledg e of the facts, cannot be recovered liack. If a jnanTchooses to give away his raSgejT^OT to take hi s"chances "whether he is giving it away or not, he cannot afterwards change his mindj but it is open to him to show tiiat_he supposed the facts to be otherwise, or that he xeallyilhad^o choice. Pol. Cont. 556. "^^Fargusson v. Winslow, 34 Minn. 384 (25 X. W. Eep. 942), this court held that "when one in order to recover possession of his per- sonal property from another, who unjustly detains it. is compelled to pay money which is demanded as a condition of delivery, such pay- ment, when made under protest, is deemed to have been made com- pulsorily or under duress, and may be recovered back, at least when such detention is attended with circumstances of hardship or serious inconvenience to the owner." Again, in De Graff r. Ramsey Co.. 46 Minn. 319 (48 N. W. Eep. 1135), it was said: "There is a class of cases where, although there be a legal remedy, a person's situa- tion, or the situation of his property, is such that the legal remedy would not be adequate to protect him from irreparable prejudice; 186 JOANNIN V. OGILVIE. [bOOK II, where the circumstances and the necessity to protect himself or his property otherwise than by resort to the legal remedy nlay operate as a stress or coercion upon him to comply with the illegal demand. In such cases, his act will be deemed to have been done under duress, and not of his free will." Fargusson v. Winslow, supra; State v. Nel- son, 41 Minn. 25 (42 N. W. Eep. 548) ; and Mearkle v. County of Hen- nepin, 44 Minn. 546 (47 N. W. Eep. 165), — are instances where the danger of irreparable or serious prejudice wa s cons idere d so gre at andj;lie^j^ai remedy so inadequate as'To^ractically leave the partj^ no choice but to comply with the illegal demand, and hence to jen- 3etihe~payment involuntary. It may be stated generally that jdieu; ever the demandant is in position to seize or detain the property of hinTagainsl whutn the darm isTnade-wdtlrout" a resurL Lu judicial pfo- cjgedings. Ill which t;he*piirty may'pTeaTl7 offerproofT^n^contest fhe validity of the claim, payment under protest, to recover or Yetalh tlie property, will be considered as made under compulsion, and The monej "c^n T)rTecuvered back, at least where a failure to gef of ^re- tain immediate j)ossession and control of the propert"y~wouTd* be jittended with serious loss or great inconveniehceT ^OceantcrSteam Nav. Co. v. Tappan, 16 Blatchf. 297. ' As was said as long ago as Astley v. Eeynolds, 2 Strange, 915, "plaintiff might have such an immediate want of his goods that an action of trover would not do his business. Where the rule volenti non fit injuria is applied, it must be when the party has his freedom of exercising his will, which this man had not. We must take it he paid the money relying on his legal remedy to get it back again." It has been said that, to constitute a payment under duress, "there must be some actual or threatened exercise of power possessed, or supposed to be possessed, by the party exacting or receiving the pay- ment, over the person or property of the party making the payment, from which the latter has no other means of immediate relief than bv advancing the money." Brumagim v. Tillinghast, 18 Cal. 265; Eadich v. Hutchins, 95 "U. S. 210. Beyond these and similar statements of general principles, the courts have not attempted to lay down any definite and exact rule of universal application by which to determine whether a pajinent is voluntary or involuntary. From the very nature of the subject, this cannot be done, as each case must depend somewhat upon its own peculiar facts. The real and ultimate fact to be determined in every case is whether or not the party really had a choice, — whether "he had his freedom of exercising his will." The courts, however, by a gradual process of judicial exclusion and inclusion, have arranged certain classes of cases on one or the other side of the line. For example, payment of an illegal tax, in order to prevent issuing a warrant of distress in the nature of an execution, and upon which the party has no day in court or opportunity to defend, is held not ClIAP. I.] JOAXXIX V. OGILVIE. 187 voluntary. Such were the cases of Board of County Com'rs of Dakota Co. v. Parker, 7 Minn. 267 (Gil. 307), and Preston v. Boston, 12 Pick. 7. So, also, the payment of an illegal demand in order to obtain possession of personal property detained otherwise than by judicial process, and where the immediate want of the property was so urgent that an action of replevin "would not do the owner's busi- ness."' Such was the case of Fargusson v. Winslow, supra. Also the payment of an illegal tax in order to get a deed on record, as in the case of State v. Nelson, supra; or the payment of illegal fees in order to secure the exercise of its jurisdiction by the probate court in the administration and settlement of an estate, where the delay was liable to result in serious loss, as in the case of Mearkle v. County of Hennepin, supra. On the other hand, it is well settled that ^he mere refusal ^ of a party to pay; a debt or toji erform a cont ract is not duress, so i]?iJo avoid a contract procur ed by in eans _of_such refusal, although_ihe other pa rfy"wa^ mfluejjxi Pfi iTi _PTitpri'Ticy^intr> it by his financial neces- sities^ Such was the case of Cable v. Foley, 45 Iklinn. 421 (47 N. W. Eep. 1135) ; also Miller v. Miller,. 68 Pa. St. 486; Hackley v. Headley, 45 Mich. 569 (8 N. W. Rep. ,511); Goebel v. Linn, 47 Mich. 489 (11 N. W. Rep. 284) ; and Silliman v. United States, 101 U. S. 465, — cited by plaintifl:. It will be noted that in the last case referred to the party entered into the new contract, not for the pur- pose of obtaining possession of his property (the barges), but to secure payment of money due him from the government. So, also, the £actthat a lawsuit is threatened iir_prQperty has J^e^n seized on legal process m jnd icial . jjroceedings^o enforce an illegal demand will not render its paymeiit-^ompuisosy,— at_Jeast^ in the al^sence of fraud on part of the demandant in resorting to legal process fqr_jthe purpose of extorting payment of a claim Avhich he knows to he. unjust. _^ The ground up on which this doctrine rests is t hat the pai:tvlias an opportunity to plead and test the legality of the claim in the very proceedings in which his property is seized. Under this class fall the following cases~crted hy"^aintiffs : Forbes v. Appleton, 5 Cush. 115; Benson v. Monroe, 7"Cush. 125; Taylor v. Board of Health, 31 Pa. St. 73; Oceanic Steam ISTav. Co. v. Tappan, supra. Also the payment of an illegal license to follow a particular business, where the party could not have been subjected to any penalties with- out judicial proceedings to enforce them, in which he would have an opportunity to contest the legality of the license, or where the license was exacted for a business the pursuit of which was not a natural right, but a mere privilege, which might be granted or withheld, at the option of the state. To this class belong the following cases cited by plaintiffs : Cook v. Boston. 9 Allen, 393 ; Emery v. Lowell. ]27 Mass. 138; Mays v. Cincinnati, 1 Ohio St. 268; Custin v. City of Viroqua, 67 Wis.' 314 (30 N. W. Rep. 515). 188 jOANNiisr V. oGiLviE. [book II. The saniG has been held as to money paid under threats of distress for rent, in the absence of fraud or any other fact, except that no rent was due. The theory seems to be that the party's remedy is to replevin, and try the question of liability at law. Such was the case of Colwell V. Peden, 3 Watts, 327, also cited by plaintiffs. But all these cases in which the payment was held voluntary are clearly distinguishable from the case at bar. The-distinguishing and ruling fact in this case was the ^ acti ve interfer ence of plaintiffs witj i defendant's property by filing the claim for a lien,_which_ effectual] y prevented the defendant from using it for the purposes for which he had immediate and imperative need. ^ IF was this active interference with the property, and_jnot the necessitous financial condition of the defendant, which con stituted^ the ciffltrolling facL The latter was only one, and by no means the most important, of the circumstances in the case. Counsel for plaintiffs seems to assume that the filing of the claim for a lien was the commencement of a judicial proceeding for its enforcement, and therefore, within the doctrine of cases cited by him, that the subse- quent payment of the claim, was voluntary, because defendant might have interposed his defence in these proceedings. But this is clearly wrong. Filing a lien is in no sense the commencement of judicial ]iroceedings. The only remedies open to defendant were either to commence a suit himself to determine the validity of plaintiffs' claim, or wait, perhaps a year, until the latter should commence a suit to enforce it. But with a large indebtedness hanging over him, an overdue mortgage on this very property upon which foreclosure was threatened, with no means to pay except money which he had arranged to borrow on a new mortgage which he had executed on this same property, $13,000 of which was withheld and could not be obtained until plaintiffs' claim of lien had been discharged of record, it is very evident that neither of the remedies suggested "would do defendant's business." He was so situated that he could neither go ])ackward nor forward. He had practically no choice but to submit to plaintiff's' demand. Had it been goods and chattels which plain- tiff's had withheld under like circumstances, there would be no doubt, under the doctrine of Fargusson v. Winslow, supra, but that the pay- ment would be held to have been made under duress. But while filing the lien did not interfere with defendant's possession of the land, yet it as effectually deprived him of the use of it for the pur- poses for which he needed it as would withholding the possession of chattel property. It has been sometimes said that there can be no such thing as duress with respect to real property, so as to render a payment of money on account of it involuntary. But this is not sustained by either principle or authority. In view of the immovable character of real property, duress with respect to it is not likely to occur as often CHAP. I.] JACK V. FIDDES. 189 as with respect to goods and chattels. But the~-question in alljiases is, was the payment voluntary? and for the purpose of determining that question there is no dill'erence whether the duress be of goods and chattels, or^f real property, or of the persop. Fraser v. Pendle- bury, 31 Law J. C. P. 1; Pembertonl;. Williams, 87 111. 15; Close v. Phipps, 7 Man. & G. 586; White v. Heylman, 34 Pa. St. 142; State v. Nelson, supra. Considerable stress is placed upon defendant's silence and appar- ent acquiescence for a considerable time after he paid plaintiff's claim. This might have some bearing upon the question whether the payment was voluntary or involuntary; but if it was in fact the latter, and a cause of action to recover back the money accrued to defendant, it would be neither waived nor barred by his subsequent silence or delay in asserting his right of action. Judgment affirmed.^ 2, UNDER COMPULSION OF LEGAL PROCESS. JACK V. FIDDES. Court of Sessions, Scotland, 1661. [Morrison's Dictionary of Decisions, 2923.] There being ailBc reet recovered by another Fiddes against Jac k, before the English officers at Leith, in the beginning of the year 1652, for a sum of money; whei-euponJact being incarcerate, he was forced to_give a bond_ to this defender, who was ns^'g^^*^ constitute by^this Fiddes, and to give his brother cautioner therein TJpoLii.which^new bond Jack was also c harged , and an act of warding followed there- upon ; the l5ond~bemg registrate in the town court-books of Edinburgh. Jack__gaye in a^jjilL to t h e - Parli a ment, aJueb-^ vao remitt ed— to the Sessi on, d esiring repetition of the su m. It was alleged. There could 'The following are some additional cases: Woodham v. Allen (1900) 130 Cal. 194; Sehiffer v. Adams (1889) 13 Col. 572; Brooks v. Berrrhill (18G3) 20 Ind. 99; Ingalls v. Miller (1889) 121 Ind. 188; Baldwin v. Hutchinson (1893) 8 Ind. App. 454; Thorn v. Pinkham (1891) 84 Me. 101; Parkes r. Lancaster (1892) 84 IMe. 512; Canfield Salt & Lumber Co. r. Manistee (1894) 100 Mich. 400; Weston v. County of Luce (1894) 102 Mich. 528; :Mearkle r. County of Hennepin (1900) 44 Minn. 546; Bocchino v. Cook (1902) 67 N. J. L. 467; Smyth v. Mayor (1890) 11 N. Y. Supp. 583; Redmond r. Mayor (1890). 11 N. Y. Supp. 782; Buford r. Lonercjan (1889) 6 Utah. 301; Xutter v. Sydenstricker (1877) 11 W. Va. 535. And on the subject of duress generally, see an elaborate note in 20 Am. Dec. 374-378. — Ed. 190 JAMES V. CAVIT's ADMINISTRATOR, [BOOK II, be no condiciio indehUi, where there was ohligatio naturalis or civilis preceding : Ita est, there was not only a civil obligation by the sentence recovered, but by the new bond granted to the assignee, who was not obliged to know, how, or what way the sentence was obtained: And Jack having transacted therefor, he could not now be heard to quarrel the transaction against the assignee, or to crave repetition. It was answered, That the_offi cers' sentence was most unjust, both in the matter and the manner, they having no civil jurisdiction: And the same defender was assistant to the cedent in recovering of the sentence, as he will not deny. Likeas, the pursuer was forced to grant the new bond to him as assignee, and pay the new bond to free himself of prison; there being no civil judicatory, where he could have any remedy; the English Judges for administration of justice not being then established, who sat not till June 1653. .And though it had been sitting, it could not have been expected that Jack could have helped himself, by any course they would have taken, for annulling the sen- tence of the English officers. I^iJie^s, by an act of the late Parliament,. aU-gentences pronounced by the Englishes, since their in-coming ^re appointed~toT)e reviewed^^ The Lords repeTTedrlH e allegeance , and sustained repetition. " ~" In prcesentia. MOSES V. MACFEELAK King's Bench, 1760. [3 Burrow, 1005.] See ante p. 4 for a report of the case. JAMES V. CAVIT'S ADMINISTEATOE. Constitutional Court of South Carolina, 1807. [3 Brevard, old ed. *174.] Summary process, in Sumter district, before Brevard, J. The petition stated that the defendants had sued the plaintiff for certain goods sold and delivered; and that at the trial, the plaintiff had mis- laid a receipt or release from Cavit, which he had given, in his life- time, to the plaintiff, acknowledging satisfaction in full for the same goods, and was unable to produce the same, in consequence of which CHAP. I.] JAMES V. CAVIT's ADMINISTRATOR. 191 judon the plaintiff turned out goods of the value of $62.50, which the defendant received in pliy- venient, and in a great measure tie up proceedings under a jxidgmont. during the whole time within wliich a writ of error may be brought. If the bare notice or dcchiration of an intention to bring a Avrit of error will invalidate what is afterward done, should the judgment, at any future day. be reversed, it would, virtually, in many cases, amount to a stay of proceedings on the execution. Xo such lulc is uccessarv for tlio protection of the rights of iiartics: tlic will of eiror may be so taken out as to operate as a fe made for the interference of a court of cliancery. tlie execution may be stayed by injunction.'' Bank of U. S. V. llaiik of Wasliingtuii (1832) 6 Peters, 8, 17. — Ed. 203 RICHARDSON V. DUNCAN. [BOOK II. ment of that sum; and the prosecution was dropped, and no further proceedings had. After this, the defendant declared, that he did not know, that the jDrosecution could have been maintained ; but he meant to^get as much out of them, as the house was worth, and that jwas all he cared for. The defendant sold the goods he received before the commencement of this action. The court, under an impression, that this action could not be main- tained upon these facts, dixecied a nonsui t, subjec t to the opinion of tlie court, upon the case above stated. H. Huhhard, for the defendant. J. Parker, for the plaintiff. The defendant has received the prop- erty of the plaintiff, and converted that property into money. It was obtained without any consideration, by fraud, extortion, and duress. An action for money had and received will lie to recover money obtained from any one by extortion, imposition, or oppression. Bates V. N. Y. Insurance Company, 1 Johnson's cases, 240; Astley v. ' Reynolds, 2 Strange, 915; Williams r. Hedley, 8 East, 378; Irving v. Wilson, 4 D. & E. 485; Clinton v. Strong, 9 Johns. 370; Eipley v. Gelston, ib. 201 ; Snowdon v. Davis, 1 Taunt. 359 ; Moses v. Mac- ferlan, 2 Burrow, 1005; Smith v. Broomlay, Doug. 696, note; Wheaton V. Hibbard, 20 Johns. 293; Lovell v. Simpson, 3 Esp. N. P. C. 153; Frje V. Lockwood, 4 Cowen, 454 ; Watkins v. Baird, 6 Mass. Rep. 506 ; Collins V. Westbury, 2 Bay's Rep. 211; Bac. Ab. "Duress," A.; 2 Starkie's Evidence, 505. It is not necessary, in order to maintain this action, to shew, that the defendant has received money. It is sufficient to shew, that he has received an equivalent for money, or money's worth — it is sufficient, that he has received something, which has represented money, and done the office of money. Willie v. Green, 2 N. H. Rep. 335 ; Danforth V. Dewey, 3 N. H. Rep. 79; Hemmenway v. Bradford, 14 Mass. Rep. 121 ; Randall v. Rich, 11 Mass. Rep. 494. But, in this case, the goods having been converted into money, by the defendant, the proceeds Avould be money in his hands, so as to sustain this action, if there was any doubt on the other point. Chauncey v. Yeaton, 1 :N'. H. Rep. 154; 1 Chitt. PL 90 ; Webber v. Aldrich, 2 N. H. Rep. 462 ; Foster v. Stewart, 3 M. & S. 198 ; LaViine v. Dorrell, 2 L. Raymond, 1216 ; 2 Comyn on Con. 18; King v. Leith, 2 D. & E. 141 ; Harrison v. Walker, Peake's cases, 111; Abbots v. Barry, 2 Brod. & Bing. 369. The parties, in tliis case, arc not in pari delicfo, so that the money is to be left in the hands of the defendant, on that ground, he having, by means of a groundless prosecution, taken undue advantage of the ignorance and fears of the plaintiff. There can be no compounding of a felony, when none has been committed. Clark v. Shee, Cowp. 197; Smith v. Bromley, Doug. 697; Wheaton v. Hibbard, 20 Johns. 293. CHAP. I.] RICHARDSON V. DUNCAN. 203 All the authorities agree, that, when a party is overreached, de- frauded, or oppressed, or where an undue advantage is taken of his situation, he is not to be considered in pari delicto; and the rule of potior est conditio possidentis is not to be applied. He is in such a case to be viewed rather as the victim of the other party, than as a particeps criminis. The evidence offered in this case, exhibits a gross perversion of the criminal process of the state, which, we think, calls loudly for remedy. And this action is, in our belief, well adapted to give proper relief. If the defendant has money, which ex cequo et bono the plaintiff is entitled to recover, we trust, that the court will not turn us round, to another action, after we have expended double the amount of the sum claimed, unless it be absolutely necessary. Richardson, C. J., delivered the opinion of the court. We had an impression, when this case was opened, upon the trial before the jury, that, the plaintiff being in custody by virtue of a M^arrant in due form of law, the contract, he made with the defendant, could not be considered as made by duress, so as to render it void; and on this ground a nonsuit was directed. But, upon an attentive examination of the authorities cited by the plaintiff's counsel, we are now convinced, that our impressions were erroneous, and that the case of the plaintiff ought to have been submitted to the jury^. ' " ~ ~ - The only case, which we have found to justify a nonsuit, under the circumstances of this cause, is the one in 1 Lev. 68, which was an audita quSreld on a release given after judgment ; and the question was, whether the release was made by duress ? The evidence was, that the defendant, not having good cause of action, caused the plaintiff to be arrested, and detained in prison, till he made the release, with menaces, that he should lie in prison and rot, if he would not seal a release; and Bridgman, C. J., held, that he being in custody of the law, by the King's writ, it was not any duress, to be pleaded in avoid- ance of the deed. But he offered to have it found specially; if the plaintiff's counsel requested it ; but he did not request it. But it is now well settled, that when th ere is an arrest for imp roper purposes, witho ut a ju s t cause ; ox-where there is an arrest for a just cause; but without lawful authority_i or where there is an arrest for_a jusTcaiTse, and under lawful authority, for unlawful purposes»_itJlUiy be construed a duress. Buller's N. P. 172 ; Watkins v. Baird, 6 Mass. EepTsOG; ConT:TJig. "Pleader," 2 W. 19; 1 Rolle's Ab. 687. We are therefore of opinion, that the nonsuit in this case must j)e set aside, and the cause stand for trial. ^ ^TAccord: Duke de Cadaval r. Collins (1830) 4 Ad. & E. 858. A threat that an arrest _would^be__niade unless ascertain license was paid, the ordinance as=esisinfr it beinjj afterwards declared voi37~wa5 held not to constitute _durp><. P.ollinger v. Gettysburg Borough (1889) 6 Pa. Co. Kep. 204 PRESTON V. THE CITY OF BOSTON. [BOOK II. CHANDLER v. SANGER. Supreme Judicial Court of Massachusetts, 1874! [114 Massachusetts, 364.] See ante, p. 183 for a report of the case. PRESTON V. THE CITY OF BOSTON. Supreme Judicial Court of Massachusetts, 1831. [12 Pickering, '7.] Assumpsit to recover $711.50, money had anv.. received to the use of the plaintiff, being the amount of a tax assessed upon him for the year 1838, for his poll and personal estate, and by him paid to the treasurer and collector of the city of Boston. At the trial, before Wilde, J., it was proved that the plaintiff, with his wife, had lived at board in Medford several years, and had been taxed there four years preceding 1828, and also that year, and that on the 1st of May, 1828, one of the assessors of Medford saw him there, at the house of his son-in-law, with whom he and his wife were then boarders. The plaintiff was usually in Boston some days every three or four weeks, where his principal business was the taking care of his property, consisting chiefly of public stocks and money, and on those occasions he boarded with a son-in-law who resided there ; and the early part of the month of May, 1828, the plaintiff passed in Boston. It was not questioned on the part of the defendants that the plaintiff had his residence in Medford and was liable to be taxed there in the year 1828. The defence set up was, that he had requested the assessors of Boston to tax him there by the following note addressed to them. "Boston, Couch Street, May, 1838. You will please to be informed that I am a boarder at my son's, E. D. Clarke, and you are requested to assess me this year a light tax for personal estate; trusting in your prudence and moderation, it is my wish in future to pay a light tax to this city." 369; nor does a threat to make a lawful arrest unless money properly due is paid. "Eddy v. Ilerrin (1840) 17 Me. 338. McaLOy^Jiaid to obtain a release from an arrest made by lawful au thorit y, for a just cause, but for an improper purpose^" may "be'reeovered. Severance v. Kimball (1836) 8 K H. ^86.— E&. ^ CHAP. I.] TRESTON V. THE CITY OF BOSTON. 205 The ijlaintiff was the owner of real estate in Boston, for which he admitted that he was regularly taxed in 1828. The taxes of that year were committed to ]\Iackay, the treasurer and collector, on the 1st of November, and he soon gave notice to the plaintiff of his being taxed in Boston, and of the amount of his tax, with the time when payment would be required. On the 20th of December, 1828, the plaintiff called upon ilackay, paid the tax on his real estate, and then objected to the tax on his poll and personal estate as being an illegal assess- ment, saying that he was taxed wrongfully, that he had been taxed in Medford for his poll and personal estate for 1828, and had already paid his taxes there. Mackay replied that if Jie did not pay at the^Hne- limited, a warrant of distress niustheTissAied against Jjini^jmless he Q^tSin^dr-an^batement. The plaintiff thereupon petitioned the mayor and aldermen of tlie^city for an abatement of his tax, which being refused, he paid the amount to Mackay on the 17th of January, 1829. Upon these facts such judgment Avas to l)e rendered, upon nonsuit or default, as the whole court should direct. Shaw, C. J., delivered the opinion of the court. The only remaining question is, whether this money was paid vol- untarily or under duress.^ Aj) arty who has p aicLxoluntarily under a claim of J2£^it shall not afterwards recover back the money, although he protested at the time against his liability. The reason of tlTis is obvious. The party making the demand may know the means of proving it, which he may afterwards lose; and because another course would put it in the power of the other party to choose his own time and opportunity for commencing a siiit. Brisbane v. Dacres, 5 Taunt. 143. But it is otherwise when a party is compelled by duress of his person or~goods to pay money for which helg^^nof liabfe; it is 'not voluntary but compulsory, and he may rescue himself from such duress by payment of the money, and afterwards, on proof of the fact, recover it back. Astley v. Reynolds, 2 Str. 916. What shall constitute such duress, is often made a question. Threat of a distr ess for rent is not such. dui£ss, because the party may replevy the goods distrained and try the question of liability at law. Knibbs v. Hall, 1 Esp. 84. Threat of legal process is not such duress, for the party mavjlead. and make^ proof, and show that he is not Ijable. Brown v. M'Kinally, 1 Esp. 279. But__the warrant to a.. colle^or, undoLOilL^tatute for the assessment and collection of taxes, is in the n ature of an execution, running against the person anjiproj^crty^f tlig_^party, upon which he has no day in court, no opportunity to plead and oflfcx_pwM>f, and have a judicial decision of the questiomrf" 4iis liability. Where, therefore, a party not liable to taxation is called on peremptorily to pay upon such a warrant, and lie can save himself and his property in no other way than by paying the illegal demaiul. he 'Only so much of the opinion is given as relates to this question. — Ed. 206 PRESTON V. THE CITY OF BOSTON. [BOOK II. may give notice that he so pays it by duress and not voluntarily, and by showing that he is not liable to recover it back as money had and received. Amesbury W. & C. Manuf. Co. v. Amesbury, 17 Mass. 461. It appears by the facts agreed that upon the first notice of the tax, the plaintiff applied to the treasurer and collector, setting forth his specific ground of objection, namely, that he was not an inhabitant and not liable to the tax on personal property. The plaintiff was informed by the collector that he had no discretion on the subject, and unless he obtained an abatement a warrant of distress would issue against him. He then applied to the city government, stated the grounds of his objection, and remonstrated against the tax; but they decided that the tax must be paid, of which the collector was duly informed. The law under which the treasurer and collector acted obliged him to issue a warrant, under which the person and property of the phiintiff would have been lialile to be taken, and that officer had notified him that such warrant would be issued. Under these circum- stances the money was paid, and we tMnk_ it cannot be considered as a Hiluntary paymejit, but a payment made under such circumstances of constraint and compulsion, and with such notice on his part that it was so paid, that on showing that he was not liable he may recover it back in this action from the defendants, into whose treasury it has gone. Defendants defaulted} 'Accord: Atwell v. Zeluflf (1872) 26 Mich. 118; Parcher v. Marathon Co. (1881) 52 Wis. 388. For subsequent interpretations of the principal case, see Dorr v. Boston (1856) 6 Gray, 131; Lincoln v. Worcester (1851) 8 Cush. 55, 62; Bates v. Boston (1849) 5 Cush. 93, 97; Harrington v. Glidden (1901) 179 Mass. 486, 494. A judgment debtor paying after judgment entered or adjudication made, but before execution, pays under duress. Scholey v. Halsey (1878) 72 N. Y. 578. "When, however, the payment is made in obedience to the judgment of a court which liad determined that he must pay it, and that his adversary had the right to demand it of him, and subsequently a legal tribunal of com- petent authority adjudges that the first judgment was erroneous, and there- fore vacates and reverses it, the conclusion is irresistible that the plaintiff in the first judgment, if he has received its amount, has received what he is equitably and justly bound to restore." Lott v. Swezey (1859) 29 Barb. 87. A threat of a judgment creditor, to obtain satisfaction by a levy on jthe property of th^cr JTnligment Tiebtor, is not voidable duress. Wilcox v. Howland (1839) 23 Pick. 167.— Ed. ^ 7^1' CHAP. I.] MAYOR, ETC., OF BALTIMORE V. LEFFERMAN. 207 MAYOR, ETC., OF BALTIMORE v. LEFFERMAN. Court of Appeals of Makylaxd, 1840. [4 Gill's Maryland Reports, 425.] Appeal from Baltimore county court. This was an action of assumpsit, brought to May term 1844, by the appellee against the appellant ; to recover a sum paid, laid out and expended by him, to and for the defendant, &c. The defendants pleaded non assumpsit, and the verdict was for the plaintiff. The legislature of Maryland by an act of Feb. 23, 1882, authorized the city of Baltimore to compel parties owning property binding on Jones Falls, to wall up such property "in such manner as the corpo- ration may by ordinance direct." By ordinance the mayor and city council of Baltimore directed the city commissioners to notify the property owners to build such walls and provided that in case such walls were not built as directed, the commissioner might contract and have the same built, and then levy on the property for the expense as for a tax. The appellee being notified to build the wall and of the terms of the ordinance, constructed the wall and then brought assump- sit against the city to recover the money so expended. He alleged, first, that the legislative act authorizing the improvement was uncon- stitutional ; secondly, that his expenditure in the matter was in- voluntary.^ Martin, J., delivered the opinion of the court. - Upon the question raised by the plaintiff's first prayer, that which respects the validity of the first section of the act of Assembly of 1821, chap. 252, this court is equally divided in opinion. The opinion of tiie county court pronouncing this statute to be unconstitutional and void, stands affirmed; and the requisition imposed upon the appellee, to construct a wall on his property binding on the Falls, by the ordinance to which we have adverted, must be regarded as unauthorized and illegal. This presents for our examination, the proposition embodied in the plaintiff's second prayer: — That assuming that the expenditure in question, was marie by the plaintiff in consequence of the notices exhibited in evidence, and in ol)edience to the orflinance under which such notices were given, — an ordinance passed in the exercise of a power, not lawfully delegated to the defendants: — that an expendi- ture made under such circumstances, is to be considered as compulsory in its character, and entitled the appellee to reclaiui from the appel- lants, the money expended for their use and Iienefit. 'A short statement of facts is suhstitutod for that given in the report. — Ed. ^A part only of the opinion is ^iven. — En. 208 MAYOR, ETC.^ OF BxVLTIMOEE V. LEFFERMAN. [BOOK II. It is now established, by an unbroken series of adjudications in the English and American courts, that where money is voluntarily and fairly paid, with a full knowledge of the facts and circum- stances under which it is demanded, it cannot be recovered back in a court of law, upon the ground, that the payment was made under a misapprehension of the legal rights and obligations of the party. In the case of Brisbane v. Dacres, 5 Taunt. 151, Gibbs, Justice, when examining this subject, says : — "^Ye must take this payment to have been made under a demand of right, and I think, that where a man demands money of another, as a matter of right, and that other, with a full knowledge of the facts upon which the demand is founded, has paid a sum, he can never recover back the sum he has so voluntarily 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, many inconveniences may arise; there are many doubtful questions of law: when they arise, the party 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 to whom he pays it, and makes it his, and closes the transaction between them." The opinion and reasoning of Gibbs, Justice, in this case, is cited, with approbation, in Elliott v. Swartwout, 10 Pet. 154, as containing a correct exposition of the law on this question; and the Supreme' Court held : — "That in case of a voluntary payment, by mere mistake of law, no action will lie to recover back the money. The construction of law. is open to both parties, and each is presumed to know it." The same doctrine is announced in Clarke v. Dutcher, 9 Cow. 674, and Mowatt v. Wright, 1 Wend. 355, and is too firmly settled to be questioned or disputed. As it is evident, that the expenditure was made in this case by the plaintiff, with a full knowledge of all the facts accompanying the transaction, and in obedience to a demand, fairly, although illegally madOj by the defendants; the mere circumstance, that he was at the time ignorant of his legal rights, does not autliorize a reclamation of the money expended; and the counsel for the plaintiff has placed liis right to recover, on the ground, that from the circumstances of the case, the jury were warranted in finding, tliat lie had expended the money, not voluntarily, but under the compulsion of the defendants, in their exercise of an unauthorized power. It is not pretended, that the defendants are justly chargeable with having procured this expenditure, through the instrumentality of fraud or imposition. Or that the defendants took an undue advantage of the situation CHAP. I.] MAYOR, ETC., OF BALTIMORE V. LEFFERMAN. 209 of the plaintifT, for the purpose of extorting from him the perform- ance of this work. As in Pigot's case, cited hy Lord Kenyon, in Cartwright v. Rowley, 2 Esp. 723, where an action was hrought to recover back money paid to a steward of a manor, for producing at a trial some deeds and court rolls, and for which he had charged extravagantly. And the objection being taken,- that tlie money had been voluntarily paid, it was held, that the money being paid tlirough necessity, and the urgency of the case, was recovera])le. But the right to nuiintain this action, so far as this branch of the case is concerned, turns on the question, whether, assuming the facts asserted in the prayer to be true, the circumstances under which the expenditure was nuide, impressed upon it the character of a com- pulsory payment of money, as that term is legally understood and applied. Upon this branch of the law, numerous cases are to be found, l)ut it is proposed to refer only to a few of these, of unquestionable authority, and which are most analogous to the one under con- sideration. In Knobbs v. Hall, 1 Esp. Rep. 84, a case frequently recognized, and in 1840, by Lord Denman, in Skeate v. Beale, 11 Adol. & El. 983, an action of assumpsit was instituted for the use and occupation of certain rooms in the Citj/ Chambers. One article of the set-off, which the defendant proposed to give in evidence, was as follows: — "The defendant being indebted to plaintiff, for other cli ambers, which he then occupied. The plaintiff demanded payment, at the rent of twenty-five guineas per year. The defendant insisted that he had taken them at twenty guineas per year, only, and offered to pay at that i-ate. The plaintiff refused to take it, and threatened to distrain if not ])aid at the rate of twenty-five guineas; and the defendant, in order to avoid the distress, paid at that rate ; and having proved that the chambers were really let at twenty guineas, proposed to set off the overplus, as paid by compulsion : But Lord Kenyox held, that this could not be deemed a payment l)y compulsion, as the defendant might have, by a replevin, defended himself against the distress; and that after a voluntary payment, so made, he should not be allowed to dis- pute its legality." In the case of Fullam v. Down, 6 Esp. 26, note. Lord Kexyox, when considering this subject, announced: — "That where a voluntary payment was made of an illegal demand, without an immediate and urgent necessity, or to redeem your person or your goods, it is not the subject of an action for money had and received. The law, if so held, would subject all accounts and settle- ments between parties, to revision." The opinion appears to be qualified by the remark : "the party knowing the demand to be illegal." But the character of the payment never depends, as we have 210 MAYOR, ETC., OF BALTIMORE V. LEFFERMAN. [BOOK II. seen, on the knowledge of the party, and if voluntary, it is Ijinding, although made under the impression, that the demand was legal. The same position is maintained, in Shaw v. Woodcock, 7 Bar. & Ores. 73, where it was adjudged: That a payment, made in order to obtain possession of goods or property to which a party is entitled, and of which he cannot otherwise obtain possession at the time, is a compulsory, and not a voluntary payment, and may be recovered Ijack. And Bayley, Justice, in discriminating between a voluntary and compvdsory payment, says: — "If a party has in his possession, goods or property belonging to another, and refuses to deliver such property to that other, unless the latter pays him a sum of money, which he has no right to receive, and the latter, in order to obtain possession of his property, pays that sum, the money so paid is a payment by compulsion, and may be recovered back." In Ashmole v. Wainwright, 2 Adol. and El. N. S. 837, the money was paid for the purpose of delivering the goods of the plaintiff from the possession of the defendants, who detained them, as common carriers. The action to recover back the money paid for their deliver- ance, was sustained. Coleridge, Justice, saying: — "That he never doubted that an action for money had and received might be main- tained on a wrongful detainer of goods." , Irving V. Wilson, 4 Term. 486, was a case in which the property of the plaintiff was actually seized by a revenue officer, as forfeited, v/hen in fact it was not liable to seizure, and money received from the owner to release it. It was a clear case of extortion and duress; and the payment made to obtain the goods could not be considered as voluntary. Ashhdrst, Justice, says: — "It was not a voluntary payment; for when the defendants had stopped the goods, the plaintiff Avas in their power." In Clinton v. Strong, Johnson E. 369, the vessel of the plaintiff was seized as having violated the non-intercourse law, but was subse- quently withdrawn, as the vessel was found to be innocent. But tlie marshal refused to re-deliver the vessel, unless the costs were paid. The costs were paid by the plaintiff, as the only means of obtaining a restoration of his property. The court considered the property in duress; and held that the payment of the costs was not voluntary, as they were exacted by the officer as a condition of the re-delivery of the vessel. In the case of Chase v. Dwinal, 7 Greenl. Rep. 134, the money sought to be recovered back by the plaintiff, had been paid to liberate a raft of lumber, detained by the defendant, in order to exact an illegal toll ; and it was determined, that money paid under such circumstances, was a payment under duress, and necessity, and therefore by com- pulsion. The court, alluding to the maxim, "volenti, non fit injuria" say:— CHAP, I.J MAYOR, ETC., OF BALTIMORE V. LEFFERMAN. 211 "But this rule applies where the party has a freedom in the exercise of his will ; and is under no such duress or necessity, as may give his payments the character of having been made upon compulsion." And again, "If money is voluntarily paid to close a transaction, without duress, either of the person or goods, the legal maxim, 'volenti non fit injuria' may be allowed to operate. But it would be a perversion of the maxim, to apply it for the benefit of a party, who had added extortion, to unjustifiable force and violence." In the case of the Boston & Sandwicli Glass Co. v. The City of Boston, 4: Medcf. 181, the tax was levied on the personal property of the plaintiffs, by the collector, for the collection of taxes, alleged to be due from him. With this levy placed upon their property, the plaintiffs paid the taxes, under a protest, that they were illegal, and were paid under duress, and not voluntarily. The taxes were assessed without authorit}^ and plaintiffs recovered the amount in an action of assumpsit. In this case the tax was actually levied on the property, and if the assessment had remained unpaid, a sale would have followed. The court in stating the ground on which a payment of this description is regarded as compulsory, refer to Preston v. City of Boston, 13 Pick. 7, and say : — "It arises from the power and authority placed in the hands of a collector of taxes, to levy directly upon the property or person of every individual, whose name is borne on the tax lists, in default of pay- ment of the taxes. To use the language of the court, in the case just referred to, such warrant is in the nature of an execution gunning against the property and person of the party, upon which he has no day in court, no opportunity to plead and offer proof, and have a judicial decision of the question of his liability." The court refer to the cases of Shaw v. Woodcock, 7 Bar. and Cres. 73; Astley v. Reynolds, 2 Strange, 916 ; and Chase v. Dwinal, 7 Greenl. E. 134, and it is evident from the whole tenor of the opinion, that they considered a payment compulsory, only when it was made for the pur- pose of liberating the person or property, from the duress of a party who has control of it. We consider, therefore, the doctrine as established, that a payment is not to be regarded as compulsory, unless made to emancipate the person or property, from an actual and existing duress, imposed upon it by the party, to whom the money is paid. And that a payment made under the apprehension, or even menace of an impending dis- tress warrant, would not render it a payment by compulsion. Knobbs r. Hall, 1 Esp. Eep. 84. Colwell v. Peden, 3 Watts, 328. Testing the case before us by this principle, it is manifest, that the expenditure made by the plaintiff has none of the characteristics <^f a payment by compulsion: It is the clear case of an act performed 212 MAYOR, ETC., OF BALTIMORE V. LEFFEEMAN. [BOOK II. by the plaintiff, in obedience to the demand of the defendants, con- scientiously and honestly preferred; which the plaintiff regarded at the time as lawful and just, but in which, it appears from subsequent events, that he was mistaken. It is the plain case, of an expenditure voluntarily and freely made by the appellee, in the belief that he was performing his duty, but under a misapprehension of his legal re- sponsibility. It cannot be pretended, that any duress or force was applied to the property or person of the plaintiff, as a means of coercing the execu- tion of this work, or that the money was expended to extricate his estate from the pressure of some process that could not be resisted. The appellee was warned by the notice of the 19th of June 1839, that if the wall was not commenced within three months, the city commissioners would have it done, and charged to his account, as directed by one of the ordinances. That is, that the appellants would direct the wall to be constructed by others, and collect such expenses as might be incurred, by suit, or distress, in the manner in which paving taxes are collected. But this is no duress or coercion ; and all that can be urged in vindication of the position assumed by the appellee is, that the expenditure was made by him, under the appre- hension, that if the wall was not erected, the improvement would be executed by the appellants, and the cost charged to his account, and recovered by suit, or warrant. A payment made under said circum- stances, is in law, not regarded, as compulsory in its character. If a distress warrant had been laid by the collector of the appellants, on the property of the appellee, and he had made the expenditure for the purpose of liberating his property from the predicament in which it was thus placed, the aspect of the question would have l)een changed, and such a payment might be treated, as by compulsion. But there is no such feature in this case, and the court erred, we think, in grant- ing the plaintiff's second prayer. It follows from the views thus expressed, that this court is divided in opinion, on the question raised by the defendant's first prayer : and that we think, the court below erred in rejecting their second prayer. The judgment of the county court is therefore reversed without a pj'ocedendo. JUDGMENT REVERSED.^ ^Followed in Morris v. Mayor (1847) 5 Gill, 244. For other elaborate discussions of the questions involved in the principal ease, see Mays v. Cin- cinnati (185.3) 1 Ohio St. 208, 274; Marietta v. Slocumb (1856) 6 Ohio St. 471; Brumanrim v. Tillinghast (18(51) 18 Cal. 265; Stephan v. Daniels (1875) 27 Ohio St. 527; Elston v. Chicapo (ISOO) 40 111. 514; Baker r. City of Cin- cinnati (1800) 11 Ohio St. 5.34. "There is no doubt of the proposition laid down by Mr. Erie, that if goods are wrongfully taken, and a sum of money is paid, simply for the purpose of obtaining possession of these goods again, without any agreement CHAP. I.] BEXSOX V. MONROE. 213 Benson v. Monroe (1851) 7 Cush. 125, 126. Metcalf, J., delivered the opinion of the court. It is an cstablislied rule of law, that if a party, with full knowledge of the facts, voluntarily pays a demand unjustly made on him, and attempted to be enforced by legal pro- ceedings, he cannot recover back the money, as paid by compulsion, at all, especially if it be paid under protest, that money can be recovered back; not on the ground of duress, because I think that the law is clear, although there is some case in Viner's Abridgement to the contrary (Vin. Abr. Duress, B. 3; 1 Roll. Abr. 687), that, in order to avoid a contract by reason of duress, it must be duress of a man's person, not of his goods; and that it is so laid down in Shoppard's Touchstone (p. 61) : But the ground is that it is not a voluntary paj-mcnt. If my goods have been wrongfully detained and I pay money sinij)]y to obtain them again, that being paid under a species of duress or constraint, may be recovered back; but if, while my goods are in possession of another person, I make a binding agreement to pay a certain sum of money, and to receive them back, that cannot be avoided on the ground of duress."— Per Parke, B., in Atlee v. Backhouse (1838) 3 M. & W. 633, G50. Ace. Skeate v. Beale (1841) 11 Ad. & E. 983. As to distinction between duress of real and personal property, see Fleetwood v. New York (1849) 2 Sandf. 475. Money paid to secure a license under an ordinance afterwards declared unconstitutional, payment being made under a mere apprehension of legal proceedings, cannot be recovered back. Town of Ligonier v. Ackerman (1874) 46 Ind. 552; Town Council of Cahaba v. Burnett (1859) 34 Ala. 400; Cook v. Boston (1864) 9 Allen, 393; nor can it if the license is issued at tlfe request of the plaintiff, without objection or protest. Mays v. Cincinnati (1853) 1 Ohio St. 268. But where county commissioners granted a license to one making the largest donation to the county, such act being in excess of tlieir powers, it was held such money might be recovered with interest. County of La Salle v. Simmons (1849) 10 111. (5 Gilm.) 513. And money paid under an unconstitutional ordinance, by reason of "threats of prosecution, or under a belief, induced by the officers of the town, that only by payment could they escape prosecution, and was paid by them under protest, then such payment can in no just sense be called voluntary, and so is recoverable." Harvey v. Town of Olncy (1866) 42 111. 336. See Smith v. Hutchinson (1855) 8 Rich. 260. Questions as to voluntary payments arise most frequently in connection with cases brought to recover money paid for illegal taxes. If an illegal tax is voluntarily paid, it cannot be recovered. Smith v. Schroeder (1870) 15 Minn. IS; Jenks v. Lima Township (1861) 17 Ind. 328; though if the assessment is valid on its face, b\it really void, a recoverey may be had. Brueeher r. Port Chester (1886) 101 N. Y. 240. But see Jenks v. Lima Town- ship, supni ; Fleetwood v. New York (1849) 2 Sandf. 475. It is said that payment can be considered voluntary only "when it is made to produce the release of the person or property of the party from detention, or when the other party is armed with apparent authority to seize upon either, and the payment is made to prevent it." IMays r. Cincinnati (1853) 1 Ohio St. 268, 278; Jenks v. Lima Township (ISdl ) 17 Ind. 328, in which case it would seem unnecessary to protest. Lincoln r. City of Worcester (1851) 8 Cush. 214 BENSON V. MONROE. [BOOK 11. unless there be a fraud in the party enforcing the claim, and a knowl- edge that the claim is unjust. And the case is not altered by tlie fact that the party, so paying, protests that he is not answerable, and gives notice that he shall bring an action to recover the money back. He has an opportunity, in the first instance, to contest the claim at law. 55, 61. But the mere possession by the collectors of warrants of attachment is not sufficient. Smith v. Readfield (1847) 27 Me. 145; but see Joyner v. Third School District (1849) 3 Cush. 567. Payments, under threats, express or implied, that legal remedies for the tax will be resorted to, is voluntary. Taylor v. Board of Health (1855) 31 Pa. St. 73; even though a protest is made at the time of payment, Lester v. Baltimore (1868) 29 Md. 415, unless if the threatened sale were made it would be a cloud on the title. City of Detroit v. Martin (1876) 34 Mich. 170 (but where the illegality appears on the face of the proceedings, no cloud is cast. Curtis v. East Saginaw (1877) 35 Mich. 508); Swanston v. Ijams (1872) 63 111. 165. But it is held in New York that a sale under a void assessment casts no cloud on the title, distinguishing duress as to personality and reality. Fleetw^ood v. New York (1849) 2 Sandf. 475, and see Tripler v. Mayor (1891) 125 N. Y. 617. So a payment was held voluntary that was made to redeem tax sale certificates, issued against property in a sale for an illegal tax, the owner at the time of payment expressly denying the validity of the tax, and paying to prevent the issuance of tax deeds. Phillips v. Jefferson Co. (1870) 5 Kan. 412; Powell v. Board (1879) 46 Wis. 210; but see Vaughn v. Village of Port Chester (1892) 135 N. Y. 460. Where goods were distrained for a tax partly legal and partly illegal, the whole sum realized from the sale was recovered. Drew v. Davis (1838) 10 Vt. 506, but see Hemmingway v. Machias ( 1851 ) 33 Me. 445 ; and so, of course, a recovery was permitted when the tax was wholly void. Sumner v. First Parish (1826) 4 Pick. 361. Where no goods were distrained, but a tax partly legal, partly illegal was paid, a recovery was not permitted, no protest having been made. Borough of Allentown " v. Saeger (1853) 20 Pa. St. 421. The courts are at variance upon the general doctrine, but they seem uniformly unwilling to permit a recovery of money paid on illegally assessed real property taxes, owing probably to the attempted distinction between real and personal property, Fleetwood v. New York, supra, which distinction is based on the idea that as real property is non-attachable and cannot be passed from hand to hand, an owner is able at all times to test the validity of a tax. However, a very respectable authority has said that on principle and authority there is and can be no distinction between real and personal property. Joannin v. Oglivie (1892) 49 Minn. 564, and authorities cited. (See ante, p. 184, where the case is printed.) An executor paying out funds by a decree of a court, pays under com- pulsion, and is not liable for such payment, though the decree is subsequently reversed. Farrell v. Smith (1813) 2 Ba. & Be. 337; Bennett v. Hamill (1806) 2 Sch. & Lef. 506, 578. In an appeal from the Court of Claims, it was held that if a collector of customs, pursuant to a peremptojy order of the Commissioner of Customs, pays into the treasury money to which he is lawfully entitled as part of the fees and emoluments of his office, he may recover the same. U. S. v. Ells- worth (1879) 101 U. S. 171 ; citing and approving U. S. v. Lawson, id. 104.— Ed. CHAP. I.] ATWELL V. ZELUFF. 215 He has or may liave a day in court; he may plead and make proof that the claim on him is such as he is not bound to pay. ... As was said by Gibbs, J., in Brisbane v. Dacres, 5 Taunt. 152, the party has an option, whether to litigate the question, or submit to the de- mand and pay the money. See also Preston v. City of Boston, 12 Pick. 13, 14; Rawson v. Porter, 9 Greenl. 119.^ ATWELL V. ZELUFF. S.UPREME Court of Michigan, 1873. [26 Michigan, 118.] Campbell, J. Atwell sued Zeluff, who was supervisor of the town of Ridgeway, Lenawee county, in an action of trespass, the cause of action being the issue by Zeluff of tax rolls for the collection of ditch taxes against Atwell, one of which he paid on demand of the collector, and the other was enforced by selling his personal property. The warrant issued to the collector, was the one required by law for the regular annual taxes, to be enforced, in case of non-payment, by sale of chattels. The ditch tax was extended on the general tax roll. In regard to the payment made without levy on his goods, it was objected that the payment being without protest, was voluntary.^ The question was somewhat ■ discussed, but not actually decided, in the case of the First National Bank of Sturgis t'.Watkins, 21 Mich. R. 483. Where an officer demands a sum of money imder a warrant directing him to enforce it, the party of whom he demands it, may fairly assume that if he seeks to act under the process at all, he will make it effectual. The demand itself is equivalent to a service of the writ '"So if a party can have his day in court before payment, and does not avail himself of it, he cannot be allowed, after permitting that opportunity to pass by, to maintain an action to recover back. 'In such cases, the maxim 'Interest rei puhlicce ut sit finis litiiim' governs. Mariott v. Hampton, 7 Term Rep. 269; Brown v. McKinnally, 1 Esp. 270; Hamlet v. Richardson, 9 Bing. (544 : Dew v. Parsons, 2 B. & Al. 562, 2 Smith's Lead. Cas. marginal, p. 402; Covington Bridge Co. v. Sargent. 27 Ohio St. 2.3.3." — Stephan v. Daniels (1875) 27 Ohio St. 527, 539. Ace. Marietta v. Slocumb (1856) 6 Ohio St. 471. "To make it a case of payment under compulsion [as to realty], there must be an illegal demand, coupled with a present power or authority in the person making such demand, to sell or dispose of the property, if pay- ment is not made as demanded." — Mariposa Co. v. Bowman ( 1867) Deady. 228, 231; Smith v. Readfield (1847) 27 Me. 145, 147; Boston, &c. v. Boston (1842) 4 Met. 181; Mays v. Cincinnati (1853) 1 Ohio St. 268. 278.— Ed "Only so much of the opinion as bears upon this point is given. — Ed. 216 AT WELL V. ZELUFF. [BOOK, II. on the person. Any payment is to be regarded as involuntary which, is made under a chiim involving the use of force as an alternative, as the party of whom it is demanded cannot be compelled or expected to await actual force, and cannot be held to expect that an officer will desist after once making demand. The exhibition of a warrant directing forcible proceedings, and the receipt of money thereon, will be in such case equivalent to actual compulsion. There has been some confusion among the authorities as to the necessity or effect of a protest in such cases, but the question has not often arisen upon the service of legal process. In some cases it has been intimated that it might be necessary, in order to recover back a payment from the person to whom it was actually paid, after he had paid over the money under his agency. But where the person de- manding and receiving the money, does so under color of process, as a legal officer, we think the payment must be deemed involuntary, because the party paying has no legal means, by appeal or otherwise, of preventing the seizure of his property. If he has such means of redress, which would be effectual to stay the process, there is reason for making a distinction which may, perhaps, be sustained. The supreme court of Massachusetts, in Boston & Sandwich Glass Co. v. City of Boston, 4 Met. 181, citing a former case in 17 Mass. 461, refer to the absolute character of the warrant as excusing the necessity of a protest. But we think the rule of damages there adopted as to the difference of liability where there is and where there is not a protest, is also based on good sense. Where the money is not paid under protest, it is there held that no interest should be allowed until demand or action brought, so as to put the party sued in actual fault for not making satisfaction as soon as the wrong is pressed upon his notice. A payment without protest may prevent him from making in(|uiry and examining into the law, and while legal ignorance will not excuse an illegal demand, it may very properly qualify the extent of damages for a merely technical wrong. As this defect is fatal,^ and there can be no jurisdiction under the roll, no other questions need be discussed. There was no demand here before suit brought, and the sale is not shown to have been any fixed time before. Judgment must be reversed, and a new judg- ment must be entered for plaintiff, on the finding, for the amount of the illegal exactions, with interest from suit brought, and with costs of a]l the courts. There are such practical hardships in perniitting persons to be held liable to action, where no distinct protest is made, pointing out reasons why a collector should withliold action under his warrant, that it is a proper subject for legislative consideration, whether some provision *The tax rolls were declared void for uncertainty, and so the tax levied according to them was void. — Ed. CHAP. I.] FELLOWS V. SCHOOL DISTRICT. 217 should not be made to regulate the matter. The officers can seldom be expected to understand the niceties of the law, and it is not desirable that persons should be deterred from holding the necessary local offices, by fear of consequences for which they are not morally responsible. The other justices concurred.^ FELLOWS V. SCHOOL DISTRICT. Supreme Judicial Court of Maine, 1855. [39 Maine, 559.] On report from Nisi Prius, Siiepley, C. J., presiding.- Assumpsit, to recover back the sum paid on a school district tax in 1852, for building a school-house. Rice, J. The defendant claims to recover the amount of a tax paid to the collector of the town of Fayette, for the benefit of the defendants, which he alleges was illegally assessed iipon him, and which he was compelled to pay by duress, and which was paid under protest. By duress, in its more extended sense, is meant that degree of severity, either threatened or impending, or actually inflicted, which '"We deem it a well-settled rule of law that where a party, with full knowl- edge of the facts, pays a demand that is unjustly made against him, and to which he has a valid defence, and where no special damage or irreparable loss would be incurred by making such defence, and where there is no claim of fraud upon the part of the party making such claim, and the payment is not necessary to obtain the possession of the property wrongfully withheld, or the release of his person, such payment is voluntary, and cannot be recovered. Xor will tlie fact that such payment was accomjianied by a protest make that involuntary which otherwise would be voluntary. A protest is of no avail unless there be duress or coercion of some character, and then its only office is to show that the payment is the conse- quence of such duress or coercion. Benson v. Monroe, 7 Cush. 125; Commis- sioners V. Walker, 8 Kan. 431; Emmons v. Scudder, 115 Mass. 367; Lester r. Mayor, etc. 29 Md. 415; Potomac Coal Co. v. Cumberland & P. R. Co. 38 Md. 226; Gerecke v. Campbell, 24 Neb. 300, 38 N. W. Rep. 847: Mariposa Co. r. Bowman, Deady, 228; Lamborn v. Commissioners, 97 U. S. 181; Powell r. Board, 46 Wis. 210, 50 N. W. Rep. 1013."— Wessel v. Land & :Mortgage Co. (1893) 3 X. Dak. 100; Boston & Sandwich Glass Co. r. City of Boston (1842) 4 Met. 181. It is immaterial that the protest is formal and written. Rail- road Co. V. Commissioners (1878) 98 U. S. 541. And, of course, protest after payment is unavailing. Mariott v. Brune (1850) 9 How. (U.S.) 019. — Ed. -The opinion only is printed. — Ed. 218 FELLOWS V. SCHOOL DISTRICT. [BOOK II, is sufficient to overcome the mind and will of a person of ordinary firmness. The common law has divided it into two classes, namely, duress per minas, and duress of imprisonment. Duress per minas is restricted to the fear of loss of life, or of mayhem, or loss of limb ; or in other words of remediless harm to the person. 2 Greenl. Ev. § 301. The plea of duress of imprisonment is supported by any evidence that the party was unlawfully restrained of his liberty until he would execute the instrument. Ibid, § 303. To constitute duress of imprisonment, the imprisonment must be unlawful. 1 Salk. 68. One peremptorily called upon to pay an illegal tax, by virtue of a warrant issued to a collector of taxes, may give notice that he pays it by duress, and not voluntarily, and it would seem, under such circumstances, may recover it back again. Preston v. Boston, 12 Pick. 7. But where money is claimed as rightfully due, and is paid volun- tarily, and with a full knowledge of all the facts in the case, it cannot be recovered back if the party to whom it has been paid may con- scientiously retain it. Brisbane v. Dacres, 5 Taunt. 144; Smith v. Keadfield, 27 Maine, 145. Nor can money paid under a mistake of law be reclaimed. Norton v. Harden, 15 Maine, 45. A tax has been assessed against the plaintiff by the assessors of Fayette, for the benefit of the inhabitants of School District No. 8. in that town. Tax bills in which this tax was included, accompanied by a warrant for their collection, had been committed to the collector of taxes for Fayette. The plaintiff had been called upon by the col- lector, and payment of the tax against him demanded; he protested against paying; was arrested by the collector and carried to Augusta, when he agreed that he would pay the tax, and was thereupon dis- charged from his arrest by the collector. About a week after this transaction, without any further interposition, or claim on the part of the collector, so far as the case finds, the plaintiff paid the tax, and costs of arrest and conveyance to Augusta and back. Was that a voluntary payment, with a knowledge of all the facts, or was it a payment under protest, and by duress? At common law, as it was understood before and during the reign of Elizabeth, a voluntary escape of a prisoner, in execution, completely and forever discharged him from the debt, so that neither the plaintiff nor sheriff could retake him for the same demand. Bro. Tit. Escape, PI. 12 and 45; Linacre v. Ehodes' case, Leon. R. 90; Lansing v. Fleet, 2 Johnson's Cases, 3. Since that time this law has been modified, or differently under- stood, and a voluntary escape of a debtor in execution, will not deprive the creditor of the right of procuring the rearrest of the debtor on a new process, or if he voluntarily return, of considering him in custody under the old; but so far as the sheriff is concerned, he cannot rearrest CHAP. I.] FELLOWS V. SCHOOL DISTRICT. 219 the debtor on the old process. By the first arrest the writ has been obeyed, and has performed its proper function ; and after a voluntary discharge the sheriff cannot arrest a second time on the same precept. If he does so, he is liable to an action for false imprisonment. Atkin- son V. Jameson, 5 D. & E. 25 ; Sheriff of Essex's case, Hob. 203 ; Vin. Ab. Escape, p. 17; Thompson v. Lockwood, 15 John. 256; Lansing v. Fleet, 3 Johns. Cases, 3; Com. v. Drew, 4 Mass. 391; Brown v. Get- chell, 11 Mass. 11. That the collector, after the arrest, permitted the plaintiff volun- tarily to escape, is too plain to require argument. After that escape the power of the collector, under his warrant, to rearrest the plaintiff was extinguished. Nor indeed is there any evidence that he again sought to enforce his warrant by another arrest, or even threatened to do so. If it be said that the tax was paid under the agreement to pay. by means of which the plaintiff procured his discharge from arrest, and that that agreement was extorted by duress, the answer is, if, as the plaintiff' contends, the arrest was illegal, then the agreement was without legal consideration, and void. If it be further said that the plaintiff' supposed or apprehended that he should be again arrested if he did not pay, and made the payment under the misapprehension of his legal rights, the answer is, that such a misapprehension would be a mistake of law, and not of fact. Upon the whole, the payment of which the plaintiff now complains, must be deemed to have been made voluntarily, and with a knowledge of all the facts. The action seems to be grounded wholly on supposed technical defects in the proceedings on the part of the town and the school district. The money has been appropriated for a highly meri- torious object, and there is no suggestion of oppression, improvidence or waste, on the part of the authorities of the town or district. In such a case we think the money may well be consistently retained, even though there may have been technical informalities in assessing the tax. In the view however, which we have taken of the case, it does not become necessary to examine the proceedings of the town or district ; we therefore express no opinion upon that part of the case which refers to the legality of the tax. Plaintiff nonsuit.^ ^Accord: Schultz v. Culbertson (1879) 46 Wis. 313.— Ed. 220 WELLS V. PORTER & CRONKHITE. [BOOK. II. WELLS V. PORTER & CRONKHITE. Supreme Court of New York, 1831. [7 Wendell 119.] This was an action of assumpsit, tried at the Warren circuit in June, 1829, before the Hon. Esek Cowen, one of the circuit judges. The declaration contained the money counts only. The action was to recover back $100 paid by the plaintiff, to redeem a number of hogs belonging to him, kept by Cronkhite, one of the defendants, at a distillery, for the purpose of being fatted. The hogs were taken and sold as a distress for the rent of the premises occupied by the defendants, and bought in by the plaintiff. The defendants became the assignees of the demised premises, on the 19th July, 1824, but did not enter into the actual possession thereof until May, 1825. The annual rent reserved on the lease was $40 per annum. In June, 1825, the property of the plaintiff was taken on a distress warrant, issued by a general agent of the landlord to a bailiff to collect $200, arrears of rent due on the 1st February, 1825. The agent had no written power of attorney or appointment, and no express authority to appoint a sub-agent or bailiff; the avails of the sale were paid to, and received by the landlord. It appeared that part of the consider- ation of the assignment of the demised premises to the defendants was the payment of a debt, owing by a former assignee to a third ^/ person, who held the lease by way of security. ' The defendants insisted that the money paid by the plaintiff was not paid for the benefit of the defendants, they not being personally responsible for the ^ \j rent accrued previous to their entry into possessiouy'that the payment was made without their consent or request, and that the plaintiff, if entitled to recover at all, should have brought a special action on the case. A verdict was rendered for the plaintiff subject to the opinion of this court. /^^v/ By the Court, Savage, Ch. J. '1 see no objection to the plaintiff's recovery. It is true, the assignees were not personally bound to pay any rent before the assignment, but their property was bound; the rent was a lien, an incumbrance upon the property, and constituted a part of the consideration of their purchase from a previous assignee. ^^ >^The money was therefore paid for the use of the defendantsy' They were tenants in common of the property, chargeable with the pay- ment of the rent, if they were not partners. It does not appear that Porter was concerned in the distillery, nor that he was interested in the contract to keep the plaintiff's hogs; but the joint liability rests on the fact, that the property in which they were equally interested, and it appears to me jointly interested, was liable for the rent, which CHAP, I.] ELLIOTT V. SWARTWOUT. 221 is sufficient to render them jointly liable in this action. Their property was not severed; there was no opportionment of the rent; their joint property was liable for it, and was benefited by the pay- ment. There was no irregularity in the distress. The person issuing the warrant was the general agent of the landlord, and. had power, in the name of his principal, to appoint a bailiff. If there were any doubt on that point, the authority of both the agent and bailiff was confirmed by the acts of the landlord. The plaintiff is entitled to judgment.^ ELLIOTT V. SWAETWOUT. Supreme Court of the United States^ 1836. [10 Peters, 137.] On a certificate of division from the Circuit Court of the United States for the southern district of New York. The suit was originally instituted in the Superior Court of the city of Xew York, by the plaintiff against the defendant, the collector of the port of New York ; and was removed by certiorari into the Circuit Court of the United States. ^"It appears upon this report that the plaintiff in order to save his property from being sold on legal process, has been compelled to pay a debt which was really due from the defendant. Under such circumstances, the law implies a request on the defendant's part, and a promise to repay; and the plaintiff has the same right of action as if he had paid the money at the defendant's express request. Exall v. Partridge, 8 T. R. 308, 1 Smith Lead. Cas. (5th Am. ed.) 70a, 73; Hale v. Huse, 10 Gray, 99."— Nichols v. Bucknam (1875) 117 Mass. 488, 491; and see Xutter v. Sydenstrieker (1877) 11 W. Va. 535. In the leading case of Exall v. Partridge (1799) 8 T. R. 308, the plaintiff had deposited his coach with the defendant, a coachmaker, from whom it was taken as a distress by the landlord for rent in arrear. Lord Kenyon, his brothers concurring, reversed his nisi prius ruling, denying relief, and per- mitted a recovery against the coachmaker for money paid by the owner to secure his carriage from the landlord. Lord Kexyon denied that relief de- pended on the theory that "where one person is benefited by the payment of money to another, the law raises an assumpsit against the former." In Eng- land r. ]\rarsden (186G) L. R. 1 C. P. 529. the Common Pleas limited Exall r. Partridge by refusing to extend it to cases where the plaintiff's property was in the defendant's hands for the benefit of the owner. Rut in the later case of Edmunds v. \Yallingford (1885) L. R. 14 Q. B. Div. 811. England r. :\Iarsden was questioned and Exall r. Partridge sustained. Tlie English doctrine now appears in accord with the principal case. See also Johnson v. R. M. S. Packet Co. (1807) L. R. 3 C. P. 38.— Ed. 222 ELLIOTT I'. SWAETWOUT. [bOOK 11. The action was assumpsit, to recover from the defendant the sum of thirty-one hundred dollars and seventy-eight cents, received by him for duties, as collector of the port of New York, on an importation of worsted shawls with cotton borders, and worsted suspenders with cotton straps or ends. The duty was levied at the rate of fifty per centum ad valorem, under the second clause of the second section of the act of the 14th of July, 1832, entitled "An act to alter and amend the several acts imposing duties on imports," as manufactures of wool, or of which wool is a component part. The plea of non-assumpsit was pleaded by the defendant in bar of the action. The following points were presented during the progress of the trial for the ouinion of the judges ; and on which the judges were opposed in opinion^ : — Second. Whether the collector is personally^ liable in an action to recover back an excess of duties, paid to him as collectQr4_and by.him, in the regular or ordinary course of his duty, paid into the treasury_pf the'^TJnited States ;Jie, the collector, acting in good faith, and under instructions from the treasury department, and no protest being made atrthe time of paymenj:, or notice not to pay the money over, or inten- tion to sue to recover back the amount given him» Third. Whether the collector is perso nally liable in an action to re cover back an excess of duties paid, tojiim as collector, and l)y him paid, in the regular and ordinary course of his duty, into the treasury of the United States, he, the collector, acting in good faith, and under instructions from the^ treasury department; a notice having been given, at the iima of payment, that the duties were charged too high, and Ihat the party paying so paid to get possession of his goods, and intended to sue to recover back the amount erroneously paid; and a notice not to pay over the amount into the treasury. These several points of disagreement were certified to this court by the direction of the judges of the Circuit Court. Mr. Justice Thompson delivered the opinion of the court. 2. The case put in the second point is where the collector has re- ceived the money in the ordinary and regular course of his duty, and has paid it over into the treasury, and no objection made at the time of payment, or at any time before the money was paid over to the United States. The manner in which the question is here put pre- sents the case of a purely voluntary payment, without objecldmL-pr notice not to pay oyer the money, or any declaration made to the collector of an intention to prosecute him to recover back the money. Itjs t herefore t o be considered as a voluntary payment, by mutual, mis take of law; and, in such case, no action will lie to recover back the mnnex- The construction of the law is open to both parties, and eacTT 'Only so much of the case is given as relates to the second and third points raised. — Ed. CHAP. I.] ELLIOTT V. SWARTWOUT. 223 presumed to know it. Any instruments from the treasury department could not change the law, or affect the rights of the plaintiff. He was not bound to take and adopt that construction, lie was at liberty to judge for himself, and act accordingly. These instructions from the treasury seem to be thrown into the question for the purpose of showing, beyond all doubt, that the collector acted in good faith. To make the collector answerable, after he had paid over tlie money, without any intimation having been given that the duty was not legally charged^ cannot be sustained upon any sound principles of policy or of law. There can be no hardship in requiring the party to give notice to the collector that he considers the duty claimed illegal, and put him on his guard, by requiring him not to pay over the money. The collector would then be placed in a situation to claim an indemnity from the government. But if the party is entirely silent, and no intimation of an intention to seek a repayment of the money, there can be no ground upon which the collector can retain the money, or call upon the government to indemnify him against a suit. It is no sufficient answer to this that the party cannot sue the United States. The case put in the question is one where no suit would lie at all. It is the case of a voluntary payment under a mistake of law, and the money paid over into the treasury ; and if any redress is to be had. it must be by appli- cation to the favor of the government, and not on the ground of a legal right. The case of Morgan v. Palmer, 2 B. & C. 729, was an action for money had and received, to recover back money paid for a certain license; and one objection to sustaining the action was that it was a voluntary payment. The court did not consider it a voluntary pay- ment, and sustained the action; but Chief Justice Abbot^ and the whole court, admitted that the objection would have been fatal, if well-founded in point of fact. The court said it had been well argued, that the payment having been voluntary it could not be recovered back in an action for money had and received. And in Brisbain v. Dacres, 5 Taunt. 154, the question is very fully examined by Gibbs, J., and most of the cases noticed and commented upon, and with the con- currence of the whole court, except Chambke, J., he lays down the doctrine broadly, that where a man demands money of another, as matter of right, and that other, with a full knowledge of the facts u^n which the demand is founded, has paid a sum of m^e;^ voluntarily, he cannot recover it back. It may be, says the judge, 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, many incoiivcnicMices may arise. There are many doubtful qucstious of law. When they arise, the defendant has an option either to litigate the (piestion, or submit to the demand and pay the money. But it would be most mischievous and unjust, if he who has acquiesced in the right by such voluntary payment should be 224 ELLIOTT V. SWARTWOUT. [BOOK II. at liberty, at an}' time within the statute of limitations, to rip ujj the matter and recover back the money. This doctrine is peculiarly applicable to a case where the money has been paid over to the public treasury, as in the question now under consideration. Lord Eldon in the case of Bromley v. Holland, 7 Vesey, 23, approves the doctrine, and says it is a sound principle that a voluntary payment is not re- coverable back. In Cox v. Prentice, 3 M. & S. 348, Lord Ellex- BOEOUGH says : "I take it to be clear, that an agent who receives money for his principal is liable, as a principal, so long as he stands in his original situation, and until there has been a change of circumstances, by his having paid over the money to his principal, or done somethingH^ equivalent to it." And in Buller v. Harrison, 2 Cowp, 568, Lord Maxsfield says the law is clear, that if an agent pay over money ^A which has been paid to him by mistake, he does no wrong, and the^^ plaintiff must call on the principal; that if, after the payment has been made and before the money has been paid over, the mistake is corrected, the agent cannot afterwards pay it over without making himself personally liable. Here, then, is the true distinction: When the money is paid voluntarily and by mistake to an- agent, and JieJiag, paid it over to his principal, he cannot be made personally responsible ; biU if, before paying it over, he is apprised of the mistake and rcj qmred not to pay it over, he is personally liable^ The principle laid dowifhy Lord Ellenborough^ in Townsend v. Wilson, 1 Campb. 396, cited and relied upon on the part of the plaintiff, does not apply to this case. He says, if a person gets money into his hands illegally, he cannot discharge himself by paying it over to another; but the pay- ment, in that case, was not voluntary ; for, says Lord Ellenborough, the plaintiff had been arrested and was under duress when he paid the money. In Stevenson v. Mortimer, 2 Cowp. 816, Lord Mansfield lays down the general principle, that if money is paid to a known agent, and an action is brought against the agent for the money, it is an answer to such action that he has paid it over to his principal. That he intended, however, to apply this rule to cases of voluntary payments made by mistake, is evident from what fell from him in Sadler v. Evans, 4 Bur. 1987. He there said, he kept clear of all payments to third persons but where it is to be a known agent ; in which case the action ought to be brought against the principal, unless in special cases, as under notice, or main fides; which seems to be an admission that if notice is given to the agent before the money is paid over, such payment will not exonerate the agent. And this is a sound distinction, and applies to the two questions ])ut in the second and third points in the case now before the court. In the former, the payment over is supposed to be without notice ; and in the latter after notice and a request not to pay over the money. Tlie answejvilie^^i to*4rhc-8e^ond question is. that under the facts there stated the eol- leetor is not personally lj_ablc. CHAP. I.] ELLIOTT V. SWARTWOUT. 225 3. The case put by the third point is where, at the time of payment, notice is given to the collector that the duties are charged too high, and that the party paying so paid to get possession of his goods; and accompanied by a declaration to the collector, that he intended to sue him to recover back the amount errone- ously paid, and notice given to him not to pay it over to the treasui-y. This ([uestion must be answered in the adirmative; unless the broad proposiiion can be maintained, that no action will lie against a col- lector to recover back an excess of duties paid him ; but that recourse I must be had to the government for redress. Such a principle would be carrying an execution to a public officer beyond any protection sanc- tioned by any principles of law or sound public policy. The case of Irving V. Wilson and Another, 4 T. R. 485, was an action for money had and received, against custom-house officers, to recover back money paid to obtain the release and discharge of goods seized that were not liable to seizure; and the action was sustained. Lord Kexyox observed, that the revenue laws ought not to be made the means of oppressing the subject ; that the seizure was illegal; that the defendants took the money under circumstances which could by no possibility justify them ; and, therefore, this could not be called a voluntary pay- ment. The case of Greenway v. Hurd, 4 T. R. 554, was an action against an excise officer, to recover back duties illegally received; and Lord Kenyox does say, that an action for money had and received will not lie against a known agent, but the party must resort to the superior. But this was evidently considered a case of voluntary payment. The plaintiff had once refused to pay, but afterwards paid the money; and this circumstance is expressly referred to by Buller^ J., as fixing the character of the payment. He says, though the plaintiff had once objected to pay the money, he seemed afterwards to waive the objection by paying it. And Lord Kexyon considered the case as falling within the principle of Sadler v. Evans, 4 Bur. 1084, which has already been noticed. In the case of Snowdon r. Davis, 1 Taunt. 358, it was de- cided that an action for money had and received would lie against a bailiff, to recover back money paid through compulsion, under color of process, by an excess of authority, although the money had been paid over. The court say, the money was paid by the plaintiff under the threat of a distress; and although paid over to the sheriff and by him into the Exchequer, the action well lies ; the plaintiff paid it under terror of process to redeem his goods, and not with intent that it should be paid over to any one. The case of Ripley r. Gelston. Johns. 201, was a suit against a collector to recover back a sum of money de- manded by him for the clearance of a vessel. The plaintiff- objected to the payment, as being illegal, but paid it for the purpose of obtain- ing the clearance, and the monev had been i)aid bv the collector into 226 ELLIOTT V. SWARTWOUT. [BOOK II. the branch bank to the credit of the treasurer. The defence was put on the ground that the money had been paid over ; but this was held in- sufficient. The money, say the court, was demanded as a condition of the clearance; and that being established, the plaintiff is entitled to recover it back, without showing any notice not to pay it over. The cases which exempt an agent do not apply. The money was paid by compulsion. It was extorted as a condition of giving a clearance, and not with intent or purpose to be paid over. In the case of Clinton V. Strong, 9 Johns. 369, the action was to recover back certain costs which the marshal had demanded on delivering up a vessel which had been seized, which costs the court considered illegal; and one of the questions was whether the payment was voluntary. The court said the payment could not be voluntary. The costs were exacted by the officer, colore officii, as a condition of the redelivery of the property; and that it would lead to the greatest abuse to hold that a payment under such circumstances was a voluntary payment precluding the party from contesting it afterwards. The case of Hearsey v. Pryn,. 7 Johns. 179, was an action to recover back toll which had been illegally demanded ; and Spencer, J., in delivering the opinion of the court, savs the law is well settled, that an action may be j ustaine d against anagent who has received mdhey to^whTcirthe principal had no right, if the agentrhas had notice not to pay it t)ver. And in the case of Fry v. Lockwood, 4 Cow. 456, the court adopt? the principle, that when money is paid to an agent for the purpose of being paid over to his principal, and is actually paid over, no suit will lie against the agent to recover it back. But the distinction taken in the case of Kipley v. Gelston is recognized and adopted; that the cases which exempt an agent when the money is paid over to his principal without notice, do not apply to cases where the money is paid by compulsion, or extorted as a condition, etc. From this view of the cases, it may be assumed as the settled doctrine of the law, that where money is illegally demanded and received by an agent, he cannot exonerate himself from personal responsibility by paying it over to his principal ; if Ee^EaHEad notice not to pay it over. The answer, therefore, to the third point must be, that the collector is personally liable to an action to recover back an excess of duties paid to him as collector, under the circum- stances stated in the point ; although he may have paid over the money into the treasury. On the second question, it is the opinion of this court, that, under the facts as stated in the said second question, the collector is not personally liable. On the third question, it is the opinion of this court that the col- lector, under the circumstances as stated in the said question, is liable to an action to recover back an excess of duties paid to him as collector, although he may have paid over the money into the treasury. Where- upon it is ordered and adjudged by this court, to be so certified to the CHAP. I.] BROWN V. HODGSON. 227 said Circuit Court of the United States for the southern ^district of New York.^ 3, IN DISCHARGE OF AN OBLIGATION. (a) The Doctrine in General. BROWN V. HODGSON. Common Pleas, 1811. [4 Taunton, 189.] Payne sent butter to-London eonsigned-t^^-Pen, by the hands of the plaintiff, a carrier, who by mistake delivered it to the defendant, and he appropriated it to his own use, selling it and receiving the money. Pen had paid Payne for the butter, and Brown, admitting the mistake he_-had^made7paid Penl;ho v alue . The plaintifL declared for goo ds sold_a^nd delivered, and for mo ney paid ; and delivered to the defend- ant a bill of particulars, "To seventeen firkins of butter, £5o 6s.," not saying for goods sold. It was objected for the defendant, that there was no contract of sale, either express or arising by implication of law between the parties, upon this transaction, and that although the plaintiff might have recovered in trover, he could not bring assumpsit for goods sold ; the count for money paid was not adverted to at the trial. The jury found a verdict for the plaintiff. Vaughan, Serjt., in this term, obtained a rule nisi to set aside the verdict ; and Shepherd, Serjt., now showed cause against it. Mansfield, C. J. At the trial my attention was not called to the count for money paid, but upon this count I think the action may be sustained. The plaintiffs _pax Pen on account of these g oods being wrongfully detained by TTodg son ^ the\' pay the value to the person to whom b oth they and-^^i were bou^d_to pay it ; and- this, therefore, is "not the case of a man officiously and without reason paying m oney for another; and therefore the a ction may be s upp orted7" As to the oKjection taken respecting the bill of particulars, bills of particulars 'Tn 3 Notes on U. S. Reports (Rose) 553, will be found an elaborate note on this ease, in which are collected the federal cases following or distinf,nii^li- ing it, as also the state cases approving or disapproving its doctrine. Cf. Atlee V. Backhouse (1838) 3 M. & W. 633; Taylor r. Board of Health (1855) 31 Pa. St. 73; Joyner v. Third School Dist. (1840) 3 Cash. 567: Chegaray r. Mayor (1853) 2 Duer, 521; Sumner v. First Parish, etc. (1826) 4 Pick- 361.— Ed. 228 DAwsox V. LiXTON. [book II. are not to be construed with all the strictness of declarations; this bill of particulars has no reference to any counts, and it sufficiently expresses to the defendant that the plaintiff's claim arises on account of the butter. Heath, J. We must not drive parties to special pleaders to draw their bills of particulars. Ride discharged.''- DAWSON V. LIXTON. Kixg's Bench, 1822. [5 Barnwell £ Alderson, 521.] Assumpsit upon several special counts, and also for money paid to the use of the defendant. Plea, the general issue. A local act provided that a drainage tax should be paid by the tenants of the lands and grounds charged with the same respectively ; that such tenants should and might deduct and retain the tax in ques- tion out of the rents payable to their landlords ; that in case of neglect to pay, the tax might be levied by distress on goods and chattels found on the lands charged with the tax in arrear; that if the land should be untenanted, or no sufficient distress could be found, the lands and goods chargeable should remain as a surety for the payment thereof, taken possession of, and rented in discharge of the tax. • x\t the trial, it was contended that the succeeding tciiant was liable for the tax and that the action should have been against him.- Abbott, C. J. R is clear that this tax must ultimately j ail on the landlord, and that the plaintiff has paid his money in discliarge oi it ; hc"Tias"'therefore a right to call upon the landlord to repay it to him. I think the meaning of the act was to make the tax payable by the tenant in whose time it became due, and who received the benefit of the drainage. If it had then been paid, the plaintiff might have deducted it from his rent; but as he was not caTlecl^ on to pav it tiH a£ ler the rent had_ beeii-^pai4T -L-tEmK lie4ms-jaow~th£rxj^ ht to req uire. tJie_iandlord to reimburse him. It might be very hard, if the new tenantwere to be compelled to advance money to pay the tax for his 'Sills V. Lainf,' (1814) 4 Canipb. 81, a nisi prius decision of Lord Ellen- BOBOUGii, is contra. For kindred cases and a diseussion of the principle involved, see 2 Green- leafs Evidence (16th ed.) § 114; 1 Smith's Leading Cases, Gth Am. ed., 381; 9th Am. ed., 443, note. And see the following additional cases: Van Santen v. Standard Oil Co. (1880) 81 N. Y. 171; Metropolitan R. R. Co. v. District of Columbia (1889) 132 U. S. 1, 12.— Ed. 'Statement substituted for that of the original report. — Ed. CHAT. I.] LEWIS V. CAMPBELL. 229 predecessor, even though ultimately he would be entitled to recover it. Here, the action is only fo r mo nfy pni d ior th e dr-fond nnt. and not for^any special damage arising from the distress. The verdict is therefore right. Eule discharged.^ LEWIS V. CAMPBELL. Common Pleas, 1849. [8 Manning, Granger and Scott, 541.] This was an action of debt, for money paid, money had and re- ceived, and on an account stated. The defendant pleaded that she was never indebted. The cause was tried before Wilde, C. J., at the London sittings after Hilary term, 1848, when the material facts appeared to be, that the plaintiff, JolmJVilliam Lewis, being indebted to EichardDukc in £11 2. 16s. 6d., gave him an order for payment of that sum, on Macdonald & M'Queen, who were agents to the plaintiff. When Duke presented the order for payment Macdonald & M'Queen refused to pay the money, but t"ld "Puke tbn^ t^^' - y w nnlrl pay the amount to Mrs. Campbcll^ thc def endan t-, for wbnm they wcrp autbori/ ^ prl tn pnllopt rloKtc , h-i p nrf paym ent of a deb t of £350, which the defe ndmif., r-lnimpfl n-;; f1 ttp to her from Duke. ]\Iacdonald & M'Queen accordingly debited the plaintiff', and credited the defendant, with the amount of the order, and gave the plaintiff, on behalf, and in the name of, the defendant, on the 29th of August, 1843, a letter stating that the sum of £112. IGs. Gd., owing by the plaintiff to Duke, being attached by her in the hands of the plaintiff's agents, shej indertook to exonerate and bear hi m harj n- less against a ny steps wh ich Duke might take against him in resp>^ t of that sum. These transactions were communicated to the defendant, who approved of what her agents had done, and claimed the amount mentioned in the order, as a debt due to her from Macdonald & M'Queen, and received a dividend on it, when they became bankrupts. A fterwards, in 184G, an action was brought bv Duk e _iigam£L-the present plaintiff', which was defended, in his name, and by his per- 'But compare Spencer r. Parry (1835) .3 A. & E. ."^31. SoLJL_trustee under a will who paid a legacy duty upon an annuity recov- ered the amount so paid in assTiiiTpKrt frtrm the" legatee. Hales v. FreeiiTan (ISIOV 1 Brod. & B. 391; so_wh ere the plai ntiff dei^sited with defendant as security for goods sold, a bill accepted for which phiintitT had received no_ value anil defendant after payment of the goods indorsed the bill for value. Bleaden i'. Charles (1831) 7 Bing. 240; but see Asprey i;. Levy 71^4T) 10 M. & W. 851.— Ed. 230 LEWIS V. CAMPBELL. [BOOK II. mission, h y Mrs. Campbellijthe present defendant, — pleading, amongst other thingSj that the debt due from the plaintiff to Duke ha'd'^een prnS^hy Ms consent, to the present defendant. This defence, however, Avas unsuccessful; and thp prpspnt plaintiff was pomp ellprl to-.pay : f.1 fiO 1 .Ss nd J the amount for j?hich Puke obtained judgment, in order to avoid being taken under a capias ad satisfaciendum. Upon this state of facts, a verdict was taken for the plaintiff for £160. 13s. 6d., with the liberty to the defendant to move to enter a nonsuit, or to reduce the verdict to £112. 16s. 6d. Cur. adv. vult. WiLDE^ C. J., now delivered the judgment of the court [after stat- ing the facts, ut ante] : — The argument turned mainly upon the question, whether the count fof money pai d, was sustained by the fac ts in eviden ce. And Tn the view we take of the case, it will not be necessary to discuss any other question. It appears to us, that the defendant, bei ng bound by her guarantee to indemnif y the _plaintiff against Duke's action, and the plaintiff having, at the requestofthe defendant, taken upon himself the character of defendant in that action, and having permitted the defendant to conduct the defence, and the defendant having acted on that permission, an 4mpIi£xLcnntract waa_jaised on jthe part of the_^e- fendant, to pay anything which might be necessary, in th e eve nt^of a ju^gnient_being obtained against tlie defendant7"forthe_ proti^cti on of thg_ plaintifLagainst Ihe consequences of Uiat judgment ; and, in the event of the defendant's failure to make such payment, that an authority from her was to be implied, authorizing the plaintiff to make the payment for her, so as to make it money paid to her use. Thus it was, that, in the case of Howes v. Martin, 1 Esp. N. P. C. 162, where the plaintiff had accepted a bill for the defendant, and had. at his request, defended an action brought on the bill, and had paid the debt and costs recovered in that action, Lord Kenyon held that the amount was money paid by the plaintiff to the use of the defendant, on the ground that, as the defendant was personally inter- ested, and had directed the defence to be made, by which he might have been benefited, the money must be considered to have been laid out by the plaintiff on his account and to his use. In the case of Brittain v. Lloyd, 14 M. & W. 762, the plaintiff, an auctioneer employed by the defendant to sell some property, had in- curred a liability to pay the auction-duty, and had been compelled to pay it; and the court held that he might recover the amount as money paid to the defendant's use. The reason of that decision ap- pears to us to comprehend the present case. "It is clear," the court says, in its judgment, "that if one requests another to pay money for him to a stranger, with an express or implied undertaking to repay it, the amount, when paid, is a debt due to the party paying, from him at whose request it is paid, and may be recovered on a count for money CHAP. I.] LEWIS V. CAMPBELL. 231 paid ; and it is wholly immaterial whether the money is paid in discharge of a debt due to the stranger, or as a loan or gift to him; on which two latter suppositions the defendant is relieved from no liability by the payment. The request to pay, and the payment according to it, constitute the debt; and whether the request be direct, as where the party is expressly desired by the defendant to pay, or indirect, where he is placed by him under a liability to pay. and does pay, makes no difference. If one asks another, instead of paying money for him, to lend him his acceptance for his accommoda- tion, and the acceptor is obliged to pay it, the amount is money paid for the borrower, although the borrower be no party to the bill, nor in any way liable to the person who ultimately receives the amount. Tile borrower, by requesting the acceptor to assume that character which ultimately obliges him to pay, impliedly requests him to pay; and is as much liable to repay, as he would be on a direct request to pay money for him, with a promise to repay it." The case mainly relied on by the defendant, on the argument of the present case, was that of Spencer v. Parry, 3 Ad. & E. 331 ; 4 X. & M. TTO, where the plaintiff had let a house to the defendant, at a rent of £42, "free and clear of all land-tax and parochial taxes," the de- fendant left the premises without paying the taxes, which the plaintiff, under certain local acts, was compelled to pay : the court held that this money could not be recovered under a count for money paid to the defendant's use; but that the plaintiff ought to have sued on the ex- press agreement to pay £42, clear of land-tax, &c., remaking (with reference to certain cases in which money paid to relieve a defendant from a liability under which he lay to a third person for payment of money, was recovered under the count for money paid) that ^Tiere the plaintiff''s payment relieved the defendant from no liability but what arose from the contract between them; the tax remained due by his default, which would give a remedy on the agreement. but it was paid to one who had no claim upon him, and therefore not to his use." If the Court of Queen's Bench in that case are to be considered as deciding, generally, that an action for money paid would lie in no case where the defendant was not relieved from a liability to a third person, the decision would apply to the present case, but certainly could not be maintained, inasmuch as there are many cases, as observed by the court in the case of Brittain i\ Lloyd, in which the action can be maintained, though the defendant has not been re- lieved from a liability ; i. e. all the cases in which, though no such relief from liability occurs, a re(|uest to pay, and a promise to repay, are expressed or implied. But the Court of Queen's Bench is not, as we understand the case of Spencer v. Parry, to be taken to have decided any such general prop- osition in that case; the remark above eited being intended only 233 LEWIS V. CAMPBELL. [BOOK II, to show that the ground of an inference of a request to pay and a promise to repay, which is afforded by a compulsory payment to a third person, by the plaintiff, of a debt due to that third person by the defendant, as in Exall v. Partridge, 8 T. R. 308, where the plaintiff's goods had been distrained for rent due from the defendants, could not exist in the case of Spencer v. Parry. That case was decided for the defendant, not in the absence of that ground only, but because the court were of opinion that neither that ground nor any other on which an inference of a request to pay and promise to repay, could be sus- tained, was to be found in that case. In that case, the liability of the plaintiff to pay the taxes was not incurred at the request of the defendant, but was antecedent to, and was not affected by, the transaction between the plaintiff and defend- ant ; and the court by no means decided that, if the plaintiff incurs a liability at the request of the defendant, though for a payment to which the defendant was not previously liable, money paid would not lie. In the argument of that case, a case having been referred to, where an action had been defended by the plaintiff at the request of the defendant, in which the plaintiff had been obliged to pay the costs, Patteson, J., observed, that, in that case, the action had been defended at Hemley's (the defendant's) request; adding, if a man pays a debt for another, at his request, no doubt he may recover the amount as money paid. We do not think that the present case is open to the objection, that the defendant, having expressly agreed to indemnify the plaintiff, can be sued only on the special contract, and that no implied contract to support a count for money paid is to be inferred from that agreement ; for, even if it were to be conceded that such a count could not be supported by the evidence of a contract to indemnify, in the terms of the letter of August, 1843, and the payment by the plaintiff, alone, we think there is good ground for such an inference in the present case, where, after tlie special agreement, the plaintiff permitted tlie defendant to defend the action in his name. From such permission, and from the conduct of the defendant in acting upon it, we think an authority to pay on account of the defendant such sum as the plaintiff might be compelled to pay Duke, to relieve himself from a capias ad satisfaciendum, and a promise to repay it, are to be inferred, supposing them not to be included in the special contract to indem- nify. For these reasons, we think the rule must be discharged. Rule discharged.^ >Acfor(l: Emery v. Hobson (1873) 02 IVfe. 578, in which the briefs of counsel (practically exhausting the autliorities) are printed at length. — Ed. CHAP. I.] GREAT NORTHERN RY. CO. V. SWAFFIELD. 233 GREAT NORTHERN RAILWAY COMPANY v. SWAFFIELD. Court of Exchequer, 1874. [Law Reports, 9 Exchequer, 132.] Appeal from the Bedfordshire county court. This was an action brought to recover the sum of £17, paid by the plaintiffs to a livery stable keeper for the keep of the defendant's horse, under the following circumstances: The defendant sent a horse by the plaintiff's railway directed to himself to Sandy. On the arrival of the horse at Sandy Station at night there was no one to meet it, and the plaintiffs, having no ac- commodation at the station, 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 reason- able. On the next day, the defendants came and demanded the horse, and the station-master offered to pay the charges and let the defendant take away the horse ; but the defendant declined and went away with- out the horse, which remained at the livery stable. The plaintiffs afterwards offered to deliver the horse to the defend- ant at Sandy 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. The case was heard (without a jury) before the learned judge of the county court, who gave judgment for the defendant; the plaintiffs appealed. The question stated for the opinion of the court was, wliether the plaintiffs were entitled to recover the whole or any part of the livery charges from the defendant ; and if the court should be of opinion that they were so entitled, judgment was to be entered for them for the amount of the charges, or such part thereof as the court should tliink fit, with such costs as the court should direct.^ Kelly, C. B. We are all clearly of opinion that this judgment must be set aside, and judgment entered for the plaintiffs for £17. It appears that the defendant caused a horse to be sent by the plain- tiffs" railway to Sandy station; but the horse was not directed to be "The defendant had previously brought an action apainst the ]ih\intiff3 for the detention of the horse; the phiint ill's paid money into eourt in respect of tlu' (Utentioii of tlu- horse before the defendant's refnsal to receive him. Tile rause was triid before Bkamwkm,. B.. at t!>e Bedford summer assizes, 1S7;5. and a verdict was found for tlie tlien defendants, the now plaintiflFs. 234 GREAT XORTHERX RY. CO. V. SWAFFIELD. [BOOK II. taken to any particular place. The owner ought to have had some one ready to receive the horse on his arrival and take him away; but no one was there. It does not appear that there was at the station any stable or other accommodation for the horse ; and the question arises, what was it, under those circumstances, the plaintiffs' duty, and con- sequently what was it competent for them to do? I think we need do no more than ask ourselves, as a question of common sense and com- mon understanding, had they any choice? They must either have allowed the horse to stand at the station, — a place where it would have been extremely improper and dangerous to let it remain ; or they must have put it in safe custody, which was what in fact they did in placing it in the care of the livery stable keeper. Presently the defendant's ser- vant comes and demands the horse. He is referred to the livery stable keeper, and it may be (I do not say it is so) that upon what passed on that occasion the defendant might have maintained an action against the plaintiffs for detaining the horse.^ But the next day the defendant comes himself ; the charges now amount to 2s. 6d. ; an altercation takes place about this trumpery sum, and ultimately the station-master offers to pay the charges himself if the defendant will take the horse away; but the defendant refuses, and leaves the horse at the stable. Then a correspondence ensues between the parties, in which the defendant is told that he can have the horse without payment if he sends for it, but he refuses, and says that unless the horse is sent to him with 30s. for expenses and loss of time by to- morrow morning, he will not accept it at all; and he never sends for the horse. Meanwhile the plaintiffs run up a bill of £17 with the livery stable keeper with whom they placed the horse, which they ultimately have to pay; and at last they send the horse to the defendant, who receives it ; and they now sue him for the amount so paid. I am clearly of opinion that the plaintiffs are entitled to recover. My Brother Pollock has referred to a class of cases which is identical with this in principle, where it has been held that a shipowner who, through some accidental circumstance, finds it necessary for the safety of the cargo to incur expenditure, is justified in doing so, and can maintain a claim for reimbursement against the owner of the cargo. That is exactly the present case. The plaintiffs were put into much the same position as the shipowner occupies under the circumstances I have described. They had no choice, unless they would leave the horse at the station or in the high road, to his own danger and the danger of other people, but to place him in the care of a livery stable keeper, and as they are bound by their implied contract with the livery stable keeper to satisfy his charges, a right arises in them against the defendant to be reimbursed those charges which they have incurred for his benefit. *See note on previous page. CHAP. I.] GREAT NORTHERN HY. CO. V. SWAFFIELD. 235 PiGOTT, B. I am of the same opinion. I do not think we have to deal with any question of lien. We have only to see whether the plaintiffs necessarily incurred this expense in consequence of the defendant's conduct in not receiving the horse, and then whether, under these circumstances, the defendant is under an implied obliga- tion to reimburse them. 1 am clearly of opinion that he is. The horse was necessarily put in the stable for a short time before the defendant's man arrived. I give no opinion on what then passed, whether the man was right, or whether the plaintiffs were right ; I think it is not material. On the following day the defendant comes himself ; and the basis of my judgment is, that at that time the station-master offered, rather than the defendant should go away without the horse, to pay the charge out of his own pocket; but the defendant de- clared he would have nothing to do with it, and went away. That I understand to be the substance of what was proved ; and if that be so, it shows to me that there was a leaving of the horse by the defendant in the possession of the carriers, and a refusal to take it. Then what were the carriers to do? They were bound, from ordinary feelings of humanity, to keep the horse safely and feed him ; and that became necessary in consequence of the defendant's own conduct in refusing to receive the animal at the end of the journey according to his con- tract. Then the defendant writes and claims the price of the horse ; and then again, in answer to the plaintiffs' offer to deliver the horse without payment of the charges, he requires delivery at his farm and the payment of 30s. ; in point of fact, he again refuses the horse. Upon the whole, therefore, I come to the conclusion that, whoever was right on the night when the horse arrived, the defendant was wrong when, on the next day, he refused to receive him ; that the expense was rightly incurred by the plaintiffs ; and that there was, under these circumstances, an implied contract by the defendant entitling the plaintiff's to recover the amount from him. Pollock, B. I am of the same opinion. If the case had rested on what took place on the night when the horse arrived, I should have thought the plaintiffs wrong, for this reason, that although a common carrier has by the common law of the realm a lien for the carriage, he has no lien in his capacity as warehouseman ; and it was only for the warehousing or keeping of this horse that the plaintitTs could have made any charge against the defendant. But the matter did not rest there; for it is the reasonable inference from what is stated in the case, that on the next day, when the de- fendant himself came, he could have had the horse without the pay- ment of anything; but he declined to take it, and went away. Then comes the question, first. What was the duty of the plaintiffs, as carriers, with regard to the horse ? and secondly. If they incurred any charges in carrying out that duty, could they recover them in any form of action against the owner of the horse? Now, in my opinion 236 GREAT NOKTHERN RY. CO. V. SWAFFIELD. [BOOK II. it was the duty of the phiintiffs, as carriers, although the transit of the horse was at an end, to take such reasonable care of the horse as a reasonable owner would take of his own goods; and if they had turned him out on the highway, or allowed him to go loose, they would have been in default. Therefore they did what it was their duty to do. Then comes the question, Can they recover any expenses thus incurred against the owner of the horse? As far as I am aware, there is no decided case in English law in which an ordinary carrier of goods by land has been held entitled to recover this sort of charge against the consignee or consignor of goods. But in my opinion he is so entitled. It has been long debated whether a shipowner has such a right, and gradually, partly by custom and partly by some opinions of authority in this country, the right has come to be established. It was clearly held to exist in the case of Notara v. Henderson, L. E. 7 Q. B. 235, at pp. 230-235, where all the authorities on the subject are reviewed with very great care; and that case, with some others, was cited and acted upon by the privy council in the recent case of Cargo ex Argos, L. R. 5 P. C. 13-i. The privy council is not a court whose decisions are binding on us sitting here, but it is a court to whose decisions I should certainly on all occasions give great weight : and their judgment on this point is clearly in accordance with reason and justice. It was there said, L. R. 5 P. C. p. 164 (after referring to the observations of Sir James Mansfield^ C. J., in Christy v. Row, 1 Taunt. 300), "The precise point does not seem to have been subse- quently decided, but several cases have since arisen in which the nature and scope of the duty of the master, as agent of the merchant, have been examined and defined." Then, after citing the cases, the judg- ment proceeds : "It results from them, that not merely is a power given, but a duty is cast on the master, in many cases of accident and emergency, to act for the safety of the cargo in such manner as may be best under the circumstances in which it may be placed ; and that, as a correlative right, he is entitled to charge its owner with the ex- penses properly incurred in so doing." That seems to me to be a sound rule of law. That the duty is imposed upon the carrier, I do not think any one has doubted ; but if there were that duty without the correlative right, it would be a manifest injustice. Therefore, upon the whole of the circumstances, I come to the conclusion that the claim of the company was a proper one, and that the judgment of the learned judge of the county court must be reversed. Ampiilett, B. I am of the same opinion. It appears to me tliat this case, though trumpery in itself, involves important princijiles. I think it is perfectly clear that the railway company, when the horse arrived at the station, and no one was there to receive it, were not only en- titled but were bound to take reasonable care of it. As a matter of common humanity, they could not have left the horse without food during the whole night, and if they had turned it out on to the road CHAP. I.] GREAT XORTIIEKX UY. CO. V. SWAFFIELD. 237 they would not only have been responsible to the owner, but if any accident had happened to the general public, they would have in- curred liability to them. Therefore, as it appears to me, there was nothing that they could reasonably do except that which they did, namely, send it to the livery-stable keeper to be taken care of. Then coiiu's the question discussed by my Brother Pollock, and on which 1 should not dissent from him without great diffidence, whether a lien existed for these charges. As at present advised, I should not wish to be considered as holding that in a case of this sort, the person who, in pursuance of a legal obligation, took care of a horse and ex- pended money upon him, would not be entitled to a lien on the horse for the money so expended. But really the point does not arise: whatever might be the case with regard to it, that question appears to me to be got rid of by what followed; because, even if the company were wrong in claiming payment of the 6d., or whatever the sum might be, on the night when the horse arrived, the whole thing was set right by them on the next day. when the defendant himself came to the station, and the station-master offered to pay the charge in order that the defendant might have the horse. The defendant refused that very reasonable offer; and what, then, was the company to do with the horse? What else should they do but leave it with the livery-stable keeper, where it was being taken care of? At last, after a bill of £17 had been incurred, the horse was sent to the defendant, and the ques- tion is, who is to pay that sum of £17 ? Now, who was in the wrong? Even if the plaintiffs were in the wrong originally, of which I am by no means sure, in not giving up the horse on the night when it arrived, at any rate from the time when that was set right it was the defendant who was in the wrong, and the company who were in the right. It appears to me, therefore, quite clear that the company are entitled to recover the money which they have been obliged to pa}^, and have paid, to the livery stable keeper, and that the judgment of the learned judge of the county court must be reversed, and judgment entered for the plaintiffs. Judgment reversed.^ 'See Soeva r. True (1873) 53 X. H. G27 {ante 75), in which this case is quoted with apjiroval. It will 1)0 noted that this ease wes decided under the intluenee of sujv jiosed admiralty precedent. The English common law would seem to be contra. In a very carefully considered case. British Empire ShipjiinG; Co. r. Somes (1858) E. B. & E. 353, it appeared that a ship was repaired in a dock, and that the owners were not prepared to pay the price. The shipwrights thereujuMi gave notice that they would detain the siii]) and claim £21 a day for the use of the dock (hiring detention. The shipowner finally paid, under protest, the amount claimed, togetlier with the sum claimed, for dock rent. On a suit to recover the sum thus paid, it wa< hold tliat the shipwrights had no lien 238 2' ^ ^^ ^^^^ RHODIA DE JACTU. [BOOK II. (6) SPECIFIC APPLICATIONS OP THE DOCTRINE. DE LEGE RHODIA DE JACTU.^ Justinian, Digest, Lib. 14, Tit. 3, Art. 1, Paulus lihro secundo sententiarum. Lege Rhodia cavetur ut si levandae navis gratia jactus mercium factus est, omnium eontributione sarciatur quod pro omnibus datum est. ^quissimum enim est commune detrimentum fieri eorum qui-, propter amissas res aliorum, consecuti sunt ut merees suas salvas habuerunt.^ for the use of the dock during the detention. In the course of his judgment. Lord Campbell, C. J., said: "It has been held that a coachmaker cannot claim any right of detainer for standage, unless there be an express contract to that effect, or the owner leaves his property on the premises beyond a reasonable time, and after notice has been given him to remove it. Hartley v. Hitchcock, 1 Stark. 408. •'The right of detaining goods on which there is a lien is a remedy to the party aggrieved, which is to be enforced by his own act; and, where such a remedy is permitted, the common law does not seem generally to give him the costs of enforcing it. Although the lord of a manor be entitled to amends for the keep of a horse which he has seized as an estray, Henly v. Walsh, 2 Salk. 686, the distrainor of goods which have been replevied cannot claim any lien upon them. Bradyll v. Ball, 1 Bro. C. C. 427. So, where a horse was distrained to compel an appearance in a hundred court, it was held that, after appearance, the plaintiff could not justify detaining the horse for his keep. Bui. N. P. 45. "If cattle are distrained damage feasant, and impounded in a pound overt, the owner of the cattle must feed them ; if in a pound covert or close, 'the cattle are to be sustained with meat and drink at the peril of him that dis- traineth, and he shall not have any satisfaction therefore. Co. Litt. 47b." On appeal to the Exchequer Chamber this judgment of the Q. B. was af- firmed (E. B. & E. 367), and on further appeal to the House of Lords this august body affirmed the judgment. Somes v. British Empire Co. (1860) 8 H. L. 337.— Ed. 'It is not the intention of the present section to develop in detail the doc- trine of general average, but to show, in a general way, that the duty to con- tribute is an obligation imposed by law, or custom, having the force of law, and as such recognized and enforced as a quasi-contractual duty by appro- priate suit in equity, or by assumpsit in courts of common law. For the various instances of general average, see Ames' Cases on Admiralty, 293, et seq.— Ed. -"The whole law on the subject is founded on the principle that the loss to the individual whose goods are sacrificed for the benefit of the rest is to be compensated according to the loss sustained on the one hand and the bene- fit derived on the other." Bovill, C. J., in Fletcher v. Alexander (1868) L. R. 3 C. P. 375, 382. In other words: "Nemo debet locupletari alienu jactura." — Ed. CHAP. I.] BIRKLEY AND OTHERS V. PRESGRAVE. 339 HICKS V. PALINGTON. Court of Kequests, Easter Term, 1590. [Moore, 297.] I WAS of counsel for one John Hicks, plaintiff, against Palington and Others, defendants, merchants of Bristol ; and the complaint was for average of a ship despoiled of certain goods shipped from Bristol to Galicia in Spain. And Doctor Dale, Master of the Requests, said that by the civil law average is not due, unless the goods are lost in such manner that the rest of the goods in the ship are thereby saved ; as, if goods of one of the merchants are cast into the sea navis levandi causa, then the other merchants shall pay average, for the other goods are saved thereby.^ So if a part of the goods be given to a pirate by way of composition to save the rest; but not if a pirate seized a part by force, in that case there shall be no average paid.^ Still it was decreed for me, because the merchants had agreed to pay average after the ship was robbed. BIRKLEY AND OTHERS v. PRESGRAVE. King's Bench, 1801. [1 East, 220.] The plaintiffs were owners of the ship Argo, and the defendant was the owner of a cargo of wheat on board the said ship — on a voyage from Wisbeach to Sunderland. As the ship was entering the harbor it was necessary to sacrifice certain of the ship's tackle, valued at £20, in order to save vessel and cargo. It likewise appeared that the vessel sustained damage to the value of £50. In the first count the plaintiff set out the facts specially as above and the declaration contained count in indebitatus assumpsit for money due and payable for a general average; the other, for money paid, laid out and expended, with the common breach to the whole. The defendant pleaded non assumpsit. On trial, the Jury found a verdict of £19 12s. and on judgment entered for that amount an appeal was taken. 'Accord: Whitefield r. Garrade (lo40) 1 Sel. PI. in Ad. (Seld. Soc'y) 95; Price V. Noble (1811) 4 Taunt. 123; Johnson v. Chapman (1865) 19 C. B. (N. S.) 563; Fletcher v. Alexander (1868) L. R. 3 C. P. 375, 381; The St. Joseph (1855) 6 McLean, 573.— Ed. "Nesbitt V. Lushington (1792) 4 T. R. 783.— Ed. 240 BIEKLEY AND OTHERS V. PRESGRAVE. [BOOK II. The question for the opinion of the court was, whether an action can be maintained for the loss, damage, and expenses above mentioned?^ Lord Kexyon, C. J. If the hiw confer a right, it will also confer a remedy. When once the existence of the right is established, the Court will adopt a suitable remedy, except under particular circum- stances where there are no legal grounds to proceed upon. Here the only difficulty pretended is the ascertainment of the proportion to be paid of the general loss in each particular case; and since it is admitted, that this may be ascertained in equity, there seems to be no reason why if it can be ascertained without recourse to equity, an action should not lie to recover it at law. But it is objected, that this will lead to a multiplicity of actions. The same difficulty, however, must occur in equity.^ Upon the whole, this action, the grounds and nature of which are fully set out in tlie special count, is founded in the common principles of justice. A loss is incurred, which the law directs shall be borne by certain persons in their several proportions: where a loss is to be repaired in damages, where else can they be recovered but in the courts of common law; and wherever the law gives a right generally to demand payment of another, it raises an implied promise in that person to pay. With respect to the other question, all ordinary losses and damage sustained by the ship hap- pening imijiediately from the storm or perils of the sea must be borne by the ship owners. But all those articles which were made use of by the master and crew upon the particular emergency, and out of the usual course, for the benefit of the whole concern, and the other expenses incurred, must be paid proportionably by the defendant as general average. The rule of consulting the crew upon the expediency of such sacrifices is rather founded in prudence in order to avoid dis- pute, than in necessity; it may often happen that the danger is too urgent to admit of any such deliberation. Here however there can be no difficulty, for it is found in fact that the cutting of the cable which belonged to the ship was done for the benefit of the cargo as well as the ship. Grose, J. This action is brought to recover a ratable proportion of a certain loss and damage, and expenses which have been incurred ])y the plaintiffs as ship owners in preventing the owner of the cargo from incurring a loss. That such an action is maintainable I have no doubt. If there be not many instances of the sort to be found, it is probably because the demand has been submitted to without controversy: for I understand that this sort of damage has been con- tinually settled as general average in the city of London. Where there is a right, there must be a remedy; and there can be no other remedy 'This statement, much abridged aad modified, is substituted for that of the original report, and the arguments of counsel are omitted — Ed. "His Lordship's discussion of this question is omitted. — Ed. CHAP. I.] SIMONDS AND LODER V. WHITE. 241 than by action to recover damages. It is true, where there are many owners of the cargo there may be as many actions brought, but that arises from the necessity of the thing; and I should still say, that they are all liable to answer for their respective proportions. Lawrence, J. All loss which arises in consequence of extraordi- nary sacrifices made or expenses incurred for the preservation of the ship and cargo come within general average, and must be borne pro- portionably by all who are interested. Natural justice requires this. Then the only argument against this species of remedy is resolvable into this, that the plaintiff chooses to take a ditliculty upon himself in proving the amount of a defendant's interest in the cargo in order to ascertain the proportion which he is bound to pay, instead of having recourse to a court of equity, where he can obtain proof of it more easily, and thereby facilitate his remedy. But that objection does not prove that a plaintiff cannot recover in an action whenever he can make out his case without having recourse to the assistance of a court of equity. Le Blanc, J. Unless it be shewn by authority that the action does not lie, we must presume that it does, upon the common principle of justice, that where the law gives a right it also gives a remedy. Postea to the Plaintiffs.^ SIMONDS AND LODER v. WHITE. King's Bench, 1824. [2 Barneivall and Cresswell, 805.] Assumpsit for £106 3s. Gd., as money paid by the plaintiffs to the use of the defendant. Abbott C. J. now delivered the judgment of the Court. The ques- tion in this case is, whether the plaintiffs, the proprietors of certain goods carried on board the defendant's ship from Gibraltar to Peters- burgh, and who were compelled at Petersburgh to pay to the defend- 'See Marsham v. Dutrey. Select Cas. of Evid. 58 S. P. ; Ma8G ; Ward v. Henry, 5 Conn. 5n5; Wood r. Perry, 9 Iowa, 479; Morrison r. Poyntz. 7 Dana, .307: Chaffee r. Jones, 19 Pick. 260; Vliet v. WyckoflF, 42 X. J. Eq. 044; Sherrod v. Woodard, 4 Dev. 360; Parham v. Green, 64 N. Ca. 436; Bright r. Lennon, 83 N. Ca. 133; Cage V. Foster, 5 Verg. 261 (principal being insolvent) ; Foster r. Johnson, 5 Vt. 60; Mason v. Pierson, 69 Wis. 585, Accord. "Williams v. Williams, 5 Oh. 444; Carpenter v. Kelley. 9 Oh. lOG; Neil- son V. Fry, 16 Oh. St. 552, contra." And see, also, Pitt v. Purssord (1841) S M. & W. 538; Kemp r. Finden ( 1844) 12 M. & W. 421 ; Gospel v. Swinden ( 1844) 1 Dow & L. 888 : Reynolds v. Wheeler (1801) 10 C. B. (N. S.) 501; Thayer v. Daniels (1872) 110 Mass. 345.— Ed. 266 BATARD V. HAWES. [BOOK 11. request of such co-contractor; and, on being obliged to pay such share, a request to pay it is implied as against the party who ought to have paid it, and who is relieved from paying what, as between himself and the party who pays, he ought himself to have paid accord- ing to the original arrangement. If the original arrangement was in- consistent with the fact that each was to pay his share, no action for such contribution could be maintained. Thus, if, by arrangement between ourselves, one of the joint contractors, though liable to the creditor, was not to be liable to pay any portion of the debt, it is clear that no action could be maintained against him; though, if the relief from the legal liability were alone looked to, it would follow that he was liable to contribute. So, where one surety enters into an engagement of suretyship at the request of his co-surety, it has been held that the co-surety, paying the whole, can maintain no action. Turner v. Davies. Our opinion is in conformity with the cases in which it has been held that a co-surety is not liable at law to a greater extent than his share, with reference to the original number of sureties, notwithstand- ing the insolvency of one or more of the co-contractors ; and also agrees with the rule laid down by Mr. Justice Bayley, in Browne v. Lee, 6 B. & C. 697, where he says : "I think that at law one of three co- sureties can only recover against any one of the others an aliquot pro- portion of the money paid, regard being had to the number of sureties" It was urged before us, by Mr. Bramwell, that if there were an implied original arrangement between the co-contractors, an action ought to be maintainable on such promise against the executors of a deceased co-contractor; and he said that there being no instance of such an action went strongly to show that there was no such orig- inal engagement. It might be said, on the other hand, that there is no instance in the books of the party who has paid recovering more than an aliquot proportion with reference to the original number of co-contractors, by reason of the death of one or more of them. But it is a more satisfactory answer, that there is very strong authority for holding that such an action will lie against executors. In Ashby v. Ashby, 7 B. & C. 444, those very learned judges Mr. Justice Bayley and Mr. Justice Littledale rely on such an action lying against executors as the ground of their judgments on the point directly before them. Mr. Justice Bayley says (7 B. & C. 449) : "To put a plain case, suppose two persons are jointly bound as sureties, one dies, the survivor is sued and is obliged to pay the whole debt. If the deceased had been living, the survivor might have sued him for contribution in an action for money paid, and I think he is entitled to sue the executor of the deceased for money paid to his use as executor." And "Mr. Justice Littledale says (7 B. & C. 451) : "Suppose that a plaintiff had bocomo bound jointly with a testator, and after bis drath had p;iid tlic wliftlc debt; T shoiilil tliink that CHAP. I.] BATARD V. IIAWES. 2^7 an action against the executor for money paid to his use might be supported, and that the plaintiff would be entitled to judgment de bonis testaloris." See also 2 Williams on Executors, 1st edit. 1088.^ Such an action against executors can only be supported on the ground of the existence of such an implied original engagement as we have adverted to, which, being made in the testator's time, would bind the executors; and such an engagement, if implied, would form a good legal ground for supporting the action of money paid. We were pressed also with the dictum of Lord Eldon in Cray- thorne v. Swinburne, referred to by Parke, B., in Kemp v. Finden, 12 M. & W. 421, 424, and in Davies v. Humphreys, as to the action of contribution being founded rather upon a principle of equity than upon contract. The expressions of Lord Eldon, however, will be found to relate rather to the origin of the implied contract than to the time at which it is to be taken to be made. He says : "And I think that right is properly enough stated as depending rather upon a principle of equity than upon contract ; unless in this sense : that, the principle of equity being in its operation established, a contract may be inferred upon the implied knowledge of that principle by all persons, and it must be upon such a ground of implied assumpsit, that in modern times courts of law have assumed a jurisdiction upon this subject." This passage must be taken to admit the existence of an implied contract, and does not appear to us to be inconsistent with, or to outweigh, the clear expression of the opinion of the judges in Ashby V. Ashby, 7 B. & C. 444. Several inconveniences and difficulties were pointed out on both sides, in the course of the argument, as likely to arise from the adoption of each of the rules contended for; but we think that the rules suggested by the defendant's counsel will be found much more simple, and less liable to the inconveniences pointed out, than that contended for on behalf of the plaintiff. After entertaining considerable doubt on the subject, we have come to the conclusion that the rule most in conformity with the authori- ties, the principles of law and the convenience of the case, is to look to the number of original co-contractors for the purpose of determin- ing the aliquot part which each contributor is to pay. And, the defendant in the present case having paid into court a sum sufficient to cover the amount d\ie in proportion to the number of the original contractors, the rule for entering the verdict for the defendant must be made absolute.- ■Vol. II. p. 1509, in 4th edition. '"The first judicial intimation tliat a surety niih and American cases are collected and classified. It niav be of interest to note that the Roman as well a^ the coniiiton law permitted the recovery of funeral expenses by the pratorian actio funeraria ill bonum ct (rquum concciita (Girard. Manuel de Droit Romain (3d ed.) 621-622 and note). Therefore in the leading case of Jenkins r. Tucker (1788) 1 II. Black. 90, referred to in princi]ial case. Lord LorGiiBOKorGii, C. J., trained as he was in Scotch, i. e., civil law, had no diiVu-ulty in supportinpr the action. — Ed. 296 CALVERT V. ALDRICH. [bOOK II. liouse from destruction by fire, the law considers tlie service rendered as gratuitous, and it, tlierefore, forms no ground of action. The judg- ment must be reversed.^ Judgment reversed. CALVEET V. ALDRICH. Supreme Judicial Court of Massachusetts^ 1868. [99 Massachusetts, 74.] The defendant filed a declaration in set-off on an account annexed for two-fifths of the cost of repairs of a machine shop in Lowell : and the only c|uestion in dispute was the liability of the plaintiff for any portion of such cost. Foster, J. The issue in this action is on an account of one cotenant in common against another to recover from the defendant in set-off part of the cost of certain needful repairs made by the plaintiff in set-off upon the common property. It is not founded upon any con- tract between the parties, but upon a supposed legal obligation which, if its existence were established, the law would imply a promise to fulfil. The doctrine of the common law on this subject is stated by Lord Coke as follows: "If two tenants in common or joint tenants be of an house or mill, and it fall in decay, and the one is willing to repair the same, and the other will not, he that is willing shall have a writ de reparatione facienda, and the writ saith ad reparafionem ct sus- tentationem ejusdem domus teneantur, whereby it appeareth that owners are in that case bound pro bono publico to maintain houses and mills which are for habitation and use of men." Co. Lit. 2000 /; ; ^"Tlie case of Bartholomew v. Jackson, 20 John. 28, is one, like perhaps hundreds which may be found in the books. ... In that case it was held, that labor voluntarily performed by the plaintiff for the defendant, without his privity or request, however meritorious and beneficial it may be to the defendant, as in saving his property from destruction by fire, affords no ,1,'round of action. A claim for compensation or damages, in the shape of interest, for money applied to the benefit of another, without his privity or request, must rest on the same foundation with any other service. The benefit received is not the test. It must be requested or agreed to be re- ceived. Every man is permitted to regulate his own affairs in his own way; and he is the best judge when and where he will liave services performed or money advanced for him. There is no equity in making him pay for the use of money, although employed for his benefit, without his request." Per Spencer, Senator, in Renss. Glass Factory v. Eeid (1825) 5 Cow. 587, 620. Accord: Merritt v. Am. Dock Co. (1891) 13 N. Y. Supp. 234; Railroad v. Turcan (1894) 4G La. Ann. 155.— Ed. CHAP. I.] CALVERT V. ALDRICII. 297 lb. 54 h. And in another place he says: "If there be two joint tenants of a wood or arable land, the one has no remedy against the other to make inclosure or reparations for safeguard of the wood or corn/' but if there be two joint tenants of a house, the one shall have his writ de reparatione faciendd against the other. This is said to be because of "the preeminence and privilege which the law gives to houses wliich are for men's habitation." Bowles's case, 11 Co. 82. In Carver v. Miller, 4 Mass. 561, it was doubted by Chief Justice Parsons whether these maxims of the common law, as applied to mills, are in force here, especially since the provincial statute of 7 Anne, c. 1, revised by St. 1795, c. 74. In Loring v. Bacon, 4 Mass. 575, the plaintiff was seised in fee of a room and the cellar under it, and the defendant of the chamber over- head and of the remainder of the house ; the roof was out of repair ; the defendant, being seasonably requested, refused to join in repairing it; and thereupon the plaintiff made the necessary repairs, and brought assumpsit to recover from the defendant his proportion of their cost. This, it will be observed, was not a case of tenancy in common, but of distinct dwelling-houses, one over the other. Chief Justice Parsons said : "If there is a legal obligation to contribute to these repairs, the law will imply a promise. We have no statute nor any usage on the subject, and must apply to the common law to guide us." "L'pon a very full research into the principles and maxims of the common law, we cannot find that any remedy is provided for the plaintiff." It was not absolutely decided that an action on the case would not lie, but the intimations of the court on the subject were such that no further attempt appears to have been made. The rela- tions between tenants in common were not actually involved in this case, and the remarks touching the writ de reparatione were only inci- dental and by way of illustration. Doane v. Badger, 12 Mass. 65, was an action on the case. The plaintiff had a right to use a well and pump on the defendant's land ; and the defendant had removed the pump and built over the well, thereby depriving the plaintiff' of the use of the water. The judge before whom the case was tried had instructed the jury that the defendant, by the terms of a deed under which he claimed, was bound to keep the well and pump in repair, although they were out of repair when he purchased, and, without any previous notice or request, was liable in damages for the injury the plaintiff had sustained by his neglect to make repairs. The court held that no such evidence was admissible under the declaration, the cause of action stated being a misfeasance, and the proof offered being of a nonfeasance only; also, that a notice and request were indispensa1)le before any action could be maintained. Mr. Justice Jackson in delivering the opinion made some general observations, unnecessary to the decision of the cause, the correctness of which requires a particular examination. He 298 CALVERT V. ALDRICir. [BOOK II. said that the action on the case seems to be a substitute for the old writ de reparatione facienda between tenants in common, and could not be brought until after a request and refusal to Join in making the repairs. He added : "From the form of the writ in the register, it seems that the plaintiff, before bringing the action, had repaired the house, and was to recover the defendant's proportion of the expense of those repairs. The writ concludes, 'in ipsius dispendium non modicum et grava- men/ It is clear that until he have made the repairs he cannot in any form of action recover anything more than for his loss as of rent, &c., while the house remains in decay. For if he should recover the sum necessary to make the repairs, there would be no certainty that he would apply the money for that purpose." Mumford v. Brown, 6 Cowen, 475, a per curiam opinion of the supreme court of Xew York, and Coffin v. Heath, C Met. 80, both contain ohiter dicta to the same effect, apparently founded upon Doane v. Badger, without further research into the ancient law. If it were true that the writ de reparatione was brought by one cotenant, after he had made repairs, to recover of his cotenant a due proportion of the expense thereof, there would certainly be much reason for holding an action on the case to be a modern substitute for the obsolete writ de reparatione. But all the Latin forms of the writ in the Eegister, 153, show that it was brought before the repairs were made, to compel them to be made under the order of court. Indeed, this is implied in the very style by which the writ is entitled, de reparatione facienda, viz. : of repairs to be made; the future participle facienda being incapable of any other meaning. This also appears in Fitzherbert, N. B. 127, where the writ between cotenants of a mill is translated; the words, in ipsius dispendium non modicum et gravamen (quoted by Judge Jack- sox), being correctly rendered, "to the great damage and grievance of him," the said plaintiff. Fitzherbert says: "The writ lieth in divers cases; one is, where there are three tenants in common or joint or pro indiviso of a mill or a house, &c., which falls to decay, and one will repair but the other will not repair the same; he shall have this writ against them." In the case of a ruinous house which en- dangers the plaintiff's adjoining house, and in that of a bridge over which the plaintiff has a passage, which the defendant ought to repair, but which he suffers to fall to decay, the words of the precept are, "Command A. that," &c., 'Tie, together with B. and C, his partners, cause to he repaired." The cases in the Year Books referred to in the margin of Fitzherbert confirm the construction which we regard as the only one of which the forms in that author are susceptible, namely, that the writ de reparatione was a process to compel repairs ta be made under the order of court. There is nothing in them to indicate tliat an action for damages is maintainal)le by one tenant in common against another because the defendant will not join with the plaintiff in repairing the common property. In a note to the form in the CHAP. I.] CALVERT V. ALDRICII. 299 case of a bridge, it is said in Fitzherbert: "In this writ the party recovers his damages, and it shall be awarded that the defendant repair, and that he l)e distrained to do it. So in this writ he shall have the view contra, if it be but an action on the case for not repair- ing, for there he shall recover but damages." There is no doubt that an action on the case is maintainable to recover damages in cases where the defendant is alone bound to make repairs for the benefit of the plaintiff without contribution on the part of the latter, and has neglected and refused to do so. See Tenant v. Goldwin, 6 Mod. 311; S. C. 2 Ld. Eaym. 1089; 1 Salk. 21, 360. The difficulty in the way of awarding damages in favor of one tenant in common against his cotenant for neglecting to repair is, that both parties are equally bound to make the repairs, and neither is more in default than the other for a failure to do so. Upon a review of all the authorities, we can find no instance in England or this country in which, between cotenants, an action at law of any kind has been sustained, either for contribution or damages, after one has made needful repairs in which the other refused to join. We are satisfied that the law was correctly stated in Converse v. Ferre, 11 Mass. 325, by Chief Justice Parker, who said : "At common law no action lies by one tenant in common, who has expended more than his share in repairing the common property, against the deficient tenants, and for this reason our legislature has provided a remedy applicable to mills." The writ de reparatione facienda brought before the court the question of the reasonableness of the repairs proposed, before the expenditures were incurred. It seems to have been seldom resorted to; perhaps because a division of the common estate would usually be obtained where the owners were unable to agree as to the necessity or expediency of repairs. Between tenants in common, par- tition is the natural and usually the adequate remedy in every case of controversy. This is the probable explanation of the few authori- ties in the books, and of the obscurity in which we have found the whole subject involved. But if we have fallen into any error in our examination of the original doctrines of the common law of England. it is at least safe to conclude that no action between tenants in common for neglecting or refusing to repair the common property, or to recover contribution for repairs made thereon by one without the consent of the other, has been adopted among the common law rem- edies in Massachusetts. This result is in accordance with the rulings at the trial. Exceptions overruled} 'Accord: Leigh v. Dickinson (1884) L. R. 15 Q. B. Div. 60, holding that while no recovery could be had in a common-law action, an allowance would be made in partition in chancery for improvements. Thompson v. Newton (1884) 2 Pa. County Reports, 36-2. holding that one tenant in common can- not sue another in debt or assumpsit for work and labor in the management 300 BOSTON ICE COMPANY V. POTTER. [BOOK II. BOSTON ICE COMPANY v. POTTER. Supreme Judicial Court op Massachusetts, 1877. [133 Massachusetts Reports, 28.] Contract on an account annexed, for ice sold and delivered between April 1, 1874, and April 1, 1875. Answer, a general denial. At the trial in the Superior Court, before Wilkinson, J., without a jury, the plaintiff offered evidence tending to show the delivery of the ice, and its acceptance and use by the defendant from April 1, 1874, to April 1, 1875, and that the price claimed in the declaration was the market price. It appeared that the ice was delivered and used at the defendant's residence in Boston, and the amount left daily was regu- lated by the orders received there from the defendant's servants; that the defendant, in 1873, was supplied with ice by the plaintiff, but, on account of some dissatisfaction with the manner of supply, terminated his contract with it ; that the defendant then made a contract with the Citizens' Ice Company to furnish him with ice; that some time before April, 1874, the Citizens' Ice Company sold its business to the plain- tiff, with the privilege of supplying ice to its customers. There was some evidence tending to show that the plaintiff gave notice of this change of business to the defendant, and informed him of its in- tended supply of ice to him ; but this was contradicted on the part of the defendant. The judge found that the defendant received no notice from the plaintiff until after all the ice had been delivered by it, and that there was no contract of sale between the parties to this action except what was to be implied from the delivery of the ice by the plaintiff to the defendant and its use by him; and ruled that the defendant had a right to assume that the ice in question was delivered by the Citizens' of tlie common property, in the absence of evidence of a contract between them: see also Taylor v. Baldwin (1851) 10 Barb. G26 ; Chapin v. Smith (1884) 52 Conn. 260; Bazemore v. Davis (1875) 55 Ga. 504, 519; Williams v. Coombs (1896) 88 Me. 183; Woolever v. Knapp (1854) 18 Barb. 265; Kill- mer v. Wuehner (1890) 79 la. 722. But compare Fuselier v. Lacour (1848) 3 La. Ann. 162; Smith v. Wilson (1855) 10 La. Ann. 255. A tenant in common could not sue his co-tenant at common law who has received more than his share of the profits. Thomas v. Thomas (1850) 5 Ex. 28; Henderson v. Eason (1851) 17 Q. B. 701; Norris v. Gould (1884) 17 Pliila. 318; but in the United States recovery is usually permitted by statutes. See 1 Stimson, Am. St. Law. § 1378. And see, on the relation of tenants in common in respect of improvements and lial)ility for use and occupation. Gage v. Gage (1890) 66 N. H. 282, where the authorities are elaborately cited and discussed. — Ed. CHAP. I.] BOSTON ICE COMPANY V. POTTER. 301 Ice Compan}', and that the plaintiff could not maintain this action. The plaintiff alleged exceptions. Endicott^ J. To entitle the plaintiff to recover, it must show some contract with the defendant. There was no express contract, and upon the facts stated no contract is to be implied. The defendant had taken ice from the plaintiff in 1873, but, on account of some dissatisfaction with the manner of supply, ho terminated his contract, and made a contract for his supply with the Citizens' Ice Company. The plaintiff afterward delivered ice to the defendant for one year without notifying the defendant, as the presiding judge has found, that it had bought out the business of the Citizens' Ice Company, until after the delivery and comsumption of the ice. The presiding judge has decided that the defendant had a right to assume that the ice in question was delivered by the Citizens' Ice Company, and has thereby necessarily found that the defendant's contract with that company covered the time of the delivery of the ice. There was no privity of contract established between the plaintiff and defendant, and without such privity the possession and use of the property will not support an implied assumpsit. Hills r. Snell, 104 Mass. 173, 177. And no presumption of assent can be implied from the reception and use of the ice, because the defendant had no knowl- edge that it was furnished by the plaintiff, but supposed that he re- ceived it under the contract made with the Citizens' Ice Company. Of this change he was entitled to be informed. A party has a right to select and determine with whom he will con- tract, and cannot have another person thrust upon him without his consent. It may be of importance to him who performs the contract, as when he contracts with another to paint a picture, or write a book, or furnish articles of a particular kind, or when he relies upon the character or qualities of an individual, or has, as in this case, reasons why he does not wish to deal with a particular party. In all these cases, as he may contract with whom he pleases, the sufficiency of his reasons for so doing cannot be inquired into. If the defendant, before receiving the ice, or during its delivery, had received notice of the change, and that the Citizens' Ice Company could no longer perform its contract with him, it would then have been his undoubted right to have rescinded the contract and to decline to have it executed by the plaintiff. But this he was unable to do, because the ]ilaintiff failed to inform him of that which he had a right to know. Orcutt /-. Xelson, 1 Grav, 536, 542 ; Winchester v. Howard, 97 Mass. 303 ; Hardman v. Booth, 1 H. & C. 803; Humble v. Hunter, 12 Q. B. 310; Eobson v. Drummond, 2 B. & Ad. 303. If he had received notice and continued to take the ice as delivered, a contract would be implied, kludge v. Oliver, 1 Allen, 74 ; Orcutt v. Nelson, 1 Gray, 536, 542 ; Mitchell v. Lapage, Holt X. T. 253. 302 BOSTON ICE COMrAXY V. POTTER. [BOOK II. There are t\A'o English cases very similar to the case at bar. In Schmaling v. Thomlinson, 6 Taunt. 147, a iirm was employed by the defendants to transport goods to a foreign market, and transferred the entire employment to the plaintiff, who performed it without the privity of the defendants, and it was held that he could not recover compensation for his services from the defendants. The case of Boulton v. Jones, 2 H. & N. 564 was cited by both parties at the argument. There the defendant, who had been in the habit of dealing with one Brocklehurst, sent a written order to him for goods. The plaintiff, who had on the same day bought out the business of Brocklehurst, executed the order without giving the defendant notice that the goods were supplied by him and not by Brocklehurst. And it was held that the plaintiff could not maintain an action for the price of the goods against the defendant. It is said in that case that the defendant had a right of set-ofE against Brocklehurst,- with whom he had a running account, and that is alluded to in the opinion of Baron Bramwell, though the other judges do not mention it.^ The fact that a defendant in a particular case has a claim in set- off against the original contracting party shows clearly the injustice of forcing another person upon him to execute the contract without his consent, against whom his set-off would not be available. But the actual existence of the claim in set-off cannot be a test to determine that there is no implied assumpsit or privity between the parties. Nor can the non-existence of a set-off raise an implied assumpsit. If there is such a set-off, it is sufficient to state that, as a reason why the de- fendant should prevail; but it by no means follows that because it does not exist the plaintiff can maintain his action. The right to maintain an action can never depend upon whether the defendant has or has not a defence to it. The implied assumpsit arises upon the dealings between the parties to the action, and cannot arise upon the dealings between the defend- ant and the original contractor, to which the plaintiff was not a party. At the same time, the fact that the right of set-off against the original contractor could not, under any circumstances, be availed of in an action brought upon the contract by the person to whom it was trans- ferred and who executed it, shows that there is no privity between the parties in regard to the subject-matter of this action. It is, therefore, immaterial that the defendant had no claim in set-off against the Citizens' Ice Company. ^Acc'ordinj; to Mudfje v. Oliver (1861) 1 Allen, 74, it would seem, that a count for poods sold and delivered would have lain against the purchaser if the goods liad been in existence at the time. The retention of the goods under tliese circumstances would have waived the defence arising from the lack of request. — Ed. CHAP. I.] UNITED STATES V. PACIFIC RAILROAD. 303 We are not called upon to determine what other remedy the plain- tiff has, or what would be the rights of the parties of the ice were not in existence.^ Exceptions overruled. UNITED STATES v. PACIFIC RAILROAD. PACIFIC RAIL- ROAD V. UNITED STATES. Supreme Court of the United States, 1887. [120 United States Reports, 227.] These were appeals from the Court of Claims. The case is stated in the opinion of the court. Mr. Justice Field delivered the opinion of the court. The Pacific Railroad Company, the claimant in this case, is a cor- poration created under the laws of Missouri, and is frequently desig- nated as the Pacific Railroad of that State, to distinguish it from the Central Pacific Railroad Company incorporated under the laws of California, and the Union Pacific Railroad Company incorporated under an act of Congress, each of which is sometimes referred to as the Pacific Railroad Company. From the 14th of August, 1867, to the 22d of July, 1872, it rendered services by the transportation of passengers and freight, for which the United States are indebted to it in the sum of $136,196.98, unless they are entitled to offset the cost of labor and materials alleged to have been furnished by them, at its request, for the construction of certain bridges on the line of its road. The extent and value of the services rendered are not disputed. It is only the offset or charge for the bridges which is in controversy ; and that charge arose in this wise : During the civil war, the State of Missouri was the theatre of active military operations. It was on several occasions invaded by Con- federate forces, and between them and the soldiers of the Union con- flicts were frequent and sanguinary. The people of the State were divided in their allegiance, and the country was ravaged by guerilla bands. The railroads of the State, as a matter of course, were dam- aged by the contending forces ; as each deemed the destruction of that means of transportation necessary to defeat or embarrass the move- ments of the other. In October 1864, Sterling Price, a noted Confed- erate officer, at the head of a large force, invaded the State and ad- vanced rapidly toward St. Louis, approaching to within a few days' march of the city. During this invasion, thirteen bridges upon the main line and southwestern branch of the company's road were de- >Accord: Pittsburgh Plate Glass Co. v. Macdonald (1903) 182 Mass. 593, 595.— Ed. 30-i UXITED STATES V. PACiriC RAILROAD. [BOOK II. stroyed. General Eosccrans was in command of the Federal forces in the State, and some of the bridges were destroyed by his orders, as a military necessit}', to prevent the advance of the enemy. The record does not state by whom the others were destroyed ; but their destruction having taken place during the invasion, it seems to have been taken for granted that it was caused by the Confederate forces, and this con- clusion was evidently correct. All the bridges except four were rebuilt by the company. These four were rebuilt by the government, and it is their cost which the government seeks to offset against the demand, of the company. Two of the four (one over the Osage River and one over the Moreau River) were destroyed by order of the commander of the Federal forces. The other two, which were over the Maramec River, it is presumed, were destroyed by the Confederate forces.^ The cost of the four bridges rebuilt by the government amounted to $: 81,5-1:8.89. The question presented is, whether the company is chargeable with their cost, assuming that there was no promise on its part, express or implied, to pay for them. That there was no express promise is clear. The representations and assurances at the con- ference called by General Rosecrans to urge the rebuilding of the bridges were not intended or understood to constitute any contract : and it is so found, as above stated, by the court below. They were re- built by the government as a military necessity to enable the Federal forces to carry on military operations, and not on any request of or contract with the company. As to the two bridges destroyed by the Federal forces, some of the officers of the company at that conference insisted that they should be rebuilt by the government without charge to the company, and, though they appeared to consider that those de- • stroyed by the enemy should be rebuilt by the company, there was no action of the board of directors on the subject. What was said by them was merely an expression of their individual opinions, which were not even communicated to the board. Nor can any such promise be im- plied from the letter of the president of the company to the Quarter- master General in November, subsequent to the destruction of the bridges, informing him that the delay of the War Department in re- building them had prompted the company to "unusual resources" ; that it was constructing the bridges over the Gasconade and the IMoreau Rivers, and that the only bridge on the main line to be replaced by the government was the one over the Osage River, the company having re- placed all the smaller, and was then replacing all the larger ones. The letter only imparts information as to the work done and to be (lone in rebuilding the bridges on the main line. It contains no ])romise, as the court below seems to have thought, that, if the govern- ment would rebuild the bridge over the Osage River, it should be re- 'iStatcmoiit of iioj,'(il in lions botwccn General Rosecrans and the oilicials of the railroad coiiipany omitted. — Ed. CHAP. I.] UNITED STATES V. PACIFIC RAILROAD. 305 imbursed for any other it ini<(lit rebuild on the main line of the com- pany. Nor do we think that any promise can be implied from the fact that the comj)any resumed the management and operation of the rqad after the bridges were rebuilt; but on that point we will speak hereafter. Assuming, for the present, that there was no such impli- cation, we are clear that no obligation rests upon the company to pay for work done, not at its request or for its benefit, but solely to enable the government to carry on its military operations. While the government cannot be charged for injuries to, or de- striTction of, private property caused by military operations of armies in the field, or measures taken for their safety and efficiency,^ the converse of the doctrine is equally true, that private parties can- not be charged for works constructed on their lands by the govern- ment to further the operations of its armies. Military necessity will justify the destruction of property, but will not compel jjrivate parties to erect on their own lands works needed by the government, or to pay for such works when erected by the government. The cost of build- ing and re])airing roads and bridges to facilitate the movements of troops, or the transportation of supplies and munitions of war, must, therefore, be borne by the government. It is true that in some instances the works thus constructed may, afterwards, be used by the owner; a house built for a barrack, or for the storage of supplies, or for a temporary fortification, might be con- verted to some purposes afterwards by the owner of the land, but that circumstance would impose no liability upon him. Whenever a struc- ture is permanently affixed to real property belonging to an individual, without his consent or request, he cannot be held responsible because of its subsequent use. It becomes his by being annexed to the soil; and he is not obliged to remove it to escape liability. lie is not deemed to have accepted it so as to incur an obligation to pay for it, merely because he has not chosen to tear it down, but has seen fit to use it. Zottman v. San Francisco, 20 Cal. 96, 107. Where structures are placed on the property of another, or repairs are made to them, he is supposed to have the right to determine the manner, form, and time in which the structures shall be built, or the repairs made, and the materials to be used ; but upon none of these matters was the company consulted in the case before us. The government regarded the interests only of the army ; the needs or wishes of the company were not consid- ered. No liability, therefore, could be fastened upon it for work thus done. We do not find any adjudged cases on this particular point. — whether the government can claim compensation for structures erected on land of private parties, or annexed to their property, not by their request, but as a matter of military necessity, to enable its armies to 'So much of the opinion as relates to this question has been omitted. — Ed. 306 CAIIILL V. HALL. [BOOK II. prosecute their movements with greater efficiency ; and we are unable to recall an instance where such a claim has been advanced. It follows from these views, that the government can make no charge against the railroad company for the four bridges constructed by it from military necessity. The court will leave the parties where the war and the military operations of the government left them. The judgment of the Court of Claims must, therefore, he reversed, and judgment be entered for the full amount claimed by the rail- road company for its services; and it is so ordered. CAHILL V. HALL. . Supreme Judicial Court of Massachusetts, 1894. [161 Massachusetts, 513.] Contract, for the board and expense of shoeing a horse. Writ dated March 15, 1892. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on agreed facts, in sub- stance as folloVs: In 1886 the defendant, who was the owner of a mare called May- flower, said to her son, "You take Mayflower and keep her until I call for her." Her son thereupon took possession of the mare, and kept it until its death in 1889, and paid the expense of keeping it. In 1888 the defendant's son, without her knowledge, raised a colt from the mare, and in 1890, without her knowledge or consent, em- ployed the plaintiff to keep and train the colt for a carriage horse, agreeing to pay him therefor five dollars a week and the expense of shoeing. The defendant never had possession of the colt, and never gave any directions to her son regarding it, but after its birth she learned of the fact, and frequently saw it in the possession of her son. The plaintiff kept the colt for thirty-four weeks, and expended eight dollars for shoeing, and rendered a bill therefor to the defendant's son. The defendant prior to the commencement of this action had no knowledge of the contract of her son with the plaintiff. Holmes, J. Whether the colt belonged to the defendant or to her son, the son had possession of it for his own benefit. Putting the ca.se in the strongest way for the plaintiff, the defendant did no more than to lend the colt to her son. She did not know of the contract with the plaintiff. Her son did not purport to contract on her behalf, nor did the plaintiff rely upon any supposed authority from her, or render the services on her credit. When one person lends a horse to another without more, he does not authorize the latter to make him CHAP, I.] WELSH V. WELSH. 307 answerable for its keep or improvement. See Storms v. Smith, 137 Mass. 201; Howes v. Newcomb, 146 Mass. 76, 80. Possession alone is no more ostensible authority to bind the owner for keeping and training than it is to sell, apart from statute. Even if circum- stances could be imagined under which, without an actual knowledge of the owner, consent might be implied sufficient to create a lien under Pub. Sts. c. 192, § 32 (Lynde v. Parker, 155 Mass. 481), there is nothing in this case which would warrant the finding of an actual contract binding on the defendant. There is equally little ground for charging her upon a fictitious or quasi-contract. The plaintiff furnished his services under a valid contract with the son, and must look to him.^ Judgment for the defendant. (h) Plaintiff intended to Benefit Himself, not the Defendant. V/ELSH V. WELSH. Supreme Court of Ohio, 1835. [5 Hammond, 425.] Assumpsit for work, labor, materials and for money paid. The facts which the plaintiff offered to prove were the following: A parol agreement was made between the plaintiff and defendant (they being brothers), that the plaintiff should grant to the defendant by lease or purchase, as should subsequently be agreed between them, a piece of land, being mostly wild, of about five acres, for the purpose of the plaintiff's erecting a fulling mill and other necessary buildings, to carry on the business of dyeing, fulling and manufacturing cloth, &c. In pursuance of tbis agreement, the defendant gave the plaintiff possession of said land, and the plaintiff went on and erected with the knowledge and permission of the defendant, a fulling mill and other buildings appurtenant thereunto, and a dwelling house, stable, &c., to a large amount, say one thousand dollars. After these things were done by the plaintifE, the defendant sold and conveyed away the said land, with all the erections and buildings, without the ■If plaintiff cared for a horse bailed witli him after the bailment had ter- minated by express declaration of owner as by repudiation of owner;;hip, the plaintiff keeping the horse thereafter cannot hold the owner liable. Earle v. Coburn (1881) 130 Mass. 596; or if the bailor boarded and stabled a horse with one X after s\ich termination of the bailment, the owner is not liable for such keep either to X or the plaintiff. Keith r. De Bus- signey (1901) 179 Mass. 255. See Stokes v. Lewis (1785) 1 T. R. 20, ante. p. 285.— Ed. 308 WELSH V. WELSH, [bOOK II. consent or knowledge of the plaintiff, turned him out of possession and put his grantee in, and put in his own pocket the entire avails of the labor, money and expenses of the plaintiff on the said premises. Hitchcock, J., delivered the opinion of the Court. The question for the consideration of the Court is, whether, upon the proof of the facts stated, the plaintiff would have a right to recover in this form of action. The contract or agreement stated by the plaintiff's counsel is one of no ordinary character. It is not one by which the parties agree to sell or lease land, but that they will at some future period agree that one or the other shall be dbne. The terms are not specified, but are left for future arrangement. No price is fixed, no length of time for which a lease shall run, should a lease be agreed upon, no time in which payment shall be made. Nothing in fact but that the plaintiff shall go into possession, proceed with his works, and subsequently all shall be made right. The reason why the business was thus transacted is to be found probably in the fact, that the parties were brothers. But, notwithstanding the loose manner in which this agreement was made, I cannot doubt that a Court of chancery would compel the defendant to do justice. The circumstance that there was no writing, could make no difference in such Court. Possession was taken of the land, labor was performed, money expended, and it would be a fraud on the part of the defendant not to comply with the contract. The statute was made not to encourage but to prevent frauds. It does not follow of course, that because chancery migh t relieve in a case like the present, therefore that law ivill in an action of assumpsit. This action is founded upon the supposition that there was a con- tract which the plaintiff had a right to rescind in consequence of the conduct of the defendant. From the facts proposed to be proved, there can be no doubt the plaintiff had a right to rescind this con- tract. The defendant had put it out of his power to comply, by dis- posing of the property to a third person. After this he could not hold the plaintiff to fulfil on his part. But what right accrues to the plaintiff by rescinding? The law is well settled, that where a vendee has a right in consequence of the conduct of the vender to rescind, he may do it and recover back in an action for money had and received, the amount paid upon the contract. 1 Term, 133; 5 John. 85. Upon this point there is no controversy. The principle is admitted l)y the defendant's counsel. It would l)e immaterial whether the payment was made in money, or made in merchandise, or in work and labor. In either case the amount paid might be received, and upon the prin- ciple that the consideration for which the payment Avas made had failed. In the present case, the ol)ject is not however to recover for any thing which was paid upon the contract, for nothing was paid. It is to CHAP. I.] WELSH V. WELSH. 309 recover for work and labor done by tbe plaintiff for his own use and l)enefit, while he was in possession of the property. A payment made to a vender is for his benefit. But when this labor was performed, it was not for the benefit of the vender, nor supposed to be for his benefit. It was done with his knowledge and approbation, but in- tended alone for the use of the plaintiff. Altliough done with the knowledge of the vender, it was not done even at his request. I cannot see then upon what reason the principle which authorizes a vendee to recover back money paid upon a contract which is afterwards re- scinded, can be applied to this case. It seems clear that it is an effort to extend this principle to a new class of cases. No authority pre- cisely in point has been cited, and I presume no one favorable to the plaintiff's claim can be found. The case of Gillett, adm'r of Clemens V. Maynard, 5 John. 85, is somewhat analogous to the one now before the Court. In that case, however, money had been paid upon the contract; and the action was brought, not only to recover back this money, but also to receive pay for the improvements made while the intestate was in possession of the land. It was held by the Court, that the contract being rescinded, the plaintiff was entitled to recover back the money paid, with interest, but not any damages for the labor he had bestowed or the improvements he had made. Upon this part of the case the Court say, "The plaintiff, however, ought not to have received any compensation for the improvements. There was no express or implied undertaking by the defendant to pay for them. When the work was done by the intestate, it was for his own benefit ; and if he voluntarily abandoned his contract, without any stipulation for the improvements, he must be deemed to have waived all claim to them." From the latter clause counsel infer, that if the plaintiff's intestate had not ahandoned the contract, he might have recovered compensation for the improvements. Upon an examination of the case, however, I see no evidence of abandonment, except the death of the vendee, unless the circumstance of suing to recover back the money paid, furnishes this evidence. If the case of Gillett r. Maynard be law, I think it must be decisive of this case. Here the work, when done, was done for the plaintiff's benefit. There is no proof of any express promise, nor is there any implied promise on the part of the defendant to pay for it. Further, the counsel for the plaintiff says, "If the question is, what damages have been sustained, you must declare on the special con- tract; if 3'ou go for the original consideration paid, you rescind, and may rely on the common counts;" and in sup])ort of this position cites. Tower v. Burrel, 1 Term, 133. Apply this principle to the present case and it defeats the action. The plaintiff does not "go for the original compensation paid," for no such consideration Avas paid. The real object is to recover compensation in damages for the labor performed. The plaintiff seeks to rescind the contract and then to 310 WELSH V. WELSH. [BOOK II. recover over and beyond what, according to the rules of law, as I have heretofore understood them, he has a right to recover upon that rescission. And no good reason can be assigned why he might not with equal propriety recover to any extent, damages which he may have sustained in consequence of the failure of the contract. Had there been any express promise proven to pay for these im- provements, the case would have been different. I conceive that there would be a moral obligation to constitute a sufficient consideration for such promise. The Supreme Court of the State of New York, in the case of Frew v. Hardenburgh, 5 John. 272, holds differently. But in that case the plaintiff took possession of the land without the con- sent of the defendant, and held that possession until ousted by an action of ejectment. As there is no express, so neither is there any- thing, from which to imply a promise, unless we establish the broad principle that, where there is a contract for the sale of land, and the contract fails in consequence of an act of the vender, the vendee can recover pay for the improvements made, in an action for work and labor. I am not willing to establish this principle. It is not neces- sary for the furtherance of justice. The law provided a complete and adequate remedy in an action upon the contract ; and I cannot consent to give a new remedy for the purpose of saving this action. Xo difference can be made in consequence of this contract having been by parol. This is not the fault of the law but of the parties. If the plaintiff has been improvident in entering into the contract, the Court cannot with propriety change any known rule of law to help him out of his difficulty. I am aware that it is said that the action of assumpsit is as broad as a bill of equity. But it does not follow that if a plaintiff could have redress in a Court of quity, he can therefore have redress in a Court of law, provided he sues in assumpsit. Nor does it follow that because a plaintiff has an equitable claim against the defendant, he can enforce this claim if he sues in assumpsit. If he prosecutes his suit in a Court of law, he must in assumpsit, as well as any other form of action, show that he has a legal right of action. When this is shown, the action will be governed by equitable principles. As it would seem to be just that the plaintiff should receive a com- pensation for his improvements, we have reflected whether he might not recover upon the money counts, upon the ground that the defend- ant has received money for the improvements made by the plaintiff, with which he might be charged as having received it to his use. But in this view of the case there is great, and as it appears to me, insuper- able difficulty. The interest of the plaintiff in the premises is an equitable interest. Of this interest the defendant could not deprive him unless with his own consent. The legal estate alone was in the defendant ; and if he transferred the land, it must be subject to the plaintiff's equity, CHAP. I.] WELSH V. WELSH. 311 especially if transferred to a person having notice of this equity. Xow the case shows, that when this land was sold the plaintiff was in possession. The purchaser then must be chargeable with notice of all his rights. If so, then this equity may still be enforced. The plaintiff has been deprived of nothing but the possession, and to be restored to this, he must apply to the proper tribunal in the proper way. He may apply to a Court of chancery for a specific perform- ance of the contract; and if there has been no laches on his part, I see no difficulty in his obtaining a decree, either in a specific perform- ance, or for a compensation, as the merits of the case when presented may seem to require. Upon the whole, a majority of the Court are of opinion, that the nonsuit was properly ordered, and that the plaintiff take nothing by his motion. Wright, J. My opinion does not accord with that of my brethren in this case. If the evidence offered was admissible under the issue, the nonsuit should be set aside. It is admissible, if it tend to prove the issue. The declaration is for ivorTc, &c., in building a fulling mill, &c., for the defendant ; for board, &c., furnished and paid for self and hands; for labor generally; for money paid, and had, and received, and on account stated. Issue is taken upon non-assumpsit. The plaintiff offered to prove, that the defendant agreed with him to grant him, on a lease or purchase, as should be subsequently settled between them, about five acres of land, for the purpose of erecting a fulling mill, &c., and other buildings for manufacturing cotton, and put the plaintiff into possession, under the agreement; and that the plaintiff built, with the knowledge and permission of the defend- ant, the mill and other buildings, to the value of one thousand dollars, which he paid two workmen for ; when the defendant, without the consent or knowledge of the plaintiff, sold the land and improve- ment, received the pay for them, turned the plaintiff out of posses- sion, and put the purchaser in. The labor and expenditures by the plaintiff were on the defendant's land. A jury would be warranted in inferring, from the fact of the work being so done, that it was done for the defendant, and to oblige him to pay what they were worth. The evidence offered conduced directly to prove the issue, and should have been received. \Miether the work was done and the money paid under a special agreement, which was open and subsisting, was a matter of fact to be proven before the jury. The ability to prove that state of things, would not have the effect to exclude evi- dence proper when offered. That there had been a special contract between the parties upon the subject of the suit, would not destroy the right to recover, in the common counts, unless open and subsisting, and the suits were to recover damages arising out of a breach of the contract. But when a defendant refuses to execute a special contract, he is not permitted to set up that as a pretext for retaining what he 312 WELSH V. WELSH, [BOOK II. has received in payments under it; in such cases, the plaintiff may hold the contract abandoned, and recover on the common counts. 12 John. E. 275; 7 J. R. 132; 1 Ohio R. 363; 7 T. R. 177. So where the defendant has been guilty of fraud, as to the special contract, the plaintiff may consider it void, and recover on the common counts. 15 John. R. 475; 6 John. R. 110; 1 Com. on Con. 38; 1 Esp. R. 208 ; 2 Esp. R. 640. So also where the contract is rescinded, or has been executed by the plaintiff, or put an end to by defendant, the plaintiff may disregard the contract, and resort to the common counts in assumpsit, to recover what he has paid. 7 Cranch Rep. 299 ; 4 Bos. & Pul. 351 ; 6 T. R. 136 ; 5 John. R. 84; Bui. N. P. 139; 18 John. R. 455; 11 Wheat. R. 250; 10 John. R. 37; 2 Mass. R. 415; Com. on Con. 317; Newman v. McGregor, ante, 349. And it is not necessary to give positive evidence of money had and received, but when, from the facts proved, it may be fairly presumed the action is maintained. Doug. R. 137. The action, says Lord Mansfield (Cowp. R. 807), "is governed by the most liberal equity. Neither party is allowed to trap the other in form." Whether there was in fact, a special contract between these parties at all, or one still open, or that had originated in fraud by defendant, or which he had put an end to or rescinded, or whether the plaintiff had fulfilled, and whether anything had been paid by the plaintiff upon it in money, labor or board, were, in my opinion, questions of fact, and should have been left to the jury upon the proof, on broad and liberal principles of equity. 11 Wheat. R. 250. I am there- fore on that ground for opening up the nonsuit and allowing a new trial. I incline to go much farther than is necessary to decide this case, and to hold, that wherever one man has availed himself of the labor, goods or money of another, recovery may be had in this form of action, for just what in equity and good conscience the party is entitled to, all things considered; subject only to this liinitation, that whore there was a contract price, no recovery shall be had for a greater sum than the one stipulated for. I can see no evil, or inconvenience, that would result from this. A recovery in this form would be as perfect a bar to a subsequent action, as if had in a suit upon the special contract, and each party may obtain a full statement of the real cause of action, by demand for a bill of particulars under our law. The proceeding is a simple one, and looks directly to the attainment of justice. Why, then, in such cases turn a plaintiff roimd into a Court of Chancery, or to a suit upon the specinl contract?^ >Accord: Gillot t\ Maynard (1S09) .'5 -Johns. 85; Shreve v. Grimes (1823) 4 Littoll, 220; ^Mathews v. Davis (1843) Hiimjih. 324, to the cflfeet that the vendee's remedy is not at law in an action of assumpsit, but solely in equity, as in Bright v. Boyd (1841) 1 Story, 478. If the vendee in possession refuses to complete the purchase, although the CHAP. I.] BARLOW V. BELL. 313 BARLOW V. BELL. Court of Appeals or Kentucky, 1818. [1 Marshall 34G.] Judge Owsley delivered the opinion of the court. Some time early in 1801, the appeUant purchased from a certain John Bell, who acted as the agent of his father, William Bell, a tract of land in Barren county, and hav ing ohtained from the agent a deed of conveyance, he settled upon the land, and made lasting and valuable improvements. ■Whilst the appellant was thus possessed of the land, but after the appellee's husband, William Bell, had departed this life, shg^-asaerting titje in her own right, brought suit, and finally succeed ed i n rpcoYPr i ng the land. To-<)btain compeasa^ioa-for-Ms-iffipgo¥e^me nts, the a ppe llant th en brought this suit in_equit^, but the court being of opinion his claim could noFbe" sustainedTdismissed his bill with costs; and from that decree the appellant has appealed to this court. As the labor bestowed in improving the land is sunk in the land, and M^as not done at the appellee's request, it is plain that she cannot, upon any common law proceeding, be subjected to the appellant's claim for compensation. Nor have we been able to find any adjudged case, where the English courts of equity have, under such circumstances, decided upon the right to compensation; but regarding courts of equity, in supplying the defects of the common law, as being governed by the principles of natural justice, in the absence of all precedent, we should have no hesitation in relieving the possessor for improvements made upon the land whilst he, ho7ia fide, considered it his own. The possessor, by bestowing his money and labor in meliorating the land, advances its value, and, consequently, the rightful owner, unless liable to the claim of compensation, is so much gainer by the loss of the possessor ; contrary to the maxim, tiemo debit locupletari aliena jacttira. But to bring himself within the influence of this principle, it is not enoiigh that the possessor shows himself to have meliorated the land, but his money and labor must be bestowed under an honest conviction of his being the rightful owner of the land. For if he takes possession vendor was both willinc; and ready to pass title, the authorities deny any allow- ance for improvements. Rainer v. Huddlcston (1871) 4 Heisk. 223; Guthrie r. Holt (187G) 9 Box. 527. If the value of the land is not enhanced, there should be no allowance for the alleged improvements. Worthington v. Young (1838) 8 Oh. 401; Vaughau V. Cravens (1858) 1 Head, 108.— Ed. 314: BRIGHT V. BOYD. • [bOOK II. without title, and knowing the land belongs to another, he is himself guilty of a wrong, and although he may have expended his money, and bestowed his labor, his claim for compensation ought not to be sanctioned by a court of equity; but in such a case the maxim, volunti non fit injuria, well applies. As in the present ease, therefore, the appellant is shown to have had a perfect knowledge of the appellee's title, and was advised of the con- sequences of a purchase from the agent of William Bell, before he made the purchase, he cannot be viewed in the favorable attitude of a hona fide possessor, so as to warrant the decree of a court of equity in his favor for improvements made upon the land. The decree of the court below, dismissing his bill, is, consequently, correct, and must be affirmed with cost. Scroggs v. Taylor (1818) 1 Marsh. 247. Judge Owsley delivered the opinion of the court. The appellant, not having settled upon the jand^jun der any contract with either of the V[ 2pellees7 ^r those through whom they claim, but under JJie_ mlstakeiL jmpres sion~of The Ta n"d~t)ein g witjiinjthe adverse claim of Craig, purchased and settled under him. The court below, no doubt, decided correctry~rn retiising'^ to compel the appellees to make compensation for the improvements made upon the land after notice of their claim, and properly dismissed the appellant's bill, with cost. The decree must be affirmed, with cost.^ BEIGHT V. BOYD. Circuit Court of the United States, 1841. [1 Story, 478.] Bill in equity. The defendant recovered judgment in a suit at law against the plaintiff for possession of an estate which the plaintiff claimed to own by intermediate conveyances under an administration sale. The defect in the plaintiff's title was due to the failure of the administrator to file a bond as required by law. The plaintiff, at the time ofhis purchase, supposed that this bond had" been'liled, and Wide ante. Barlow v. Bell. =A still earlier case is Whitledge v. Wait (1804) Sneed (Ky.) 335. See notes to next case. — Ed. CHAP. I.] BRIGHT V. BOYD. 315 he seeks to recover compensation for permanent improveraents-iaade upon and greatly enhancing the value__ of the esta jtg.^ Story, J . The case, then, fesoTvesTteelf ^ into the mere considera- tion, whether the plaintiff is entitled to any allowance for the improve- ments made by him, or by those under whom he claims title, so far as those improvements have been permanently beneficial to the defend- ant and have given an enhanced value to the estate. There is no doubt thai. the, plaintiff in the present bill is a bona ;?(ie purchaser for a valu= able -consideration, without noliciLQijinj^ilefect in his title. Indeed, he seems to have had every reason to believe that it was a valid and perfect title; and this also seems to have been the predicament of all the persons who came in under the title by the administration sale; for it is not pretended that any one of them had actual notice that no bond was given to the judge of probate previous to the sale. And, indeed, all of them, including the purchaser at the sale, acted upon the entire confidence that all the prerequisites necessary to give validity of the sale had been strictly complied with. The original purchaser was, if at" all, affected only by the constructive notice which put him upon inquiry as to the facts necessary to perfect the right to sell. The statute of Maine of 37th of June, 1820, ch. 47, commonly called the Betterment Act, will not aid the plaintiff; for that statute applies only to cases where the tenant has been in actual possession of the lands for six years or more before the action brouglit by virtue of a possession and improvement, which term had not elapsed when this writ of entry was brought. So that in fact the whole reliance of the plaintiff must be upon the aid of a court of equity to decree an allowance to him for the improvements made by him and those under whom he claims, upon its own independent principles of general justice. Two views are presented for consideration. First, that the defend- ant has lain by and allowed the improvements to be made without giving any notice to the plaintiff, or to those under whom he claims, of any defect in their title; which of itself constitutes a just ground of relief. Secondly, that if the defendant is not, by reason of his minority and residence in another State at the time, affected by this equity, as a case of constructive fraud or concealment of title; yet that, as the improvements were made bona fide and without notice of any defect of title, and have permanently enhanced the value of the lands, to the extent of such enhanced value the defendant is bound in conscience to make compensation to the plaintiff ex crqiio et bono. In regard to the first point, it has been well remarked by Sir William Grant (then Master of the Rolls), in Pilling v. Armitage, 'This statement of facts, containinfr all that is necessary to an understand- ing of the case, has been substituted for the statement found in the report. — Ed. •Only so much of the opinion is given as relates to this question. — Ed. 316 BRIGHT V. BOYD. [BOOK II. 12 Yes. 8-1, 85, "Tliat there are different positions in the books with regard to the sort of equity arising from laying out money upon another's estate through inadvertence or mistake; that person seeing that, and not interfering to put the party upon his guard. The case with reference to that proposition, as ordinarily stated, is that of building upon another man's ground. That is a case which supposes a total absence of title on the one side, implying, therefore, that the act must be done of necessity under the influence of mistake; and undoubtedly it may be expected that the party should advertise the other that he is acting under a mistake." The learned judge is clearly right in this view of the doctrine ; and the duty of compensa- tion in such cases, at least to the extent of the permanent increase of value, is founded upon the constructive fraud, or gross negligence, or delusive confidence held out by the owner; for under siich circum- stances the maxim applies: Qui tacct, consentire videtur ; Qui potest, et debet vetare, juhct, si non veiat} Whether this doctrine is applic- able to minors who stand by and make no objection, and disclose no adverse title, having a reasonable discretion from their age to under- stand and to act upon the subject ; and whether, if under guardianship, the guardian would be bound to disclose the title of his ward; and how far the latter would be bound by the silence or negligence of his guardian; and whether there is any just distinction between minors living within the State and minors living without the State, — these are questions of no inconsiderable delicacy and importance, upon which I should not incline to pass any absolute opinion in the present state of the cause, reserving them for further consideration, when all the facts shall appear upon the report of the Master. There are certainly cases in which infants themselves will be held responsible in courts of equity for their fraudulent concealments and misrepre- sentations whereby other innocent persons are injured." The other question, as to the right of the purchaser, hona fide and for a valuable consideration, to compensation for permanent improve- ments made upon the estate which have greatly enhanced its value, under a title which turns out defective, he having no notice of the defect, is one upon which, looking to the authorities, I should be inclined to pause. Upon the general principles of courts of equity, acting ex requo et hono, I own that there does not seem to me any just ground to doubt that compensation, under such circumstances, ought to be allowed to the full amount of the enhanced value, upon the maxim of the common law. Nemo debet lontpletari ex nlferius incommodo : or, as it is still more exactly expressed in the Digest, Jure naiurev aujuum est, neminem cum alterius dctrimeiifo et injuria 'Sec 1 Story, Hq. Jiir. §§ 388, 389, 390, 391; Green v. Biddlc, 8 Wheat. 1, 77, 78; 1 IMadd. Ch. 209, 210. =See 1 Story, Eq. Jur. §385; 1 Fonbl. Eq. Jur. B. I. ch. 3, §4; Savage v. Foster, 9 Brod. 35, CHAP. I.] BRIGHT V. BOYD. 317 fieri locupletiorem} I am aware that tlio doctrine has not as yet been carried to such an extent in our courts of equity. In cases where the true owner of an estate, after a recovery thereof at law from a bona fide possessor for a valuable consideration without notice, seeks an account in equity as plaintiff, against such possessor, for the rents and profits, it is the constant hal)it of courts of equity to allow such possessor (as defendant) to deduct therefrom the full amount of all the meliorations and improvements which he has beneficially made upon the estate ; and thus to recoup them from the rents and profits.^ So, if the true owner of an estate holds only an equitable title thereto, and seeks the aid of a court of equity to enforce that title, the court will administer that aid only upon the terms of making compensa- tion to such hona fide possessor for the amount of his meliorations and improvements of the estate, beneficial to the true owner.^ In each of these cases the court acts upon an old and established maxim in its jurisprudence, that he who seeks equity must do equity.* But it has been supposed that courts of equity do not, and ought not, to go further, and to grant active relief in favor of such a bona fide possessor making permanent meliorations and improvements, by sus- taining a bill brought by him therefor against the true owner after he has recovered the premises at law. I find that Mr. Chancellor Walworth, in Putnam v. Eitchie, 6 Paige, 390, 403, 40-i, 405, enter- tained this opinion, admitting at the same time that he could find no case in England or America where the point had been expressed or decided either way. Now, if there be no authority against the doctrine, I confess that I should be most reluctant to be the first judge to lead to such a decision. It appears to me, speaking with all deference to other opinions, that the denial of all compensation to such a hona fide purchaser in such a case, where he has manifestly added to the per- manent value of an estate by his meliorations and improvements, without the slightest suspicion of any infirmity in his own title, is contrary to the first principles of equity. Take the case of a vacant lot in a city, where a bona fide purchaser builds a house thereon, enhancing the value of the estate to ten times the original value of the land, under a title apparently perfect and complete ; is it reason- able or just that in such a case the true owner should recover and possess the whole without any compensation whatever to the bona fide purchaser? To me it seems manifestly unjust and inequitable thus to appropriate to one man the property and money of another, who is in no default. The argument, I am aware, is that the moment the house is built it lielongs to the owner of the land by mere opera- »Dig. lib. 50, tit. 17, 1. 20fl. ■2 Story, Eq. Jur. §§ TOOa, TOOb. 1237. 1238, 1239; Green v. Biddle, 8 Wheat. 77, 78, 79, 80. 81. 'See also 2 Story, Eq. Jur. § 199b and note; Id. §§ 1237, 1238. 'Ihid. 318 BRIGHT V. BOYD. [bOOK II. tion of law; and that he may certainly possess and enjoy his own. But this is merely stating the technical rule of law, by which the true owner seeks to hold what, in a just sense, he never had the slight- est title to, that is, the house. It is not answering the objection, but merely and dryly stating that the law so holds. But then, admitting this to be so, does it not furnish a strong ground why equity should interpose and grant relief? I have ventured to suggest that the claim of the bona fide purchaser under such circumstances is founded in equity. I think it founded in the highest equity ; and in this view of the matter I am supported by the positive dictates of the Koman law. The passage already cited shows it to be founded in the clearest natural equity. Jure naturae cequum est. And the Eoman law treats the claim of the true owner, without making any compensation under such circumstances, as a case of fraud or ill faith. Certe, say the Institutes,. ilhid constat; si in possessione constituto cedificatore, soli Dominus petat domum suam esse, me solvat pretium materice et mercedes fahrorum; posse eum per exceptionem doli mail repelli; utique si honce fidei possessor, qui cedificavit. Nam scienti, alienum solum esse, potest ohjici culpa, quod cedificaverit temere in eo solo, quod intelligehat alienum esse} It is a grave mistake, sometimes made, that the Eoman law merely confined its equity or remedial justice on this subject to a mere reduction from the amount of the rents and profits of the land.^ The general doctrine is fully expounded and supported in the Digest, where it is applied, not to all expenditures upon the estate, but to such expenditures only as have enhanced the value of the estate {quatenus pretiosior res facta est),^ and beyond what he has been reimbursed by the rents and profits.* The like principle has been adopted into the law of the modern nations which have derived their jurisprudence from the Eoman law; and it is especially recognized in France and enforced by Pothier, with his accustomed strong sense of equity, and general justice, and urgent reasoning.''. Indeed, some jurists, and among them Cujacius, insist, contrary to the Eoman law, that even a mala fide possessor ought to have an allowance of all expenses which have enhanced the value of the estate, so far as the increased value exists.' >Just. Tnst. lib. 2, tit. 1, §§30, 32; 2 Story Eq. Jur. §799, b; Vinn. Com. ad Tnst. lib. 2, tit. 1, § 30, n. 3, 4, pp. 194, 195. *See Green v. Biddle, 8 Wheat. 79, 80. ^Dig. lib. 20, tit. 1, 1. 29, § 2; Dig. lib. 6, tit. 1, 1. 65; Id. 1. 38; Pothier Pand. lib. 6, tit. 1, n. 43, 44, 45, 46, 48. *Dig. lib. G, tit. 1, 1. 48. "Pothier De la Propriety, n. 343 to n. 353; Code Civil of France, art. 552, 555. •Pothier De la Propriete, n. 350; Vinn. ad Inst. lib. 2, tit. 1. 1. 30, n. 4, p. 195. CHAP. I. I BRIGHT V. BOYD. 319 The law of Scotland has allowed the like recompense to bona fide possessors making valuable and permanent improvements; and some of the jurists of that country have extended the benefit to mala fide possessors to a limited extent.^ The law of Spain affords the like protection and recompense to bona fide possessors, as founded in natural justice and equity.^ Grotius, Puffendorf, and Rutherford all affirm the same doctrine, as founded in the truest principles ex cequo et bono.^ There is another broad principle of the Roman law which is applicable to the present case. It is, that where a bona fide possessor or purchaser of real estate pays money to discharge any existing incumbrance or charge upon the estate, having no notice of any infirmity in his title, he is entitled to be repaid the amount of such payment by the true owner, seeking to recover the estate from him.* Now, in the present case, it cannot be overlooked that the lands of the testator now in controversy, were sold for the payment of his just debts under the authority of law, although the authority was not regularly executed by the administrator in his mode of sale, by a non-compliance with one of the prerequisites. It was not, therefore, in a just sense, a tortious sale; and the proceeds thereof, paid by the purchaser, have gone to discharge the debts of the testator, and so far the lands in the hands of the defendant (Boyd) have been relieved from a charge to which they were liable by law. So that he is now enjoying the lands free from a charge which, in conscience and equity, he and he only, and not the purchaser, ought to bear. To the extent of the charge from which he has been thus relieved by the purchaser, it seems to me that the plaintiff, claiming under the purchaser, is entitled to reimbursement in order to avoid a circuity of action to get back the money from the administrator and thus subject the lands to a new sale, or, at least, in his favor, in equity to the old charge. I confess myself to be unwilling to resort to such a circuity in order to do justice where, upon the principles of equity, the merits of the case can be reached by affecting the lands directly with a charge to which they are ex cequo et bono, in the hands of the present defendant, clearly liable. These considerations have been suggested because they greatly weigh in my own mind after repeated delil^erations on the subject. They, however, will remain open for consideration upon the report of the »Bell Comm. on Law of Scotland, p. 139, § 538; Ersk. Inst. b. 3, tit. 1, § 11 ; 1 Stair Inst. b. 1, tit. 8, § (>. n Mor. & Carl. Partid. b. 3, tit. 28, 1. 41, pp. 357, 358; Asa & Manuel, Inst, of Laws of Spain. 102. ^Grotius, b. 2. eh. 10. §§ 1. 2. 3; Puirend. Law of Nat. & Nat. b. 4. ch. 7, § 61 : Rutherf. Inst. b. 1. ch. 0. § 4. j). 7. 'Dii;. lib. 6, tit. 1. 1. (m; Pothier Pand. lib. 6, tit. 1, n. 43; Pothier De la Propriety, n. 343. 320 BRIGHT V. BOYD. [BOOK IT. Master, and do not positively require to be decided, until all the equities between the parties are brought by his report fully before the court. At present it is ordered to be referred to the Master to take an account of the enhanced value of the premises by the meliora- tions and improvements of the plaintiff, and those under whom he claims, after deducting all the rents and profits received by the plaintiff and those under whom he claims ; and all other matters will be reserved for the consideration of the court upon the coming in of his report. In a later stage of the above case (2 Story, 605, 607), Mr. Justice Story, in confirming the Master's report, said: I have reflected a good deal upon the present subject; and the views expressed by me at the former hearing of this case, reported in 1 Story, 478, et seq., remain unchanged; or rather, to express myself more accurately, have been thereby strengthened and con- firmed. My judgment is that the plaintiff is entitled to the full value of all the improvements and meliorations which he has made upon the estate, to the extent of the additional value which they have conferred upon the land. It appears by the Master's report that the present value of the land with the improvements and meliorations is $1,000 ; and that the present value of the land without these im- provements and meliorations is but $25 ; so that in fact the value of the land is increased thereby $975. This latter sum, in my judg- ment, the plaintiff is entitled to, as a lien and charge on the land in its present condition. I wish, in coming to this conclusion, to be distinctly understood as affirming and maintaining the broad doctrine, as a doctrine of equity, that, so far as an innocent purchaser for a valuable consideration, without notice of any infirmity in his title, has, by his improvements and meliorations, added to the permanent value of the estate, he is entitled to a full remuneration, and that such increase of value is a lien and charge on the estate, which the absolute owner is bound to discharge before he is to be restored to his original rights in the land. This is the clear result of the Eoman law; and it has the most persuasive equity, and, I may add, common sense and common justice, for its foundation. The Better- ment Acts (as they are commonly called) of the States of Massa- chusetts and Maine, and of some other States, are founded upon the like equity, and were manifestly intended to support it, even in suits at law for the recovery of the estate. The report will, therefore, be accepted and allowed; and a decree made in conformity to the present opinion.^ ^Accord: Whitledge v. Wait (1804) Rnccd (Ky.) 335; 2 Am. Dee. 721 and note; Barlow v. Bell (1818) 1 Marsh. 24G, ante; Bell's Heirs v. Barnet (1829) 2 J. J. Marsh. 516; Dufoiir v. Camfranc (1822) 11 Mart. (i05 ; Thomas v. Thomas (1855) 10 B. Mon. 420; Albea v. Griffin (1838) 2 Dev. & B. Eq. 9; CHAP. I.] PARSONS V. MOSES. 321 In Parsons v. Moses (18(^4), IG Iowa, 440, 444, Dillon, J., said: It will aid us to understand the meaning and purpose of the several statutory provisions [of the Betterment Acts] above referred to, by recurring briefly to the rights of the parties at common law, or in the absence of the statute. By ^the English and American common law, the true ow ner re- c overs his land in ejectment, without liabTIitylo^ay forTmprovemjnts, which may have been madu u p on it by an o ccupa nt without title. Im- provements annexed to the freehold, the laws deems part of it, and they pass with the recovery. Every occupant makes improvements Blodgett V. Hitt (1871) 29 Wis. 1G9; Union Hall v. Morrison (1873) 39 Md. 281; Valle v. Fleming (1859) 29 Mo. 152 (semble) ; Hatcher v. Briggs (1876) 6 Ore. 31; Preston v. Brown (1878) 35 Oh. St. 18; Davis v. Gaines (1881) 104 U. S. 386, 403-405; Munsie v. Lindsay (1883) 10 Pr. R. (Ont.) 173; Hudgin V. Hudgin (1849) 6 Gratt. 320; Sands v. Lynhani (1876) 27 Gratt. 291, 304; Effinger v. Hall (1885) 81 Va. 94, 104 (semble) ; Thomas et al. v. Evans (1887) 105 N. Y. 601, 611 et seq. In States of Spanish- American origin, the rule of the civil law obtains as explained, by Story, J., in tlie principal case. For example, in Howard v. North (1849) 5 Tex. 290, 316, it is said: "This principle of equity has been repeatedly recognized by the courts of chancery. It was a well-established rule under tlie Spanish system of jurisprudence, and its justice should com- mend its adoption and recog-nition in all codes and by all courts. In Dufour V. Camfranc [1822] (11 Mart. R. 610) the court, having declared a sale by the sheriff void, proceed to say: 'Another question presents itself. It has been proved that proceeds arising from the sale of the slaves were applied to the discharge of the judgment debts of the plaintiff, and the court is of opinion that he cannot recover in this suit until he repay the money. This is the doctrine expressly laid down by Fabrero, Lib. 3, cap. 2, sec. 5, n. 357, and we readily adopt it; for nothing can be more unjust than to permit a debtor to recover back his property because the sale was irregular, and yet allow him to profit by that irregular sale to discharge his debts.' "Tliis principle has been frequently recognized by the decisions in Kentucky. The proceedings in law will, by courts of equity, be treated as valid, though they may be erroneous. But equity will relieve against their consequences, be- cause the rights thereby acquired cannot be retained in conscience. The pur- chaser will be treated as a trustee and he will not be compelled to surrender until equity is done him (7 Mon. R. 615: 8 Dan. R. 183; 3 id. 623)." See also Gaither r. Ilanrick (1S87) 69 Tex. 92; Harkey r. Cain (1887) 69 id. 146. Contra: Haggarty v. McCanna (1874) 10 E. C. Green, 48. On the whole subject, see valuable notes in 18 Harv. L. R. 305, and 30 Am. Dec. 177-182. For the foreign law, see Biirgerliches Gesetzbuch, §§816-817; French Code Civil, Dalloz, arts. 1379-1381; Italian Civil Code (French translation by Prud- homme), arts. 1148-1150; Spanish Civil Code (Falcon), 1897-1808; Bk. ii, tit. V. on possession. The editions of tlie Italian and Spanish codes are elabo- rately annotated with references to European and Spanish-American States. —Ed. 322 PARSONS V. MOSES. [BOOK II. at his peril, even if he acts under a bona fide belief of ownership. 2 Kent. Com. 334. Such is the rigid rule of the common law. It is founded upon the idea that the owner should not pay an intruder, or disseisor, or occupant, for improvements which he never authorized. It is supposed to be founded in good policy, inasmuch as it induces diligence in the examination of titles, and prevents intrusion upon and appropriations of the property of others. Chancery, borrowing from the civil law, made the first innovation upon the common law doctrine. And it came at length to be held in equity, that when a bona fide possessor of property (for equity, no more than law, would aid a mala fide possessor) made meliorations and improvements upon it in good faith, and under an honest belief of ownership, and the real owner was for any reason compelled to come into a court of equity, that court applying the familiar maxim, that he who seeks equity must do equity, and adopting the civil law rule of natural equity, would compel him to pay for those improvements or industrial accessions, not the cost indeed, but so far as they were permanently beneficial to the estate, and enhanced its value. Story, Eq. Jurisp., 779a, 799& ; Putnam v. Ritchie, 6 Paige, 390 ; Bright v. Boyd, 1 Story Rep. 478, enriched by the learning and research of that distinguished jurist ; S. C. 2 Id. 605 ; Green v. Biddle, 8 Wheat. 77; Willard's Eq. 312; Sugd. on Vend. chap. 22, §§ 54, 55, 57. This was the extent of relief to bona fide possessors. "I have not,"^ says Chancellor Walworth, in Putnam v. Ritchie, 6 Paige, 390, "been able to find any case either in this country or in England wherein the Court of Chancery has assumed to give relief to a complainant who has made improvements upon land, the legal title to which was in the defendant, where there has been neither fraud nor acquiescence on the part of the latter after he had knowledge of his legal rights." Courts of law next modified the strict rule of the common law (which makes the occupant of land which is owned by another, no matter how good the faith of the occupant may be, liable for the rents and profits) to this extent, viz., that where such owner brought his action for mesne profits, which courts of law treated as an equitable action, the bona fide occupant might set off or recoup the value of liis permanent improvements to the extent of the rents and profits de- manded, but no further. Jackson v. Loomis, 4 Cow. 168; Murray v. Governeur, 2 Johns. Cas. 438; Green v. Biddle, 8 Wheat. 1, 75, 76; 2 Kent, 335, and cases in note ; Putnam v. Ritchie, 6 Paige, 404 ; Hilton V. Brown, 2 Wash. C. C. R. 165; Davis v. Smith, 5 Geo. 274. The equity of the bona fide possessor who had made lasting and permanent improvements upon lands which turned out to be another's,. was so strong and persuasive as to force its recognition to this partial extent by courts of law, without the aid of statute.* 'It may therefore be stated generally and broadly that the hona fide possessor CHAP, l.j GRISWOLU V. UlUGG ET UX. 333 GRISWOLD V. BRAGG ET UX. Circuit Court of the United States, 1880. [48 Federal Reporter, 519. J In Equity. Bill supplementary to an action in ejectment, for the purpose of ascertaining the value of betterments and improvements. On demurrer to bill. Shipman, J. At the September term, 1879, of this court, the jury rendered a verdict, in an action of ejectment, in favor of the present defendants against the present plaintiff, that they recover the seisin and possession of an undivided fourth part of a tract of land in the town of Chester. Upon motion of the defendant in the ejectment suit, judgment and execution were stayed until further order. He there- upon filed a supplemental bill on the equity side of the court. This bill, after setting out the state statute hereinafter recited, commonly called the "Betterment Act," alleges, in substance, that the plaintiff and those under whom he claims have held said land by a series of connected conveyances since 1846, which deeds purported to con- vey, and were intended and believed to convey, an absolute estate in fee-simple, and that the plaintiff and his grantors have had uninter- rupted possession of said land since 1846, under a like belief that they winj)e allowed, for taxes^,„assessnients_and improvements made in t he honest belief of o\vneishijv_whether he derive title through the administrator or_ ex- ecutor, as in Bright v. Boyd, supra, or where the administrator has, without fraud, taken title in himself. Smith v. Drake (1873) 23 N. J. Eq. 302; Lagger V. Mutual Union Loan Assn. (1893) 146 111. 283 (and cases cited), Henderson V. Ashwood [1894] L. R. App. Cas. 150, 103. Or through imperfect foreclosure of a mortgage provided the improvements are reasonable and judicious. "Gillis V. Martin (1833), 2 Dev. Eq. (N. C), 470; McConnel v. Holabush (1849), 11 111.61; McSorley v. Larissa ( 1868) , 100 Mass. 270; Harper's Appeal (1870) 64 Pa. St. 315; Am. Buttonhole Co. v. Burlington Loan Assn. (1886), 68 la. 326. But see Miller v. Curry (1889), 124 Tnd. 48, in which the doctrine is curiously limited, and compare Barnett v. Nelson (1880), 54 la. 41" (Kirch- wey's Cases on Mortgage, 535, note), or in other than mortgage foreclosure. Jackson v. Loomis (1825), 4 Cow. 168; S. C. 15 Am. Dec. 347, with elaborate note 349-354; Wells v. Davis (1890), 77 Tex. 636; Duckett v. Duckett (1891), 21 Atl. 323 (Md.) ; Long v. Cude (1889). 75 Tex. 225; Booth v. Best (1890), 75 Tex. 568; Phillips v. Coast (1889), 130 Pa. St. 572; Goodnow v. Moulton (1879) 51 la. 555. Compare, however, Homestead Co. v. Valley Railroad (1872) 17 Wall. 153, 166. As to the male fide possessor, see Green r. Moore (1892) 44 La. Ann. 855, allowing such possessor reimbursement of necessary expenses for the preserva- tion of the property and an adjustment of his claims for construction and im- provements. But compare Stille v. Shule (1889) 41 La. Ann. 816. And see Lane v. Taylor (1872) 40 Ind. 495.— Ed. 324 GRISWOLD V. BRAGG ET UX. [BOOK II. had an absolute estate; and that during this time, and before the commencement of the ejectment suit, imj»oyements_ of the valu e of $15^000have been made on said land, by said reputed owners, in good f aitli7~and~lir~the'"1'il;e~l3ei:iet;^ anci prays that the present value^f said improvements, and the excess of the value th ereot over t^ e aniDtnit — drte— 40 — the — defendants for the jise and^ occupation, of said premises, may be ascertained, to__tli£^end that tlie^^uitable Telief provided hy said statute may be granted. To this bill the defendants have demurred. Their title became^ vested in them in 1878. The statute (Revision 1875, p. 363, § 17) provides as follows: "Final judgment shall not be rendered against any defendant, in an action of ejectment, who or whose grantors or ancestors have, in good faith, believing that he or they, as the case may be, had an absolute title to the land in question, made improvements thereon, before the commencement of the action, until the court shall have ascertained the present value thereof, and the amount reasonably due to the plaintiff from the defendant for the use and occupation of the prem- ises; and, if such value of such improvements exceeds such amount due for use and occupation, final judgment shall not be rendered until the plaintiff has paid said balance to the defendant; but, if the plaintiff shall elect to have the title confirmed in the defendant, and shall, upon the rendition of the verdict, file notice of such election with the clerk of the court, the court shall ascertain what sum ought, in -equity, to be paid to the plaintiff by the defendant, or other parties in interest; and, on payment thereof, may confirm the title to said land in the parties paying it." The original statute was passed June 26, 1848 (Laws Conn. 1848, p. 48). It plainly appears from the act as passed, and as reproduced in the Eevisions of 1849 (section 233) and 1866 (section 281), that the proceeding in the state court, upon the motion of the defendant, after the verdict, is a proceeding in equity. The question of law which is raised by the demurrer is in regard to the validity of this statute. It is not denied that the statutes of the several states in regard to realty, except when the constitution, treaties, or statutes of the United States otherwise require or pro- vide, which are in conformity with the constitutions of the respective states, are rules of property, and rules of decision in the courts of the United States (Bank v. Dudley's Lessee, 2 Pet. 492), and that, if a state legislature has created a right and established a remedy in chancery to enforce such right, such remedy may he pursued in the federal courts, if it is not inconsistent with their constitution (Clark v. Smith, 13 Pet. 195; Ex parte Biddle, 2 Mason, 472), and that an inability of the federal courts to proceed in the exact mode provided by a state statute need not prevent a party from the benefit of the relief which is intended to be granted, if the modes of proceeding CHAP. I.] GKISWOLD ('. BRAGG ET UX. 325 in courts of chancery are adapted to carry into effect the statute. Bank V. Dudley's Lessee, cited supra. This is true, although the right which has been established by the local statute is a new right, and one previously unknown to a court of chancery in this country or in England. Lorman v. Clarke, 3 McLean, 5G8; Bayerque v. Cohen, 1 McAll. 113. The practice in equity is, in general, except where otherwise directed by statute or by the rules of the supreme court, regulated by the English chancery practice as it existed in 1842, ])efore the adoption of the "new rules." Equity Rule 90 ; Badger v. Badger, 1 Cliff. 237; Goodyear v. Rubber Co., 2 Cliff. 351. The statute practically impresses upon the land of a successful plain- tiff in ejectment a lion for the excess, above the amount due for use and occupation, of the present value of the improvements which have been placed on the land, before the commencement of the action, by a defendant or his ancestors or grantors, in good faith, and in the belief that he or they had an absolute title to the land in question, and forbids occupancy by the plaintiff until the lien is paid. There is a natural equity which rebels at the idea that a bona fide occupant and reputed owner of land in a newly-settled country, where unim- proved land is of small value, or where skill in conveyancing has not been attained, or where surveys have been uncertain or inaccu- rate, should lose the benefit of the labor and money which he had expended in the erroneous belief that his title was absolute and perfect. "While it is true that improvements and permanent buildings upon land belong to the owner, yet, in a comparatively newly-organized state, where titles are necessarily more uncertain than they are in England, there is an instinctive conviction that justice requires that the possessor under a defective title should have recompense for the improvements which have been made in good faith upon the land of another. The maxim, often repeated in the decisions upon this subject, nemo debet locupletari ex alterius incommodo, tersely ex- presses the antagonism against the enrichment of one out of the honest mistake, and to the ruin, of another. It is obvious that this statutory equity is not without occasional hardships. The true owner may be forced to sell his land against his will, and may sometimes be placed too much in the power of capital, but a carefully regu- lated and guarded statute should ordinarily be the means of doing exact justice to the owner. It is well known that the English law made no provision for reimbursement of expenditures of this kind, as against the owner of the legal title, except by allowing the bona fide occupant to recoup the value of his improvements, when he is a defendant in a bill in equity praying for an account of rents and profits. The established theory was that a court of equity should not go any further, and "grant active relief in favor of such a bona fide possessor making permanent meliorations and improvements, by sustaining a bill. 326 GRISWOLD V. BRAGG ET UX. [bOOK II. brought by him therefor, against the true owner, after he has recov- ered the premises at law." Bright v. Boyd, 1 Story, 478, 495. Such was the opinion of Chancellor Walworth in Putnam v. Ritchie, G Paige, 390, and such may be taken to be the state of law in this country, in 1841, apart from local statutes, and of the English law then and now. In 1841 Judge Story decided, in Bright v. Boyd, in favor of the power of courts of equity to grant affirmative relief, at the suit of a bona fide possessor, against the true owner; and in 1843 restated his opinion, after an additional hearing of the same case. 2 Story, 605. The learned judge thus states his view of the law : "I wish, in coming to this conclusion, to be distinctly understood as affirming and maintaining the broad doctrine, as a doctrine of equity, that, so far as an innocent purchaser for a valuable considera- tion, without notice of any infirmity in his title, has, by his improve- ments and meliorations, added to the permanent value of the estate, he is entitled to a full remuneration ; and that such increase of value is a lien and charge on the estate, which the absolute owner is bound to discharge, before he is to be restored to his original rights in the land. This is the clear result of the Roman law ; and it has the most persuasive equity, and, I may add, common sense and common justice, for its foundation." This opinion of Judge Story, though often favorably quoted, cannot be considered as the established law of this country, apart from the statute, because it has rarely had occasion to be reviewed, inasmuch as the "Betterment Acts" have become the predominant statutory system of the country. The supreme courts of Missouri, Maryland and Oregon — states which apparently have no statute on the sub- ject — have adopted his views. Valle's Heirs v. Fleming's Heirs (1859), 29 Mo. 152; Union Hall Ass'n v. Morrison (1873), 39 Md. 281 ; Hatcher v. Briggs (1876), 6 Or. 31. The theory of the Connecticut statute is that of Judge Story, that an equitable lien is placed upon the land for the value of the improve- ments which the bona fide occupant has innocently made. Further- more, the legal owner has his election either to take possession of the land by paying the lien, or to receive, in lieu of the land, the sum which the court shall ascertain to be equitably due him. The owner's title is not forced away from him, but the equitable lien of the occupant is preserved. There is no election on the part of the occupant to keep the land, and thus compel the owner to abandon his title. Xeither is any judgment rendered against the owner for the value of the improvements, to be enforced by levy of execution. These two provisions in the statutes of Ohio and Iowa, respectively, were held to be unconstitutional upon the ground that they invaded the rights of private property as secured by the constitutions of the respective states. McCoy v. Grandy, 3 Ohio St. 463 ; Childs v. Shower, €I1A1'. I.] GRISWOLD V. BRAGG ET UX. 337 18 Iowa, 2G1. It may be remarked that the original statute of 1848 provided that "the court shall order and decree the l)alance so found due to be paid." This clause is not found in the present statute, and the amount of the lien cannot, apparently, be collected by levy upon the defendant's property. The statute is said to be unconstitutional, in that it impairs the I'tfect oL' conveyances, in violation of the provision of the constitution of the United States (article 1, § 10), which prohibits a state from passing a law impairing the obligation of contracts; and that, as regards ])re-e.\isting conveyances or estates, it is contrary to the state constitution, because it deprives a person of his property without due course of law, and deprives him of his right of trial by jury. I do not think that it is necessary to enter into a critical examination of these constitutional provisions. The defendants' suggestions are founded upon a harsh view of the nature of the statute. It does not impair the obligation of any contract between the owner and his grantor, or between the state and the owner. It interferes with no legal title. It interferes with, and is an abridgment of, the right to the immediate possession and beneficial enjoyment of property, as that right existed at common law, and, to that extent, impairs the interest which owners formerly had in lands. It cannot be said to be an unjust or unreasonable limitation of the common-law right of possession, but, on the contrary, the provisions are reasonable. Society v. Wheeler, 2 Gall. 105; Jackson v. Lamphire, 3 Pet. 280; Curtis v. Whitney, 13 Wall. 68; Welch v. Wadsworth, 30 Conn. 149. Discussion upon the constitutionality of this statute has not, apjiar- cntly, arisen in the courts of this state. An examination of decisions elsewhere upon statutes of this class shows that Green v. Biddle, 8 Wheat. 1, decided that the betterment act of Kentucky was uncon- stitutional, because it was a violation of the compact between Virginia and Kentucky. It may fairly be inferred, from the express views of the court, as given by Judges Story and Washington, that it disliked the statute irrespective of the contract, and was not satisfied with its provisions. These dictn may properly be read in the light of the decision in Bank v. Dudley's Lessee, 2 Pet. 492, in wliich case no opinion was expressed upon the general principles of the betterment act of Ohio. Th6 constitutionality, with relation to tlie constitutions of the respective states whose courts gave the decisions, or the justice of statutes similar in substance or in principle to the Connecticut statute, has been learnedly discussed and sustained in the follow- ing, among other, cases : Withington r. Corey, 2 X. H. 115 ; Whitney v. Eichardson, 31 Vt. 300; Armstrong v. Jackson, 1 Blackf. 374; McCoy V. Grandy, 3 Ohio St. 463; Ross r. Irving, 14 111. 171; Childs r. Shower, 18 Iowa, 2(51 . The constitutionality of the Tennessee statute was condemned in Nelson v. Allen. 1 Yerg. STO. Judge Catron says 328 WILLIAMS V. GIBBES AND ANOTHER. [BOOK II. that the question of constitutionality did not properly arise in that case, and expresses no opinion upon the point. The demurrer is overruled.^ JOHN S. WILLIAMS, ADMINISTRATOR, ETC., APPELLANT V. ROBERT M. GIBBES AND ANOTHER, EXECUTORS, ETC. ROBERT M. GIBBES AND ANOTHER, EXECU- TORS, ETC., APPELLANTS v. JOHN S. WILLIAMS, AD- MINISTRATOR, ETC. SuPEEME Court of the United States^ 1857. [20 Howard, 535.] These were cross appeals from the Circuit Court of the United States for the district of Maryland. In the report, the first case only will be mentioned ; namely, that of Williams against Oliver's executors. The case was formerly before the court, and is reported in 17 How. 239. The facts are stated in the opinion of the court. The decree was for $9,686.33 in money, and $19,215.95 in stock, instead of $22,866.94 in money, and $32,847.77 in stock, as claimed by the appellant. Mr. Justice Nelson delivered the opinion of the court. This is an appeal from a decree of the Circuit Court of the United States for the district of Maryland. A bill was filed in the court below by Williams, the present appel- lant, to recover of the defendants the proceeds of the share of com- plainant's intestate in what is known as the Baltimore Company, which had a claim against the Mexican government, that was awarded to it under the treaty of 1839. The proceeds of the share amounted to the sum of $41,306.41. The history of the litigation to which the award under the treaty gave rise, in the distribution of the fund among the claimants or the assignees composing the Baltimore Com- pany, will be found in the report of four of the cases which have heretofore come before this court, 11 How. 529 ; 12 How. Ill ; 14 How. *In addition to the authorities cited in principal case, see Cooley's Con- stitutional Limitations (7th ed.), 550-553, and numerous cases cited in the note. See also. Doe v. Roe (1887) 31 Fed. 07, in which a plea to an action of ejectment, allej^inj;, inicr alia, valuable iirprovonionts and prayinp; that de- fondant be allowed a sum amountinf; to tlic enhanced value of the land by reason of the improvements, was not allowed although especially authorized by the state practice. — Ed. CHAP. I.] WILLIAMS V. GIBBES AND ANOTHER. 329 610; 17 How. 233, 239. That of Williams v. Gibbes, in 17 How., con- tains the report of the present case when formerly here. This court then decided that the claim of the executors of Oliver to the share of Williams was not well founded ; that the interest of Williams in the same had not been legally divested during his lifetime; and that his legal representative then before the court was entitled to the pro- ceeds. The decree of the court below was reversed, and the cause remanded for further proceedings, in conformity with the opinion of the court. Upon the cause coming down before that court on the mandate, the defendants, the executors of Oliver, set up several charges against the fund, which it was claimed should be received and allowed in abatement of the amount. 1. For certain costs iind_expenses tojv^iich they had been subjected in resisting^^uits instituted against it by third parties^ The history of these suits will be found in the cases already referred to in this court, and need not be stated at large. 2. For, s&rvicps and jexpenses of Oliver in his lifetime, in the- prosecution of the claim of the Baltimore Company^ as its attorney andam gent before the government of Mexico, from the year 1825 down to the time of his death in 1834. The court below allowed to the executors the costs and expenses to which they had been subjected in defending the suits mentioned, and also thirty-five per cent, of the fund in question for the services of Oliver. The case is one in many of its features novel and peculiar. James Williams, the intestate', and owner of the share in the Balti- more Company, became insolvent in 1819, and took the benefit of the insolvent laws of Maryland; and in 1825 the insolvent trustee of his estate sold and assigned to Robert Oliver the share in question in this company; and from thence down to the year 1849, Oliver in his lifetime, and his executors afterwards, did not doubt but that a per- fect title to the share had passed by virtue of this assignment. In that year the Court of Appeals of Maryland decided, in a case between the executors and an insolvent trustee of Williams, that no title passed to Oliver by this assignment ; and as a legal consequence it was held by this court, in 17 How., that the interest remained in Williams at his death, and of course passed to his legal representative, the com- plainant. All tlie services and expenses, therefore, of Oliver, in his lifetime, in the prosecution of the claims of the Baltimore Company against the government of ^Icxico, and of the litigation since encountered by his executors in res])ect to the share, have resulted in securing the pro- ceeds of the same to the estate of Williams, the original shareholder. Williams in his lifetime, and his legal representatives since, down till the fund was in court awaiting distribution, had taken no steps for its recovery, nor had they been subjected to any expense. The whole 330 WILLIAMS r. GIBBES AND AXOTHER. [bOOK II. of the services had been rendered, and expenses borne, by Oliver and his executors; and the question is whether, upon any established principles of law or equity, the court below were right in taking into the account, in the settlement between the parties, these services and expenses. We are of opinion they were. By the judgment of the Court of Appeals of Maryland, Oliver was at no time the true owner of this share ; as, notwithstanding the assignment by the insolvent trustee, it still remained in Williams. Oliver thereby became trustee instead of owner of the share and of the proceeds, as did also his executors; and they must be regarded as holding this relation to the fund from their first connection with it. In that character the executors have been made accountable to the estate of Williams, and have been responsible since the fund came into their possession for all proper care and management of the same. In defending these proceeds, therefore, against suits instituted by third parties to recover them out of the hands of the executors, they have done no more nor less than they were bound to do as the proper guardians of the fund, if they had known at the time the relation in which they stood to it, and that they were defending it for the benefit of the estate of Williams, and not for that of Oliver. The services rendered and expenses borne could not have been dispensed with, consistent with their duties as trustees. But it is said that these suits were defended by the executors while claiming the fund in right of their testator, and hence for the supposed benefit of his estate; that the defence was not made in their character of trustees, and cannot, therefore, be regarded as a ground for charging the estate of Williams with the costs of the litigation. The answer to this view is, that although in point of fact the de- fence was made under the supposition that the fund belonged to the estate of Oliver, yet in judgment of law it was made by them as trustees and not owners, as subsequently judicially ascertained; and as the costs and expenses were properly incurred in the protection and preservation of the fund, it is but just and equitable they should be made a charge upon it. The misapprehension as to the right cannot change the beneficial character of the expense, when indispensable to its security. The duty of a trustee, whether of real or personal estate, to defend the title, at law or in equity, in case a suit is brought against it, is unquestioned ; and the expenses are properly chargeable in his ac- counts against the estate. 2 Story, Eq. Jur. § 1275. Another principle which we think applicable to this case is to be found in a class of cases where a bona fide purchaser for a valuable consideration, without notice, has enhanced the value of the property by permanent expenditures, and has been subsequently evicted by the true owner on account of some latent infirmity in the title. It is CHAP, I.] WILLIAMS r. UIliBES AND AXOTIIEI{. 331 well settled, if tlie true owner is obliged to come into a court of equity to obtain relief against the purchaser, the court will first require reasonable compensation for such expenditures to be made, upon the principle that he who seeks equity must first do equity. 2 Story, Eq. Jur. §S ^9!'- "yj^^j; 6 Paige, 403, 404; 1 Story, 494, 495. A kindred })rinciple is also found in a class of cases where there has been a bona fide adverse possession of the property tacitly ac- quiesced in by the true owner. The practice of a court of equity in such cases does not permit an account of rents and profits to be carried back beyond the filing of a bill. 8 Wheat. 78; 27 E. L. & Eq. 212; 7 Ves. 541 ; 1 Edw. Ch. 579. This principle is applicable where the person in possession is a bona fide purchaser, and there has been some degree of remissness or negligence or inattention on the part of the true owner in the assertion of his rights. Courts of equity, it would seem, do not grant active relief in favor of a bo?ia fide purchaser making permanent meliorations and im- provements by sustaining a bill brought by him against the true owner, after he has succeeded in recovering the property at law. 6 Paige, 390, 403, 404, 405 ; 1 Story, 495 ; 8 Wheat. 81, 83. The Civil Law in this respect is more liberal, and provides a remedy in behalf of the pur- chaser, even beyond an abatement of the rents and profits for such expenditures as have enhanced the value of the estate (cases above), and indeed generally applies the principle in favor of any bona fide possessor of property who has in good faith expended his money for its preservation or amelioration; otherwise, it is said, the true owner appropriates unjustly the property of another to himself. Touillier, 3 B. tit. 4, c. 1, ss. 19, 20. Now in the case before us, Oliver in 1825 purchased this share in the Baltimore Company for the consideration of $2000, its full value at the time. The purchase was made from the insolvent trustee of Williams, who all parties concerned believed had the power to sell and transfer the title. Williams, down till his death in 1836, set up no claim to it ; nor did his representative after his death, till August, 1852, when this bill was filed. Oliver and his executors had been in the undisturbed possession, so far as respects any claim under the present right, for the period of twenty-seven years. And al- though it may be said in excuse for any remissness, and by way of avoiding the consequences of delay, that Williams and those repre- senting him had no knowledge of the defect in the title till the decision of the Court of Appeals of Maryland, it may be equally said, on the other hand, that Oliver and his executors were alike ignorant of it, and had in good faith expended tlieir time and monev in re- covering the claim against the government of ^[exico, and afterwards in defending it against a long and expensive litigation. It is difficult to present a stronger case for the protection of a bona fide purchaser from loss, who has expended time and money in enhanc- 332 WILLIAMS V. GIBBES AND ANOTHER. [BOOK II. ing the value of the subject of the purchase, or a case in which the principle more justly applies that where the true owner seeks the aid of a court of equity to enforce such a title, the court will administer that aid only when making compensation to the purchaser. We are ihcrefore of opinion that tlie court below was right in allowing in the account the costs and fees paid to counsel by the executors in the de- fence of the suits. In respect to the thirty-five per cent allowed for the prosecution of the claim against the government of Mexico, it stands in principle upon the same footing as other services and expenses incurred in pro- tecting and preserving the fund after possession was obtained. The amount of compensation depends upon the proofs in the case as to the value of the service, and which must in a good degree be governed by the usual and customary charges allowed for similar services and expenses. As this claim was prosecuted with others by Oliver when he supposed and believed that he was the owner, and that he was acting on his own behalf and not as trustee for Williams, the rate of compensation must rest upon all the facts and circumstances attend- ing the service; there could have been no agreement as to the com- pensation. And for the same reason it cannot be expected that an account of the services and expenses was kept, so as to enable the court to arrive with exactness at the proper sum to be allowed, as might have been required if Oliver had been chargeable with notice of the trust. The proofs show that Oliver appointed agents to repre- sent him at the government of Mexico as early as March, 1825, and that these agencies were continued from thence down till his death in 1834 ; and that during all this time he kept up an active cor- respondence with them and others, and with our ministers at Mexico, and with his own government, on the subject. The justice of these claims had been acknowledged by the government of Mexico as early as 1823-24, but no provision was made for their payment. They were regarded as of very little value, from the hopelessness of their re- covery; and it is perhaps not too much to say, upon the evidence, that in the absence of the vigorous and efficient prosecution of them by Oliver, they would have been worthless. In the result, for the share in question, which was sold in 1825 for $2000, there was realized from the government of Mexico, under the treaty of 1839, the sum of $41,306.41. The estate of Williams has never expended a dollar towards recovering it, nor has Oliver ever received any com- pensation for his services. The amount may seem large, but we can- not say the court below was not warranted in allowing it, upon the proofs in the case of the great service rendered, and of the customary charges in similar cases. ^ 'A portion of the opinion relating to questions of practice has been omitted. — Ed. CHAP. I.] ISLE ROYALE MINING CO. V. JOHN IIERTIN. 333 Upon the whole, we are satisfied the decree of the court below was right, and ought to be affirmed. Mr. Justice Gkier dissented.^ THE ISLE EOYALE MINING COMPANY v. JOHN HERTIN AND MICHAEL HERTIN. Supreme Court of Michigan, 1877. [37 Michigan Reports, 332.] Trover and indebitatus assumpsit. The facts are in the opinion. CooLEY, C. J. The parties to this suit were owners of adjoining tracts of timbered lands. In the winter of 1873-74 defendants in error, who were plaintiffs in the court below, in consequence of a mistake respecting the actual location, went upon the lands of the mining company and cut a quantity of cord wood, which they hauled and piled on the bank of Portage Lake. The next spring the wood was taken possession of by the mining company, and disposed of for its own purposes. The wood on the bank of the lake was worth $2.87^ per cord, and the value of the labor expended by plaintiffs in cutting and placing it there was $1.87^ per cord. It was not clearly shown that the mining company had knowledge of the cutting and hauling by the plaintiffs while it was in progress. After the mining company had taken possession of the wood, plaintiffs brought this suit. The declaration contains two special counts, the first of which appears to be a count in trover for the conversion of the wood. The second is as follows- : — The circuit judge instructed the jury as follows: "If you find that the plaintiffs cut the wood from defendant's land by mistake and without any wilful negligence or wrong, I then charge you that the plaintiffs are entitled to recover from the defendant the reasonable cost of cutting, hauling, and piling the same." This pre- sents the only question it is necessary to consider on this record. The jury returned a verdict for the plaintiffs. Some facts appear by the record which might perhaps have war- ranted the circuit judge in submitting to the jury the question whether the proper authorities of the mining company were not aware that the wood was being cut by the plaintiffs under an honest mistake as to their rights, and were not placed by that knowledge under obliga- ^Aceord: Railway r. Pierce (1004). 98 Mo. ,^28.— En. -Declaration omitted. The plaintifTs stated in brief that their labor in cuttiner. splittinji;, Iiaulinjr and pilinj: the wood in question enhanced its value by $2000, and they counted in assumpsit for that sum. — Ed. 334 ISLE ROYALE MINING CO. V. JOHN HERTIN. [BOOK II. tion to notify the plaintiffs of their error. But as the case was put to the jury, tlie question presented by the record is a narrow question of law, which may be stated as follows: whether, where one in an honest mistake regarding his rights in good faith performs labor on the property of another, the benefit of which is appropriated by the owner, the person performing such labor is not entitled to be com- pensated therefor to the extent of the benefit received by the owner therefrom? The affirmative of this proposition the plaintiffs under- took to support, having first laid the foundation for it by showing the cutting of the wood under an honest mistake as to the location of their land, and taking possession of the wood afterwards by the mining company, and its value in the condition in which it then was and where it was, as compared with its value standing in the woods. We understand it to be admitted by the plaintiffs that no authority can be found in support of the proposition thus stated. It is conceded that at the common law when one thus goes upon the land of another on an assumption of ownership, though in perfect good faith and under honest mistake as to his rights, he may be held responsible as a trespasser. His good faith does not excuse him from the payment of damages, the law requiring him at his peril to ascertain what his rights are, and not to invade the possession, actual or constructive, of another. If he cannot thus protect himself from the payment of damages, still less, it would seem, can he establish in himself any affirmative rights, based upon his unlawful, though unintentional encroachment upon the rights of another. Such is unquestionably the rule of the common law, and such it is admitted to be. It is said, however, that an exception to this rule is admitted under certain circumstances, and that a trespasser is even permitted to make title in himself to the property of another, where in good faith he has expended his own labor upon it, under circumstances which would render it grossly unjust to permit the other party to appropriate the benefit of such labor. The doctrine here invoked is the familiar one of title by accession, and though it is not claimed that the present case is strictly within it, it is insisted that it is within its equity, and that there would be no departure from settled principles in giving these plaintiffs the benefit of it. The doctrine of title by accession is in the common law as old as the law itself, and was previously known in other systems. Its general principles may therefore be assumed to be well settled. A wilful trespasser who expends his money or labor upon the property of another, no matter to what extent, will acquire no property therein, but the owner may reclaim it so long as its identity is not changed l>y conversion into some new product. Indeed some authorities hold that it may be followed even after its identity is lost in a new product; that grapes may be reclaimed after they have been converted into ClIAr. I.] ISLE ROYALE MINING CO. V. JOHN HERTIN. 335 wine, and grain in the form of distillcfl liquors. Silsbury v. McCoon, 3 N. Y. 379. Sec Riddle v. Driver, 12 x\la. 5i)n. And while other authorities refuse to go so far, it is on all hands conceded that where the appropriation of the property of another was accidental or through mistake of fact, and labor has in good faith been expended upon it which destroys its identity, or converts it into something sul)stantially different, and the value of the original article is insignificant as com- pared with the value of the new product, the title to the property in its converted form must be held to pass to the person by whose labor in good faith the change has been wrought, the original owner being permitted, as his remedy, to recover the value of the article as it was before the conversion. This is a thoroughly equitable doctrine, and its aim is so to adjust the rights of the parties as to save both, if possible, or as nearly as possible, from any loss. But where the identity of the original article is susceptible of being traced, the idea of a change in the property is never admitted, unless the value of that which has been expended upon it is sufficiently great, as compared with the original value, to render the injustice of permitting its appro- priation by the original owner so gross and palpable as to be apparent at the first blush. Perhaps no case has gone further than Wetherbee v. Green, 22 Mich. 311, in which it was held that one who, by unin- tentional trespass, had taken from the land of another young trees of the value of $25, and converted them into hoops worth $700, had thereby made them his own, though the identity of trees and hoops wa's perfectly capable of being traced and established. But there is no such disparity in value between the standing trees and the cord wood in this case as was found to exist between the trees and the hoops in Wetherbee v. Green. The trees are not only sus- ceptible of being traced and identified in the wood, but the difference in value between the two is not so great but that it is conceivable the owner may have preferred the trees standing to the wood cut. The cord wood has a higher market value, but the owner may have chosen not to cut it, expecting to make some other use of the trees than for fuel, or anticipating a considerable rise in value if they were allowed to grow. It cannot be assumed as a rule that a man prefers his trees cut into cord wood rather than left standing, and if his right to leave them uncut is interfered with even by mistake, it is manifestly just that the consequences should fall upon the person committing the mistake, and not upon him. Nothing could more encourage careless- ness than the acceptance of the principle that one who by mistake performs labor upon the property of another should lose nothing by his error, but should have a claim upon the owner for remuneration. Why should one be vigilant and careful of the riglits of others, if such were the law? Whether mistaken or not is all the same to him, for in either case he has employment and receives his remuneration ; while the inconveniences, if any, are left to rest with the innocent owner. 336 OSBORN V. THE GOVERNORS OF GUY's HOSPITAL. [BOOK II, Such a doctrine offers a premium to heedlessness and blunders, and a temptation by false evidence to give an intentional trespass the appear- ance of an innocent mistake. A case could seldom arise in which the claim to compensation could be more favorably presented by the facts than it is in this; since it is highly probable that the defendant would suffer neither hardship nor inconvenience if compelled to pay the plaintiffs for their labor. But a general principle is to be tested, not by its operation in an individual case, but by its general workings. If a mechanic employed to alter over one man's dwelling-house, shall by mistake go to another which happens to be unoccupied, and before his mistake is discovered, at a large expenditure of labor shall thoroughly overhaul and change it, will it be said that the owner, who did not desire his house disturbed, must either abandon it altogether, or if he takes possession, must pay for labor expended upon it which he neither contracted for, desired, nor consented to? And if so, what bounds can be prescribed to which the application of this doctrine can be limited? The man who by mistake carries off the property of another will next be demanding payment for the transportation; and the only person reasonably secure against demands he has never assented to create, will be the person who, possessing nothing, is thereby protected against anything being accidentally improved by another at his cost and to his ruin. The judgment of the Circuit Court must be reversed, with costs and a new trial ordered. The other Justices concurred.^ 2. THE BENEFIT WAS CONFERRED AT REQUEST, BUT NOT IN THE CRE- ATION OR PERFORMANCE OF A CONTRACT. OSBORX V. THE GOVERNOES OF GUY'S HOSPITAL. At Guildhall, before Raymond, C. J., Michaelmas Term, 1727. [2 Strange, 728.] The plaintiff brought a quantum meruit pro opere et lahore in transacting Mr. Guy's stock affairs in the year 1720. It appeared he was no broker, but a friend ; and it looked strongly as if he did not expect to be paid, but to be considered for it in his will. And the Chief Justice directed the jury, that if that was the case, they could 'Afcord: (iaskins v. Davis (1S93) 115 N. C. 85. See note on this subject in 8 Harv. L. R. 350.— Ed. CHAP. I.] LIVINGSTON V. ACKESTON. 337 not find for the plaintiff, though nothing was given him by the will ; for they should consider how it was understood by the parties at the time of doing the business, and a man who expects to be made amends by a legacy cannot afterwards resort to his action.^ LIVINGSTON V. ACKESTON. Supreme Court of New York, 1826. [5 Cowen, 531.] On error for C. P. of Columbia. The action below was assumpsit for work and labor by Ackeston against Livingston; and the verdict and judgment was for the plaintiff, on the facts stated in a bill of exceptions, upon which the writ of error was founded. Those facts were, that Ackeston, a black man, worked for Livingston, from the spring of 1819 till June, 1820, when he sold him to one Benn. That Livingston had bought him of one Ham, as a slave or servant, at $200; and that he was to serve till he was 28 years old. That he became dissatisfied and procured Benn to purchase him of Livingston. That Ackeston was born of black parents, who kept house and acted for themselves as long ago as 1798, in which year he was born. The parents had before been slaves to one Dings. Ham had also bought Ackeston as a servant till he was 28. He was sold to Livingston at 16 years and -1 months old. The counsel for the defendant below moved for a nonsuit, on the ground that there was no contract to pay wages, and none could be implied, between the parties. But the motion was overruled. Curia, per Sutherland, J. The plaintiff, upon the evidence in the case, must be considered as having been a freeman, during the period he was in the service of the defendant. But the defendant purchased him as a slave in perfect good faith, for a large and valu- able consideration. The pljirnjjff snppng £d _himself to ha ve been a slave; and at his own request, was sold by the defendant to a~p^son ^\cf'orcl: Le Sajje v. Coussmaker (1704), 1 Esp. 1S7 ("Ilis LortUhip [Ken- yon] arldod, that the law was well settled, that if the plaint! IV had undertaken the several services proved, without any view to a reward, but with a view to a lejjaoy, that he could not set up any demand ajjainst the testator's estate, but of that the jury were to decide") ; Lee v. Lee & Welch (1834), 6 Gill & J. 31G; Mundorff v. Kilbourn (1853), 4 Md. 459; Collyer v. Collyer (1889), 113 N. Y. 442. Rut if the services are not fn'atuitously rendered although nothing be said at the time of the transaction, the mere expectation of a legacy will not bar a recovery. Baxter v. Gray ( 1842) , 4 Scott. X. S. 374.— Ed. 338 LIVIXGSTOX V. ACKESTON, [BOOK II. whom the plaintiff had induced and procured to purchase him. There is no pretence of an express promise, on the part of the defendant, to pay the phiintitf for his services; and the question is, whether, under the circumstances of this case, such a promise is to be implied. No doubt the services of the plaintiff, having been performed for the benefit of the defendant, with his knowledge and approbation, the law will imply a promise to pay for them, unless it appears they under- stood that no compensation was to be made. Jacobson v. Executors of Le Grange, 3 John. 201. In this case, it clearly appears, that such was the understanding of the plaintiff', as well as the defendant. The plaintiff knew, and admitted, that the defendant had purchased his time, until he was 28 years of age; that he paid 200 dollars for it ; that he was entitled to his services. He procured another person to purchase the unexpired term of his services, from the defendant ; thereby admitting the defendant's right to sell it. The law, under such circumstances, cannot raise an implied assumpsit. The case of Alfred v. Fitz James, 3 Esp. Rep. 4, is precisely in point. It appeared, in that case, that the plaintiff, a colored man, came over from Martinique with the dutchess of Fitz James, having been born a slave on an estate belonging to her in that Island. There was no contract of hiring for wages; but a witness said the marquis had been heard to promise him wages. Ld. Kexyon ruled, that up to the time of the promise to pay wages, the plaintiff could not re- cover, as there was no original contract of service for wages. (And vid. 1 Com. on Contr. 227.) The case of Cook v. Husted, 12 John. 188, has no analogy to this. There Cook purchased the time of a black girl from one Israel Pugsley. She did not, in fact, belong to Pugsley, but to Sarah Husted, the plain- tiff; and the action was brought by her to recover the value of her services while she lived with the defendant. Having shown the slave to be hers, and to have performed services for the defendant, she was, of course, entitled to be paid for them, unless there was something to show the parties understood that no compensation was to be made. There was nothing of that kind in the case; or from which it could be inferred. Judgment reversed.' 'Accord: Negro Franklin v. Waters (1849) 8 Gill, 322.— Ed. CHAP. I.] SWIRES V. PARSONS. 339 SWIRES V. PAKSONS. Supreme Court of Pexnsylvaxia, 1843. [5 Waits & Sergeant, 357.] This was an action of assumpsit, brought by Susan Swires, alias Susan Parsons, against the administrators of Isaac Parsons, de- ceased, to recover compensation for work, labour and service per- formed for the intestate in his lifetime. The proof was, that_tiie p laintiff had lived for many years with the_iQfesIaie^IIaBd--per=^ fornaed the labolir and "services as allegedY and the witnesses testi- fie d tha t she lived with MB3:-as.Jiis._wife,_an.d was repnted as_J^ch. The opinion of the CourT was delivered by Kogers, J. We cannot undertake to say that there was error in charging the jury that, under the circumstances in proof, the plaintiff was not en- titled to recover. They were right in ordering judgment to be entered for the defendants. The evidence establishes one of two things, either that the plaintiff and intestate were married, or that she was living in a~?tate of concubinage. They lived as man ,and wiie,— aftd-^ere gen(?Tatly~reputed to be so, as the witnesses all concur in saying. Either position is fatal to the claim for compensation, j mless in_ the latter case there was super-added proof of a contract of hiring, of which there is not a shadow of evidence. Without this consideration, however meritorious her services may have been in one aspect, the action cannot be sustained. The action of assumpsit is founded on contract, either express or implied ; and as an express contract is out of the question, the action must be maintained, if at all, on the im- plied promise. But this cannot be, for if a man work for another merely with a view to a legacy, he cannot afterwards resort to an action on an implied assumpsit. In Osborn v. The Governors of Guy's Hospital, 2 Stra. 728, where this principle was first ruled, it is said. "The court must consider how it was understood by the parties at the time of doing the business, and a man who expects to be made amends by a legacy cannot afterwards resort to his action." This principle applies to tlie case in hand, and has been since recognised in Little v. Dawson, 4 Dall. Ill ; Jamison v. Executors of Le Grange. 3 Johns. Rep. 199 ; to which may be added. T^rie v. Johnson, 3 Penn. Rep. 212. It is enough for the plaintiff, prima facie, to show labour performed, to raise an implied assumpsit to pay for it. But the facts in evidence rebut the implication of a promise, which would otlier- wise arise ; for the relation which they bore to each other is incon- sistent with any understanding for compensation. As it is a situation in which she voluntarily placed herself, she must rely upon liis bounty for support. She cannot now turn round and rely upon com- 340 LANTZ V. FREY AND WIFE. [BOOK II. pensation founded on the relation of master and servant. If the woman can maintain suit against the man, cases may occur where the man may, by parity of reasoning, maintain suit against the woman; and it may sometimes be a difficult matter to settle the account between them. A man cannot be made a debtor against his will; and although cases may be readily supposed of great hardship and apparent injustice, as where the woman has been the victim of a base deception, thinking herself married when she is not, yet we cannot yield to such considerations on reasons of, at least, doubtful policy.^ Judgment affirmed. LAKTZ V. FREY AND WIFE. Supreme Court of Pennsylvania, 1850. [14 Pennsylvania, 201.] Error to the Common Pleas of Erie county. This was an action of assumpsit, brought by Frey and his wife, against John Lantz, the plaintiff in error, to recover upon an implied assumpsit for the services of the wife of defendant in error, under the following circumstances : The said Lantz married a widow, the mother of the wife of said Frey. The child at the time of the marriage was eight or nine years old; she went with her mother after the marriage, and lived in the family of Lantz, the stepfather, as one of his own children, without any contract whatever. On the part of Lantz, it was alleged that she was fed, clothed, and schooled, the same as his own child, and she worked in the family in the same manner, until she was between eighteen and nineteen years old. when 'In Louisiana, however, the contrary doctrine exists and seems well estab- lished. In The Succession of Llula (1892) 44 La. Ann. 161, the court said in affirming a judfrment of the lower court: "The plaintiff and her alleged hus- band entered into an adulterous connection, and the relations between the parties were such that no marriage could have been contracted between them when they first assumed this re.lationship to each other. The fact that the hus- band died during this illicit connection cannot give a character to it which it did not have when it was first formed. It continued as it had begun. The fact that he treated the plaintifT as his wife, and introduced her as such in the com- munity, could not destroy or do away with the actual truth of their relation- ship, nor could it remove from the plaintifT the knowledge that she was a married woman when she deserted her husband and went to live with Llula. She was not in good faith, as she knew that her husband was living and that she could not become the wife of Llula. It was not possible for her to be imposed upon. She was his concubine and can assert her rights only in that capacity. When the relation of concubinage is incidental and is not the motive CHAP. I.] LANTZ V. FREY AND WIFE. 341 she married Jacob Frey. Soon after her marriage^ she and her hu s- band. brought this action to recover wages fo r the time she lived in thellamily of her step father- The court charged the jury that the plaintiffs below were entitled to recover upon the quantum meruit; of which charge and instruction of the court, the plaintiff in error complains. There was evidence on the part of plaintiffs, that the child lived with its uncle until its mother married Lantz; that Lantz said, if she would come and live with him, he would use her as one of his own children. That she worked Jaithfull}^ — was poorly dad — she was not sentjnucir to^schoo l ; that^he w"^^<"pd in tViP faTnily^ IiVp thp other children. On the part of defendant, that she was sick considerable; that she was clothed as other girls in similar circumstances; that she can read. The opinion of the court was delivered, September 30th, by Bell, J. The plaintiffs' declaration is upon a contract. In order to re- cover, they must, consequently, prove an express contract, or show such circumstances as will raise an implied one. The first is not pretended, and we think the evidence discloses facts which pre- clude the last. The defendant intermarried with the female plaintiff's mother, after which the child went to reside in the family of her stepfather, until she herself married. By this arrangement, defendant stood in loco parentis, and was responsible for the maintenance and educa- tion of the child, so long as she continued to reside with him. 2 Kent's Com. 192 ; Stone v. Carr, 3 Esp. Cas. 1 ; Cooper v. Martin, 4 East. 76. Now nothing is better settled than that a child is not entitled to demand wages from a parent, for services rendered after attaining full age, in the absence of express contract, or something equivalent to it (Walker's Estate, 3 Eawle, 343; Candor v. Candor, 5 W. & Ser. and cause of the parties living together, the concubine can recover from the estate of the deceased, if it has been enriched by her industry. There is a gM«.S!-eontract on the part of the deceased to make compensation. Succession of Pereuilhct [1871] 23 An. 294; Delamour v. Roger [1852] 7 An. 1.52." In the Pereuilhet case, supra, the woman acted as nurse and housekeeper as well as concubine, and was permitted to recover on the ground that the services were rendered under circumstances not presumed to be gratuitous. "It is clear," said the court, "from the record in this case, that the estate of Pereuilhet was considerably enriched by the industry and the patient care of the opponent. If he had hired other servants and nurses, the amount coming to the heirs who now resist her claims would have been considerably reduced. We gather from the record as a whole, a (jwasi-contract on the part of the deceased to compensate the opponent for the services mentioned." See, also. Succession of Morvant (18P4) 46 La. Ann. 301: and the case of Rhodes v. Stone (1892) 17 N. Y. Supp. 561.— Ed. 342 LAXTZ V. FREY AND WIFE. [BOOK II. 513) ; a principle which embraces also the liabilities of persons whom the law regards as standing in that relation, although connected by no ties of blood. It was upon this ground that Defrance v. Austin, 9 Barr, 309, was decided, and a kindred principle ruled the cases of Little V. Dawson, 4 Dal. 100, and Swires v. Parsons, 5 W. & Ser. 357. In the first of these cases, a minor nephew was not permitted to recover for services rendered to an uncle, who had received him as one of his own family; in the second, there was a similar denial, Avliere the services were rendered in expectation of a legacy; and in the last, a woman who had lived in a state of concubinage, was un- successful in her claim to be remunerated from the estate of the man towards whom she had discharged the duties of a wife and house- keeper. Each__of_jLhese determinations is^based on__t he irresisti ble presumption, springing f^om the relation of the parties, that neither o| them^-contemplated remuneration by the payment of wages, an^ in the impolicy of sanctioning claims not streamed of at the time^ of tKe transaction. This impolicy is peculiarly apparent where the relation of aduTt protection and infant dependence exists; the latter expecting naught beyond shelter, food, clothing, and education, and the former enjoying, as of course, whatever services the weaker party is able to render. Such was the relative position of these parties; the girl living in the house of her mother's husband as a member of the family, and the husband regarding her as the child of his wife, and not as a menial or hireling. The general law springing from this condition of things, as I have stated it, was recognized by the court below, in the answer returned to the defendant's point submitted. But the learned president, moved by the imputed neglect of the stepfather in the discharge of the duty he owed to the child, and by the severity of the labor to which he appears, in some measure, to have devoted her, thought the plaintiff might be entitled to recover remuneration for the defendant's re- missness and harshness. In indulging this impression, however, the court forgot the action was to recover for services rendered, and not for any supposed neglect of legal duty on the part of the de- fendant. Whether such an action will lie in a proper ease, I will not take it upon me to say, for the simple reason that no such claim is set up here. But I may say that any device, designed to enable the child of a widowed mother to assume towards a second husband the attitude of creditor for services rendered while living in the family as a member of it, ought to be be discouraged, because of the results it must inevitably produce. Men will decline to extend their protection and aid to orphan children, at the hazard of being ex- posed to suits at law on the suggestion of ill-natured neighbors or exacting friends, that the stepchild has been harshly treated or in- adequately provided for. Every one of the least experience knows how difficult at best it is to escape such imputations; and should we CIIAI'. I.J DONAHUE V. DOXAHUE. 343 « permit cynicism to be stimulated by the chances of encouraged liti- gation, it will l)e dillicult to foresee the extent of evil which may be produced. That one who assumes the office of parent may so grossly violate the duties aj)pertaining to it, as to subject himself to answer at the suit of the injured party, is possible; though I am unaware of any example of sucli an action. Certainly it will not lie against a natural parent, and many reasons might be urged for extending the same immunity to him whom the law, for many purposes, re- gards as a father's substitute. But should these be deemed insuffi- cient for his entire protection, it is not to bo doubted that to justify legal interference, a very gross case should be clearly established by proof. These speculations are, however, aside from the question pre- sented in this action, which has already been answered adversely to the pretensions of the plaintiffs below. Judgment reversed and a venire de novo awarded.^ In Donahue v. Donahue (1893), 53 Minn. 4G0, 461, Gilfillan, C. J., said: The evidence was abundant to sustain a finding that, while the plaintiff continued to work for his father after he became of age, there was an agreement between them that the father should pay him for his work. Of course^ from the Jactalpue^ that tlie son continut'd after he became oflTge. a member of the father's family, wo rking for h i ifi^^£p a r enUy as Tiefore lie he?ame~df ageT^ioTagreement to pay him for his work wouTdTbe implied, Buf fhe presuinption wo utd be thar he^wqrkecT for his support, as while a minoX:^ But the evldence3'^ sufjic jent to overcome that presumption, and justify a finding that there was an agreement to pay. ATTtBat^ould beTeq' u ire d •ffras'that it was suek-««-te^-rea«on*Wr-satisfy the jury of the fact. It might be indirect or circumstantial ; shown by the conduct or conversations of the parties, or admissions by the father. The statement in the appellant's second request to charge, that "the evidence must be clear, direct, and certain," might have misled 'Fitch V. Peckham (1844) 10 Vt. 150; Andrus v. Foster (1845) 17 Vt. 55G (case of foster child) ; Sawyer v. Hehard (1886) 58 Vt. 375 (suit by son-in- law to recover l)oard for mother-in-law); Mosteller's (1858) 30 Pa. St. 473; Thompson v. Stevens (1872) 71 Pa. St. IGl (housekeeper's case); Houck V. Houck (1882) nO Pa. St. 552; Page v. Snell (1880) 59 N. H. 531 (nursing); Hudson r. Hudson (1892) 90 Ga. 581 (nursing). See also Munger v. Munger (1856) 33 N. H. 581; Hall v. Hall (1862) 44 N. H. 293 (a digest of authorities) ; Moore v. Moore (1860) 3 Abb. App. 303; Bixley r. Sellman (1893) 77 Md. 494; Taggart r. Taggart (1891) 27 N. E. 511 (Ind.) : ^Marion v. Farnam (1893) 22 X. Y. Supp. 946; Fuller v. Mowtj (1893) 18 R. I. 424.— Ed. 3-i4 HICKAM V. HICKAM, [BOOK II. the jury to suppose that, to justify a finding that there was such an agreement, it must have been directly testified to by some witness who heard it made, and that part of the charge was objectionable. All there was unobjectionable in the request was in the court's general charge, given clearly, explicitly, in much better terms than are con- tained in the request.^ HICKAM V. HICKAM. Court of Appeals of Missouri^ 1891. [-16 Missouri Appeal Reports, 496.] Gill, J.^ At the December term, 1889, the plaintiff presented to the probate court of Cooper county, for allowance against the estate of Joseph Hickam, deceased, the following account : "The Estate of Joseph Hickam, deceased. To Eda Hicham (colored),. Dr.: "To services rendered by said Eda Hickam for the said Joseph Hickam as house and general servant from the eighteenth day of February, 1865, to the twenty-third day of February, 1889, being twenty-four years and five days, at the rate of $5 per month, amount- ing in the aggregate to the sum of $1,440.85." The case was tried before a jury in the probate court, and judg- ment rendered for the plaintiff for $785.29, from which the defendant appealed to the circuit court of Cooper county, where a trial was had before a jury, resulting in a verdict for the defendant, whereupon the plaintiff sued out her writ of error, and brought the case to this court. We make the following brief statement of the facts as set out in counsel's brief upon which plaintiff's demand is based : Mames v. Cillen (]801) 3 Ind. App. 472. The principal case may be taken as representing the weight of authority in matters of this kind. The question is simply one of fact, and the plain- tift must establish his claim to remuneration just as in any other case. The household relationship, not the mere relationship of parent and child, as Mr. Keener points out, is the difficulty to be overcome, and in such cases courts are inclined to insist that the claim be based upon a boim fide intent to receive compensation at the time the services were performed. Otherwise an afterthought, caused, it may be, by pique or disappointment, would change the legal nature of the act. See Keener's Treatise on Quasi-Contracts, .'(17 and note, in which the cases are collected and analysed. And see note on this subject in 6 Harv. Law R. 382.— Ed. *A portion o) the opinion, relating to questions of evidence and instructions given and refused, is omitted. — Ed. CHAP. I.] HICKAM V. IIICKAM. 345 Prior to the Civil War and up to the date of the emancipation of slaves in Missouri, the plaintiff was the property of Joseph Hickam, now deceased, who lived in Moniteau county, Missouri, from whence he removed to Cooper county, where he died in the year 1889. At the time of the abolition of slavery in Missouri the plaintiff was about twenty-three years old. From childhood she had been the slave of said Joseph Hickam; had no education, and had had very little intercourse with anyone outside of the family of her owner. She claims (and there is some evidence to sustain her) that during the war and until the death of her "old master," Joseph Hickam, she was not allowed to, and never did, leave his premises except in the company of a member of the Hickam family ; that she was not allowed to visit any of her own race, and no colored person, not even her step- father, was allowed to talk to her alone ; fVint-.shp wp s never permitte d to go to church or public gat herings of any kind, and lived in absolute^ ignora"hce of thL^~ta^tr"than He negroes h a d been set free, or that she _^ was a free woman, until after the death of herjnastex. Joseplr-HickaiiL Dunng the whole of the time, from the abolition of slavery in Mis- souri until the death of Joseph Hickam (twenty-four years and five days), she lived and served as his slave in total ignorance of her rights, and without any remuneration or reward for her services, except what she had received while she was in fact a slave, to wit, her food and clothing. T he theory upon which p laintii f' s claim i s ba sed is, that if by fraud, deceit or duress she jwas kepj^ jn^i^noxanc e of h er rights^ by the said Joseph Hickam, whereby she wa s in duced to and did render him services^ t hen she is entitIed^lo_pay--£Qi_the_sajtne, althouglTheliiay not have intended to pay her, and she may not have expected to charge for such services. I. It will be seen by a comparison of plaintiff's refused instruc- tion with the instruction given for defendant, that the trial court declined to adopt the theory that if the negro girl, Eda, was induced by the fraudulent concealment of her rights by the said Joseph Hickam to labor for his benefit without pay, that then she ought to recover the value of such services; hut held that the plaintiff could not recover, however valuable the services may have been, unless "the jury should believe from the evidence that at the time she was ren- dering said services she intended to charge Joseph Hickam therefor, and that the said Joseph Hickam understood at the time said services Avere being rendered that she expected to make said charge," etc. In other words, the jury was advised that, even admitting the charge that Joseph Hickam did by his fraudulent practices hold the said Eda in practical bondage years after the emancipation, and that, in utter ignorance that she was free, the plaintiff performed valuable labor for said Joseph Hickam, yet that there was no implied obligation on him to pay therefor, because she, the plaintiff, at the time ex- pected no reward, nor did Hickam expect to pay anything therefor. 340 HICKAM V. HICKAM. [BOOK II. We do not understand this to be the law in this character of case. An implied promise does not always depend upon the existence of ^'^^^git^^^Q^L' w"~f^^Tf-oJ^the--ette- 4e-^fiay^"a nd the trbfaeritoIregeiieT' The law frequently affixes a promise to pay even contrary to actual inten- tion. As well expressed by an eminent author: "The law implies from men's conduct and actions contracts and promises as forcible and binding as those made by express words, and such contracts are implied sometimes in furtherance of the intention, or presumed in- tention, of the parties, and sometimes in furtherance of justice with- out regard to the intention of the parties. Thus a promise to pay for services rendered, or for goods received, or money obtained, will be implied against the wrongdoer who never intended to pay or intended deceptively to avoid payment." 3 Add. on Cont. sec. 1399 ; 1 Hilliard bn Contracts, sec. 20, p. 65. This same doctrine found practical application in an early de- cision by our supreme court. Higgins v. Breen, Adm'r, 9 Mo. 497. McNally left his wife in a foreign country, came here and solicited the plaintiff, Rosaline Higgins, to marry him; she consented and was married to him, trusting to McNally's false and fraudulent repre- sentations that he was single. It was only after the death of McNally that the plaintiff became informed of the truth. She then sued the estate for the value of her services as housekeeper for McNally during the time she had lived with him, and she was allowed to recover, although, of course, while performing the services she in fact ex- pected no compensation. Nor did McNally expect to pay anything. He was held, however, on an implied contract, regardless of the intention of the parties. In point see also. Negro Peter v. Steel, 3 Yeates (Pa.), 250; Boardman v. Ward, 40 Minn. 399; Wood on Master & Servant, pp. 96, 106, 107, and cases cited. Many of the cases referred to, it is true, were instances of compulsion, where the plaintiff was forced to labor for the defendant. However, I can dis- cover no distinction in principle, whether the labor was secured through duress, compulsion or fraud. The reason and justice in each case is the same ; the law is the same. The authorities cited by defendant do not militate against the position "here announced. The case of Callahan v. Riggins. 43 Mo. App. 130, is one of the series in the appellate courts of this state denying the right of a near relative and member of the family to compensation for labor done while a member of the family, unless there was at the time an expectation of the one to give, and the other to receive, pay for such services. It is there held that the ordinary presumption of an agreement to pay for valuable services rendered does not obtain where the parties occupy a family relation. These cases are taken out of the general rule, and have no bearing on the question here. In Maltby v. Harwood, 12 Barb. 473, and other cases relied on by CHAP. I.] HICKAM V. HICKAM. 347 defendant's counsel, both parties were acting under a mistake. "They alike," says the court in Maltby v. Harwood, "thought the plaintiff . was bound as an apprentice." It was held there that no implied obliga- tion to pay arose. It is said there, however, that a different rule would hold if the plaintiff had been compelled to perform the labor for defendants. I take it the court in the Maltby case would have held the defendant liable on a showing that he had secured the' services of the plaintiff by falsely and knowingly representing and inducing the plaintiff to believe that he, the defendant, was legally entitled to his labor thus performed. II. But it is suggested by defendant's counsel that the ignorance, on account of which plaintiff seeks relief, is that of law and not of fact, and hence, under the well-known maxim, Ignorantia legis nem- inem excusat, she cannot complain of the deception alleged to have been practiced by Joseph Hickam. Generally, it is true, a misrepre- sentation of the law affords no ground of redress ; the misrepresenta- tion should relate to a question of fact. However, this harsh and arbitrary rule is not without its exception. All men are not always presumed to know the law. Misrepresentation of the law is some- times binding on the party who makes it. This is true in trans- actions between parties occupying fiduciary and confidential relations. "Indeed," it is said, "where one who has had superior means of in- formation professes a knowledge of the law, and thereby obtains an un- conscionable advantage of another who is ignorant, and has not been in a situation to become informed, the injured party is entitled to relief as well as if the misrepresentation had been concerning matter of fact. Bigelow on Fraud, 488, and cases cited, Moreland v. Atchison, 19 Tex. 311. The right to relief seems to be admitted, where "a party should intentionally deceive another by misrepresenting the law to him, or, knowing him to be ignorant of it, should thereby knowingly take advantage of his ignorance for the purpose of deceiving him." Abbott V. Treat, 78 Me. 12G. Says Judge ISTapton, in Faust, Adm'r v. Birner, 30 Mo. at p. 420 : "There may have been gross ignorance and imbecil- ity on one side and a perfect knowledge of the fact and the law on the other ; there may have been imposition or undue influence ; there may have been circumstances from which the jury might infer fraud," and, therefore, he concluded that the plaintiff in the action might, on a now trial, recover. Justice Story thus concludes a recital of exceptions to the above rule that there is no relief from an ignorance of the law\ He says : "It is relaxed * * * jj^ eases of imposition, misrepresentation, undue influence, misplaced confidence and surprise." 1 Story's Eq., sec. 137; also sec. 120, et seq. Conceding, now, for the purpose only of illustrating our contention, that the facts of this case are as put by plaintiff's counsel, that this negro girl was born and raised a slave, ignorant, unable to read, kept under strict surveillance by her master o-iS TURNER & OTIS i\ WEBSTER. [BOOK II. during and since the momentous year of 1865, and, up to his death in 18S9, guarded by watchful eyes, kept within the precincts of the Hickam home and unadvised of the history of the times and the country, and taught to believe that she was still a slave and was the property of Hickam; that her old master kept her in darkness and absolute ignorance all these twenty-four years of the fact that she was free, what an outrage on justice would it be to answer her claim for compensation for valuable services to say to her: "You all the time knew the law of the land, and there is no relief for you." No ; the plaintiff's case, as claimed by her, forms an exception to the rule, and, if Joseph Hickam was guilty of this fraudulent suppression of the truth and this misrepresentation to one under his care and control, he cannot now be heard to invoke the maxim of law above quoted. The judgment will be reversed, and the cause remanded for a new trial. All concur.^ TURNER & OTIS v. WEBSTER. Supreme Court of Kansas, 1880. . [24 Kansas, 38.] Action brought by Webster against Turner and another, partners, to recover for services rendered the defendants. Trial at the January term, 1879, of the District Court, and verdict and judgment for plaintiff. The defendants bring the case to this court. The facts are stated in the opinion. ^Accord: Negro Peter v. Steel (1801) 3 Yeates, 250; Kinney v. Cook (1841) 4 111. 232. See also, Boardman v. Ward (1889) 40 Minn. 309. Contra: Negro Franklin v. Waters (1849) 8 Gill, 322. Higgins V. Breen (1845) 9 Mo. 497, cited in principal case, holds squarely that a woman living with man in honest belief that she is his wife, may waive the tort and sue his estate in assumpsit for the value of her services during the period of cohal)itation. The opinion is elaborate and convincing, based as it is upon Hambly v. Trott (1776) Cowp. 371, ante. See also, Fox v. Dawson (1820) 8 Mart. (La.) 94, in which the recovery was permitted. Cooper V. Cooper (1888) 147 Mass. 370, is, however, contra, but seems based upon the alleged sanctity of the married relation. See also, Payne's Appeal (1895) 65 Conn. 397, where, under reversed facts, the husband was not permitted to recover against the estate of a woman whom he had been induced to man-y by her false representation that she was single. It is universally admitted, however, that the wronged woman lias a cause of action and that she may recover against the tort-feasor during his lifetime by an action of deceit, although no action lies against his estate. Cooper v. Cooper (1888) 147 Mass. 370, and cases cited; Knott v. Knott (1902) 51 Atl. R. 15 (N. J. Eq.).— Ed. CHAP. I.] TURNER & OTIS V. WEIJSTER. . 349 The opinion of the court was delivered by Bhewer, J. In an action coiuinenced by phiintitTs in error, an at- tachment was issued, placed in the hands of the sheriff, and by him levied upon certain mill property. Pending the attachment proceed- ings, the JiherifL,_imder dirpftinn of p1ninfifT>L .in ■Prraj^ _PTnp1n3[ Pfj_fle- fendant in error to watch the properly; and this nr-iion was broug ht by defendant in error, plaintiff below, to recover for such services. That the sheriff was authoiizedJiy: pla inti ffs. in.£rror_to_employ_defnnd- ant in error, and that the latter performed the services, are conceded facts.. The dispute is as to the compensation. Webster claims that the contract price was three dollars per day, and that it was worth that amount ; while Turner & Otis say that they authorized the sheriff to contract for only one dollar and a half a day, and the sheriff says that that was all he promised to pay. The misunderstanding seems to have arisen in this way: After the attachment, Turner & Otis re- quested the sheriff' to find some one to guard the mill. Meeting Webster, he asked him what he would undertake the job for. He replied, one dollar and a half a day, and nights the same. The sheriff understood him to say and mean, one dollar and a half for each day of twenty-four hours, while plaintiff meant that amount for a day of twelve hours, and the same for the night time, or three dollars for every twenty-four hours. The sheriff reported the offer to Turner & Otis as he understood it, and they, after some hesitation, told him to accept the offer and employ Webster. Without further words as to the price, the sheriff gave the key of the mill to Webster and told him to go ahead. Kow the contention of plaintiffs in error is, that the case turns on the law of agency ; that they never personally employed Webster; that the sheriff was only a special agent with limited powers, only authorized to bind them by a contract to the amount of one dollar and fifty cents per day of twenty-four hours ; that Webster is chargeable with notice of the extent of the sheriff's authority, and can enforce the contract as against the plaintiffs in error to the ex- tent only of such authority. For any contract beyond that amount, the special agent binds himself alone, and not the principal. On the other hand, the defendant in error contends that where services are contracted for and rendered, and no price sti]mlated, the law awards reasonable compensation therefor, and that where there is a misunder- standing as to the price, the one party understanding it at one sum and the other at a different, there is no stipulation as to the price, and that it makes no difference whether the contract be made through an agent or with the principal directly. In the case at bar, he contends that it is immaterial that the conversation and misunderstanding were with the sheriff, the agent, and that the rule is just the same as though the talk and misunderstanding had been with Turner »S: Otis personally. We think the case rests upon the propositions advanced by the de- 350 TURNER & OTIS T. WEBSTER. [BOOK II. fondant in error. It will not be questioned, that, where the minds of two contracting parties do not come together upon the matter of price or compensation, but do upon all other matters of the contract, and the contract is thereupon performed, the law awards a reasonable price or compensation. Thus, where shingles were sold and delivered at $3.25, but there was a dispute as to whether the $3.25 was for a bunch or for a thousand, it was ruled, that unless both parties had understanding!}' assented to one of those views, there was no special contract as to price. Greene v. Bateman, 2 Woodb. & M. 239. It is said by Parsons, in his work on Contracts, vol. 1, p. 389, that "there is no contract unless the parties thereto assent ; and they must assent to the same thing, in the same sense." Here, Webster never assented to a contract to work for $1.50 a day. He agreed to do a certain work, and did it ; but his understanding was, that he was to receive $3.00 per day. Turner & Otis employed him to do that work, and knew that he did it; but their understanding was, that they were to pay but $1.50 a day. In other words, the minds of the parties met upon everything but the compensation. As to that, there was no aggregatio mentium. What, then, should result? Should he re- ceive nothing, because there was no mutual assent to the compensa- tion? That were manifest injustice. Should his understanding bind both parties ? That were a wrong to them. Should theirs control ? That were an equal wrong to him. The law, discarding both, says a reasonable compensation must be paid. So that if the negotiation had been between the parties directly, and this misunderstanding had arisen, the rule of reasonable compensation would unquestionabl}' have obtained. Now, how does the law of agency interfere? The proposition of law advanced by counsel for plaintiff in error, that a special agent binds his principal to the extent only of the authority given, and himself by any promise in excess, is clear. But the agent made no promise in excess of his authority. He promised that which he was authorized to promise. Because the other party misunderstood the extent of the promise, is surely no reason for holding the agent bound for more than he did in fact promise. The agent has rights as well as the principal. The work is not done for his benefit. He has discharged his agency in good faith, and to the best of his ability. Why should he be mulcted in any sum on account of the misunder- standing of the party with whom he contracted? If compensation were given on the basis of his promise, then, if his promise was in excess of his authority, he should be responsible for the excess ; but where the promise is ignored, and compensation given on the basis of value alone, he should not be charged with the excess of such value above his authority. An agent is responsible for good faith. That i^ not questioned. He does not insure, either to his principal or the opposite party. Acting in good faith and to the best of his ability, we can see no reason for making him responsible for any mere mis- CHAP. I.] TURNER & OTIS V. WEBSTER. 351 understanding. Justice is done to all parties by ignoring any promise or understanding as to compensation, and giving to the laborer reasonable compensation for the work done, and requiring the party receiving the benefit of such work to pay a just and reasonable price therefor. The case was submitted to the jury upon this basis, and while the instruction asked by plaintiffs in error and refused was unquestionably good law in the abstract, and while some criticism might fairly be placed upon one of the instructions given, and upon the answers of the jury to two special questions, we think the main question was fairly presented, and that no error appears justifying a reversal of the judg- ment, and it will be affirmed.^ All the Justices concurring. 'See also, Tucker v. Preston (1887) 60 Vt. 473.— Ed. CHAPTEE II. Where a Contractural Eelation Exists^ but one Party has Failed to Eeceive an Equivalent of his Outlay, SECTION I. The Failure is Due to a Mistake, 1, mistake may be as to law or fact. BONNEL V. FOUKE, ALDEEMAN OF LONDON". Michaelmas Term^ Upper Bench, 1657, [2 Siderfin, 4.] The plaintiff being one of the colemeeters of London, for which he was to'pay £80 per annum, the special matter was found to be that by divers charters 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 Medway near the sea, as also upon the river Medway, 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 colemeeters, and afterwards six were appointed, and later eight. And in the third year of King James it was enacted by the Common Council of London (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 maintenance of his honoral)le liouse, while the other two should pay their rent to the Chamberlain of London. The plaintiff was one of these two. About the year lGo2 (as I remember), when the* defendant was Mayor, he demanded of the plaintiff' the said rent, who paid it quarterly and CHAI'. II. J BIZE V. DICKASOX AXD ANOTHER. 353 holds several receipts of this tenor: Received of J. B., one of the cole- meeters of the city of London, the sum of £20 for his rent, by me, J. F., Lord Mayor, 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 Chamberlain, and therefore brought assump- sit, namely, iiulchilalus 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 land- lord ; and 1 answer : Give me your receipt and yau 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 money 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.^ BIZE V. DICKASON AND ANOTHEE, ASSIGNEES OF BART- ENSHLAG. King's Bench, 1786. [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 £661 9s. lOd. and costs 406\, subject to the opinion of the Court on the following case : — That the bankrupt. John Rodolph Bartenshlag, being an under- writer, subscribe policies filled up with the plaintiff's name for his foreign correspondents, who were unknown to the bankrupt. That losses happened on such policies to the amount of £655 9s. lid. '"By means of the fiction of a promise implied in law, indebitatus .Assump- sit became concurrent with Debt and thus was established the fam.iliar acticm of Assumpsit for monej' had and received to recover money paid to the defend- ant by mistake. Bonnel r. Fouke (1G57) 2 Sid. 4. is. perhaps, the first action of the kind." Ames' History of Assumpsit, 2 Ilarv. L. Rev. GG. — Ed. 354 BIZE r. DICKASON AND ANOTHER. [BOOK II. before the bankruptcy of Bartenshlag, and were adjusted by him. That a loss on another policy to the amount of £6 Os. 3d. happened before the said bankruptcy, but was not adjusted till after such bank- ruptcy That the plaintiff paid the amount of the losses to his foreign cor- respondents after such bankruptcy. That the plaintiff had a commission del credere from his corre- spondents, 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 commission 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 £1356 Os. 3d. And there was due from the bankrupt for the above losses £661 9s. lOd. That on the 15th of March, 1783, the plaintiff paid to the de- fendants the sum of £750, and on the 17th of November, 1785, the further sum of £606 Os. 3d., amounting to £1356 Os. 3d. And on the 18th November, 1785, the plaintiff proved the said sum of £661 9s. lOfZ. under the said commission. That the plaintiff never received any dividend under the commis- sion for or on account of the said losses. That a final dividend of the effect of the said bankrupt was de- clared 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 plaintiff caused a notice to be served on the defendants, purporting that he had paid them the said sum of £1356 Os. od. under a mistaken idea, without deducting therefrom the said £661 9s. lOd. for the aforesaid losses on the said several policies subscribed by the bankrupt, for whom he was del credere to the said foreign correspon- dents, and had paid such losses accordingly ; and cautioning thorn against making any dividend until he was paid the said sum of £661 9s. lOd. That there is now in the hands of the said defendants effects of the bankrupt more than sufficient to satisfy the demand of the- plaintiff. The question for the opinion of the Court is. Whether the plaintiff' is entitled to recover in this action? If the plaintiff is entitled to recover in this action the verdict to stand. But if the Court shall 1)e 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 Mingny for the de- fendants declined arguing the case. The Court being of opinion that it came within the principle of the case of Grove v. Dubois, 1 T. R. 112; and — Lord Mansfield, Ch. J., said. The rule had always been, that if a man has actually paid what the law would not have compelled him to- CHAP. II.] BILBIE V. LUMLEY AND OTHERS. 355 pay, but what in equity and conscience he ought, he cannot recover it back again in an action for money had and received. So where a man has paid a debt, which would otherwise have been barred by the statute of limitations ; or a debt contracted during his infancy, which in justice he ought to discharge, thougli the law would not have com- pelled the payment, yet the money being paid, it will not oblige the payee to refund it. But where money is paid under a mistake, which there was no ground to claim in conscience, the party may recover it back again by this kind of action. Judgment for the plamtiff.^ BILBIE V. LUMLEY AND OTHERS. King's Bench, 1803. [2 East, 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 policy as for a loss by capture to the defendants, the assured. The ground on which the action was endeavored to be sustained was, that the money was paid under a mistake, the defendants not having at the time of insurance effected, disclosed to the underwriter (the present plaintiff) a material letter which had l»een 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 policy was adjusted, and the money paid by the present plaintiff, all the papers had been laid before the underwi-iters, 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 circum- ^On the question of bankruptcj- involved, see Barber v. Pott (18.59) 4 H. tfc N. 75fl. On the question of mistake, see an exhaustive and learned note in 15 American Reports, 171-184, Avhere it is said: "Finally we repeat that we believe the true rule to be, sanctioned alike by reason and authority, that laid down by Lord Mansfield in Bize v. Dickason (1786) 1 T. R. 285, that 'if a man has actually paid what the law would not have compelled him to pay, but what in equity and conscience he oujiht. he cannot recover it back; but where monej' is paid under a mistake, which there was no ground to claim in conscience, the party may recover back.'" — Ed. 356 BILBIE I". LUMLEY AND OTHERS. [BOOK II. stances, 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 Parh for the defendants, and opposed by Wood for the plaintiff. But after the report 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 the plaintiff's counsel whether he could state any case where, if a party paid money to another volun- tarily with a full knowledge of all the facts of the case, he could recover it back again on account of his ignorance of the law? [Xo answer being given, his Lordship continued :] The case of Chatfield v. Paxton^ is the only one I ever heard of, where Lord Kenyon 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 relied on; and it was so doubtful at last on what precise ground the case turned, that it was not reported. Every man must be taken to be cognizant of the law; otherwise there is no saying to what extent the excuse of ignorance might not be carried. It would be urged in almost every case. In Lowrie v. 'Chatfield v. Paxton was decided in 1799. The elaborate statement of this case printed as a footnote in the original report of Bilbie v. Liimlie, is omitted inasmuch as the facts are sufficiently given in the opinion of Gibbs, C. J., in Brisbane v. Dacres (1813) 5 Taunt. 143, 15.5, post.—Ea. -''Experienced advocate" and "learned" judge were alike unaware, it would seem, that there were not a few such cases in the books in which no distinction was made between mistakes of law and fact. Hewer v. Bartholo- mew (1598) Cro. Eliz. 614 (mistake of law) ; Bonnel v. Fouke (1G57) 2 Sid. 4, ante (mistake of fact) ; Farmer v. Arundel (1772) 2 W. Black. 824, post (mistake of law) ; Bize v. Dickason (1786) 1 T. R. 285 (mistake of law). Equity likewise failed to recognize any distinction between mistakes of law and fact before 1802. Turner v. Turner (16S0) 2 Rep. Ch. *154 (mistake of law) ; Lansdowne v. Lansdowne (1730) 2 J. & W. 205, S. C. Moseley, 364 (mistake of law) ; Bingham v. Bingham (1748) 1 Ves. 126 (mistake of law). In Lansdowne v. ]>ansdowne, supra, as reported by Moseley, 364, 365, Lord Chancellor King is reported to have said, and rightly, "That maxim of law, I gnoraniia juris non excusat, was in regard to the public, that ignorance cannot be pleaded in excuse of crimes, but did not hold in civil cases." And see the valuable discussion of this maxim in Keener's masterly Treatise on Quasi-Contracts, 87 et seq. — Ed. CIIAr. II.] BILBIE V. LUMLEY AND OTHERS. 357 Bourdieu, 1 Doi;gl. 467, money paid under a mere mistake of the law was endeavored to be recovered back; and there Buller, J., observed that ignorantia juris non excusat, kc} Rule ahsolute.- 'A reference to the report of the case will show that the opinion of Buller, J., in Lowry v. Bourdieu (1780) 1 Dougl. 468, 471, was purely obiter. The transaction was made illegal by Statute (19 Geo. 2, c. 37) ; the contract was executed not executory, and both parties stood in pari delicto. Ignorance of the law in such a case was irrelevant in a civil, although it would have been material in a criminal proceetling. It was likewise a concurring opinion, not one in which he delivered the opinion of the court. If not obiter, it was clearlj' dis- credited, if not retracted in Bize r. Dickason. ante, originally tried before Buller in 1786, and inconsistent with the unaminous opinion of the Court of King's Bench delivered by Chief Justice Mansfield, of which court Buller was then an honored member. — Ed. ^Lord Ellexborough seems to have forgotten his distinction between law and fact, for in Perrott v. Perrott (1811) 14 East, 423, decided some nine years later, he saj's (pp. 439, 440) : "Mrs. Territt mistook either the contents of her will, which would be a mistake in fact; or its legal operation, which would be a mistake in law; and in either case we think the mistake annulled the cancellation. Onions v. Tyrer, 1 P. Wms. 345, and 2 Vern. 742, is a strong authority that a mistake in point of law may destroy the effect of the cancellation. And when once it is established, as it clearly is, that a mistake in point of fact may also destroy it, it seems difficult upon principle to say that a mistake in point of law, clearly evidenced by what occurs at the time of cancelling, should not have the same operation." From this latter case it seems morally certain that had Bilbie v. Lumley, supra, been argued and the authorities cited. Lord Ellenborough would not have delivered his hasty and ill-considered opinion in the earlier case. In Elting v. Scott (1807) 2 John. 157, 165, Kent, C. J., referring to the question of mistake of law, said: "This question has been very ably discussed, and different opinions formed upon it, by the civilians; but it is considered as settled in England by the late case of Bilbie v. Lumley; and that decision seems to be in conformity with the doctrine anciently taught in the Doctor and Student (pp. 79, 147, 152, 251)." In a MS. note to this case Mr. Ames says: "Was not the case rightly decided independently of this rule? Defendant acted in good faith. The non-disclosure seems not to have had any bearing on the loss that actually occurred. At least the exemption of plaintiff from liability on the policy would have operated somewhat harshly as between these parties, the defence being allowed for the sake of the benefit of the general rule requiring full disclosure. That is, as between these parties the defence was rather technical than just and. therefore, plaintiff having paid could not equitably recover back the money paid."— Ed. 358 SIR CHARLES BRISBANE V. DACRES. [bOOK II. SIE CHARLES BRISBANE, KNT. v. DACRES, WIDOW, EXECUTRIX OF ADMIRAL DACRES. CoMMON^ Pleas, 1813. [5 Taunton, 144.] This was an action of assumpsit for money had and received, to which the defendant jjleaded the general issue, and at the trial of the cause before Mansfield, C. J., at the first sittings within Hilary Term, 1813, a verdict was found for the defendant, subject to the opinion of the court on the following case.^ It appeared that plaintiff was in 1808 a captain in navy attached to the Jamaica squadron under the command of Admiral Dacres, the defendant's testator; that the plaintiff conveyed in his ship, the Arethusa, some $700,000 public money from the West Indies to England, for which service the government allowed him the sum of £850; that he likewise carried $1,500,000 belonging to private owners, and received as freight therefor the sum of £7438 18s. 5d. ; that^the pla intiff' thereupon paid a porti on of the two sums so received, by Jiim, namely^£25i)0 (one-third of the sum of £7438 18s. 5d. and £20 7s. 3d. on account of the allowance of £850) i n accordan ce with a former custom of the navy, which had in fact ceased to be legally_Miiding iriTTSOI^ QnTearning this fact the plaintiff brought assumpsit for £5^500 as money paid under mistake.^ On this day the judges of the court delivered their opinions seriatim. GiBBs, 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 correspondence; the vSum of it is this, that the Lords of the Treasury proposed to the Lords of the Admiralty that a certain sum should be paid to the commanders of ships of war which should carry dollars ; the Admiralty fell into this, and agreed that an allow- ance should be made to the commanders 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 sanc- tion 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 Brisl)ane had no right to carry those dollars at all, and stipulated for and received a freight to which *A short statement is substituted for that of the orij^jinal report. — Ed. ^Arguments of counsel, in which tlie later opinion of Lord Em.enborougii in Perrott v. Perrott (1811) 14 East, 440, was not brought to the attention of tlie court, omitted. — Ed. CHAP. II.] SIR CHARLES BRISBANE V. DACRES. 359 lie 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 opinion, that this carrying of the dollars_was an illegal transaction, that tlie whole wliickiolLowed was tainted, with the sMne illegalit}', and that the money paid cannot be recovered at all, inas-_ milclT 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 individu^ I think as to the £20, he cannot recover back ttro-rmt'^ttrinrofThat. We must take this payment to have been made under a tlemand of right, and I think that where a man demands money of another as a matter of right, and that other, with a full knowledge of the facts upon which the demand is founded, has paid a sum, he never can recover back the sum he has so voluntarily 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 doul)tful questions of law: when they arise, the defendant has an option either to litigate the question, or to sub- mit 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 to whom he pays it, and makes it his, and 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 mis- chievous 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 |)erhaps has no means of repayment. I am ' aware cases were cited at the bar, in which were dicta that sums paid under a mistake of the law might Le 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, 2 Bl. E. 825, De Grey, C. J., indeed says: "Wlien money is paid by one man to another on a mistake either of fact or of law, or by deceit, this action (of money 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, Doug. 471, which was so early as 21 G. 3, the distinction is taken. After the other judges, Buller, J., says: "I am clear that the plaintiff 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, 5J V 360 SIR CHARLES BRISBANE V. DACRES. [BOOK II. the money cannot be recovered back, for the rule applies, that ignorantia legis non excusat." 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 saj^s, it may. I mention this to show, that although Lord Mansfield spoke immediately after Buller, J., and must have heard and noticed his doctrine, he expresses no dissatisfaction with it. The next case is Bize v. Dickason, 1 T. E. 285, an action brought by an insurance- broker to recover back from the assignees of a bankrupt so much of a sum of money which the plaintiff had paid to 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 bank- rupt. 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 under the case of Grove v. Dubois, 1 T. R. 112, 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 mentioned in his judg- ment 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 Mansfield had, six years before, in Lowry m< Bourdieu, heard it said, "money paid in ignorance of the law could not be recovered back," and had not dis- sented from the doctrine; and Buller, J., sate by him, who had expressly stated the distinction six years before in Lowry v. Bourdieu, and woidd not have sate by and heard the contrary stated without noticing it. Lord Mansfield's dictum is, that money paid by mis- take, which could not be claimed in conscience, could not be recovered back; and Lawrence, J., doubted, not whether the plaintiff had knowledge of the law, but of the facts; for that although the phiintiff seemed to have l)een apprized 1)eforo he paid the bill, of the general outline of his defence, he was not then so conversant with the par- ticular 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 Jjord Kknyon, for he first directed the jury it might be recovered back if paid with a knowledge of the facts but without knowledge of the law, which opinion he wholly afterwards abandons. Among all the practitioners of the court of CIIAr. II.] SIR CHARLES BRISBANE V. DACRES. 361 King's Bench, where questions of this sort ver}' frequently arise on insurance transactions, we wore universally of this opinion, that where the money was paid witli 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 there- fore 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, 2 East, 409, occurred : that case was tried at York, before Eooke, J., who ruled differently: after the report was read, Lord Ellenborough asked Wood, B., then of counsel for the plain- tiff, whether he could find any case which would support it; and he cited none. Lord p]LLENBORorGTi 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, 1 Camp. 134, a distinction is clearly taken between an adjustment on a policy, and a pa3aTient on the adjustment; and Lord Ellexborougti 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 principle that money which is paid to a man who claims it as his right, 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. Chambre, J. 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 money clearly cannot be recovered ; if it be legal, the right to carry it must arise from the permission of government ; and as the practice has been uniform for the admiral to receive his third part, we must take it that it is a part of the practice, and that the whole IH'acticc 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 lie cannot in conscience retain it he must refund it, if there is nothing illegal in the transaction: the case is ditTerent where there is an iUogality. I do not think the case of Chatfield v. Paxton applies nuu-h in this view of the question. I never heard 362 SIR CHARLES BRISBANE V. DACRES. [bOOK II. of the several parts of that case till now, but I think there are sufficient authorities 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 11011 fit 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 par- ticular 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 oiti^l by the court in Bilbie v. Lumley, ignorantia juris nan 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. IMacfarlan, 1 Bl. R. 219, and a number of subsequent cases decide, that where the plaintiff is entitled, ex cequo 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 effect 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 con- science 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 to pay, he may recover it back. Now the case against the plaintiff is not so strong as it has been stated. I do not find in the case that any demand was ever made of him, or any question mooted, upon which he thought it better to submit than to litigate the point. No option ever pre- sented itself to him, and the maxim volenti non fit injuria does not apply. 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 l)een cited, a great deal of fabricated law has been newly created within a few years, and the courts have CHAP. II.] SIR CHARLES BRISBANE V. DACRES. 363 to decide on difTicult 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 £20. Heath, J. There are two questions in this case. As to the question wliether 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 difTicult to say that there is any evidence of ignorance of the law lu're; an ofTicer 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 oiTicer should acquiesce in the demand. He might not like to contest the point with his superior ofificer. I think a payment made with knowledge that a request would be made, is not distinguish- aljle 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. Macfarlan has properly been questioned in many cases, and particularly by Eyre, C. J., and in Marriott v. Hampton, 7 T. R. 2G9. 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, 7 Ves. 23, approves Lord Kex- yon's doctrine, and calls it a sound principle that a payment volun- tarily 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. If it was against his conscience to retain this money, accord- ing to the doctrine of Lord Kenyon, an action might be maintained to recover it back, but T do not see how the retaining this 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 residue of the dollars. At that time it was thought proper that that practice should be discontinued so far as related to the freight of the public treasure; but in order to make captains more attentive to their charge, the Treasury and 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 ffag officer, they shared it in certain proportions. In 36i SIR CHARLES BRISBANE V. DACRES. [BOOK II. the order 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 captain shall do with the freight when he has it, but the officers of the navy all thinking that they were to pro- ceed as they before did, go on, the one to pay, and the other to receive, as they had done before this alteration, and the admirals receive their share as before; the 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 accustomed share, the one pays and the other receives it. This then being so, th e admi ral doing no more than all admirals do, is it against his conscience for him to i^ain itf- "f "fiTid nothiirg^ CDTrtrary to a'quumet l)onum, to bringTt^'WTthTn-the case of Moses v. Macf arlan, in his retaining it. So far from its being contrary to aquum et honum, I think it would be most contrary to ccquum et honum 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 increases his expenses, he has spent it over and over again; perhaps he cannot repay it at all, or not without great dis- tress: is he then, five j^ears 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 lie 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 non fit 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, ho 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 arrived 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 decision, and the counsel was certainly a most experienced advocate and not disposed to abandon tonal)le points, ^ly 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 he could, it could be only under the principle of CBquum et honum. There being therefore no case which has been argued by counsel, wherein the distinction has been taken. CHAP. II.] SIR CHARLES BRISBANE V. DACRES. 365 and in whicli this doctrine has been held, and as we do not feel our- vselves 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 dissipated; but what 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. , , , . „ , , 7 , , Judgment for the defendant. 'Wliilo P.nbie v. Lumley seems to have been the first case in which the di^lincticii in question was taken, it is doubtful if it would have, of itself, soltU'J tlie law on this subject. The principal case established Bilbie v. Lum- ley and its law for England, and the distinction between mistake of law and fact has since been generally, if not universally, followed in law as well as equity, both in England and in the United States. For eases in the various jurisdictions, see 15 Am. & Eng. Enc. of Law, (2d Ed.) 1102-1104; 22 ib. G28; 39 Am. Digest (Cent, ed.) column 438. For the eminently sane and equitable doctrine on this subject, obtaining in Louisiana, see La. Civil Code, Art. 1840, and Howe's Studies in the Civil Law, 179-180. For a discussion of the doctrine, see 2 Evans' Pothier, Appendix 313-34G; Keencr's Treatise on Quasi-Contracts, 85-112; Mr. Frederic C. Woodward's Money paid under Mistake of Law, 5 Columbia L. Rev. 366-379. And see an article discussing the cases and their doctrine in 18 N. J. Law Journal, 103-107. Whether the Roman law permitted recovery of money paid through mis- take of law is a matter of dispute. The following paragraph states the ques- tion cle'arlj and accurately: "Tn Roman law, a person who, by mistake, paid money which was not due, could -recover it by an action known as condictio indebiti (Just. iii. 27. 6; Dig. 12. 6; Cod. 4. 5). The right to recover could not be enforced where the money was due under a natural obligation {Dig. 12. 6. 51), or where the party making the payment knew at the time that no debt was due {Dig. 50. 17. 53). The question whether money paid under a mistake in law, could be recovered by a condictio indebiti. has given rise to much controversy among civilians (the opinions of the leading jurists on this subject are collected by Lord Mackenzie in his treatise on I'oman Lair. 0th ed., at p. 256) ; but the weight of modern authority is in favor of the view that, under Roman Law, money which had been paid by mistake of law, and not of fact, could not be recovered by the covdictio indebiti (Savigny, Sifntcm. vol. iii. 8, s. 25;*Cod. 1. 18. 10; 4. 5. 6; Dig. 12. 0. 1. 1). Further, every error of fact did not give a claim to restitution, but only such an error as a man, exercising ordinary diligence and prudence, might fall into. {Dig. 22. 6. 0. 2: 22. 0. G.)." 3 Green's Encyc. of Scots Law, 170. See also, 2 Windsclieid's Pandekten, § 42G : Girard, IManuel de Droit Romain. (512-014. The two English cases crossed the Tweed in 1830 and either overthrew or threw into confusion the Scotch law. "With regard to error in law, the old rule in Scots law was that a condictio indebiti could be enforced by one who had made payments owing to a mistake in law (Stirling, 1775, Mor. 2930; 366 HEXDERSOX I". FOLKESTOXE WATERWORKS CO. [BOOK II. HENDERSON v. THE FOLKESTONE WATERWORKS CO. Queen's Bench Divisiox, 1885. [1 Times Law Reports, 329.] The plaintiff, the owner and occupier of a house at Folkestone, had been, as he alleged, rated by the water company in excess of what was^ held to be legal in I)obbs\_case in the House of Lords, and he had paid the amount demanded of him under the impression th^Ttl^ was "Bound^to" do so, and now he sued the company to recover Lack the excess: The comrpanyT on their side, set up that it was a voluntary payment and not recoverable. The plaintiff set up in answer that it was paid by compulsion. But the Court found as a fact that the payment was voluntary. Mr. Henderson appeared for the plaintiff, and contended that where both parties had contracted under a mistake the money could be recov- ered. Moreover, he contended that this was really a payment under compulsion. It was, at all events, a payment in ignorance of law. [Lord Coleridge. — Of what law? I was ignorant of it before the decision of the House of Lords. I had held the contrary, and two Carrick, 1778, Mor. 2931; Keith, 1792, Mor. 2933). Subsequently, however, the House of Lords iri two cases laid it down in general terms [per Lord Brocgham] that it is not relevant for a party, seeking a repetition, to aver that he paid under a mistake in point of law (Wilson & McLellan, 1830, 4 W. & S. 398; Dixons, 1831, 5 W. & S. 445) : but the Scots courts have shown considerable hesitation in accepting the dicta in these cases as finally settling the law of Scotland on this matter (cf. Dickson, 1854, 16 D. 586, where doubts are expressed by the Lords President and Ivory as to error in law being in no case a ground for the condictio indebiti; see also, Paterson, 1866, 4 M. 706, and Mercer, 1871, 9 M. 618)." 3 Green's Encyc. of Scots Law, 171. See also. Bell's Principles of the Law of Scotland (9th ed.) § 534 n. (K). In Germany no distinction is taken between a mistake of law and fact: in either case the plaintiff may recover unless he actually knew when he paid that the money was not owed. Biirgerliches Gesetzbuch, §§ 812-814; Dernburg's Burgerliches Recht, vol. i, p. 434; vol. iii. p. 279. Nor is the distinction recognized in France: Code Civil (edition of Dalloz) Arts. 1376-1378; Baudry-Lacantinerie & Barde's Droit Civil: Des Obligations, vol. 3. part 3, pp. 1067-1068. But recovery is refused if after payment the defendant has changed his legal position so as to throw loss of the sum on him if recovery were permitted. Code Civil, Art. 1377. This provision is likewise found in the various European and Spanish-American Codes in which the distinction between mistake of law and fact is either unknown or rejected: Italian Civil Code (French translation of Prudhomme), Arts. 1145-1147; Spanish Civil Code (Falcon) , Arts. 189.5-1901. The editions cited of the Italian and Spanish Codes are annotated and give the law on this subject in European, Central and South American States and Mexico. — Ed. CHAP. II.] HENDERSON I'. FOLKESTONE WATEiaVOlfKS CO. 367 eminent Judges agreed with me. Can that l)c put as ignorance of law?^ Just see what consequences would follow — that wherever there has been a reversal of judgment all the money that has been paid under the previous notion of the law can be recovered back ! Has that ever been held ? Can it be that every reversal of a decision may give rise to hundreds of actions to recover back money previously paid?] The result is not one to be regarded as morally unjust. [Lord Coleridge. — It surely is a startling result.] It may be startling to water companies, but to the plaintiff and their other customers it may not seem so. They have been paying the companies excessive charges, and may justly recover them back. Mr. Charles. Q. C. (with Mr. Kingsford), appeared for the water company, and pointed out that it was expressly stated that the payment was voluntary, and that the plaintiff had taken no steps to get the charge put right. The Court, however, did not require them to argue the case, and proceeded at once to give judgment against the plaintiff. Lord Coleridge said the law was quite clear that the plaintiff could not recover back this money. No doubt when money paid under an error in law had been extorted or obtained by duress or any kind of compulsion it could be recovered back, but that was not the case here. The law once ascertained to have been against the party who had thus by compulsion obtained payment of the money, it can be recovered back. But here at the time the money was paid, which was 'The learned jiulfie had good authority for his statement. The catch phrase that every one is supposed to know the law. especially the judfie. is a supposi- tion contrary to fact, and is little less than absurd. In Jones r. Randell ( 1774) Cowp. 38, 40, Dunning, arguendo said: "Laws of this character are clearly evident and certain; all the judges know the law." ... To which Lord JiLA.NSFiELD, no mean authority, replied: "It would be very hard upon the profession, if the law was so certain that everybody knew it; the misfortune is that it is so uncertain, that it costs much money to know what it is, even in the last resort." In Montriou r. .Teffereys (1825) 2 C. & P. II.'MIR, Abhott. C. J.— a very learned judge — exclaimed: "God forbid that it should be imagined that an attorney, or a counsel, or even a judge, is bound to know all the law." And in Martindale j;. Falkner (1846) 2 C. B. 706. 719, Justice ]Maule said: "There is no presumption in this country that every person knows the law; it would be contrary to common sense and reason if it were so," And it would seem, in the absence of judicial precedents, that even a professor of law except in rare instances is not within the letter of the maxim. The maxim doe«, however, apply in certain cases. As Judge Keener aptly says: "In a word, then, one cannot by alleging ignorance of law justify the commission of a crime (though if knowledge of law is material, he can show that because of ignorance of law no crime was committed), a breach of con- tract, or quasi-contract, or the commission of a tort." Treatise on Quasi- Contracts, 90. — En. 368 CULBREATH V. CULBREATH. [bOOK II. before Dobbs's case, the law was in favour of the company, and there was no authorit}' to show that it coukl be recovered back on account of a judicial decision reversing the former understanding of the law. Moreover, in this case the payment was voluntary, and the assessment had been altered as to the future. If the plaintiff desired to dispute the assessment he could have applied to the magistrates to reduce it under the statutory power so to do. The law, however, did not allow money voluntarily paid under a mistake in law to be recovered back. ]\rr. Justice A. L. Smith concurred, and observed that though the amount involved was small the principle involved was important, and the question had been decided in our Courts nearly a century ago. The learned Judge cited two cases to show this,^ and added that he had never heard it doubted that money paid voluntarily, though under a mistake in law, could not be recovered back. Judgment for the defendant. WILLIAM CULBREATH, PLAINTIFF IN EEROR v. JAMES M. AND DANIEL G. CULBREATH, DEFENDANTS. Supreme Court of Georgia, 1849. [7 Georgia, 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 admin-_ istrator, under a misapprehension of the law, divided the estate equally betwTenTthe seven brothers and sisters, to the exclusion of the children of the deceased sister. Subse^^uently, these children instituted suit^ against the administrator and recovered the one-eighth of the estate. ^ ' The preseiit action was by William Culbreath against t wo of the . distriWtrees'j'to recover iiaclrtiie^amo uutoverpaid on acc ount of this jnistake. Upon an agreed statement of the facts in the court below, the pre- siding judge awarded a nonsuit against the plaintiff, who appealed to this court. By the Court, — Nisbet, J., delivering the opinion. 1. The judg- ment of nonsuit was awarded by the court below in this case, upon the following state of facts, agreed upon by the parties : "The actions were founded u]ion a voluntary payment made to each of the de- fendants l)y the ])laintiff, as administrator of Obadiah M. Culbreath, deceased, of one-seventh part of said intestate's estate, as part of their distributive shares of said estate, in ignorance of the law of ^Bilbie v. Luinlcy, ante, Brisbane v. Dacres, ante. — Ed. €IIAP. II.] CULBREATII V. CULBREATII. 3G9 distribution of estates. After the payments, the children of a de- ceased 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 tlieir 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 re- fused, 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 mis- take 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 mis- take as to the law he paid to them the share which was rightfully due to those children. They having sued and recovered of him their dis- tributive share, he brings these actions to recover of the defendants the money so paid to them, through a mistake of the law. The ques- tion is, can a_parj :y recover back money paid, with a knnwlpdge of alL the factSj through mistake of the law? 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 eminent authority are arra^-ed on either side. It is not one of those questions upon which the mind promptly and satisfactorily arrives at a conclusion. This is true in reference both to principle and authority. It is not surprising, therefore, that Judge Alexander and this court should differ. I 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 forbids 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 per- fectibility. We feel the necessity of practicable rules, l)y 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 administer the equity 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 370 CULBREATII V. CULBREATH. [BOOK II. 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. Mac- farlan 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 distinguish- ing between mistake of law and fact. 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 Avere upon the 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 mquo 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 to the whole of his demand, or to any part of it." His sum- mary is in the following words: "In one word, the gist of this action is, that the defendant, 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 nntura (vqnum est, neminem cum alterius detrimento fieri locupletiorem." If there is justice in the plaintiff's demand, and injustice or un- conscientiousness in the defendant's withholding it, the action lies; or, to use more appropriate language, the law will compel him to pay. Now, when money is paid to another, under a mistake as to the pa^yer's legal obligation to pay, and the payee's legal right to receive it, and there is no consideration, moral or honorary or benevolent, between the parties, by the ties of natural justice the payer's right to recover it back is perfect, and the payee's obligation to refund is also perfect, — it becomes a debt. It is a case fully within the range of the ex cequo CJIAP. 11.] CULBREATII V. CDLBREATII. 371 et bono rule. This is that case. It falls within none of the exceptions mentioned by Lord Mansfield. It was not paid as a debt due in honor or honesty, as in case of a debt barred by Statute ; it is not paid as a donation; it was not paid as a debt contracted in violation of public law; for example, money fairly lost at play. In all such cases it is conscientious for the defendant to keep it. In this case there is no right or equity or conscience upon which the defendant can plant himself. Why, then, is not the case of a payment by mistake of the law within the .principles of Moses v. Macfarlan? Right here the argument might rest on principle. Just here the onus is cast upon the other side, to show how and why this case is distinguishable from other cases falling confessedly within the prin- ciples upon which the action for money had and received is based. We shall see upon what footing the distinction is placed by Lord Ellenborougii. It is that of policy. The doctrine which I am now repelling never was defended upon principle; it never can be. No British or American judge ever attempted its defence on principle. It was ruled on policy, and followed upon the authority of a few prece- dents. A policy which, it must be conceded, does private wrong, for the sake of {Ui alleged public good : or, I should more appropriately say, rather than risk a doubtful public evil. It was, no doubt, this view of the subject which startled the calm philosophical equity of Marshall's mind, when yielding, in Hunt v. Eousemanier, to precedent, he still gave in his personal protest against the doctrine. For what he said in that case can be viewed in no other light than as a personal protest. It is wise, it is necessary for courts to yield to established authority; but, inasmuch as the use of precedent is to illustrate principle, a single precedent, or a number of precedents should not control, when they are against principle. We guard this doctrine by saying, that the action is not maintain- able, where money is paid through mere ignorance of the law. or in fulfilment of a moral obligation, or on a contract against public law, or on any account which will make it consistent with equity and good conscience for the defendant to retain it. Xor does the judgment of this court embrace cases of concealment, fraud, or misrepresentation. They depend upon principles peculiar to themselves. And farther, it is scarcely necessary to add that a recovery cannot be had, unless it is proven that the plaintiff acted upon a mistake of the law. 2. There is a clear and practical distinction between ignorance and mistake of the law. Much of the confusion in the books, and in the minds of professional men, upon this subject, has grown out of a confounding of the two. It may be conceded, that at first view, the distinction is not apparent; but it is insisted that upon close inspection it becomes quite obvious. It has been ridiculed as a quibble, but we shall see that is has been taken by able men. and acted upon by emi- nent courts. Ignorance implies passiveness; mistake implies action. 372 CULBREATH V. CULBREATH, [BOOK II. Ignorance does not pretend to knowledge, but mistake assumes to know. Ignorance may be the result of laches, which is criminal; mistake argues diligence, which is commendaljle. Mere ignorance is no mistake, but a mistake always involves ignorance, yet not that alone. The difference may be well illustrated by the case made in this record. If the plaintiff, the administrator, had refused to pay the distrilmtive share in the estate which he represented, to the children of his intestate's deceased sister, upon the ground that they were not entitled in law, that would have been a case of ignorance, and he would not be heard for a moment upon a plea, that being ignorant of the law he is not liable to pay interest on their money in his hands. But the case is, that he was not only ignorant of their right in law, but believed that the defendants were entitled to their exclusion, and acted upon that belief, by paying the money to them. The ignorance in this case of their right, and the belief in the right of the defendants, and action on that belief, constitute the mistake. The distinction is a practical one, in this, that mere ignorance of the law is not susceptible of proof. Proof cannot reach the con- victions of the mind, undeveloped in action ; whereas, a mistake of the law, developed in overt acts, is capable of proof, like other facts. 3. The usual reply to all this is the time-honored maxim, igno- rantia juris non excusat. We do not make void this maxim in any fair construction of it. It is an indispensable rule of legal and social policy : it is that without which crime could not be punished, right asserted, or wrong redressed. What if its application does, in some cases, work injustice? Its overruling necessity, and the vast pre- ponderance of its benefits over its evils, have reconciled the civilized world to its immovable status as a rule of action. The idea of excuse implies delinquency. No man can be excused upon a plea of ignorance of the law, for disobeying its injunctions or violating its provisions or abiding his just contracts. He is presumed to know the law, and if he does not know it, he is equally presumed to be delinquent. I re- mark, to avoid misconstruction, that it is of universal application in criminal cases. In civil matters, it ought not to be used to effectuate a wrong. That is to say, it cannot be a sufficient response to the claim of an injured person, that he has been injured by his own mis- take of the law, when the respondent, against conscience, is the holder of an advantage resulting from that mistake. The meaning, then, of this maxim is this: no man can shelter himself from the punish- ment due to crime, or excuse a wrong done to, or a right witliheld from another, under a plea of ignorance of the law. The maxim con- templates the punishment of crime, the redress of wrong, and the pro- tection of rights. It is not unreasonable so to construe it as to apply it to one who has not only done no wrong and withheld no right, but is himself the injured party, as in this case? The plaintiff has vio- lated no law, withheld no right from the defendants, and in no partic- CHAP. II. J CULBREATII V. CULBREATH. 373 ular wronged them; but on the contrary, he has been injured to the extent of the money which they unrighteously withhold from him. In this view of it, too, the public policy of the maxim is sustained. I cannot see that its utility is lessened by this limitation of its applica- tion. In the language of Sir W. D. Evans, "The effect of the doctrine is carried sufficiently far for the purposes of public utility, by holding that no man shall exempt himself from a duty, or shelter himself from the consequences of infringing a prohibition imposed by law, or acquire an advantage in opposition to the legal rights and interests of another, by pretending error or ignorance of the law." 2 Poth. Ob. App. 297. The distinction between ignorance and mistake of the law, is recog- nized by Lord Eoslyn in Fletcher v. Talbot, 5 Ves. 14; by Lord Manners^ in Leonard v. Leonard. 2 Ball & B. 180, 183; by the Court of Appeals of South Carolina, in Lawrence v. Bedubien, 2 Bai. 623 ; and in the Executors of Hopkins v. Mazyck ct al, 1 Hill Ch. 251. In England, the authorities are pretty nearly in equilibrio, yet I must think that the preponderance, taking the cases at law and in equity together, is on the side of the principle which I am laboring to establish. This action for money had and received is an equitable remedy, and lies generally where a bill will lie; decisions, therefore, in Chancery which recognize the principle may be justly held to sustain it. The first case, then, in order of time, is that of Lansdowne V. Lansdowne, reported in Moseley, 364, decided by Lord Chancellor King. That case was this : The second of four brothers died seised of land, and the eldest entered upon it. But the youngest also claimed it. They agreed to leave the question of inheritance to one Hughes, a schoolmaster, who determined against the eldest brother, on the ground that lands could not ascend. Whereupon, the eldest agreed to divide the estate, and deeds were executed accordingly. Lord King decreed that they should be delivered up and cancelled, as having been obtained by mistake. There is no doubt whatever but the mistake was one of law as to the legal rights of the elder brother. It is a case in point. It is true that it has been greatly criticised. Moseley, the reporter, has been charged with inaccuracy, and was very much in disfavor with Lord ]\Iaxsfield. Indeed, it is said that his Lordship did, on one occasion, order his reports not to be read before him. Yet there stands the case, and if supported by nothing else, it is sustained by its reasonableness. Judge ^Iarshall, in referring to it, says, that it cannot be wholly disregarded. The case of Bize v. Dickason was decided by Lord Maxsfteld in the Court of King's Bench. The judgment of the court was delivered as follows : "The rule has always been, that if a man has actually paid what the law would not have compelled him to pay, but what in equity and conscience he ought, he cannot recover it back again in an action for money had and received. So, where a man has paid a debt 374 CULBREATII V. CULBREATH. [bOOK II. which would otherwise have been barred by the Statute of Limitations, or a debt contracted during his infancy,, which in justice he ought to discharge, though the law would not have compelled the payment, yet, the money being paid, it will not oblige the payee to refund it ; but where money is paid under a mistake, which there was no ground to claim in conscience, th« party may recover it back again in this kind of action." 1 T. R. 285. This authority is incontrovertible, and has not been controverted. Thu case made shows a mistake of law. The mistake spoken of by Lord Mansfield could not have been a mistake of facts, becajise the case exhibits no mistake of facts, but does exhibit a mistake of the law. The principle was sustained by a decree in Bingham v. Bingham, 1 Ves. 126. There the bill was filed on the ground of a mistake in law. The Master of the Rolls said, "Though no fraud appeared, and the defendant apprehended he had a right, yet it was a plain mistake, such as the court was warranted to relieve against, and not to suffer the defendant to run away with the money in consideration of the sale of an estate to which he had no right." See the note to this case in Belt's Supplement, 79, which shows the mistake to have been one of law. Also recognized in Turner v. Turner, 2 Ch. R. 154; in Leonard v. Leonard, Ball & B. 171, by Lord Manners; by Lord Thurlow, in Jones v. Morgan, 1 Bro. C. C. 219 ; and by Lord Eldon, in Stockly v. Stockly, 1 Ves. & Bea. 23, 31 ; and in Anchor v. The Bank of England, Doug. 638. To these authorities may be added the dicta of Lord Ch. J. De Grey, in Farmer v. Arundel, 2 Black. R. 824, who declared, "That where money is paid by one man to another on a mistake either of fact or of law, or by deceit, this action will certainly lie." Of Lord Kenyon, in the case of Chatfield and Paxton (see Chitty on Bills, 102), and of Ciiambre, J., in Brisbane v. Dacres, 5 Taunt. 157. This judge, arguing the point with great strength, says, "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." He illustrates by putting the very case made in principle in tliis record. "Suppose," says he, "an administrator pays money pei' capita, in misapplication of the effects of the in- testate, shall it be said that he cannot recover it back?" Opposed to this weight of authority in England, stand the two cases of Bilbie v. Lumley, 2 East, 469, and Brisbane v. Dacres, 5 Taunt. 157, — in the latter case see Ciiambre, J., dissenting, — and the obiter opinion of Buller, J. It is worthy of remark, that Lord Ellenboroiigti, who presided in Bilbie v. Lumley, afterwards in Perrott v. Perrott, 14 East, 423, holds language irreconcilable with his opinion in that case. In the latter case, he is reported to say, "]\frs. Territ either mistook the con- tents of her will, which would be a mistake in fact, or its legal opera- CHAP. II.] CULBHE.VTII V. CLLBKEATII. 375 tioii. which would be a mistake in hiw, and in either case we think the mistake annulled the cancellation." Thus it is manifest that our ju(l«:ment in this case is not without precedent in the English books. 'I'lu' authorit}- of Bilbie v. Lumley has been followed in this country, by Chancellor Kent, Shotwell v. Mundy, 1 Johns. 512; Lyon v. Rich- mond, 2 Johns. 51 ; G Johns. 1G9, 170, and by the Supreme Court, in Hunt r. iiousmanier, 1 Pet. 1. In the same case, however, in 8 Wheat. )il5, Ch. J. Marshall says, "Although we do not find the naked principle, that relief may be granted on account of ignorance of the law, asserted in the books, we find no case in which it has been de- cided that a plain and acknowledged mistake in law is beyond the reach of equity." The case in 1 Peters, 1, was decided, however, upon other principles than that one now under discu.ssion. The same may be said of the cases in Johnson's Chancery Reports, above referred to. Yet it may not be denied but that the courts there recognize the rule as settled in Bilbie r. Lumley. It may be questioned whether the recognition of that authority by the Supreme Court is worth as much as the opinion of Ch. J. Marshall, intimated so plainly in the above extract, as to the rule in Chancery. The leaning of Mr. J. Story, in his Commentaries on Equity, is the same way; and yet he says, "It has been laid down as unquestionable doctrine, 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 to another, under the name of a compromise, a court of equity will relieve him from the effect of his mistake." 1 Story Eq. Jur." § 121. Why it is that a party may be relieved from the consequences of a mistake of the law, where he gives up his property, under the name of a compromise, and not under other circumstances, it is difficult to see. Mistake of the law has been held without relief in Illinois, 3 Gilman, 102 ; in Tennessee, 8 Yerg. 298 ; in New Jersey, 1 Green Ch. 1-45 ; and in Alabama, 9 Ala. GG2 ; and it nuiy be elsewhere, beyond my time for ascertainment. The contrary was expressly ruled by the Court of Appeals in South Carolina, in Lowndes v. Chisolm, 2 McCord Ch. 455, in 1827. This was followed by the great case before the same court in 1832, of Law- rence i\ Beaubien. I call it great, because of the affluence of learning displayed in the argument by ^lessrs. Holmes and King on one side. and Pettigru and Bailey on the other, and because of the perspicuous condensation and ability of the opinion of 'Mr. J. Johnson. The doctrine, in all its bearings, is there discussed with extraordinary power, and the court unanimously decided that "A mistake of law is a ground of relief from the obligations of a contract, by which one party acquired nothing, and the other neither ])arted with any right nor suffered any loss, and which, r.r (rquo ei bono, ought not to be binding; and that it makes no dilference that the parties were fully 376 MANSFIELD V. LYNCH AND WIFE. [BOOK II. and correctly informed of the facts, and the mistake as to the law was reciprocal; but there must be evidence of a palpable mistake, and not mere ignorance of the law." The case of Lawrence v. Beau- bien was reviewed in 1833, by the Court of Appeals, in Executors of Hopkins v. Mazyck and others, and its doctrines affirmed, 1 Hill Ch. 243. So that in South Carolina the question is definitely settled. So, also, in Massachusetts, in the same way. See May v. Coffin, 4 Mass. 343; Warder v. Tucker, 7 Mass. 452; Freeman v. Boynton, 7 Mass. 488. See, also. Haven v. Foster, 9 Pick. 112. The writers on the civil law are divided as to the question whether money paid under a mistake of the law is liable to repetition. Vinnius and D'Aguesseau hold the affirmative; so Sir W. D. Evans. The argument of the great French Chancellor, D'Aguesseau, is, to my mind, unanswerable. 3 Ev. Poth. App. 308.^ Pothier and Heinec- cius maintain the negative; and it is said that the text of the Eoman Law is with them. See Eogers v. Atkinson. 1 Kelly, 35, 36 ; Collier v. Lanier, 1 Kelly, 338. Let the judgment of the court below be reversed.^ MANSFIELD, ADMINISTRATOR v. LYNCH AND WIFE. Supreme Court of Errors of Connecticut, 1890. [59 Connecticut, 330.] Action by the plaintiff as administrator de bonis non of the estate of Dennis McLaughlin, to recover of Ann Lynch, one of the defendants and wife of the other defendant, a sum of money paid to her under a mistake by the original administrator of the estate; brought to the City Court of the city of New Haven, and heard before Pickett, J. 'The controversy in France was settled in favor of D'Aguesseau. See Touillier, Droit Civil (5th ed.) vol. 11, §63, p. 79; Zachariii, Franzos. Civil- drecht (Gth ed.) vol. 2, § 442.— Ed. ^The distinction between ignorance and mistake of law still obtains in South Carolina and Georgia. Lawrence f. Beaiibien (1831) 2 Bailey, 623; Hutton V. Edgerton (1875) 6 S. C. 485, but compare Cunningham v. Cunning- ham (1883) 20 S. C. 317; Adams v. Guerard (1800) 29 Ga. 651, 673; Bohler v. Vcrdery (1893) 92 Ga. 715. And see Georgia Code, § 3978. The distinction in Lawrence v. Beaubien, supra, and in the principal ease was referred to approvingly in the opinion of Senator Paige in Champlin v. Laytin (1837) 18 Wend. 407, 424: but the doctrine was squarely rejected in Jacobs v. TSIorange (1871) 47 N. Y. 57, in wiiich an attorney's mistake of the law was held to be no excuse. The doctrine of tlic principal case would seem to be confined to the juris- diction of South Cardlina and Georgia. — Ed. CHAP. II.] MANSFIELD V. LYNCH AND WIFE, 377 Facts found and judgment rendered for the plaintiff against the de- fendant Ann Lynch, and appealed by her. The case is fully stated in the opinion. Torrance, J. The record in this case discloses the following facts : On the first of May, 1888, one McLaughlin died intestate, and in fact insolvent, owing the defendant Ann Lynch four hundred dollars upon a promissory note. On May 14th of that year one Bradley was appointed administrator upon McLaughlin's estate. The court of probate limited a time for the presentation of claims, and within the time all the claims finally allowed against the estate, amounting to $1,696.44, were presented to said Bradley. Of the claims so presented Bradley allowed some and disallowed others. Among the claims of general creditors so allowed (amounting in all to $705.14), was that of the defendant upon said note, amount- ing with interest to $434.87. Th e claims disallowed , amounting to $991.30, were in fact valid claims against the estate, but none of them were evidenced by any writing signed by the deceased, and Bradley believed they were not valid claims on that account. He alsohon^ estly but erroneously; beli^ve^ that be^ terJ: b^ir ac^vtsed"i3y~tlre~jH4ge of probate to disallow all claims presente d against the estate_n ot evidenced by a writing signed by the deceased, an d_supposed that one of the^claims^was^rarnrd byTlTe statute of limitations. On these grounds he disallowed these claims and gave the parties notice of the disallowance. After the time limited for presenting claims had expired, Bradley, acting under the belief that the disallowed claims were no longer claims that could be collected out of the estate, and believing_that this being so, the estate was solvent, paid the de- fendant's olaimnri'uli, and tooin;he note into his possess louTon^ the l9th~of-J}£cenibeivJ]8B^lT-- in so belie ving and -actingTTe^as honestly mistaken, as the court finds, both as to the matters of fact and as to the matters of law. Afterwards, in May. 1889, certain creditors whose claims had been so disallowed brought suit against Bradley, and thereupon, by the advice of counsel, he represented to the court of probate that the estate was insolvent, and asked that commissioners be appointed to receive and examine all the claims presented. Thereupon, in May, 1889, the court adjudged the estate to be insolvent and appointed commissioners, to whom Bradley in due time presented all the claims against the estate, including those allowed and paid as well as those disallowed by him ; all of which the commissioners allowed, and re- ported their doings to the court on the 28th of July, 1889, which re- port was duly accepted, and no appeal has been taken therefrom. In the meantime, on July 1st, 1889, Bradley died, and on August 2d, 1889, the plaintiff was duly appointed and qualified as administrator de bonis non of the McLaughlin estate. The estate could at no time in fact pay to the general creditors more 378 MANSFIELD i\ LYNCH AND WIFE. [BOOK II. than 31 7-10 per cent, on the dollar, which was the percentage finally found due and ordered to be paid by the court. Before the present suit was brought the plaintiff demanded of the defQndanF"$2tt0rre7' which was the amolfnri)aid to her by Bradley ov(ii_anii _above the allowed percentage. TliissTie refused to pay, and thereupon this suit was brought. The^idefendant received the amount paid to her by Bradley in good faith, believing the same to be justly due, and she had no actual knowledge of the mistakes on the part of Bradley, or of an}' of the doings of the commissioners or of the court of probate, before the date of this suit, although public notice thereof was given according to law. The money so paid to her was by her forthwith deposited in her own name in a savings banks, where it has ever since remained, and is a part of the money attached in this suit. On these facts the court below rendered Judgment that the plaintiff recover of the defendant the $290.18, with interest from December 18th, 1888, when it was paid to her. Whether, upon the facts found, the court erred in so deciding, is the general question presented for our consideration. From the record it is evident that, in fact and in law, it was the duty of the administrator to pay, and the right of the defendant to receive, only $13-1.69 ; that the administrator by mistake paid her $290.18 more than she was entitled to receive; and that the loss, if the over-payment cannot be recovered from the defendant, must fall, either upon Bradley's estate or upon the creditors of the McLaughlin estate. ISTow, whatever view may be taken of Bradley's action in making the over-payment, it seems unjust that the loss should fall upon the creditors, and if Bradley acted in good faith in making it, and did it under a mistaken view of the law or of the facts, or both, it seems hard that the loss should fall on his estate or upon his bonds- man. On the other hand, if the defendant is compelled to repay this amount, she is no worse off than she would have been if no mistake had been made. She retains her pro rata share of the assets, and is not legally harmed, for she thus gets all the law would in any event allow her out of the then known assets of the McLaughlin estate, and she still holds a valid claim against the estate for the balance due her. Viewed in this light, it would seem as if the general result arrived at in the judgment of the court below is fair and equitable, and ought not to be disturbed unless the attainment of such a result in a ease like the present is forbidden by some stubborn rule or rules of law. The defendant claims that the judgment Ijclow is erroneous on two grounds: first, because on the facts found Bradley himself in his lifetime had no cause of action against the defendant; and second, if he had, still the present plaintiff as administrator de bonis CHAP. II.] MANSFIELD V. LYNCH AM) WIFE. 379 non cannot recover as he now sleeks to do upon that cause of action. We will examine these points in their order. It is claimed that Bradley had no cause of action because his mis- take was one of law and not of fact, and because he was guilty of such negligence and laches towards the defendant that no court, either of law or of equity, would have aided him to recover the over- payment. Bradley paid the defendant's claim in the honest belief that the estate was solvent. But for this belief he would not have paid it in full. It would seem from the finding that this belief arose partly from ignorance of law, and partly from what he mistakenly supposed to be the advice given him by the probate judge, as to the validity of certain claims presented against the estate. He also supposed that one of the claims disallowed was barred by the statute of limitations. It is perhaps not clear from the finding whether the court below re- garded the mistake which Bradley made in supposing the estate to be solvent as the result of a mistaken view of law or of fact, or of both combined, nor is the settlement of this question very material. If we concede what the defendant claims, that the over-payment was the result of a mistake of law with full knowledge of all the facts, still we think, even then, that Bradley upon the facts found would if living have a right to recover the over-payment, upon the principles settled by this court in the ca?e of Northrop r. Graves, 19 Conn. 548. In that case the husband of a legatee, as the result of a mistaken view of the law as applied to the construction of a will by the executors, was paid a sum of money to which by law he was not entitled. In the case at bar the defendant, as the result of a mistaken view of the law as applied in the disallowance of claims against an estate by the administrator, has been paid a sum of money to which she was not by law entitled out of the known assets of McLaughlin's estate. It is true that in Northrop v. Graves the de- fendant, at the time the money was paid, knew it was not due under the will, and that this knowledge was an element that entered into the decision of that case, but it was by no means the controlling ele- ment. The court in that case said : "We mean distinctly to assert that when money is paid by one under a mistake of his rights and his duty, a7id which he was under no legal or moral obligation to pay. and which the recipient has no right in good conscience to retain, it may be recovered back in an action of indebitatus assumpsit, whether the mistake be one of law or fact ; and this we insist may be done both upon the principles of Christian morals and the common law." Here are two, and only two, conditions laid down to entitle a plain- tift' in such cases to recover. First, the money must be paid by one under a mistake of his rights and his duty, and be such as he is 380 MANSFIELD C. LYXCII AND WIFE. [bOOK II. under no moral or legal obligation to pay. Second, the recipient of the money must have no "right in good conscience" to retain it. In the case at bar we think the first condition is fulfilled. Bradley was not only under no moral or legal obligation to make the over- payment, but on the contrary it was clearly his duty to retain the money so overpaid and divide it among the other general creditors. This duty he in fact violated solely because of a mistake of law or fact or both, it matters not which. It is said, however, that the second condition is not fulfilled in the case at bar, because as the estate did in fact owe the defendant the whole sum paid, she has "a right in good conscience" to retain it. In one sense it is true that the estate owed the defendant the amount overpaid, but it is not in any legal or moral sense true that it was the duty of the administrator to pay, or the right of the defendant to receive, her claim in full from the then known assets of the estate. Her right was only to receive her pro rata share with the other gen- eral creditors, and the unpaid balance still remained a claim in her favor against the estate. If she gets more than this it must be at the expense of the other general creditors or of the administrator. She did in fact get more than she was entitled to solely in consequence of an honest mistake. It is true that when the overpayment was made she had no knowledge of the condition of the estate or of the mistakes of Bradley, but such knowledge on her part is not made one of the conditions of recovery in the case cited, and after she obtained such knowledge she still refused to make the repayment. Can it then with reason be said she has "a right in good conscience" to retain money which rightfully belongs to the estate, to which she is neither morally nor legally entitled, and which she obtained solely in consequence of an honest mistake which wrought her no harm whatever? Whatever meaning may be given to the somewhat indefinite phrase, "right in good conscience," we think it clear that the defendant had no such right as against Bradley under the cir- cumstances to retain the overpayment, and this fulfills the second coii- dition. We are aware that upon the general question whether, when all the facts are known, or may with ordinary diligence be known, money paid under a mistake of law may be recovered back, the authorities are in direct conflict, but since the decision of the case of ISTorthrop v. Graves, supra, there can be no doubt as to the position of this court upon this question in a case like the present. It is unnecessary there- fore to cite the decisions of other states upon the question, but if it were many such authorities might be found. Such for instance are the cases of Culbreath v. Culbreath, 7 Geo. 64; Stevens v. Goodsell, 3 Met. 34; Eogers v. Weaver, 5 Hammond (Ohio), 536; Beatty v. Duficf, 11 Louis. Ann. 74. From the case of Culbreath v. Culbreath, here cited, which was CHAP. II.] MAXSFIELD V. LYNCH AXD WIFE. 381 decided in 1840, a month or two after our own case of Xorthrop v. Graves, we quote the following (p. 67) : "The question is, can a party recover back money paid with a knowledge of all the facts, through mistake of the law? 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 eminent authority are arrayed on either side. It is not one of those questions upon which the mind promptly and satisfactorily arrives at a conclusion. This is true in reference both to principle and authority. ... I think, and I shall try to prove, that the weight of authority is with us. If it were not so — if authorities were balanced — we feel justified in kicking the beam and ruling according to that naked and changeless equity which forbids 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 the case of Rogers r. Weaver, supra, the court say (p. 537) : "It is an admitted rule that where money has been paid by mistake it may be recovered back in this action. It appears to us that the pay- ment in this case was made under a mistaken understanding of the true situation of the estate. . . . We think it just and equi- table, as well as lawful, to infer a promise to repay the sum received more than was due from the fact of its receipt through mistake." The same principle was acted upon in the case of Bliss v. Lee, 17 Pick. 83. But it is further said that Bradley knew all the facts and was guilty of gross negligence and laches in this matter towards the de- fendant, and that on these grounds he had no cause of action. But it nowhere appears that the defendant has been in any way harmed or injured by the claimed negligence or laches of Bradley. She has not changed her position for the worse on that account. She has her pro rata share of the assets now in her hands, and still has a claim for the unpaid balance, even if she is compelled to repay the amount overpaid. If she has given up her note she can undoubtedly easily get it back, and she has in place of it the proved and allowed claim based upon it. We fail to see where she has been legally harmed by Bradley's negligence or laches.^ Where money is paid under a mistake of fact, it is no defence to an action brought to recover it that the mistake arose through the plain- tiff's negligence, if such negligence caused the defendant no harm. Appleton Bank v. McGilvray, 4 Gray. 518; Kingston Bank v. Eltinge, 'The balance of the case is important on the question of neglisrence or laches as a bar to recovery and sliould be considered in connection with this headinii. jicsf. — Ed. 382 MANSFIELD V. LYNCH AND WIFE. [BOOK II. 40 N. York, 391. We think the same principle shoukl appl}' in a case like the present, even where the mistake is one of law. We also think that if the law is as laid down in Northrop v. Graves as to payments of money made by mistake of law by a party acting in his own right, much more ought the law to be so held in a case where the party making the payment acts in some fiduciary capacity as the agent of others. We hold then that Bradley, if living, would upon the facts found be entitled to recover from the defendant the amount overpaid. The next question is whether the present plaintiff is entitled to recover. If we are right in our conclusion that Bradley, if living, might on the facts found recover from the defendant the overpayment, then upon principle we see no good reason why the plaintiff may not recover in this action. It is true that the doctrine of the common law is, that between the administrator and the administrator de bo7iis non there is little or no privity, and that to the latter is committed only the administra- tion of the goods, chattels and credits of the deceased which have not been administered. It may also be true perhaps that if Bradley's estate had made good the overpayment to the plaintiff, Bradley's representatives alone would in that case have had the right to bring this suit, but, notwithstanding these and other reasons that might be urged, we think the plaintiff can maintain this action. Bradley parted with certain assets of the estate to the defendant by an act which, under the facts found, gave the defendant no right to retain them as against Bradley acting as administrator. After the overpayment the money overpaid still remained assets of the estate, and it was Bradley's duty to recover it back for the benefit of the estate as soon as he knew that the estate was insolvent in fact. After Bradley's death the plaintiff became the sole representative of the estate, the trustee of all persons having an interest in it. Wiggin V. Swett, 6 Met. 194. It was his duty to take charge of and admin- ister all assets of the estate of the deceased in the hands of the ad- ministrator at his decease, or in the hands of third persons, not ad- ministered upon. Bradley was, as to the cause of action which he had against the defendant for the overpayment, a trustee for the estate and the other general creditors. Had he in his lifetime instituted a suit to recover the overpayment and then died, the plaintiff by our statute (§ 569) might have entered and prosecuted such suit to final judgment. We think, in a case like the present, he can as well in- stitute a suit himself as to prosecute one brought by his predecessor. Whether the suit is brought by the administrator de horns non, or by Bradley's representatives, can make little or no difference to the defendant. In the one case she pays back to the estate directly, and in the other indirectly, the amount overpaid. In either case she pays it back. That is the object to be accomplished by either method. rilAP. II.] MAXSFIELD V. LYNCH AND WIFE. 383 and we think the present method is the simi^lcst and cheapest for all concerned and was properly adopted. We know of no case and have been referred to none wherein it is d(!- eided that the administrator may not recover in a case like the present. On the other hand in Stevens v. Goodsell, supra, the ad- ministrator de bonis non was allowed to recover in a case very similar to this. See also Bliss v. Lee, IT Pick, supra, where the executor was allowed to recover a payment made to a creditor beyond his pro rata share by an executor de son tort. There is no error in the judgment of the court below. ^ 'Connecticut has consistently allowed recovery in the teeth of the maxim. See the following earlier cases: Northrop v. Graves (1849) 19 Conn. 548 (a leading case); Stedwell v. Anderson (1851) 21 Conn. 139. "In Kentucky the question has been presented in a variety of cases. Perhaps one of the most interesting is Mt\Murtry r. Kentucky Central Railway Co. (1884) 84 Ky. 462. The railway company, having paid a judgment in an action for personal injuries, with interest from the date of its rendition, brought suit to recover the amount paid as interest on the ground that it had been paid under a mistake, the statute providing that judgments for personal injuries, inier alia, should not bear interest. In giving judgment for the plaintiff, the court emphasized the fact that there had been no compromise or choice of courses by the company in making the payment. " 'When the parties,' says Hoi.t, J., 'regard a question of either law or fact as doubtful, and to avoid litigation, and by way of compromise, payment is made, then no recovery can be had ; but in the case now before us no question was raised at the time as to the right of the claimant to interest. . . .' "In other cases in the same jurisdiction recoverv has been permitted of meter rent paid by a consumer to a gas company, which, under a proper construction of the contract between the gas company and the city, the company had no right to charge (Capital Gas Co. v. Gaines (1899) 49 S. W. 462) ; of a liquor license fee paid under an invalid ordinance ( Bruner r. Stanton (1897) 43 S. W. 411) ; of money paid under an unconstitutional statute (Board of Trustees v. Board of Education (1903) 75 S. W. 225): of taxes illegally assessed under a mistake of laAv (City of Louisville i'. Henning (1866) 1 Bush, 381). As to taxes, however, it should be noted that it has been held (Louis- ville & N. R. Co. V. Commonwealth (1890) 89 Ky. 531) that when payment cart be coerced only by suit, then if payment is made without suit no recovery will be allowed. This seems entirely to disregard the question of mistake, and erroneously to assume that the only i>ossible ground of recovery is that of payment under compulsion of duress." "In at least four jurisdictions — California. North Dakota, South Dakota and Georgia — the rule has been modified by legislative enactment. In the first three, the statute, after providing that apparent consent is not free when obtained through mistake, and that mistake may be either of fact or of law, defines the latter as "'(1) A misapprehension of tlie law by ;ill parlies, all supposing that they knew and understood it, and all making substantially the same mis- take as to the law: or (2) a misapiirclionsion of the law by one party, of wIiJ!-]! til? others arc aware at the time of contracting, but which they 384 HAVEN V. FOSTEK. [BOOK II. HAVEN V. FOSTER. Supreme Judicial Court of Massachusetts, 1829. [9 Piclering, 113.] Assumpsit for money had and received, and money paid, submitted on a case stated. In 1819, Andrew Craigie, of Massachusetts, died intestate in that state, seised of hinds there and in the state of New York, and leaving as heirs the wife of the plaintiff, a niece, and the defendant and two brothers, nephews. The widow took out letters of administration in this state. No letters were taken out in New York. In 1831 the plaintiff and his wife and the three Fosters sold the New York land to one Tufts for twenty-four thousand five hundred and forty dollars, he executing bonds for the purchase money payable equally to the four grantors, and secured by a mortgage on the land to them in undivided fourth parts. In 1834, the bonds were paid, one thousand eight hundred and seventy-five dollars being deducted from each of the amounts payable to the obligees, in order that Tufts might pay the sum of seven thousand five hundred dollars to one Lee, due from Craigie, and for which the lands sold do not rectify.' Calif. Civil Code, § 1578; N. Dak. Civil Code, § 3854; S. Dak. Civil Code, § 1207; Georgia Code, § 3978. "The mistake defined in the second clause involves an element of fraud which afTords a separate and obvious ground for relief. But the definition in the first clause is of a mistake in the true sense, and is remarkable in that by its terms relief is confined to cases in which the mistake is common to all parties. This is a distinction which has found some favor elsewhere." ilr. Woodward in 5 Columbia L. R. 368-371. In regard to the doctrine of the principal case, other than the question of mistake of law, compare the following from 8 Viner's Ab. 423, PI. 35: "Bill by an executor against a legatee to refund a legacy voluntarily paid him by the executor, the assets falling short to satisfy the testator's debt. Decreed that the defendant should refund to the plaintifl', and that an executor may bring a bill against a legatee to refund a legacy voluntarily paid, as well as a creditor ; for the executor paying a debt of the testator out of his own pocket, stands in the place of the creditor, and has the same equity against a legatee to compel him to refund, contra to the opinion in 2d Vent. 358. Noell v. Robinson, and 2 Vent. 360; Hodges v. Waddington, per Jekiix, M. R. ; Ms. Rep. Pasch. 4 Geo. Cane. Davis v. Davis." S. C. 2 Eq. Ab. 554, pi. 13. And note the following cases: Livosey v. Livesey (1827) 3 Russ. 287; Dibbs V. Goren (1849) 11 Beav. 483; In re Home (1904) L. R. [1905] Ch. 76 (and note on this case in 18 Harv. L. R. 546); Findlay v. Trigg (1887) 83 Va. 5.39; Beaird v. Wolf (1887) 23 111. App. 486; Edgar v. Shields (1856) 1 Grant, 361; Paine v. Drury (1837) 19 Pick. 400; Heard v. Drake (1855) 4 Gray, 514: Flint v. Valpey (1881) 130 Mass. 385; Brooking v. Farmer's Bunk (1885) 83 Ky. 431.— Ed. ClIAP. II.] HAVEN V. FOSTER. 385 to Tufts had been inortgaged as security. Tlie contract between Craigie and Lee was for the loan progressively of fifteen thousand dollars for which said lands were mortgaged. Craigie had received four thousand nine hundred and fifty-seven dollars under the contract, and his administratrix two tliousand two hundred and thirty-five dollars, which, with interest to June 15, 18:^0, made the seven thousand five hundred dollars. By agreement of June 17, 1820, the intended loan was reduced to seven thousand five hundred dollars. At the time Tufts undertook to pay this debt to Lee it was barred by the statute of limitations. It had been agreed originally between the heirs and the administratrix, by reason of certain stock in the commonwealth belong- ing to the estate and received by the heirs, that this Lee debt should be paid out of the proceeds of the stock. But the stock remaining unsold when Tufts proposed to pay the debt, the heirs agreed to pay the same, the administratrix agreeing that the payment by them should have the same effect as if it had been made by her, there exist- ing doubts as to the suflficiency of the personalty to pay the debts of the estate. Tufts neglected to pay Lee. He thereupon foreclosed his mortgage and obtained a decree, which was satisfied out of about half of the premises. Tufts subsequently paid to the defendant the amount which he had retained to discharge Lee's debt. Other lands in Xew York were sold by the plaintiff and wife and the Fosters, the consideration being divided equally. And all the times of this and the other above-mentioned transactions, the heirs were ignorant of the law of Xew York by which lands descended per stirpes and not per capita. This action was brought to recover the excess received by the defendant above the sum which he was entitled to under the laws of New York.^ The opinion of the court was drawn up by MoRTOx, J. [After stating some of the facts.] By the statute of dis- tributions of this State these heirs, standing in the same degree of relationship to the intestate, inherited his estate in equal proportions. But by the statute of Xew York, which carries the doctrine of repre- sentation farther 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 Xew 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. 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 Xew York lands, with interest from the time of its receipt. And the question now sub- ^Statement of the case is taken from 19 American Decisions, 353-354. — Ed. 386 HAVEX V. FOSTER, [BOOK II. niitted to our decision is, whether he is entitled to a repetition of the whole or any part of tliis 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 land 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 en- titled to them. They acted 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 would therefore seem to require, that the defendant should restore to the plaintiff the amount received for the plaintiff's estate. It was received 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 re- ceived the whole consideration, 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 statute 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 incon- sistent with sound ethics, as with sound law, to devest him of it because the rule of law by which 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 money under a claim of right. The defendant 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 being rightfully due to him, and the plaintiff, under the influence of 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 compromise. No controversy existed between the parties. There was not even a dif- ference of opinion between them in relation to their respective pur- CIIA-P. II.] HAVEN V. FOSTER. 387 parties 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 tlie other, and nothing between them which could be the subject of com})romise. Nor do the facts furnish any ground to presume that the plaintiff intended to grant anything to the defendant, or to yield any of his legal rights. Nemo presumitur donare. 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 plain- tiff be restored to the rights which he had under this statute? It is in the first place objected, that the plaintiff's ignorance was owing to his own negligence; that he shall not be allowed to take ad- vantage 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 and 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 defendant was made through misapprehension of the law, and there- fore 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 Igno- rantio juris quod quisque tenetur scire, neminem excusai. This objec- tion has been strongly urged by the defendant's counsel, and learnedly and elaborately discussed by the counsel on both sides. It is believed that all the authorities applicable to the point, from the civil as well as the common law, have been brought 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 388 HAVEN V. FOSTER. [BOOK II. perplexit3\ We do not court the investigation of it, and before at- tempting its solution, it may be well to ascertain, whether it is nec- cessary to the decision of the case before us. That a mistake in 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, in the present question, to be considered fact or law? The existence of any foreign law must be proved by evidence showing what 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. Eoberts, 3 Esp. 163. 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, 1 Johns. 385 ; Frith v. Sprague, 14 Mass. 455 ; Consequa v. Willings, Pet. C. C. 229. The laws of other States in the union are in these respects foreign laws. Eaynham v. Canton, 3 Pick. 293. 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 sitce must govern the descent of real estate, is a principle of our law with which every one is presumed to be ac- quainted. But what the lex loci is, the court can only learn from proof adduced before them. The parties knew, in fact, that the in- testate 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? If they are to be made known to the court by proof, like other facts, why should not ignorance of them by private individuals have the same effect upon their acts as ignorance of other facts? Juris igno- rantia 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 statute of New York is to be considered as a fact, the ignorance of which may be ground of repetition. And whether ignorantia legis furnishes a similar ground or repetition, either by the civil law, the law of England, or the law of this Commonwealth, it is not necessary for 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. CHAP. II.] HAVEN V. FOSTER. 389 In the view which we have taken of this case, it appears that the de- fendant received a part of the consideration for which the plaintiff's estate was sold; that it was received by mistake; and that this mis- take was in a matter of fact. He therefore has in his hands money which ex ceqiio 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 prop- erties 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 defend- ant beyond his legal proportion of the estate. Whether it shall ex- tend 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 plain- tiff 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 York? The estate there, not free from all incumbrances, but with this mortgage upon it. Did equity require that the defendant and his brothers should ad- vance 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 paA-ment of the administratrix, and sought a remedy against her upon the personal security of the in- testate. 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 satisfaction of his debt, by a sale of part of it ac- cording 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 cor- porate stock. But the stock was not sold so as to make the payment, and after the demand was barred the heirs made an agreement with the purchaser of their estate in New York, that he should retain enough of the consideration which was then due to them to remove this incumbrance, deducting an equal amount from each bond. After the deduction of this amount from the bonds, the balances were paid to the obligees, and thus the bonds were satisfied and discharged. The 390 HAVEN V. FOSTER. [BOOK II. effect of this arrangement by the heirs was, to leave the estate in the hands of the purchaser in tlie 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 in- cumbrance 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 upon and actually paid. If the heirs agreed to pay off this mortgage, it was a part of the agreement 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 the 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 mortgaged estate and their grantee to his remedy against his grantors or in resisting pay- ment 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 can- not be restored to the situation they were in when it was made, and as the effect of annulling 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 de- fendant on account of the sale of lands in New York, with interest from the service of the writ.^ 'A portion of the opinion not relating to the question of mistake has been omitted. — Ed. =See also Bentley v. Whittemore (1867) 18 N. J. Eq. 3G6. The doctrine of the principal case is universally accepted in England and the United States. Leslie v. Baillie (184.3) 2 Y. & C. C. C. 91; Imperial, &c., Assicuratrice of Trieste v. Funder (1872) 21 W. R. 116 (where James, L. J., said that a mistake as to foreign law was a mistake of fact, and was not a reason for setting aside the reward) ; Norton v. INlarden (1838) 15 Me. 45, 46, in which Shepley, J., says: "Certain principles in relation to this action [of money had and received] seem now to be well settled. Money paid under a mis- take of law cannot be reclaimed. Dougl. 471 ; Bilbie v. Lumley, 2 East, 469; Stevens v. Lynch, 12 East, 38; Brisbane v. Dacres, 5 Taunt. CHAP. II.] THE BANK OF CIIILLICOTIIE V. DODGE. 391 THE BANK OF CHILLICOTHE v. DODGE. Supreme Court of New York, 1850. [8 Barbour, 233.] This was an action of assumpsit. The declaration contained the ordinary counts for nionoy lent and advanced, paid, laid out and expended, money had and received, an account stated, and five special counts. The plaintiffs were a body corporate duly incorporated in Ohio, and in October, 1839, discounted defendant's bill of exchange 144; Mowatt v. Wright, 1 Wend. 35.5. But a mistake of a foreign law is regarded as a mistake of fact. 9 Pick. 112. Nor can it be reclaimed, when voluntarily paid with a knowledge or means of knowledge in hand, of the facts. Martin v. Morgan. 1 Brod. & Bing. 289; Welsh v. Carter, 1 Wend. 185. Nor where there may be a mistake of the facts, if the party paying has derived a substantial benefit from such payment; because he is not then entitled ex cequo et bono to reclaim it. Taylor v. Hare, 4 B. & P. 262. But when paid under a mistake of facts, and without any laches on the part of the payer, and without any substantial benefit derived from it, it may be recovered back. Hern v. Nicholls, 1 Salk. 289; Cox v. Prentice, 3 M. & S. 344; Milnes v. Duncan, 6 B. & C. G71 ; Garland v. Salem Bank, 9 Mass. R. 408." Nor does the rule extend, it would seem, to mistakes of private and special statutes: Cooper v. Phibbs (1807) L. R. 2 H. L. 149; Beauchamp v. Winn (1873) L. R. 6, H. L. 223; State i;. Paup (1852) 13 Ark. 129; King v. Doolittle (1858) 1 Head, 77. And see, Pitcher v. Turin Plank Road Co. (1851) 10 Barb. 436; Webb v. City Council of Alexandria (1880) 33 Graft. 168; Rogers v. Walsh (1881) 12 Neb. 28. It is interesting to note that International Law is not treated as foreign law. "Foreign municipal laws must indeed be proved as facts, but it is not so with the law of nations," per Strong, J., in The Scotia (1871) 14 Wall, 170, 188. See also The Paquette Habana (1899) 175 U. S. 677, 700. In the instructive case of Hanley v. Donoghue (1885) 116 U. S. 1, 4, Mr. Justice Gray, speaking for a unanimous court, said: "No court is to be charged with the knowledge of foreign laws; but they are well understood to be facts, which must, like other facts, be proved before they can be received in a court of justice. Talbot v. Seanian, 1 Cranch, 1, 38: Church r. Hubbart, 2 Cranch. 187, 236; Strother v. Lucas, 6 Pet. 763, 768; Dainese v. Hale, 91 U. S. 13, 20. It is equally well settled that the several States of the Union are to be considered as in this respect foreign to each other, and that the courts of one State are not presumed to know, and therefore not bound to take judicial notice of, the laws of another State. . . . Upon principle, therefore, and according to the great preponderance of authority [citing numerous cases, which see], whenever it becomes necessary for a court of one State, in order to give full faith and credit to a judgment rendered in another State, to ascertain the efToot which it has in that State, the law of that State must be proved, like anv other matter of fact." — Eu. 392 THE BANK OF CHILLICOTHE V. DODGE. [BOOK II. of $5,000, and advanced the further sum of $4,928.33. The defend- ant's bill was illegal by the statute of New York, and on suit l)rought, the defendant, among other defences, set up the said illegality. The court overruled all the objections and denied the motion, for the reason that if the fact was as the defendant insisted, that the paper was illegally issued and void, yet, as the plaintiffs, who were non-residents of the state, paid to the defendant himself a full and valuable consideration for it, without notice of its illegality, they might recover, on the common counts, the money they paid the defendant for it, with interest. To this decision the defendant excepted. The testimony being closed, the court charged the jury that the defendant having insisted that the bill of exchange was illegally issued, without authority, and was fraudulent and void, and the proof showing that the plaintiffs paid $4,928.33 for it in money, in good faith, they were entitled to recover that sum, with the interest on it; that residing in a foreign state they would not be presumed to be acquainted with the banking laws of this state. The defend- ant's counsel excepted, and the jury found a verdict for the plaintiffs for the amount of the draft, with interest. And the defendant, upon a case, moved for a new trial. ^ By the Court, Johnson, J.^ If the justice who held the circuit was right in his view of the case, the recovery of the money advanced by the plaintiffs to the defendant was proper. There could be no recovery upon the instrument, and no demand or notice of any kind was necessary. If his view was erroneous, a new trial must be granted, of course. The paper negotiated by the defendant to the plaintiffs, upon which the money was advanced, was a time draft issued by the Farmers' Bank of Seneca County, an incorporated banking institution, payable three months after date, to the order of the defendant. The defendant's counsel, upon the trial insisted, and the judge held, that this paper was issued by the bank without authority and was void, and that no recovery could be had upon it. This position was clearly right. The statute forbids such paper to be issued, and it was utterly fraudulent and void. No person, by any act, could give validity or vitality to it as commercial paper, anywhere. And so are all the cases. Leavitt, receiver, v. Blatchford and others, 5 Barb. Sup. C. K. 9; Affirmed in court of appeals, 3 Comst. 19. So far the judge ruled as requested by the defendant's counsel. But the justice went farther, and instructed the jury that as this paper was made void by an act of our state legislature, of which the plaintiffs being non-residents of the state, were not bound to take or supposed to have notice, and as they had in good faith advanced to the defend- ant the money upon it, they were entitled to recover the money thus 'Statement of facts is shortened. — En. ^Part of the opinion dealing with another question is omitted. — Ed. CHAP. II.] COUNTY OF ALLEGHENY V. GRIER. 393 advanced. To this part of tlic charge the defendant's counsel excepted. In this I think the learned justice was entirely correct. The defend- ant was a resident of this state, and chargeahle with a knowledge of all legislative enactments here. The law imputes to him knowledge that this paper, negotiated hy him, was utterly void and worthless — no better than mere blank paper. The money was then advanced and paid to him without consideration. It was advanced in Ohio, and the plaintiffs are a corporate body of that state. They are not pre- sumed to have notice of our statutes. The statutes of our state are only brought to the notice of courts and citizens of that state by proof. Had it been shown that the plaintiffs, or the officers of the bank, had actual knowledge of the statute in question, they might, notwith- standing their non-residence, be placed upon the footing of persons mutually dealing in illegal transactions. But there is no such ques- tion here. It is not pretended that officers of the bank had any knowledge in fact of our statute. The cause was evidently tried upon the assumption that the money was advanced upon the draft, in good faith, by the plaintiffs, supposing it to be good. No question of that kind was raised at the trial. The plaintiffs then stand in precisely the same situation as though the money had been paid by them under a mistake as to material facts. Ignorance of the law of a foreign government is ignorance of fact — and in this respect the statute laws of the other states of this union are foreign laws. Haven v. Foster, 9 Pick. 112; Norton v. Harden, 3 Shepley, 45. And this proceeds upon the principle that foreign laws are matters to be proved, like other facts, before even courts can notice them. It is an elementary principle that money paid under a mistake of material facts, where the party paying derives no benefit from it, may be recovered back. New trial denied. COUNTY OF ALLEGHENY v. GEIEE. Supreme Court of Pennsylvania, 1897. [179 Pennsylvania State, 639.] Assumpsit to recover from the controller of Allegheny county $1,290.32, alleged to have been paid to him by mistake in excess of his salary as fixed by law. The defendant demurred to the state- ment for the following reasons: (1) at the date of the paATnents mentioned in the plaintiff's statement the salary of the office of controller of Allegheny county was not payable under the act of May 7, ISO I, entitled, "An act relating to Allegheny County ;" (2) the 394 COUNTY OF ALLEGHENY V. GRIER. [BOOK II. salary of said office at that time was as fixed in the general act, approved May 11, 1881, P. L. 21, and entitled a supplement to an act entitled "An act to carry into effect section 5, of article 14 of the constitution, relative to the salaries of county officers and the payment of fees received by them into the state or county treasury, in counties containing over 150,000 inhabitants and approved the 31st day of March, 1876, amending section 13 of said act;" and under said act the salary of the controller was $4,000; (3) in any event the payments made to this defendant and sued for were volun- tary payments; (4) the statement does not set forth any legal cause of action against this defendant. The court entered judgment for the plaintiff on the demurrer. Error assigned was in entering judgment for plaintiff as above. Opinion by Chief Justice Sterrett, January 4, 1897 : The principle which underlies the construction heretofore given the act of 1876 and its supplements is too plain for question. The constitution had declared that in counties of a specified class, their officers should be paid by fixed salaries; and the legislature sought by that act to accomplish this purpose. It accordingly struck down all prior acts which provided for the payment of such officers in fees as being necessarily inconsistent with the constitutional mandate; and hence McCleary v. County, 163 Pa. 578, and allied cases; and left those acts which provided for the payment of fixed salaries, because consistent; and hence Bell v. County, 149 Pa. 381. The operation of the act was limited by the accomplishment of its purpose. The act of 1861 being in entire harmony with the .constitutional intent, it would have been vain and useless to have stricken it down. The act of 1864 which fixed the controller's salary belongs to the same category, and hence the court below was clearly right in holding that the present case is not distinguishable, in this respect, from Bell v. County, supra. The act of 1864 being in force, the amount received by the controller in excess of the salary there fixed was therefore illegal. So on grounds of public policy, the court was right in hold- ing that the maxim volenti non fit injuria has no application to the illegal payment of public funds to a public officer, — more especially where as here it is the peculiar function of that officer to guard the public treasury. Public revenues are but trust funds, and officers but trustees for its administration for the people. It is no answer to a suit brought by a trustee to recover private trust funds that he had been a party to the devastavit. There could be no retention by color of right : Abbott v. Reeves, 49 Pa. 494. With much the stronger reason is tbis doctrine applicable where the interests of the whole people are involved ; and the authorities are accordingly numerous to this effect. New Orleans v. Finnerty, 27 La. Ann. 681 ; Com. v. Field, 84 Va. 26 ; Day Land & Cattle Co. v. State, 68 Texas, 526; Am. Steamship Co. v. Young, 89 Pa. 191; Taylor v. B'd of Health, 31 Pa. 73; Smith v. CllAl'. Jl.] COUNTY OF ALLEOHEXY V. GRIER. 395 Corn., 41 Pa. 335, and cases cited. It is oljviously immaterial whether the illegal payment be through design or mistake; for in either event the result must be not only misuse of trust funds, but what is of far more importance, demoralization in the service. The only practical difference lies in this: that one makes a criminal imd the other a trustee. So it is immaterial by what officer the funds are had and received, fidelity to the government, which he represents and is sworn to support, makes restitution a duty. Even a tenant may not question his landlord's title, and mr.ch less may a public servant, that of his sovereign. He can plead neither laches nor estoppel in pais to a suit for malversation. Public office is a public trust; the sanctity of public property is essential to its due administration; and necessarily implies a remedy for every diversion from legitimate use. The attributed effect of the filing and advertisement of the controller's annual report, so far as relates to his salary, is without merit. The report is given the "effect of a judgment against the real estate of the officer who shall thereby appear to be indebted to the county:" but the act of 1861 does not contemplate that the con- troller shall become "indebted." He has no power to handle public funds. He is the fiscal officer of the county and, as such, it is his duty to take notice of illegal disbursements of the public funds, and charge the officer who is guilty of misappropriation. This is the only pro- tection the people have against the illegal acts of those who have charge of their pecuniary interests. Commissioners v. Lycoming Co., 46 Pa. 496. Chosen by the people to watch and take care of these inter- ests, it cannot be expected that they shall in turn keep a watch on him. The suggested hardship of compelling the controller to refund is more specious than real. The adoption of the constitutional provision marked a radical change of policy and should have put him on his guard. As the fiscal officer of the county he was bound to take notice that the construction of the act of 1876 was open to question, and that without the aid of the courts he must act at his peril. His responsibility is not answered by the plea of inconvenience. The county would soon fall into a condition of hopeless insolvency if the "retarding friction" of personal inconvenience were once recognized as a principle of defence to the enforcement of its duties. It follows that there is no error in the judgment, and it is therefore affirmed.' "'It has frequently, Wis. Cent. Ry. Co. v. United States (1896) 164 U. S. 190; Barnes v. Dist. of Col. (1887) 22 Ct. of CI. 366: Ellis v. Bd. of Auditors (1895) 107 Mich. 528; Heath v. Alhrook (Iowa, 1904) 98 X. W. 619; County V. Grier (1897) 170 Pa. 639; Bd. of Supervisors v. Ellison (1875) 59 N. Y. 620; Com. v. Field (Va. 1887) 3 S. E. 882, though not uniformly. County r. Rundall (1880) 43 Mich. 137; Painter v. Polk Co. (1890) 81 Iowa. 242: Peo. V. Foster (1890) 133 111. 496; See also Morgan Park v. Knopf (1902) 199 111. 444, been decided that the rule of no recovery does not extend, or at least 'does not have so general application,' to the case of the payment of 396 GILLIE V. GRANT. [bOOK II. GILLIE V. GEANT. SuPKEME Court of New York, 1897. [23 Appellate Division, 596.] Appeal by the defendant, Hugh J. Grant, as receiver of the St. Nicholas Bank of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of October, 1897, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerks' office on the 14th day of October, money by public officers or public agents. The reason generally offered for this limitation is the importance of protecting the public funds and the interests of the community. But in some of the cases, where the defendant is a public officer or agent, stress is laid upon the fiduciary relation existing between the parties, or between the plaintiff's principal and the defendant. Ellis V. Bd. of Auditors (1895) 107 Mich. 528: Bartlett v. United States (1839) Dav. 9, 24 Fed. Cases, 1021. As it was put in the case of County v. Grier (1897) 179 Pa. G39: " 'Fidelity to the government which he represents and is sworn to support, makes restitution a duty.' *'In still other cases it is contended that the reason for allowing a recovery is that the mistake of an agent is not chargeable to his principal. Board of Supervisors v. Ellis (1875) 59 N. Y. 620. A curious combination of all three notions is found in the opinion in the United States Court of Claims case of Barnes v. District of Columbia (1887) 22 Court of Claims, 366, 394, quoted with approval by the United States Supreme Court in Wisconsin Central Kailway v. United States (1896) 164 U. S. 190. " 'The doctrine," says the court, 'that money paid can be recovered back when paid in mistake of fact and not of law does not have so general appli- cation to public officers using the funds of the people as to individuals dealing with their own money when nobody but themselves suffer for their ignorance, carelessness, or indiscretion, because in the former case the ele- ments of agency and the authority and duty of officers, and their obligations to the public, of which all persons dealing with them are bound to take notice, are always involved.' "In Iowa a distinction seems to be recognized between cases in which the particular payment sought to be recovered is within the general scope of corporate powers and is merely unauthorized but not prohibited by law, and cases in which the payment is clearly beyond the corporate powers or in direct violation of law. In the former class relief is denied^ Painter v. Polk Co. (1890) 81 Iowa, 242, in the latter granted, Heath v, Albrook (1904) 123 Iowa, 559. Some such distinction is suggested also in the opinion of the Supreme Court of Illinois, in People v. Foster (1890) 133 111. 496, but in the dicta of later cases it is disregarded. Morgan Park v. Knopf (1902) 199 111.144"; Mr. Woodward's Money Paid Under Mistake of Law, 5 Columbia L. Rev. 372, 373.— Ed. CllAr. II.] GILLIE V. GRANT. 397 1897, denying the defendant's motion for a new trial made upon the minutes. This action was brought to recover money received by the defend- ant as the proceeds of an execution sale against the George C. Tread well Company. In January, 1894, the plaintiff brought an action against the company, in which a warrant of attachment was issued to the sheriff of Albany county. On January 9, 1894, a levy was made under this warrant and property sot apart for the satisfac- tion of the plaintiff's claim. The following day a warrant of attach- ment against the company was issued in an action brought by the defendant, and on January 11, 1894, a levy was made under this warrant, and property set apart for the satisfaction of the defend- ant's claim. The property attached under the plaintiff's warrant was sold under an execution subsequently issued upon a judgment ol:)tained by him in the action, but proved insufficient to satisfy such judgment. Plaintiff thereupon moved in Albany county to compel the sheriff to sell the property held under the defendant's warrant and apply the proceeds upon the plaintiff's judgment. This motion was denied at Special Term on February 12, 1895, and the order was affirmed by the General Term of the third department in the following March. In January, 1896, the Court of Appeals reversed these orders and granted the motion. In the meantime, in July, 1895, the sheriff, not being stayed from so doing, sold the property held under the defendant's warrant and paid over the proceeds to him. After the decision of the Court of Appeals, a motion was made by the plaintiff to compel the defendant to pay him the amount received from the sheriff. The order entered upon this motion on May 26, 1897, withheld decision as to the plaintiff's right to compel payment, but granted him leave to bring an action to recover the amount. In pursuance of this order the present action was begun. Barrett, J. There are two grounds upon which the judgment in this action should be sustained: First, a party's right to follow prop- erty upon which he has a lien into the hands of one who has received the property with knowledge of that lien, and who is not a bona fide purchaser for value; second, the well-recognized exception to the general rule that money paid under a mistake of law cannot be recovered back, namely, where the money is so paid to an officer of the court.^ The plaintiff's right to recover upon the second proposition above stated is equally clear. A plain intimation to this effect was given by tlio Court of Appeals in deciding that a case for restitution under section 1323 of the Code of Civil Procedure had not been made out. Gillig v. George C. Treadwell Company. 151 N. Y. 556. Upon this intimation tlie plaintiff applied in this department 'The diseussion of the first point is omitted. — Ed. 398 GILLIE V. GRANT. [BOOK II. for an order requiring the receiver to pay over the money to him; but decision upon the application was, to quote the language of the order, "withheld," and, instead of granting the relief asked, the court gave Gillig leave to bring this aqtion. We think the court might well have afforded the plaintiff the summary relief which he asked, and, there being no dispute about the facts, the delay and expense of an action seem to have been unnecessary. The rule that money paid under a mistake of law cannot ordinarily be recov- ered back is entirely inapplicable to the present state of facts. This action is not against the sheriff, nor is it brought in the right of the sheriff. It is brought in the plaintiff's own right to recover money, to which he is entitled, from one who has possession of it without right. But even if the money had been paid by the sheriff to Gillig, and the latter, under a misconception of his legal rights under the statute, had paid it over to the receiver, an action to recover it back would lie, for the general rule is subject to the limitation that money paid under a mistake of law to an officer of the court can be recovered. In Ex parte James, 9 L. K. (Ch. App. Gas.) 609, Lord Justice James applied this limitation to a trustee in bankruptcy with the observation that the general rule "must not be pressed too far." There a creditor had received money to which he was actu- ally entitled under an execution sale against the bankrupt. He paid this money over to the trustee under the mistaken supposition that the latter was entitled thereto as matter of law. "I am of opinion," said Lord Justice James, "that a trustee in bankruptcy is an officer of the court. He has inquisitorial powers given him by the court, and the court regards him as its officer, and he is to hold money in his hands upon trust for its equitable distribution among the creditors. The court then, finding that he has in his hands money which in equity belongs to some one else, ought to set an exam- ple to the world by paying it to the person really entitled to it. In my opinion the Court of Bankruptcy ought to be as honest as other people." This decision was followed in Ex parte Simmonds, L. E. (16 Q. B.) 308, where Lord Esher observed that, although the court will in general permit an individual litigant to do a "shabby thing," namely, to keep the money thus acquired, it will not allow its own officer to do this. "It will," said this learned judge, "direct its officer to do that which any high-minded man would do, viz., not to take advantage of the mistake of law. This rule is not confined to the Court of Bankruptcy. If money had by a mistake of law come into the hands of an officer of a court of common law the court would order him to repay it as soon as the mistake was dis- covered." The doctrine of these cases commends itself to both reason and justice. In quoting with approval the expressions of these learned English judges, we mean no reflection, ,cven indirectly, upon the receiver or CHAP. II.] MOWATT V. WRIGHT. 399 his learned counsel. Indeed, the diligence and tenacity of these gentlemen, in the pursuit of property for the benefit of the trust estate represented by them, are commendable. It would, however, be a reproach upon the administration of justice should the court, when the question is squarely before it, hesitate to admonish its officer to desist from further efforts to augment his trust estate at the expense of one who is clearly entitled to the money which that officer holds. We think, therefore, that the direction below was right and that the judgment appealed from should be affirmed, with costs. Williams and Patterson, JJ., concurred; Van Brunt, P. J., and RuMSEY, J., concurred in result upon second ground stated in opinion. Judgment affirmed, with costs. ^ MOWATT V. WRIGHT. Supreme Court of New York, 1828. [1 Wendell, 355.] This was an action of assumpsit, commenced in 1827, tried at the New- York circuit in April, 1828, before the Hon. Ogden Edwards, one of the circuit judges, to recover back $1000, paid by the plaintiffs to the defendant under the following circumstances: In 1821, the defendant brought several actions to recover her dower, as the widow of Dr. John G. Wright, in certain real estate in the city of New- York. The late John Mowatt, junior, the father of the plaintiffs, was vouched to warrant the title of the defendants in those suits, as he had formerly owned the property, and had sold it with a covenant of warranty. Pending the suits he died, and his heirs, the plaintiffs, were vouched in his place. On the 24th November, 1821, a com- promise was effected, the terms of which were, th.it the plaintiffs should pay the defendant $1000, that the suits should be discon- tinued, the parties paying their own costs, that the defendant should execute a release of dower, and her children shoukl quit-ehiim all interest in the premises. The money was accordingly paid, and the releases executed. A few days after the settlement, a release was found in the possession of Col. Piatt, through whom the title had passed, executed by the husband of the defendant and lierself, bearing date the 'See in addition to cases cited in the text of principal case: Dixon r. Brown (1886) L. R. 32 Ch. D. 597; In re Opera. L. R. flSOl] 2 Ch. 154: Moulton v. Bennett (1836) 18 Wend. 586 (in which an attorney as officer of the court was compelled to return fees not legally chargeable). — Ed. 400 MOWATT V. -WRIGHT. [bOOK II. 8th day of May, 1784, conveying the premises in which dower had been demanded, to Colonel Burr, from whom the title had passed to Colonel Piatt, from Piatt to J. Winter, and from Winter to J. Mowatt, the ancestor of the plaintiffs. By the Court, Savage, Ch. J. The question is, whether the $1000 were paid by mistake of the facts, or compulsion of law ; or whether it was voluntary, and to compromise a suit and a disputed claim? At the trial, it was attempted to shew fraud in Mrs. Wright ; but that was satisfactorily rebutted. She was married at 17 years of age, and soon after executed the conveyance of these lots. In 1821, she was informed by a Mr. Baldwin, that she had a right of dower in certain lots; but she had forgotten that her husband had ever owned those lots, and took pains to make all possible inquiries for the conveyance, before she brought her suits. The jury passed uppn the question of actual fraud, and found a verdict in her favor. On the question of mistake and compulsion, the judge decided that the plaintiffs were not entitled to recover. It appeared that the attornies and counsel for the defendants in the dower suits, w^ere of opinion that a release had been executed by Dr. Wright, in which the defendant had joined. A lease for one year from Dr. Wright to Col. Burr was found; and it was therefore believed that a proper release had also been executed. The testimony is uncontradicted, that the payment of the $1000 was voluntary, as a compromise of Mrs. Wright's claim, and of the claim of the heirs of her husband; but it is contended that the pay- ment was compulsory, inasmuch as a suit was brought, and at the time of the compromise, the conveyance from Mrs. Wright could not be found. The action for money had and received in general, lies for money which ex cequo et bono, the defendant ought; to refund, as for money paid by mistake ; or upon a consideration which happens to fail ; or for money obtained by imposition; or extortion; or oppression; or by taking an undue advantage of the plaintiff's situation. 2 Burr. 1012. A mistake which entitles a party to sustain this action, must be a mistake of fact. Where there is no fraud nor mistake in matter of fact, if the law was mistaken, tlie rule applies that ignomntia juris non excusat. Doug. 471. An error of fact takes place, either when some fact which really exists is unknown, or some fact is supposed to exist, w^hich really does not exist. But when a person is truly acquainted with the existence or non-existence of the facts, but is igno- rant of the legal consequences, he is under an error of law. 2 Ev. Poth. App. 437. It is now generally conceded, that the law is as laid down by Bin.LEK. Justice (Doug. 471), that the mistake must be a mistake of fact and not of law, though a very learned argument will l)e found in Evan's Pothier, sustaining the proposition that a mistake of either law or fact, will entitle the party, paying money under it, to maintain this action to recover it back. Some of the earlier cases do not take CHAP. II.] MOWATT V. WRIGHT. 401 the distinction; and De Grey, Chief Justice, in Farmer v. Arundel, 2 Bl. Rep. 824, 825, says, where money is paid by one man to an- other, on a mistake either of fact or of law, or by deceit, this action will certainly lie; but the later authorities contradict this propo- sition so far as regards a mistake of the law. There are cases also of payment by compulsion, and by legal process, where the party has been subsequently permitted to recover it back. The case of Astley v. Reynolds, 2 Str. 915, was an action for money had and received. The plaintiff had pawned plate to the defendant for £20, and went afterwards to redeem it, and offered the principal and £4, which was more than legal interest; but the defendant demanded £10, which the plaintiff paid, and then brought his action to recover the excess above lawful interest. It was contended that he could not recover, there being neither mistake nor force, and his remedy by trover being open to him after tender, and therefore he came within the rule that volenti non fit injuria. But the court said they considered it a pay- ment by compulsion; that the plaintiff might have such immediate want of his goods, that trover would not afford him a proper remedy ; that volenti non fit injuria applies only where the party had his free- dom of exercising his will, which this man had not. I presume there were facts in that case not reported, from this remark, as there is nothing in the case to shew that the plaintiff had not the liberty of exercising his will. This case, Ch. J. Spexcer, in Hall v. Schultz, 4 Johns. R. 245, considers as overruled by Knibbs v. Hall, 1 Esp. 84, where, in an action for use and occupation, it appeared that the plain- tiff had let certain rooms to the defendant. The plaintiff demanded rent at 25 guineas ; the defendant insisted that he had taken them at 20 guineas; but on the plaintiff's threatening to distrain, defendant paid the 25 guineas. He now offered to shew, that the rent was really but 20 guineas, and to set off the 5 guineas in this action, as having been paid by compulsion. But Ld. Kexyon was of opinion, that this could not be deemed a payment by compulsion, as the defendant might, by a replevin, have defended himself against the distress. There are cases, undoubtedly, where an undue advantage is taken of the partv's situation, in which he may pay money, with knowledge of all the facts and the law too, and afterwards recover it back. Such was the case of v. Piggott, cited in Cartwright v. Rowley, 2 Esp. 723, where the steward of an estate being in possession of deeds wanted on a trial, charged extravagantly for producing them, and the money was recovered back from him in this action. The money was held not to have been paid voluntarily, but from necessity and the urgency of the case, as the plaintiff could not do without the deeds. The case of Cobden v. Kendrick, 4 T. R. 431, has been relied on for the plaintiff. The facts were these : Previous to that suit, the defend- ant, K., had sued the plaintiff, C, on a promissory note; and after 402 MO WATT V. wMUMvr. [book ir. • a writ of iiKjuirv executed, the suit was compromised ami jiart paid. Soon afterwards, Kendrick told his attorney that he was glad it was compromised, for it was a lottery transaction, and he had given but £10 for the note, which was for £150 : thereupon, this suit was brought for the money so paid. No question was raised but that the action was sustainable. It was a clear case of fraud. But in Mariott v. Hanii)- ton, 7 T. R. 260, the facts were more analogous to the case before us. H. had previously sued M. for goods sold, and which had actually been paid for and a receipt given ; but not being able to produce the receipt, nor prove payment in any other manner, M. gave a cognovit and paid the money. Mariott afterwards found the receipt, and brought his action for money had and received; but Lord Kenyon held, that money recovered under legal process, could not l)c recovered back, however, unconscientiously retained by the defendant, and non- suited the plaintiff. On a motion to set aside the nonsuit, the court said, that after recovery by legal process, there must be an end of litigation; and that it would tend to encourage the greatest negligence, if a door were opened to parties to try their causes again, because they were not properly prepared with their evidence the first time. Neither of these cases can be said to be like this case ; for, in the first, the re- covery was on the ground of fraud, which is negatived here; and the last differs from this, because there had been an actual judgment, though by cognovit, and here there was a compromise before judg- ment. The cases founded on mistake, seem to rest on this princii)le : that if parties, believing that a certain state of things exists, come to an agreement with such belief for its basis, on discovering their mutual error, they are remitted to their original rights. On this prin(i})le was determined the case of Cox v. Prentice, 3 i\I. & S. 314, where a bar of silver was purchased by the plaintiffs of the defendant, and paid for according to the number of ounces calculated by an assay- master; but it being ascertained afterwards tliat a mistake had been made, by which they had paid more than tlu; value, they bvouglit their action and recovered the excess. Lord Kllkn'bohoikjh said il was a case of iiiutii;il innocence and equal error, and a ])roper case for sucli an action. Hut when a party pays money voluntarily, with full knowledge, or full means of knowledge of all the facts of the case, the party ko paying cannot recover it back. Bilbie r. Lumley, 2 East, 470. The ground on which the action was brought, was, that llie money was paid under a mistake, by uliicli the underwriter had ])aid an insurance, a material letter having been withheld at the tinv of insurance. .At tiie trial, that fact was contradicted; and the plaintiff then insisted that the money having been paid under a mistake of the law, the action might bi- sustained; and >o the jiidge ruled at nisi })rius. Hut on motion to set a~iile the verdict. Lord Ili.i.KX- noHOi.'Gii said he never heard of any case. exce|)t Chat field v. Paxton, where such a recovery was had ; and tliat case was ultimately de- CHAP. II. J MOWATT V. WRIGHT. 403 cided on some other circumstances; but it was so doubtful as not to be reported. In Brisbane v. Dacers, 5 Taunt. 155, Best, Justice, gives a full statement of the case of Chatfield v. Paxton, having been counsel in the cause, from which it seems that the intimation given by Lord IvENYON at the trial, that ignorance of the law was a sufficient ground for the action, was abandoned, and the judges put it wholly on the ground that the plaintiff had not a knov/ledge of the facts. In the course of the argument, Best, Serjeant, advanced this proposition, speaking of the doctrine of Lord Ellenborough, in Bilbie v. Lumley, to wit : that money shall not be recovered bade, if it be consistent with honor and conscience to retain it, but otherwise it shall. Gibbs, Justice, interrupted him, saying, "The principle has always been this: wher- ever the money has been paid in consequence of a demand as of right, then, although the demand was unfounded, the payment cannot be recovered back." There is a case of money paid under distress for standings in a market ; though the party had no right to distrain, the money could not be recovered back. The facts in the case then under argument were, that the plaintiff was captain of a ship under com- mand of the defendant's testator, Admiral Dacers. The plaintiff had received a considerable sum for transporting specie, one third of which he paid to the admiral, under a mistaken apprehension that he was entitled to it, and then brought his action to recover it back. In deciding the case, Gibbs, Justice, says, "We must take this payment to have been made under a demand df right," and then repeats the doctrine above stated. He adds, "I think, that by submitting to the demand, he that pays the money gives it to the person to whom he pays it, and makes it his, and closes the transaction between them." This was said under the supposition that there was a full knowledge of all the facts upon which the demand was founded. In the case of Bulkely v. Stewart, 1 Day, 133, the supreme court of Connecticut say, "This action does not lie to recover back money voluntarily paid on a claim which the party disputes, though he pay it, expressly reserving his right to litigate his claim." The cases in Massachusetts, where the plaintiff recovered, are cases where the money was paid under a mistake of the facts. Many more cases might be cited, but those already referred to, shew the principles upon which the action has been sustained, and upon which it has been defeated. In the present case, it now appears that the defendant had. in fact, no right to the money paid by the plaintiffs; but it was paid upon a claim of right which was honestly made by her; and the plain- tiffs here, who wore virtually defendants in the dower suits, acted under as full a knowledge of the facts as the demandant. She. in truth, believed that she had never executed a deed ; but the plaintiffs acted under the belief, as testified by the witnesses, that there was such a deed in existence, but for reasons which are stated. 4(»4 ERKENS r. MCOLIX. [BOOK II. they thought tliat tlie j)aymt'nt of the $1000 was the shortest and cheapest way of settling the clisj)ute. This sum of money, then, was given to Mrs. Wright lo quiet the ehiim, in the hmguage of Mr. Justice Best. She had a right to consider it her own without dispute. She has probahly spent it; "and it would be most mischievous and unjust, if he who has acquiesced in the right by such voluntary jiayment, should be at liberty, at any time within the statute of limitations, to rip up the matter and recover back the money." 1 cannot consider this is a case of mistake of fact or of law. Mrs. Wright brought suits for a claim which she thought well founded. The defendants believed there was a defence, but they could not produce the evidence of it, like the case of the lost receipt : they, therefore, paid a sum of money, as the easiest and cheapest way of settling the claim. It is a voluntary payment, though they would not have made it, could they have produced the evidence of their title at the time. It is now too late to call the settlement in question. I am of opinion that the motion to set aside the verdict be denied.^ ERKENS V. NICOLIN. Supreme Court of ^Iixnesota, 1888. [30 Minnesota, 461.] Ai'i'E.vL by defendant from an order of the district court for Scoti: county, Edson, J., presiding, refusing a new trial after a trial by the court. Mitchell, J. Action to recover back the money ))ai(l by |)laintilT to fh.'forulant for a fpiitclaim deed of a piece of land in the village of Jordan. The facts, as di.sclosed by the evidence, are that the defendant platted into lots a tract of land, of which he was the owner, lying between Water street and Sand creek. As shown upon ihe plat, the north and .south lines of the lots extend from Water street to the creek. The distance marked on th(^ ])lat gave the length of these linos as 80 feet, but the actual distance^ from Water street to the H'larko r. Diifflior (1«24) n Cow. 07-1 is iisually ro;,'ar(l«'il ns tlip It'iulinp oas^ in thin rfninlry on inistako of law. Tho question was not really involved, as the re(f)very was liarreil liy tlie statute of limitations, so tliat the learned and flalmratf disenssion on tlie point of mistake is really a tlictum. It does, how- ever, Htate the law as it is. and is (hen-fore vaiuahle, althou^di clearly ohifrr. "That a ri(,'ht of recovery in such i-ases, where there is mistake or i^rnoranoe an to material facts, Itiit imt whore there i« a mistake of law Imt no mistake as to the facts, is a pnint njion which Mowatt r. Wrijrht is frc(iiiently cited a.H an authority in the New York deci-sions. Whcadon v. Olds, 'JO WCrid. 170; CHAP. 11.] ERKEXS V. NICOLIN. 4D5 creek was 110 feet. One of these lots, and the adjoining 35 feet of another, had been conveyed by defendant, according to the pUit, to plaintiff or plaintiff's grantor. Subsequently defendant claimed and stated to plaintiff, in substance, that the lots only extended back 80 feet, according to the distance indicated on the plat, and hence that he still owned the strip of 30 feet next to the creek. Plaintiff knew that defendant's claim was based wholly upon the theory that the distance given on the plat would control, and hence that his claim of title was in fact but expressions of opinion as to the legal effect and construction to be given to the plat. So far as the evidence shows, defendant made this claim in good faith, and honestly supposed that his deeds of the lots only conveyed 80 feet. PlaintifE took the matter under consideration for nearly a month, and went to the register's office and examined the plat for himself. He then obtained from defendant and wife a quitclaim deed of all the land down to the creek, and paid therefor the money which he now seeks to recover. When he paid the money he knew all the facts, and had the same means of Rheel v. Hicks, 25 N. Y. 291; Chapman v. City of Brooklyn, 40 id. 380; Supervisors of Onondaga Co. v. Briggs, 2 Den. 40; Boyer v. Pack, id. 108; Hargous v. Ablon, 3 id. 408; Wyman v. Farnsworth, 3 Barb. 371; Lott v. Swezey, 29 id. 92; Grainger v. Oliott, 1 Lans. 171; Goddard v. Merchants' Bank, 2 Sand, 253. That the action for money had and received is founded on princi])les of equity, and entitles the defendant to show, if he can, that he is not equitably bound to pay the money, is held on the authority of the principal case, in Eddy v. Smith, 13 Wend. 491." — Note to principal case in 19 Am. Dec. 515. So if plaintiff and defendant submit a question of boundary to a surveyor who establishes the line, and plaintiff thereupon pays money for trees cut on defendant's land, the plaintiff cannot, in the absence of fraud, recover in assumpsit the money so paid if a second survey shows that the line first drawn was incorrect, and that the trees were thus cut from plaintiff's own land. Mc- Arthur v. Luce et al. (1880) 43 Mich. 435. See, however, similar case of Turner Falls Lumber Co. v. Burns (1899) 71 Vt. 354, in which a recovery was allowed. In West V. Houston (1844) 4 Harrington, 170, it appeared that the Messrs. West brought an action against Houston for $90 and recovered $44.50, but failed to file a certificate for the costs — $15.15 — which was a condition prece- dent to their recovery. The defendant in the original action, supposing the certificate had been filed, paid the costs. On assumpsit for money had and received, the court said: "Where there is a payment in ignorance of or mistake of a fact, it may be recovered back, unless the mistake arises from the negligence of the party to examine and take notice of information within his full means of knowledge. Here the ]>laintiff was party to the vory record of the judgment which he was paying, which record showed the fact he now alleges he was ignorant of." This admirable little case should l)e con<;iderod in connection with the sub- sequent sections dealing with the question of unjust enrichment at plaintiff's expense, and the effect of plaintifl's negligence. — Ed. 40(> ERKEXS I'. NICOLIX. [BOOK II. kno\vlecl«:^e of them wlikh defendant liad. The transaction was un- affected by any fraud, trust, confidence, or the like. The parties dealt with each other at arm's lengtli. Phiintiir was not laboring under any mistake of facts. He took the deed and ]>aid his money under a mistake of law as to his antecedent existing legal rights in the property, supposing that, according to the proper legal construc- tion of the plat, the lots were only 80 feet deep. However, under tile doctrine of Nicolin v. Schneiderhan, 'M: ^linn. G3 (;^3 N. W. Rep. 33), since decided by this court, it is now settled that a deed of lots according to this plat would cover all the land down to the creek, under the rule that distances must yield to natural boundaries called for in a deed. We are unable to see tliat this case differs in princi- ple from Perkins i'. Trinka, 30 Minn. 241 (15 X. W. Rep. 115), and Hall f. Wheeler, 37 Minn. 523 (35 N. W. Rep. 377). It is unnecessary to enter into any discussion of the question (left in great confusion in tlu' books) wlien, if ever, relief will i)e granted on the ground of mistake in law alone, or whetiier there is any dif- ference between mistake of law and ignorance of law, or between ignorance or mistake as to a general rule of law and ignorance or mis- take of law as to existing individual rights in tlie ])ro|)erty which is the subject-matter of the contract. We hold that money paid under mistake of law cannot be recovered back where the transaction is unaffected by any fraud, trust, confidence, or the like, but both parties acted in good faith, knew all the facts, and liad eciual means of know- ing them, especially where, as was evidently the fact in this case, the transaction was intended to remove or settle a question of doui)t as to title. It would be impossible to foresee all the conseiiuences which would result from allowing parties to avoid their eontraets in such cases on the mere plea of ignorance or mistake of law alTecting their rights. It would be dilVicult to tell what titles would stand, or what contracts would be binding, if grantors and grantees were at liberty . to s«'t up such a f)lea. This may simmu to work inecpiitalily in the prescmt case, but more mischief will always result from attempting to mould the law to what seems natiiral justice in a particular case than from a stendv adherence to general principles. Order reversed.' ''I'hf ri'li<"f !i.'.il iriHlninifnlH nn llw ^n-(iiiii law in thin rcHpt'<-(, ailininiHtorod rpli»'f. in proper fuxpH, irrcnprrtivi' of the natnro of the iiiiHtakf; that wincp thp cn'*p of Milliir i\ Liunh-v in |H02, roiirl>« of (•(piity havi- rc^'rct fully followostances, has given relief to a party who has dealt with his property under the influence of .such mistake. Tlierefore, although when a certain construction has been put bj' a court of law upon a deed, it must be taken that the legal construction was clear, yet the igno- rance, before the decision, of what was the true construction, cannot, in my opinion, be pressed to the extent of depriving a person of relief on the ground that he was bound himself to have known beforcliand how the grant must be construed." — l.ccn declared so by any court, mik! it aflcrwart be a return of premium." In Martin r. Sit well, ante, the goods insured were not on board; in the jirinri|>al case, the risk was not r\iii, or at least only for part of the voyage froiri London to Portsmouth. In the case f»f McCulloch r. Hoyal Kxchange .Assurance ("o. (1H1:5) H Campb. 40(i, it ii[)[ieared tliat the j>laiiililT circclcd a policy of insurance on shiji and freight ; that the v«>yage was made in safety an jut could not be obligatory upon th+* -coiufoiiy. .Vnd iilthouj^li th^j^plaintifTs miglit have had a^jrcmedy upon tlie contract against the party wlio cxoGuted-4t^ yet ili£^_j ycre not Ij ound to re ly upon him alone. The services never were rendered eitlier in conformity to or under such an agreement. The plaint ilfs undertook to execute a contract between them.selves and the company. Rut tbcrc being na-ainjL-fon- tract in existence^^th-C-V^arc-hift to r«;of;t-to their ef}uit4ihlc-cL*+ni for tH??tFTabor and materials. So. far as they benedted the C()mj)any, the plaintiffs are entitled to recover against tliem. * Judgmfnl on the verdict} '"ff II firm dfod, oxociitcd williont tlio authority of all the parliiox. and thcrpforp inoporntivp either an a Hpecialty or ns a Himple ron;ly he 80 charged upon a (|iiaHt'fonlraet. MeCaiilay r. .lenney, f) Ilount. 'i'l (srmhir) ; Walsh r. I,ennf)n. 1»H III. 27: Daniel r. Toney. 2 .Met. (Ky.) ri2.'J ; Ih-rnianos r. Dnvip- neaiid. 10 I,a. .\n. 114; Van DeUHen r. liliim. IH Tick. 22!); Moore r. Stcvenn, (10 .MiHH. HOI), 810 {tivmbh) ; Despateh Line r. llellomy, 12 N. II. 205, 235 CHAP. II ] REID V. UIGBY & CO, 417 EEID V. RIGBY & CO. Queens Bench Division, 1894. [Law Reports (1894) 2 Queens Bencli, 40.] Appeal by the plainti fi" from the decision of the judge of the Westminster County Court, in favour of the defendants, in an action bi'omzht by the plaintiff, first, to recover £20 on a cheque, and, secondly, to recover the same sum as money received by the defend- ants to the use of the plaintiff. The cheque in question was signed "Rigby & Co. per procuration of J. Allport, manager," and was drawn on May 21, 1892. The claim was made after Allport's death. It was^ found liy the '"^"li-y on^^rt judge that Allport had_been the manager of the defend nnta' firm, an d had authority to draw on their ban.kingL,£LCCO unt for the purpose s of their business, but had no anthority to overdraw their account, which hoTia'd^ overdrawn, or to l)orrow money on their behalf. Ti was also found that Allport had borrowed this sum of £20 for his own purposes, in order to replace money of the defendants which he himself had abstracted. The evidence shewed t hat Allport had o1)tained the cheque^from the plaintiff by a statement that he was short of money, and wanted the money to pay the wages of the defendants' work men , and- it was shewn that he had paid the money into th e, defen dants ' a^ccount at thei r_bank,. and had us ed it to pay th e wages of thei r workmen^ Charles, J. This action is brought in a twofold form: first, on a cheque given by Allport, the defendants' manager, to Reid, the plaintiff, as security for a sum of £20 borrowed by Allport from the (seniblc) ; Wharton v. Woodburn, 4 Dev. & B. 507; Doliiis ;•. Cawthorn, 2 Dov. 90 (scrnble) ; Osborne v. High Shoals Co., 5 Jones (N. Ca.) 177. "But see contra, Morris t\ Jones, 4 Harringt. 428; Spear r. Gillet, 1 Dev. Eq. 466; Bond v. Aitkin, 6 Watts & S, 165; Waugh v. Carriger, 1 Yerg, 31; Gait 1', Calland, 7 Leigh. ,594." Ames' Cases on Partnership, 489 (last two paragraphs) . In Benham v. Emery (1887) 4G Hun. 1,56, the defendant's husband entered into a contract under seal with plaiiitilY by which the latter agreed to do certain carpentering and to furnish lumber necessary to erect a house on defendant's land for the sum of $1,800. Mrs. Emery was not a party to the contract, and was held not to be bound by its terms; but the court permitted the plaintiff to pass by the written agreement and recover in quasi-contract for the work and labor done, and materials furnished, of which the defendant had had the benefit. See also, Graves v. Smith (1893) 7 Wash. 14; Jewell v. Schroepell (1S2.")) 4 Cow. 564; City Trust Co. r. American Brewing Co. (1902) 70 App. Div. (N. Y.) 511; O'Brien r. Fowler (18S7) 67 Md. 5()1.— En 418 REID V. PxIGBY & CO. [BOOK II. plaintiff in the name of the defendants; and, secondly, for the same sum of £20 as money received to the use of the plaintiff. As to the claim on the cheque, it appears that Allport was the general manager of the defendants, and as such had express authority to draw on their banking account for the ])urposes of their business, and he had also a general authority to pay money in to the bank to their account. No question arose as to any special authority. Allport told the plaintiff that he was short of cash and wanted money to pay the workmen's wages, and he gave a cheque signed per procuration for Rigby & Co., the defendants. On the face of it that cheque con- veyed an intimation to the plaintiff that Allport, as the agent of the defendants, had only a limited authority to sign. This is expressly provided by the Bills of Exchange Act, 1882, 4.5 & 46 Vict. c. 61, s. 25. As a matter of fact, tlie defendants' banking account was at that time overdrawn, and the county court judge has found that Allport had no authority to overdraw that account; and he has also found — and we must accept his finding on this point as correct — that Allport Jiad no authority to borrow money for the defendants^ But he did borrow-jnoney, and Jiaving g ot the money he paid it in to the^ defend - ants' banking account. I say that this is so because the cash-book, which I have carefully examined, leaves no doubt in my mind that the £20 found its way into the defendants' banking account. It appears that a sum of £38 2s. was paid in, whirb enabled x\llport to draw a cheque for £30 in order to discharge the workmen's wages. Therefore Allport paid the money for the purpose of the business. In my opinion, the true inference is that the money which was borrowed for wages was paid in to the defendants' banking account, and was applied in payment of wages. The question is whether the plaintiff can recover that money from the defendants. It is contended on behalf of the defendants tluit he cannot, on tlie findings of the county court judge to which I have referred, and also on a fiirtluT finding, that Allport borrowed the money for bis own purposes, in order to replace money belonging to the defendants which he had abstracted. I was at first somewhat embarrassed by that finding; but on consideration I have come to the conclusion that it does not affect the legal position of the parties. Allport has paid the money in tO' the defendants' banking account; and eiiher it is there now or it has been paid in wages to the defendants' workmen. The latter, I think, is the true inference; but in either case I tlimk the result is the same. Suppose that .Allport bad paid the money direct to th(> work- men, and bad jisked tbe defendants to repay him, could the defend- ants have refused? It seems to me, that if the wages had been so paid, then, when the defendants had discovered the fact of payment, they must have either repudiated such payment or adopted it. By accepting the benefit of tbe payment tbey would M(lo[)t it. It comes to this, that either the workmen have been paid or they have not. If CHAP. II.] REID V. KIGBY & CO. 419 they have been paid, the money so paid was in contemplation of law money received by the defendants to the use of the plaintiff ; for either they have ratified the payment, or, if the money is still in their bank, it is the money of the plaintiff. I am of opinion that the decision in Marsh v. Keating, 1 Bing. N. C. 198, supports this view. In that case the money sought to be recovered was the proceeds of the fraud of Fauntleroy. The defendants, who had been Fauntleroy's partners, knew nothing of the fraud ; but the judges who advised the House of Lords expressed a unanimous opinion that it must be treated as money received by the defendants to the use of the plaintiff, because it came into the possession of the defendants. The same view applies to the present case. Further than this, the defendants have since had an opportunity of finding out that the money had been paid in to their account. For these reasons I am of opinion that this sum of £20 was money received by the defendants to the use of the plaintiff. I will not say what the result might have been if the money had been paid in to the bank under some binding contract between Allport and the defendants. However it was paid in, it has found its way into the possession of the defendants, and therefore it was money received to the use of the plaintiff, which he is entitled to recover, and the appeal must be allowed. Collins, J. I am of the same opinion. I need hardly say that I should not differ from the view taken by the learned county court judge without full consideration; but in this case I am satisfied that the judgment is wrong. The money in question was obtained from the plaintiff on the security of a cheque signed by Allport per pro- curation for the defendants, Eigby & Co. By the terms of s. 25 of the Bills of Exchange Act, 1882, it was apparent on the face of the cheque that the authority of the person signing the cheque was limited. I can entertain no doubt, on examination of the account, that this sum of £20 found its way to the credit of the defendants' account at the bank. The question for our determination is whether the plaintiff can maintain an action to recover that sura. If, instead of giving a cheque, Allport had asked the plaintiff to pay the work- men, and the plaintiff had done so, could not the plaintiff have main- tained an action against the defendants to recover what he had paid? I am of opinion that he could ; for what he did would have been a pay- ment of the defendants' debt. On that state of facts, therefore, the plaintiff would be entitled to recover. Then does it make any differ- ence that the money went into the bank? I think not; for the effect of the transaction could only be rendered different if the money were paid in by virtue of some contract which was binding as between Allport and the defendants; but there was no such contract, and there had been no change of position before the defendants knew the facts. The question is whether, now that they have found out All- port's defalcations, the defendants can keep the plaintiff's money. I 420 FIUST BAPTIST CHURCH V. CAUGIIEY. [BOOK II. am of opinion that the cases which have heen referred to in argu- ment, ^larsli V. Keating, 1 Bing. X. C. 198, and Calland v. Loyd, (5 M. & W. 2G, go the full length of shewing lliat tliev cannot, and, in my opinion, the present is an a fortiori case. Appeal allowed. Leave to appeal granted. FIRST BAPTIST CHURCH OF ERIE v. CAUGHEY ET AL., ADMINISTRATORS. Supreme Court of Pfa'xsylvaxia, 1877. [85 Pennsylvania State, 271.] Error to the Court of Common Pleas of Erie County: of October and Xovember term 1877, Xo. 145. Assumpsit by S. S. Caughey and H. B. Fleming, administrators of Joseph Xeeley, deceased, to recover the amount unpaid, with inter- est, on the following note : — $900. Erie, December 24, 1867. On the 1st day of February, 1809, we promise to pay, to the order of Joseph Xeeley, nine hundred dollars; it being for the use of First Baptist Church. Value received. W. J. F. LlDDF.LL, Horace L. White, James D. Ross, Samuel Z. Smith, Trustees of the First Baptist Church. Erie. Penna. The remaining facts are sufficiently stated in the opinion of this court.' Mr. Justice Mercer delivered the opinion ^^'i Die court, Janu- ary :, 1878. -Ml the a.ssignment-^ of error may be answered in the consideration of two questions, — the one whetlier the corporation had the ]>ower to incur the alleged liability;- the other whether there was sullicient evidence to submit to a jury that the liability was actually incurred. 1. The original charter declares one of the objects of the a.ssocia- tion to be '*the building of a mc^eting-house, and settlement and .support of a pastor or minister of the gospel for ihc worsliip of Almighty Cod, and the; religious instruction of the congrega- 'Thr halanop of llio Htntpniont of the rnsp, iticlmlin;,' tlip cli.nT.'c of tlic court upponlfd from, oniittrd. — En. 'Ah to thfi linhility of a corporntion in qiinsi-conlnut fnr liciiifll'^ received from ultra vires tranHuctions, sec post. — Ki). CHAP. II.] FIRST BAPTIST CHURCH V. CAUGIIEY. 421 tion, . . . together with that of the purchase and tenure of such lands or lots as may he necessary and convenient for the site of a meeting-house, of a burial-ground, and of a parsonage house of con- venient size for their minister." A supplement to the charter gives the corporation power to assess and collect a tax on the pews ; but not to exceed in any one 3^ear twenty per centum upon a fixed valuation, for the purpose of defraying the expenses of repairs, insurance and minister's salary, together with incidental expenses. The charter is silent on the subject of borrowing money. Some thirty years after the corporation was formed, the church edifice became unsuitable and inadequate for the enlarged congrega- tion. It therefore resolved to rebuild and enlarge the meeting-house. This required an expenditure beyond the sum subscribed by voluntary contributions, for that purpose. The meeting-house was rebuilt. Had the corporation power to contract a debt in rebuilding beyond the amount subscribed? We think it had. The object of its incorpora- tion could not be fulfilled without the meeting-house. No clause in its charter forbid its contracting a debt in the erection of its necessary buildings. Whether it hired laborers and bought materials on a credit, or whether it borrowed money with vs^hich to pay for the labor and materials when procured, the liability incurred was for the same purpose. As it could not have successfully defended against the wages of a laborer employed in the erection of the house through want of power to employ him, so it cannot defend against the payment of money borrowed and actually expended in the erection of the church. As to the policy of a church erecting a house of worship far 1)eyond its available means, we do not now feel it necessary to indicate an opinion. Certain it is, that the small sum here in controversy is trifling compared with the large debts resting upon many of the churches in towois and in cities. 2. The charter declared the business and affairs of the association should be under the direction and management of five trustees, a majorit}^ of whom should constitute a quorum. It further declared the trustees should "have the general care, superintendence, and man- agement of the concerns of the same." During the progress of the work, Mr. Liddell, one of the trustees, appears to have been the financial agent and manager, in behalf of the board of trustees. In raising the funds necessary, he borrowed $1,200 from Mrs. Smith, and gave his individual note therefor. Subsequently the trustees borrowed $900 of Josejih Xeeley, to pay so much of the debt due to Mrs. Smith, and four of them executed and delivered the note for the sum thus borrowed. The court doubted the power of the plaintiff in error to give the note, and the consequent liability of the corporation thereon alone ; but substantially charged that there were certain implied powers incident to every corporation, and if they were satisfied, from the evidence, that the money for which the note 422 FIRST BAPTIST CHURCH V. CAUGHEY. [BOOK II. was given was actually used in rebuiUling tlie cluirch, ami thus went to the benefit of the society, the law raised an implied obligation on the part of the church to repay it. It was contended on tlie argument tiiat there was no evidence that the money was used in rehuilding the church. The answer to this objection is shown in several parts of the record. The note itself contains the written declaration of four of the trustees jointly, when engaged in making the loan, that the $!K)0 were "for use of First Baptist Church." The .settlement which Liddell subsequently made, as appears by the receipt signed by the ])resident of the board of trustees, and one other trustee, declares, "We hereby assume all liabilities of said church for which said W. J. F. Liddell as trustee has become responsible, including note given to Mrs. Catharine Smith, signed by himself individually, for the use of said church, according to settlement made this day." On the trial of the cause, James Dunlap, president of the board of trustees, was called, by defendants in error, as a witness, and in his testimony in chief said, "in repairing church had to borrow money; were advised by counsel that church could not borrow it ; must be individual ; the money borrowed from Xeeley was paid to Mrs. Catharine Smith, to dis- charge a debt to her for money borrowed by Mr. Liddell for the church." It is true, on cross-examination, his evidence goes to impair the validity of the receipt to which his name was subscribed, and he further said "none of the Neeley money was received by the church." I think the fair interpretation of his testimony is that the money was not actually paid into the hands of the trustees, but was paid directly by Neeley to Mrs. Smith. It was, however, a question for the jury to determine. It is further shown by the evidence that the plaintiff in error made a payment of $.300 on the note given to Xeeley; the indorsement thereof being in llie handwriting of the treasurer, now decea.sed, of the corporation. This chain of evidence, both written and v(^rbal, ttmding to show how the business was conducted and settled, ratified by a partial pay- ment, was certainly sudicicnt to submit to the jury to find that the money was used in rebuilding the church. Jndgmonl affirmed.^ '"One who tnkon Midi ii liill or note in cxchnnji^ for poods, nionoy or other con>^i, alHf), one who taken Huch a hill or note in Hat isfartimi of a claim atjainst a partnership, may repudiate the hill and eharpe the partnership upon the old elaim. Turnhow v. HrocK-h, 12 Hush, 455 (approve, CJerrish resigned his ollice. He never kept a private account with the plaintiils. Demand was made on the defend- ants on March Iv*. ISGH. Wklls, J. That the city is not liable for the money as a loan, because it was advanced to its treasurer or paid upon his checks, is fully settled by the decisions in Lowell Five Cents Savings Bank V. Winchester, 8 Allen, 101); Benoit i". Conway, 10 Allen, 528; and Dickinson r. Conway, 12 Allen, 487. It was also decided in Kelley v. Lindsey, 7 Gray, 287, that money advanced on account of the defendant to one in his employ, but who had no authority to borrow money for him, created no debt against the defendant, although advanced for the purpose of being expended in his business and to pay his debts, and actually so applied. That decision appears to us to be conclusive against the jjlaintiir in this case. In Dill V. Wareham, 7 Met. 438, cited by the plaintiff, the money was j)aid into the treasury of the town in jjursuanee of a contract made by authority of a vote of the town. In Atlantic Bank v. Merchants' Bank, 10 (J ray, 532, and Skinner r. Merchants' Bank, 4 Allen, 2IH), the money came into the actual possession and control of the defendant bank. The k'gal possession of money received by the ofHccrs of a bank, in the usual mode, is in the corporation, and not in the oHiccrs in whose charge and manual con- trol it is intrusted. Commonwealth v. TuekiTuian, 10 (Jray, 173. The treasurer of a city or town is an indejiendi'nt accounting olFicer, by statute made the depositary of the moneys of the city or town, cien. Sts. e. 18, §g 54, 59; c.'lO, § 2. The legal po.sscs.sion of the specific moneys in his hands, ftom whatever source, is in him. Han- cock V. Hazzard, 12 Cush. 112. Cojeraine r. Bell, !> Met. VMl All moneys of the city or town he holds as its property, and e.xclusivi'ly for its use. But he holds them by virtue of his public official author- ity and duty, and not merely as the agent or servant of a corporation. The fact that the money in this case went into the hands of the treasurer, and wa.s placed in the drawer provided by the city for his use in keepmg the funds of the city, is not enough to charge the de- fendant with liability. The result in, therefore, that the defendant is entitled to judg- ment. CHAP. II.] BILLINGS V. INHABITANTS OF MONMOUTH. 425 GEOEGE II. BILLINGS v. IXHABITAXTS OF MONMOUTH. Supreme Judicial Court of Maine, 1881. [73 Maine Reports, 174.] On exceptions and motion for a new trial. Assumpsit on three promissory notes signed "William G. Brown, Treasurer;" also for money had and received. Plea was general issue, and statute of limitations was set up under a brief statement. The verdict was for $3,004.81. The exceptions relate to the admission in evidence of the notes declared upon, of certain other notes, and of the records, accounts, and settlements with the treasurer of the defendant town. Exceptions were also taken to the part of the charge to the jury given below : — "Now a question is raised here in the very beginning whether these notes are the notes of the town, or the notes of the treasurer. I do not deem it necessary to state in regard to that now. I do not care to state it for the reason that there are several actions pending, in which that very question will be raised and will be finally settled by the law court. And it is sufficient for me to say to you, that those notes were not authorized by any vote of the town. . . . That lays the notes out of the case;" — and to other parts of the charge covering several pages. Barrows, J. The defendants' objections to the reception in evi- dence of the notes sued, and certain other notes and renewals thereof, which were claimed by plaintiff in one phase of the case to constitute the consideration of the notes in suit, and like objections to the records of the doings of the town at various town meetings, between 1862 and 1872, and to the reports of the town treasurer at its annual meetings, from 1865 to 1877 inclusive, all accepted by the town, and to the settlements of the treasurer with the selectmen, if said objections could be supposed in any view of them to possess merit, became altogether immaterial, when the presiding judge, with full instructions as to the effect of a want of authority upon the validity of the notes, peremp- torily instructed the jury that "these notes were not authorized by any vote of the town, that they were not ratified, that there was nothing in the case which would authorize any such inference," and finally, that "that lays the notes out of the case, and brings us to the other count, that for money had and received."^ The defendants' counsel insists in argument upon the refusal of 'A ])oiti«in of the opinion relating to the admissibility of evidence has been cniittod. — Kd. 42G UILLlNliS V. I.VHAIJITANT.S OK MON.MOUTH. [BOOK TI. the presiding judge to rule upon the question, whether the notes were in form notes of the town, or notes whicli eouUl hind the treasurer only. If the instructions to the jury had permitted a recovery upon the notes in any contingency, that inquiry would seem to he pertinent. But tliey did not. The notes were "laid out of the case." and the plaintiff's right to recover was made to depend upon his establishing what was necessary to entitle him to a verdict upon the count for money had and received. The testimony tending to show authority or ratification was weighed and found wanting. After this, there was no occasion to pass uj)on the construction of the notes, any more than there was in Parsons v. Monmouth, 70 Me. 204. That any negotialjle paper, made hy the officers of a town in the transaction of its ordinary business, not proceeding under special authority conferred by some statute, will be subject, even in the hands of a bona fide indorsee, to all equitable defences that might be made against the original promisee, is well settled in this State, as appears in the case last named, and the cases there cited. .\nd the plain doctrine of Bep.sey i'. Unity, Go Me. 342, and Parsons V. Mcjumouth, is tluit the holder of such paper who has lent money upon the representation of town officers that it was wanted for munici- pal u.se, must go farther and show the appropriation of the money lent to di.scharge legitimate expenses of the town, unless he can show that such ollicers were specially authorized, hy vote of the town at a legal meeting, to effect the loan. The case at bar seems to have been tried in careful conformity with these rules. The fallacy of the greater part of the d<'f<'nflants' argument upon the exceptions consists in ignoring the fact that "the notes were laid out of the case." It is strongly implied in the two cases last above cited that money thus advanced and shown to have been actually appropriated to the di.scharge of legal liabilities of the town, would be held recoverable in an action for money had and received against the town. We .see no good reason to excuse the town from refunding it when it has been actually thus appropriated. The plaintiff by such proof brings his case fully within the princi[)les that govern the action for money had and receivcfd. He shows his money received and appropriated by the agents of the town to the legitimate use of the town, and in such case the want of an express promise to repay it will not defeat the action. The law will imply a promise, sometimes, even against the denial and protestation of the defendant. Howe v. Clancey, r)3 Me. 130. It i.s the payment of the lawfid debts of the town by its own agents with the plaintiff's money which constitutes the cause of iictioii. To jillow a recovery by the phiintifT of whatever sum he can show has thus inured to the benefit of the town, is a more comjx'ndious mode of j«!ttling the controversy than the English method of siibrogating the lender of the mon<'y to the rights of the jx'rliaps nuuierous corjK)- ration creditors, who have been paid with the funds procured without CHAP. II.] BILLIXGS V. INHABITANTS OF MONMOUTH. 427 authority, — a mode of doing justice which manifestly tends to a multi- plicity of suits, when, for aught we see, the proper result may be reached, at all events with the assistance of an auditor, in a single action. Looking at the issue which was in fact presented to the Jury, it will be seen that defendants' counsel is in error in supposing that if the presiding judge had ruled that if the notes were in form the individual notes of Brown, "that would have ended the conflict and the plaintiff would have been nonsuited." The plaintifi' ofl'ered testimony tending to put his case upon another footing than that of Parsons v. Monmouth, and hence all the evidence which had a tendency to show that plaintiff's money was used for the payment of some legitimate indebtment of the town was strictly relevant; and the instructions (of some of which the defendants com- plain) were appropriate to direct the attention of the jury to that which was the chief subject of inquiry. Thus it is obvious that the deficiency in the town treasurer's accounts was of importance only upon the question, what was done with the plaintiff's money, and as it might bear upon that question, the presiding judge called the attention of the jury to it. The defendants surely have no cause of complaint that he did so, nor that he required the jury carefully to ascertain such facts as were necessary to determine whether the old notes which (it was claimed) were paid with this money were barred by the statute of limitations, and whether, if the plaintiff's money was paid to discharge them, they represented not only just but legal claims against the town. The vital question of fact, whether the plaintiff's money had actu- ally been applied by the town officers to the extinguishment of legal claims against the town, was settled by the jury against the defend- ants. The jury found that it was so applied. The testimony pro- duced by the plaintiff, if believed, justified the finding, and there is nothing in its character or in that of the accounts produced which decisively stamps it as untrue. There is an apparent error of a few dollars in the reckoning of interest. When the plaintiff has cured this by a remittitur, the entry will be Motion and excepiiona overruled. Appleton, C. J., Walton, Virgin, Libbey, and Symonds, JJ., concurred.* "'In recent cases in this State it has been held, that when selectmen have *cted without special authority in procuring loans of money for municipal purposes, if the lender would recover in an action of assumpsit against the town the amount of the loans, he must prove not only that the money was received by the selectmen in thir oiriiial capacity but also that it was applied by them to the use for which it was obtained, to meet and discharge existing municipal liabilities, Billings r. Monmouth, 72 Maine. 174; that towns them- selves by the statutes organizing them are strictly limited in the exercise of 428 TAYLOR V. HAKE. [BOOK II. TAYLOR r. HAKE. Common Pleas, 1805. [Bosanquet & Puller, New Reports, 260.] Tins was an action for money had and received, which came on to be tried before the Lord Chief Justice at the sittings after last llihiry term, when a verdict was found for the phiintiff for £125, subject to the opinion of the court upon the following case: On the 12th of September. 17!)1, the defendant took out a patent for the invention of an apparatus for preserving the essential oil of hops in brewing. By articles of agreement, dated 5th of November, 1792 (whicii were set out at lengtii at the end of the case), and made between the defendant of the one part, and the plaintilF and his said late partner of the other part, reciting the defendant's patent, and that it gave him the sole power, privilege, and authority of using, exer- cising, and vending his said invention for the term of fourteen years, the defendant granted lO the plaintiff and his said late partner the privilege of making, using, and exercising the said invention for the residue of the said term of fourteen years, and in consideration thereof tlie plantifF and his [)artner covenanted tiiat they would secure to be paid to the defendant during the said term an annuity of £100, and would give their bond for that purpose, and a bond was accordingly given, conditioned for the payment of the said annuity. The plaintilT and his said partner used the apparatus (for making and pre})aring of which tliey 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 inventor of the invention for which he ol)tained his patent. The invention was not new as to the ])ul>lic use and service the powers of Itorrow in;j iiiul nppioiirialinf; money. Hooper r. Kmerv, 11 Maine, .'J75; PiirMonH v. Monnioutti, 70 Main*', 'J(i4 ; Minol r. West Roxhury, 112 -Mass. I ; that Holoetnion * allefred im the j^'round tliat the plaintiff's loan wan one the municipality had a leyal riyht to procure and that. thou>.'h its ofTi'-erH did not act with authority at the time, it has sulisetpiently avai1ey ae«'eptiny its ajiplication to the payment of nuinicipal rlehtH, it in for the plaintiff to prove the faetn which support the allepition." Lincoln r. Sf^K'kton (ISS.'n 75 Me. 141. 144, 14.'). For a diMiission of the princi|>le underlying; recovery in rpiasi contract apiinst munici|)al corfuirnt it not<' on tlic hul»jer-claim was not sulliciently (b'niod by the reply, and judgment might have boon ordered for the jilaintiir for the balance of his claim, afti'r deducting the amount of the counter- claim ; but a new trial should be granto(l, and it is hoped that the very iinporfect pleadings will be so reformed l)efore another trial as to present truly tlie precise i.^suos wbicb the parties desire to try. .Judgment should be reversed ami m-w trial giantcd, costs (o nbidc event.' All concur. J-'oLOKU, J., absr'nt. '.And •*«•<• tin- hhiiic cimo at a later ntaffe. Marston r. Swell ( l.SSO) S2 N. Y. 520. Src a\M) for New York Inw, Hyutt v. InRnllH (IfiOl ) 124 N. Y. O.J ; Denisi' CHAP, II. J SHEARER V. FOWLER. 433 SHEARER V. FOWLER. Supreme Judicial Court of Massachusetts, 1810. [7 Massachusetts, 31.] The declaration, whicli was in case, contained four counts. The last count, upon which alone any question came before the court, was for money iuul and received by the defendant for the plaintiff's use. At the trial of the action before Sedgwick, J., at the last April term in this county, the plaintiff offered to prove, in support of his said count, that in consideration of the deed made by Abigail Fowler, the defendant's wife, as the aitorney of her husband and in her own right (which deed is described in the case of Fowler v. Shearer, ante page 14), of certain premises which the husband and wife held in her right, he, the plaintiff, paid to the defendant one hundred and sixty dollars, and gave his promissory note for two hundred dollars, to re- cover back which money so paid was the purpose of this count. The evidence was rejected by the judge, and for that cause the plaintiff moved for a new trial, and the action stood continued upon that motion to the present term. Ashmun. of counsel for the plaintiff, considered this point as settled by tlie decision in the action before referred to. wherein the present defendant was plaintiff, and the now plaintiff was defendant. V. Swett (1893) 22 N. Y. Supp. 950; and an excellent digest article on licenses under an invalid patent, i;{ Albany L. J. 410. For the law in general, compare the following cases: Lawes v. Purser ( 18.5G) 8 E. & B. 930; Clark v. Adie (1887) L. R. 2 App. Cas. 423: Jones r. Burnliam (1877) 67 Me. 93; Standard Button Fastening Co. v. Ellis (1893) 159 Mass. 448; Schwartzenbach v. Odorless Co. (1885) 05 Md. 34; Day v. Kellogg (1870) 1 Mich. (N. P.) 173; Darst v. Brockway (1842) 11 Oh. 402. And see an article on this subject in 56 Albany L. J. 259; Walker on Patents (4th ed.) 200. In Standard Button Fastening Co. r. Ellis, ,'iupra, the court said: "A license imparts no warranty that the patent is valid, and no case has been found which holds that a covenant for quiet enjoyment of the right to use the invention is implied. The analogy- to a lease of land is not very close. A license to use a patented invention gives permission to make such use as far as that can be done without infringing other patents. Where a grant of an exclusive right is made, if the exclusive right fails, the consideration of the grant fails. Harlow v. Putnam, 124 Mass. 553. But where a more licen.se is given, it is hold that there is no failure of consideration till the licensee is actually prevented from using the invention. Marston v. Swett, 82 X. Y. 520; Angier v. Eaton, 98 Penn. St. 594; .lones r. Burnham, 07 Maine. 93; Pacific Iron Works v. Newhall, 34 Conn. 07; White r. Lee, 14 Fed. Rep. 789; Corell V. Bostwick, 39 Fed. Rep. 421; Robinson on Patents, § 1251. "' — Ed. 434 SMOL'T V. MAKY ANN ILBEUY. [bOOK II. Blisn, for the defendant, thought this a different question, and so, he said, did the court : for, in delivering the opinion of the court, in that action, tlie chief justice, putting the supposition that "the defendant there had paid the consideration money, and brought his action to recover it back as paid by mistake," observes that "a different question would have arisen, involving different considerations." Here the plaintiff voluntarily paid the money, and although he was mistaken as to the legal effect of the deed for which he paid it, he has no right to reclaim it. It was a mere mistake of the law : all the facts of the case were as well known to him at the time the trans- action took place, as they have been since. CuuiA. The principles of law applicable to this case, seem to be well settled. Whenever money is paid in consideration of a contract, which contract is void for want of power in one of the parties, or for any cause, other than fraud or illegality in the contract, natural justice dictates that the money so paid shall be refunded ; and there is no principle of law to prevent the operation of so equitable a rule. Here the deed, for which the money demanded in this action was part of the consideration, has been adjudged void ; and in that action a promis- sory note, which was another part of the consideration of the same deed, has been avoided as nudum pactum, because the deed failed. No cause can be assigned why the money, which was actually paid, should remain in the hands of the party who still holds the property for which this money was paid. The evidence ought therefore to have been admitted. The verdict must be set aside, and a new trial granted. SMOUT r. :\I.\RV AW TT.BKRY. EXCHEQUEU. IHlv*. [10 Meeson and Welsby, 1.] DiiHT for good-: sold and delivered, and on an account stated. At the trial In-fore (JruNKY. H., at the Middlesex sittings in Michael- mas term, IHIl, it appeared that the plaintiff was a butcher, and the defendant the widow of James Ilbery. who h^ft Kngland for China in May, IS.'J!), and was lost in the outward voyage, on the 1 Hh October, IH.'JI). Tho news of his death arrived in iOngland on the 13tli of March, IKlo. 'I'he plaintiff had supplied meat to the family l)eforo Mr. Ilberv sailed, and during his voyage, and the supply continued down to the time of the news of his death, and even afterwards. Tpon the 1 Ith October, 1839, the day of Mr. Ilbery's death, the amount of the debt was U)2 13s. lid. Between that dav and the arrival of the CHAP. II.] SMOUT V. MARY ANN ILBERY. 435 news of the death, meat had been supplied to the amount of £19 9s. ; and after that, the supply amounted to £6 7s. The judgment of the Court was now delivered by Alderson^ B. This ease was argued at the sittings after last Hilary term, before my Brothers Gurney, Kolfe, and myself. The facts were shortly these. The defendant was the widow of a Mr. Ilbery, who died abroad ; and the plaintiff, during the husband's lifetime, had supplied, and after his 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 year. 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 author- ities on this subject, which is one of some difficulty. The point, how far an agent is personally liable, who, having in fact no authority, professes to bind his principal, has on various occasions been dis- cussed. There is no doubt that in the case of a fraudulent misrepre- sentation of his authority, with an intention to deceive, the agent would be personally responsible. But independently of this, which is perfectly free from doubt, there seems to be still two other classes of cases, in which an agent who without actual authority makes a contract in the name of his principal, is personally liable, even where no proof of such fraudulent intention can be given. First, where he has no authority, and knows it, but nevertheless makes the contract as having such authority. In 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 considered as holding himself out as one having competent authority to contract, 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 authority is vested in him, but has in fact no such authority, he is still personally 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 to be untrue. But still his lia- 'Tho baliinoc of the statement of facts, not material to the immediate ques- tion, is omitted. — Ed. 43lJ 8M0DT V. MAKY ANN ILBERY. [BOOK II. bility depends on tho same principles as before. It is a wr()n>i, dif- fering only in degree, but not in its essence, from the former case, to state as true what the individual making such statement does not know to be true, even thougii he does not know it to be false, but believes, without sutlicient grounds, that tlie 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 correct- ness of his assertion, it is equally just that he who makes such assertion .-liould 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 arrange 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 jtarty. as would enable him equally with himself to judge as to tiie authority under which he proposed to act. Of the first, it is not necessary to cite any instance. Polhill r. Walter, 3 B. & Ad. 114, is an instance of the second; and the cases where the agent never iuid any authority to contract at all, but be- lieved 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 Im' added those cited by Mr. Justice Story, in his book on Agency, p. 2*^^(J, 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 jjrincipal. There is no ground for saying, that in repre- senting her authority as continuing, she did any wrong whatever. There was no mala fides on her part, no want of due diligence in ac- quiring knowledge of the revocation, no omission to state any fact within her knowledge relating to it; and the revocation itself was l)y the act of (Jod. The continuing of the life of the principal was, under the.sc circumstances, a fact equally within the knowledge of both contracting parties. If, then, the true principle derivable from th(! cases is, that there must be some wrong or omission of right on the part of the agent, in order to make him |)ersonally liable on a contract made in the name of his priiuiple. it will fullDw that the a;.'eiit is not responsible in such a case as the |)resenl. And to this conclusion we have come. We were, in the course of the argunuMit, pressed with the dillicidty, that if the defendant be not personally liable, there is no one liable on this contract at all ; for lilades r. Free. 9 H. & C. lf.7 ; I Man. & R. 28'^. has decided, that in such a ease the executors (»f the Inisband are not liable. This may be so: but we do not Lhink that if it be .so, it affords to us a suflicienl ground for hold- CHAP. 11. J VALENTINI V. CANALI. 437 ing the defendant liable. In the ordinary case of a wife who makes a contract in her husband's lifetime, for which the husband is not 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 prin- ciples applicable to all agents; but we think it right also to advert to the circumstance, that this is the case of a married woman, whose situation as a contracting 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 husl)and by her instrumentality, may be considered as equiva- lent to one made by the husband exclusively of the agent. Now, if a contract were made on the terms, that the agent, having a determin- able authority, bound his principal, but expressly stipulated that he should not be personally liable himself, it seems quite reasonable that, in the absence of all mala fides on the part of the agent, no responsi- bility should rest upon him ; and, as it appears to us, a married woman, situated as the defendant was in this case, may fairly be considered as an agent so stipulating for herself; and on this limited ground, there- fore, 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. VALENTINI V. CANALI. Queen's Bench Division, 1889. [Law Reports, 24 Queen's Bench Division, 167.] Appeal from the Woolwich County Court in an action remitted for trial from the Chancery Division in which the plaintiff claimed a declaration that a contract by which he agreed with the defendant to become tenant of a house, and to pay £102 for the furniture therein, was void, and the return of £(58 paid by him on account, on the ground that he was an infant at the time when he entered into the contract. It appeared that the plaintiff had occupied the premises and used the furniture for some months. The judge found in the plaintiff's favour on the issue of infancy, declared the contract to be void, and ordered a promissory note given by the plaintiff for the balance due for the 438 VALEXTIXI V. CAXALI. [BOOK II. furniture to be cancelled, but refused to order tbo return of tbe sum paid. Tbe plaintiff appealed. Lord CoLEUiixiE, C. J. I am of opinion that tbis appeal sbould be dismissed. Under tbe contract in (juestion, wbicb was one for bis advantage, tbe plaintiff, an infant, undertook to pay tbe defendant a sum of money. lie paid tbe defendant part of tbis sum, and gave him a promissory note for the balance. Tbe judge satisfied himself that tbe plaintiff was an infant at the time when be entered into the contract, and, liaving .satisfied bim.self of this, did, in my opinion, justice according to law. He set aside the contract, and be ordered tbe promi-ssory note to be cancelled. It is now contended that, in addition to this relief, the plaintiff was entitled to an order for the re-payment of tlie sum paid by him to the defendant as money paid under a contract declared to bo void. No doubt tbe words of s. 1 of the Infants' Relief Act, 1874, are j-trong and general, but a reasonable construction ought to be put upon them. The construction which has been contended for on behalf of tbe plaintiff would involve a violation of natural justice. When an infant has paid for something and has consumed or used it, it is contrary to natural justice that he sbould recover back tbe money wbieb he has paid. Here the infant plaintiff who claimed to recover back tbe money which be had paid to the defendant bad bad the use of a quantity of furniture for some months. He could not give back tbis benefit or replace the defendant in the position in which be was before tbe contract. Tbe object of the statute would Beem to have been to restore tbe law for tbe protection of infants upon which judicial decisions were considered to have imposed qualifi- cations. The legislature never intended in making provisions for this purjjo.se to .sanction a cruel injustice. The defen on a (Hiasi-contract for the I)enefits received. RIake v. Conciinnon MH7(M 4 Irisli Hi-p. Coniinon Law, '.\'2']; Northwestern Railway Co. r. McMichael (iH.'iO) r» Kx. 114 (per I'aukk. R.); Hamilton v. VaiiKlnm-Sher- rin, etc. ( lH!t4) L. R. |lH!t4) :< Cli. .''.K't ; Holmes r. Rloj;;; ( IHIH) H Taunt. TjOS (oh explained in Corpe c. Overton ( IHIJ.S) 10 IMu^. 2.">2) ; .loliiisnii i. N. \V. Ins. Co. (1H94) r.fi Minn. .Jfi.''.. Thew euMen are to he found in Smith's Casca on tlic Laws of I'erson.s, to which reference iH made. — Ed. CHAP. II. J BREE V. IIOLBECII. 439 (h) Mistake as to the Subject Matter of a Contract. (1) Mistake as to its Existence or Identity. BREE V. HOLBECH. In the King's Bench, May 18, 1781. [2 Douglas, 654.] In an action of assumpsit for £2000 had and received to the plain- tiff's use, — The defendant having pk\aded 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 asserted and affirmed that there was an indenture of mortgage, dated the 24th of June, 1768, 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 payment of £1200 with interest; that the defend- ant then further asserted and affirmed, that, after making the said indenture, W. H. died; that the defendant was his administrator with the will annexed, and there was due to him, as administrator, the said principal sum on the said security, that the plaintiff, relying on these assertions and affirmations, advanced £1200 to the defendant, on his executing an indenture of assignment on the said 18th of February, 1773, which recited the mortgage, and purported, for the consideration of the £1200 so advanced, to assign all the premises by the said recited indenture of mortgage granted, for the remainder of the term, subject to the original power of redem})tion ; that, in this indenture of assignment the defendant agreed with the plaintiff, that neither the said W. H. nor the defendant had done any act to in- cumber the mortgaged estate; that the said several assertions and affirmations of tlie defendant, and also the recitals in the said in- denture of assignment, were false, inasmuch as there never was any such indenture of mortgage, nor the sum of £1200 nor any other sum, due to the defendant, as administrator of W. H. on such security, in the manner the defendant had asserted and affirmed, and as in the indenture of assignment was recited, or in any other manner; and that neither the premises nor any part thereof passed by the assignment to the plaintiff, nor did any estate, right, or title therein, or to the said sum of £1200 vest in him; that, by fraud and imposition, and by 440 BREE r. IIOLBECH. [bOOK II. means of the said false assertions and alVirniations. and false recitals, the plaintiff was induced to pay the said sum of £1*^00 on the execu- tion of the said indenture of assignment ; that, at the time of the execution thereof and of paying the money, the jilaintiff was ignorant of the falsehood of the said assertions, allirnuitions, and recitals, and of the fraud so practised upon him, and did not discover them till within the space of six years next hefore suing out the writ. To this replication, the defendant demurred generally. The case was, this day, argued hy Hill, Serjeant, for the plaintiff; and Chambre, for the deft-ndant. Chambre, in support of the demurrer, contended, that there was nothing alleged in the rej)lieation 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 dilferent assertions and recitals. But, if there had been fraud, that would not have been suthcient; it was the plaintiff's business to look to the validity of his security; and there is nothing relative to fraud among the different exceptions 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 himsi'lf might not know of the falsehood; 2. That, wlu-re a j>arty has been induced, i)y fraud, to pay money, the statute of limitations does not run. or al least only runs from the time when the fraud is discovered. — 1. The assertions of the defendant, he observed, were positive, without qualification, and there- fore he nuide himself answeral)le for the truth of them; and, if any loss had been incurred 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; IIearne*s Pleader, 10\?, 224; Cro. Car. 141 ; Sir W. Jones. 196 ; 2 Burr. 112; 12 Mod. V.)\ ; 2 Ves. 198—2. On the second point, he relied on Booth v. I^ord Warrington, in Dnin. Proc. 1714 (which he cited from the printed cases), and Tlir South Sea Comj>any v. Wymondsell, 3 P. Wms. 1 l.'Ja. Lord Mansfield. The basis of the whole argument is fraud; and the (juestion is, whether fraud is anywhere asserted in this rej)lication. There may be many cases where the assertion of a false fact, though unknown to be false to the party making the assertion, will be fraudu- lent ; as in the case of Sir Crisp (Jascoyne, who insured a life, and aflirmed it was as good a life as any in Miigbmd, not knowing whether it was or was not. There may be cases, too, which fraud will not take out of the statute of limitations. Hut. here, everything alleged in the replication may be tru«', without any fraud on the part of the defend- ant. He is an administrator with the will annexed, who finds a mortgage-deed among the papers of his testator, without any arrears of interest, and parts with it, bona fulr, as a marketable commodity. If he had ;;:s' case. Palm. a. .'{r»4." — 1 Kspinasso N. P. 2; but see Hrifjff's case as reported. Wherever money is paid on a consideration which fails, it may be recov- ered. French r. Millard (18.''.:{) 2 Ohio St. 44; Honsteel r. Vanderbilt (18r)r)) 21 Marb. 2 several above-mentioned parties, wlio were all unconscious of the alteration, it had thereby acquired, in the particu- lars altered, the appearance of a bill fur the net sum of £1883 Ids. 3d. dated 17th July and payable 15th October. On 5th October, Williams presented it at the Xavy Pay Olliee for j)aynu'nt, which was refused on accf)unt of the alterations; upon tlie retpiisition of the commission- ers, Williams deposited with them, without the knowledge of the CHAP. II.] JOXES AND OTHERS V. UYDE AXD ANOTHER. 445 defendants, the altered bill; and in lieu of it accepted from them a new bill for the original amount, and received in discharge thereof £883 IGs. 3d. after allowing £1 Us. 7d. for the property-tax charged on the interest. Williams thereupon demanded of the plaintiffs re- payment of £1000, the difference between the sum he had received from the Navy Pay Ollice and the sum he had j)aid for the bill to the plaintiffs, which they repaid him, and brought the present action to recover from the defendants the like difference of £1000. GiBBs, C. J. This is very distinguishable from the case of Price v. Xeal, because there the bill was paid by the person who of all others was the best judge whether the acceptance was his handwriting or not, and he says, on looking at it, this is my handwriting and I pay it. The case of Barber v. Gingell, 3 Esp. GO, is a much stronger case even than that. It was an action on an acceptance \vritten in the name of Gingell ; the defendant had not accepted, nor ever acknowledged that he had accepted that bill; but it was proved that he had paid bills with similar acceptances, which in fact were forgeries of his son; and Lord Kenyon, C. J., held that the defendant, having given credit to similar acceptances in the like course of dealing, was bound to pay the bill in question. The court are of opinion, that the plaintiff is entitled to recover the sum he seeks to recover by this action ; and we think so on the ground on w^hich it is put by my Brother Lens that this transaction is in the nature of an exchange between the two parties, made by the defendant upon the one hand, of a navy bill, pro- fessing to be a navy bill for £1884 16s. lOd., and the defendant repre- senting it to be a genuine navy bill of that amount, and by the plain- tiff on the other hand, of a sum of money equivalent to the sum which would be paid upon that bill when it should become due, sup- posing that it were a genuine navy bill, minus the interest for the time which it yet had to run. Both parties were mistaken in the view they had of this navy bill; the one in representing it be a navy bill of this description, the other in taking it to be such. Upon it after- wards turning out that this bill was to a certain extent a forgery, we think he who took the money ought to refund it to the extent to which the bill is invalid. The ground of the defendant's resistance is, that the bill is not indorsed; and that whensoever instruments are trans- ferred without indorsement, the negotiator professes not to be answer- able for their validity. This question was much mooted in Fenn v. Harrison. 3 T. R. 757, and it is true to a certain extent, viz., that in the case of a bill, note, or other instrument of the like nature, which passes by indorsement, if ho who negotiates it does not indorse it, he does not subject himself to that responsibility which the indorsement would bring on him, viz.. to an action to be brought against him as indorser ; but his declining to indorse the bill does not rid him of that responsibility which attaches on him for putting off an instrument as of a certain description, which turns out not to be such as he repre- 44G JONES AND OTHERS C. RYDE AND ANOTHER. [hoOK II. scnts it. The defendant has in the present case put off this instrument as a navy bill of a certain description: it turns out not to be a navy bill of that amount, and tiiereforc the money must be recovered back. Bree r. Holbech is very distinguishable. Common prudence required an administrator not to take on him more respcmsibility than iiis situation obliged him to incur, viz., to covenant that he had a good title notwithstanding any act done by himself; the covenant of an administrator ordinarily goes no further; and when an action is brought against him for money had and received, he says, you have all the security against me which a person in my situation ever gives, and that does not in the present case make me responsible. Compare this with the case of Cripps v. Reade, (i T. R. 606, cited by my Brother Heath. There was no deed : the whole rested in parol, and the whole was founded on the presumption that the title was such as it pur- ported to be: it was not such as it purported to be. and therefore the purchase-money could not be retained. In the present case, the navy bill is not such as it purported to be, and therefore the plaintiif is entitled to recover. A case somewhat similar very freciuently occurs in practice on which I should not rely as governing the law, but that it is said by my Brother Lens to be sanctioned on the authority of a case so decided at nini prius, by M.\nsfield. C. J., namely, where forged bank notes are taken. The party negotiating them is not, and does not profess to be, answerable that the Bank of l^ngland shall pay the notes; but he is answerable for the bills being such as they purport to be. Therefore the plaintiff must recover the difference. Heath, J. I am of the same opinion. If a person gives a forged bank note, there is nothing for the money: it is no payment. In the ease of Cripps v. Reade, the defendant sold a term, supposing himself to be the personal representative of the deceased, without executing any assignment. Bree v. Holbech was cited upon the trial iu'fore Lawrence, J., and the rule caveat emptor was urged: the court re- fu.sed a rule for a new trial. Lord Kenyon, C. J., said that in Bree V. Holbech a regular conveyance was made, and no further covenants were to be added ; but in the case of C'rip|)s r. Reade, the whole had passed by [)arol, and the money had been paid under a mistake, and the action for money had and received would lie to recover it hack Cha-MHRK, .1. I really cannot entertain a doubt on the (piestion: if the defendant's doctrine coidd prevail, it would very materially im- pair the credit of these instruments. They are not in practice in- dorsed (or not beyond the fir-^t taker). .\ tuan lakes this security, looking to the persons who are to j)ay it ; he take-; it on llie presump- ti were not a marketable commodity on the Stock Ex- change. Upon that ground, Briant's vendee soon returned the bonds in question. Briant, rejjri'senting the nuitter to the plaintiff, the ])lain- tiff, without communicating with the defendant or returning the bonds, refunded what Briant had paid him, and now sought to re- cover 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. .\t the trial he did not show that all the bonds were not his. Tin- 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 bond-? of the same description. Both parties, at the time of the transaction, were ignorant that a stamp was necessary. It was proved tliat brokers on the Stock Ex- chnntre 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 wa*^ not menti(»ned by the plaintiff to Briant. Dn behalf of the defendant, it was olgected at the trial before TlNDAL, C. J., that under these circumstances the plaintiff could not recover on the declaration for money paid or money had and received; but should have declared specially on the implied warranty by the CllAl'. 11. I YOUXG V. COLE. 451 defendant that the bond.s 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 actually 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 defendant the opportunity of replacing them with stamped instruments. In Street v. Blay, 2 B. & Ad. 456, it was held, that a person who had purchased a horse warranted sound, sold it again, and then repurchased it, could not, on discover- ing that the horse was unsound when first sold, require the original vendor to take it back again ; nor could he by reason of the unsound- ness, resist an action by such vendor for the price. Wilde, Serjt., and Ogle showed cause. F. Robinson in support of the rule. TiNDAL, C. J. It appears to me, that the sum for which the verdict has been given is properly called money received by the defendant to the use of the plaintiff. The money which the plaintiff delivered to the defendant was his own money, for he had sold the bonds as a principal to Briant, and was subject to all the responsibilities of a principal. He delivered the money to the defendant on an under- standing that the bonds he had received from the defendant were real Guatemala bonds, such as were salable 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 defendant has not delivered something which, though resembling the article contracted to be sold, is of no value. The remaining 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 sto]i]ung short of that, the uni- versal custom of the Stock Exchange would authorize the plaintiff to rescind the contract without consulting the defendant: and the defendant has been in no respect damaged by what the plaintiff 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 452 FRANK r. LANIKH. [hoOK II. had been dorn', he wrote to say that if tlie bonds were his own, he would send his clerk to pay the plaintiff the amount. Having omitted at the trial to show that he held them in the cai^aeity of ajrent, as he had assiTted, his letter is a ratification of what the plaintilf had done, and the verdict ought not to be disturbed. P.\RK, J., concurred. Bo.s.WQTET, .1. 1 a.^ree in the principle of the cases which have been cited as to breach of wananty, but this is not a case of that de- scription. Here, no consideration has been given for the money re- ceived by the defendant: the bonds he delivered to the plaintiff were not Guatemala bonds, but, on the Stock Exchange, wortliless paper; and the payment nuide by the plaintiff to Briant was not voluntary. According to the principle established by Child i'. Morley, the defend- ant 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 ))rin('ipal, and liable to be ex- pelled if ho does not make good his dilFerencos. Upon either of the counts, therefore, the plaintiff may sustain this action. And even upon the defendant's letter, unless he showed the i)onds not to have been his own, the j)laintiff is entitled to retain the verdict. CoLTMAN, J. I am of the same opinion. The first question is. whether the plaintitf 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 request 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 ujion similar occasions; that is, to rescind the contract if the article delivered turns out not to be the article sold. Rule du^rhargcd.^ Frank v. iMtiicr (1883) 91. X. Y. 11'.'.— Dan roitni . J. 'Tpon the pleadings, the questions were, whether certain written instruments purporting to be obligations of the T'liitcMl States, known as 'seventy- Mn Hrrwstcr r. Hurnptt (1S7R) 125 Muss. OH. tlw plaiiitilT. hftvinp pur- chnH«','ed note eonsidered j)iiymeMt. Dinsdalo r. Ijineliester (180.'{) 4 E»p. 201 ; Markle f. Hatfield ( 1807) 2 .Folins. 4r.:{; nor a dinlionorefl draft. I'lick- ford r. .Miixwell (175»4) AT. 1{. Wl. Money paid on a for^'ed endorsement may '>f recovered from an innocent holder. Carpenter i'. National Bank (1877) 123 Mas.s. 00.— En. CHAP. II.] THOMPSON V. GOULD. -153 thirty' notes, numbered respectively 16074, 160436, 68573, 140133, were in fact sold by the defendants to the plaintiffs, and if so, were they forgeries? At the trial evidence was given by the plaintiffs upon these points, but the defendants controverted none of it, and we agree with the two courts by whom the facts in issue have been examined, tha:t the testimony established the identity of the notes as those sold by the defendants, and it being unanswered, that there was no question upon which the opinion of the jury was necessary. The appellants, however, claim that the plaintiffs were negligent in not sooner detecting the forgery, and also in failing to return the notes. No authority is cited to the effect that one who sells as genuine, a forged note, can avoid his liability to refund because of delay by his vendee in detecting the forgery, or in giving notice of it. The duty of the vendee to make such examination, cannot be greater than was the duty of the vendor to make it, before he parted with the paper and received its price, nor will the mere lapse of time confirm his title to the purchase money if the purchaser exercised reasonable diligence in giving notice after the forgery was ascertained. Weiser V. Dcnison, 10 N. Y. 68; Bank of Commerce i'. Union Bank, 3 X. Y. 230; Kingston Bank r. Ettinge, 40 N. Y. 391; Heiser v. Hatch, 86 N. Y. 614, opinion by Folger, J.'"- THOMPSON V. GOULD. Supreme Judicial Court of Massachusetts, 1838. [20 Pickering, 134.] Indebitatus assumpsit to recover back from the defendant, the sums of money mentioned in the receipts hereafter set forth. The parties stated a case. About the 8th of May, 1835, the defendant offered to sell the estate to the plaintiff for 3700 dollars, and the plaintiff agreed to take it at that price. The defendant undertook to procure a discharge of the mortgage, it being a part of the agreement that the plaintiff should have the estate free from incumbrance. The plaintiff requested the de- fendant to make certain repairs on the house, and agreed to pay for them. These agreements were parol. Between the 8th of May and the time of the fire on the 18th. the plaintiff carried into the house articles of furniture, and all tlu' tilings which he intended to jilace in the house. Diiring the same period he was frequently at the hon.^ie superintending and directing the rejiairs. On the 14th of May the 'See Rick v. Kelly (1858) 30 Pa. St. 527; Schrocder r. Harvey (1S74) 75 111. 638.— Ed. 454: THOMPSON r. gould. [book II. plaintiff paid the defendant 2000 dollars, and took a receipt as fol- lows : "Boston, May 14, 1835. Received of Samuel Thompson six- teen hundred dollars in part pay for estate sold him by me, in Salem street. Do. four hundred. Thomas CJould." On the IGth of May the defendant told the plaintiff that he could not get the mortgage discharged, and asked tiie jiiaintill" what he should do. Tiie plaintiff replied, that he would pay him the rest of the money, if he wished it, but he must get the mortgage discharged the best way he could. On the same day the plaintiff paid the defendant 1848 dollars and took a receipt as follows: "Boston May 10, 1835. Received of Samuel Thompson eighteen hundred and forty-eight dollars. Thomas Gould." The payments by the plaintiff e.xceeded the price of the estate and the cost of repairs by the sum of $82.33. Between 10 and 12 o'clock on the 18th of May the defendant paid the mortgage and received the mortgage deed and policy of insurance, with an indorsement on the policy as follows: "May 18, 1835. Value received, the M. H. Life Ins. Co. hereby release all their claim on this policy. N. Bow- ditch, Actuary;" and before 2 o'clock of the same day the actuary discharged the mortgage on the record. Tiie policy was not assignable except with the assent of the assurers, and no a])plication for their assent was made. If in tiie opinion of the court the plaintiff was entitled to recover the whole or any part of Ids demands, tiie defendant was to be de- faulted ; if not, the plaintiff was to ho nonsuited. Wilde, J., delivered the opinion of the Court. This is an action of assumpsit, in wliich tiie ])laintitr claims a certain sum of money paid l)y him to the defendant on a consideration wiiich has failed. The money was paid on a parol agreement to purchase of the de- fendant a certain liouse and estate, whicli were to be convoyed to the plaintiff free and clear of all incuml)rances, tiie defendant undertaking to discharge a mortgage on the estate, wliich was suliseijuently done, but before the estate was conveyed to tlie plaintiff the house was consumed by fire and the material question is, which of the parties shall eventually sustain this loss. A previous question is int('rj)osed, arising from an objection to the form of the action, which, although it does not affect the merits of the case, is nevertheless suniciont. if well founded, to defeat the present action. It is contended l)y tiie defendant's counsel, tliat tiie money was paid on an i-xecutory contract still subsisting, and tliat liie plaintiff's remedy, if Ik- Ihk nny. i< Iiy an action on tlie contract, or l»y a bill in equity. It cannot be denied, tliat if tiie money demandt'd were ]^aid <»n a valid subsisting contract, tlie |)laintifT's reme(ly for liie non-|)erform- ance by the defendant, would be l)y an action on the contract, and that a general indel)itatus assumpsit to recover the purchase money could not be maintained. But it is very clear that the parol contract in CHAP. II.] THOMPSONT V. GOULD. 455 the present case is void b}' the statute of frauds, and that a part performance of the agreement, by payment of the purchase money, does not take the case out of the statute. In the case of Davenport v. Mason, 15 Mass. K. 9-1, it was said that the statute does not wholly vacate the contract, but only inhibits all actions brought to enforce it, and that the doctrine of courts of equity as to the effect of part performance of a parol agreement for the conveyance of real estate, seemed to have been recognised by the courts of law; and the case of Crosby v. Wadsworth, 6 East, 602, was referred to as a ease turning upon this principle. But the case of Davenport- f. Mason was decided on a different point. And no case can be found, where in an action on the contract it has been decided, that part performance of a parol agreement for the conveyance of land would take a case out of the statute. On the contrary, it was decided in the case of Kidder v. Hunt, 1 Pick. 328, that no action would lie on such a contract, and that part performance Avould not take it out of the statute. It has been argued that this contract may be enforced in equity. But if it might be. that would not affect the plaintiff's legal rights. This Court, however, has no authority to decree a specific performance of a parol contract. Nor could this contract be enforced by a Court of equity having jurisdiction of the subject matter, for by the destruc- tion of the house the defendant is no longer able to perform his part of the contract. He may make compensation for the destruction of the house, but generally a purchaser, independently of special cir- cumstances, is not to be compelled to take an indemnity, but he may elect to recover back the purchase money, if paid in advance, and if the vendor refuses or is unable on his part to perform the contract, and the purchaser has no legal remedy to recover damages. 1 Sudg. Tend. (9th edit.) 304; Hepburn v. Auld, 5 Cranch, 263; Waters v. Travis, 9 Johns. R. 464. The only question, therefore, is, whether the plaintiff or the de- fendant is to sustain the loss by fire. In respect to the loss of personal property, under the like circumstances, the principle of law is perfectly clear, and well established by all the authorities. When there is an agreement for the sale and purchase of goods and chattels, and after the agreement, and lief ore the sale is completed, the pro]ierty is de- stroyed by casualty, the loss must be borne by the vendor, the property remaining vested in him at the time of its destruction. Tarling v. Baxter, 9 Dowl. & Ryl. 276; Hinde v. Whitehouse. 7 East, 558; Eugg V. ]\Iinett, 11 East, 210. Xo reason has been given, nor can be given, why the same principle should not be applied to real estate. The prin- ciple in no respect depends on the nature and quality of the property, and there can therefore be no distinction between personal and real estate. And so it is laid down by Chancellor Kent, in his Com- mentaries. "Thus if A sells his horse to B, and it turns out that the horse was dead at the time, though the fact was unknown to ihe 45G THOMPSON r. could. [book li. parties, the contract is necessarily void. So if A, at Xew York, sells to B his house and lot in Albany, and the house should lia])[)en to have been destroyed by fire at the time, and the parties ecjually ignorant of the fact, the foundation of the contract fails, provided the house, and not the ground on which it stood, was the essential inducement to the purchase." 2 Kent's Comm. ('-id edit.) 3G7. The same principle applies to an agreement to purchase a house, as in the present case, the house being casually destroyed before the purchase is completed. Neither party being in fault, the loss must be borne by the owner of the property. A different doctrine has been adopted in equity, founded on the fiction, that whatever is agreed to be done, shall be considered as actually done. So that if there is an agreement to purchase, it is equivalent to an actul purchase, in conteniplation of equity; and the purchaser must bear any loss which may hapjien to the estate between the agreement and the conveyance. In Paine v. Meller, 6 Ves. 349, where A had contracted for the purchase of some houses wliicii were burned down before the conveyance, the loss was holden to fall upon him, although the houses were insured at the time of the agreement for sale, and the vendor permitted the insurance to expire without giving notice to the vendee. Upon tliis decision Sugden remarks, that it proceeded on the only principle upon which it could be supported, that the purchaser was in equity the owner of the estate. Sugd. Vend. (9th edit.) 278. And in Ex parte Minor. 11 Ves. 559, whore a similar accident happened to an estate sold before a master, and the report had only been confirmed nisi, the loss was holden to fall on the vendor. Formerly, however, a different doctrine was admitted in courts of equity. In Stent r. Baylis, 2 P. AVnis. 220, the Master of the Rolls said ,"If I shojild buy a house, and before such time as by the articles I am to pay for the same, the house i)urnt down by ca.sualty of fire, I shall not in ofpiity l)e bound to pay for the house, and yet the house may be built up again." So upon a sale of a leasehold for lives, and previously to the conveyance one of the lives drojqied, although a specific performance was decreed, the Lord Keeper intimated, that if all the lives had been dropped before the conveyance the decision might be different, for that the money was to be paid for the con- vcyanee, and no estate being left, there could be no conveyance. Thus it appears, that formerly the principle was the same in equity a.s it ever ha^ been in law. .\nd in one resjx'et the prin- ci[)le still remains the same, nanitly, that the loss of the pro|)erty under similar circumstances as those in the present case, must be borne by th(! owner of the property at the time the loss liappened; and it gecms impossible that any diff<'rent princi})le can be adopted. As we therefore cannot recognise the fiction in e(|nity, by whieh a pur- chase and ar agreement to purchase are held to be siiiilar, and CIIAl'. li.] TIIO.MI'SOX V. GOULD. 457 indeed indentical in respect to the present question, we must hold that the defendant is bound to repay the purchase money, as the consideration upon which it was paid has wholly failed, the plaintiff not being bound, under the circumstances of the case, to accept a deed of the land. Where the contract is entire, the vendor cannot recover or retain part of the purchase money, where he cannot con- vey or make a good title to the whole estate sold. The rule in chancery on this point also, is somewhat different and depends more on the discretion of the court ; which has given rise to many conflicting opinions and decisions. In the case of the Cambridge wharf, upon which Lord Kexyox, when sitting in chancery, in the case of Poole v. Shergold, 1 Cox's Rep. 273, made some remarks, the vendor made title to all the estate but the wharf, and that part of the land was the principal object of the vendee in making the purchase, yet the purchaser, who had con- tracted for the house and wharf, was compelled to complete the pur- chase. This decision, as Lord Kenyon truly remarked, was contrary to all justice and reason. In other cases a more reasonable doctrine has prevailed, which is, "that if there be a failure of title to part, and that ap])ears to be so essential to the residue, that it cannot reasonably be supposed the purchase would have been made without it. or as in the case of the loss of a mine, or of water necessary to a mill, or of a valuable fishery attached to a parcel of poor land, and by the loss of which the residue of the land was of little value, the con- tract may be dissolved in toto." This rule was adopted in Pennsyl- vania, in the case of Stoddart v. Smith, 5 Binney, 355, and a similar rule has been adopted in South Carolina. Pringle v. Executors of Witten, 1 Bay, 256; Tunno v. Fludd, 1 McCord, 121. "The good sense and equity of the law on this subject is." as Chan- cellor Kent remarks, "that if the defect of title, whether of lands or chattels, be so great as to render the thing sold unfit for the use intended, and not within the inducement to the purchase, the pur- chaser ought not to be held to the contract, but be left at liberty to rescind it altogether. But if the defects were not so great as to rescind the contract entirely, there might be a just abatement of price." 2 Kent's Comm. (2d edit.) 373. This rule, if applied to the present case, would not alter the result. But it is not necessary to consider the case in reference to this rule, however reasonable it may be, as the plaintiff cannot be compelled to perform the contract ; and as no fault can be imputed to him. he is entitled to recover back the jnirchase money. If the house had not been destroyed, and the plaintiff had refused to perform the contract, the case would have required a different decision. Judgment for plaintiff} 'If the contract had Vieen for the sale of ii house, then destruction of the 458 HOBixsoN V. bright's executor. [book II. ROBIXSOX V. BKUillT'S EXECUTOR. Court of Aitkals of Kkntucky, 18G0. 1:5 Meicalf, SO.] Judge Wood ilolivorod the oj)inion of tho court. ^ In Griswold, &c. r. Taylor's adm'r, 1 Met. '^30, it was decided, that where the consideration of a contract appears to be valuable and sutficiont. hut turns out to he wholly false or a mere nullity; or where it may have been actually good, hut before any \)i\Tt of the contract has been performed by either party, and before any benefit has been derived from it, the consideration wholly fails, there a promise, resting on this consideration, is no longer obligatory. And, accordingly, in the ca.so of a contract for the sale and purchase of a slave, where it is made to appear that before and at the time of such sale the slave was unsound and diseased, and of no value, and that he afterwards died of such disease and unsoundness, there can be no recovery, by the seller, of the price stipulated to bo paid for the slave, because of the total failure of the consideration. It is said, iiowever, that, in all such cases, tiierc must i)e a total failure of the consideration ; for, if there be a consideration left, however much impain'(l or diminished, it will be sutlieient to sustain the contract. In Parsons on Contracts, sec. 14. page 385, it is laid down that *Svhero th«' consideration appears to be valuable and sutlieient, but turns out to be wholly false or a mere nullity, . . . the party paying or dt'positing money upon it can recover it back." The case now before the court dilTers from that of (Jriswold, Sec. v. Taylor's adm'r, in this respect only, that lirrr the money has been actually paid for the slave, now alleged to have been of no value at the time of the sale, and hence a total failure of the consideration upon hoUHO would liiive df-troyod tlio Hjil>jc<'t timttcr of (li«^ sale. If. liowcvor, the sal«' wiTf rif tlif liiiul iiyon whii-li the Iiouhp stciod, tin* Ikhiso would pass with the land an part thorfof, and thoro wniild ho no failure of suhjeet matter, inaMniueh aH purehaHor pot what he harpiined for, namely, tho land in question. I'pon whom hIuiII the Iosh fall? The principal ease savH on the vendor; many c-aHOH liohl upon the venver«ty. nee the fnllowiny artitden. which practically exhaunt the Hiihjej't : Samuel Willinton on The Itisk of Lokh after an K.xecutory Contract of Sale in the Civil nml Comm. n Law. » Ilnrv. L. R. 02. 70; ioni.30; Judj^e Krrxrit on The Hurden of 1>ohm an an Incident of the Kifjht to tho 8pct:iflc I'erfornuince of a Contrnet. 1 Columliia L. K. 1-10. — Ki>. 'A part of the fijiinioii only in (fiven. — Ku. CHAP. ir.J ROBiNsox V. bright's executor. 459 which the money was paid, whereas in Griswold v. Taylor the action was upon the promise to pay the money, the consideration for the promise having totally failed, as was alleged. In the latter case it was decided that there could he no recovery upon the promise. Xow the question is presented, can money, which has heen paid for a chattel of no value when sold, and where there is thus a total failure of the consideration upon whicli the payment was made, be recovered back? We are unable to perceive any difference in principle between the two cases. If it is unjust and unconscientious in the one to coerce the payment of the money, in the other case it is equally against justice and good conscience to retain the money. In either case the party is compelled to part with his money without having received any value Avhatever for it. And there is ample authority for the recovery back, by an inde- pendent action, of money paid upon a consideration believed at the time of the contract and payment to be valuable, hut which was in fact, at the time, of no value ivhatever. In Spring v. Coffin, 10 Mass. 32-35, it was decided that a party who had paid money upon a l)argain by which nothing passed to him, had his remedy for the money, "as paid for a consideration which has failed." In Woodward v. Cowing, 13 Mass. 216, it was said by the court, "where money has been paid upon a consideration which has failed, it mav certainly he recovered back bv the party who shall have paid it."" Xeel r. Deens .1' Smith, 1 Xott & McCord. 210: Wharton v. O'Hara, 2 Xott & McCord, 65. In Murray & Co. v. Garrett & Co., 3 Call, 373, the same principle was approved by the court of appeals of A^irginia. In :\Ioses V. ^IcFerlan, 2 Burrows, p. 1012, it was held (opinion by Lord Maxsfield), that an action could be maintained for money paid upon a consideration which happened to fail, and the defendant ought, ex cequo et bono, to refund. The same doctrine is recognized by the supreme court of Massa- chusetts in the case of Harrington v. Stratton, 22 Pickering, 510, although that was an action by the payee against the maker of a promissory note. See Colville v. Besley and others, 2 Denio, 139; 5 Humphreys, 496 ; Charlton v. Lay, opinion by Judge Green. In the case now before us it was alleged that the negro, at the date of the sale, was unsound and of vo raJiie. and that there was consequently a total failure of the consideration upon which the pur- chase monev had been paid. The petition stated facts sufficient to constitute a cause of action, and which, if found to be true, would have warranted a recovery by the plaintiff. The demurrer ought therefore to have been overruled. But to enable the appellant to succeed upon the ground we have been considerins:. he must show a total failure of the consideration. 460 DALKS CASE. [bOOK II. For the error in sustaining the demurrer the judfjinent of the circuit court is reversed, and the cause remanded with directions to overrule the demurrer, and for further proceedings not inconsistent with the princij)les of tliis opinion.* (2) Mistake may be as to the Title of the Vendor. DALE'S CASE. Co.MMoN IM.HAS. 1.585. [Cro. J-Jliz. 41.] Deceit.- For that the defendant sold to tlie plaintiff certain goods as his own goods, itbi rerera they were the goods of a stranger. '"Where a material mistake occurs in respect to the nature of the subject- matter of a sah', there is no mutual assent, and, therefore, the contract i« void. Thus, if an article he bouj;ht as bein(l) II (.), 15. (;21. aid." — Ki>. *In Stuart r. Wilkins (177H) Douglas IH. Lord Manskiki.d, .\surit.sT and nri.l.rit, .lustiees, at'reeinp, he-Id, iifler some hi'«ilation, that assumpsit was the proper action where there had been an express warranty, an, it oupht to be laid that the defendant knew of the unstmml "All the eane-* of derrit for niiHJnfni tnal inn may, it seems to me, l>e liirned inUi aetiftns of asHum|>Hit." I'cr (Jkohk, .1., in Pasley r. Freeman (178!t) .'5 T. R. 61, 54.— Eo. ClIAI'. II.] CROSSE I'. GARDNER. 461 It was alleged that the action did not lie, because it was not alleged that the defendant scictis that they were the goods of a stranger. And for that reason Tehiam and Wyndiiaai held the action did not lie, hut if it liad been so alleged, the action did lie; for it may be, the de- fendant did know no otherwise but that they were his own goods, then the action would lie. Anderson, contra, for it shall be intended, that he that sold had knowledge whether they were his goods or not. 42 Ass. 8. And it was afterwards adjudged against the plaintiff. HARDING V. FREEMAK Upper Bench, 1651. {Style, 310.] Harding brought an action upon the Case against Freeman, and declared against him. that the Defendant did sell unto him a Gelding, and upon the sale did falsely affirm unto him, that the Gelding was his own Gelding, and that he bred him of a Colt, whereas he bred him not of a Colt, neither was it his own Gelding, but another man's Geld- ing, and so concludes to his damage. Upon not guilty pleaded, and a Verdict found for the Plaintiff, the Defendant moved in Arrest of Judgment, 1. That in this sale of the Gelding, the Defendant had made no warranty of him ; and therefore though the sale were not good, yet the Action lies not. 21y. The Plaintiff doth not declare that the Defendant knowing the Gelding to bo another man's, did affirm him to be his own, and so here doth not appear to be any fraud in the sale. Twisden answered, that the words are sufficient to imply a deceit, though they express not, that he knowing it to be another man's horse did make the affirmation, for the words are that he did it falso et fraudulenter, and affirmed the Horse to be his own. But the Court stayed the Judgment, for they said, that here is no direct affirmation, l)ut only an intendment that scienter fecit. Yet after- wards iudgment was given for the Plaintiff. CROSSE V. GARDNER. King's Bench, 1689. [Comherbach, l-i-2.'] Case. The Plaintiff declares, that the Defendant having discourse of two Oxen did atfirm them to his own ]>roper Oxen, to which the Plaintiff sidem adhihen^, gave him so much for them, ubi rcvera they were the Oxen of J. S. »S:c. 'S. C. Carth, 90; 3 Mod. 2(51 ; 1 Show. 68; Holt. 5.— Ed. 463 MORLEY V. ATTEXBOROUGH. [BOOK IL It was agreed by the Attorney-General last Trinity-Term, that the Action did not lie on a bare Atlirmation without a Warranty. 2 Cro. 4 ; 11 Ed. 4, G ; 1 Roll. 9(5, 97 ; 1 Roll. Rep. v^7G in Point ; and he said further, that it was not lain to be deceptive. Gold, contra. As to the Case in 2 Cro. 4. The Reason of that is, because 'tis in his Trade, as to 11 Ed. 4, 6, that is on an AllirmancQ, that such a Thing was of such weight or Measure, and it was the Plaintiff's Fault that he did not Weigh or Measure it ; but in our Case it is an offer to sell, and is a Possession, and without Doubt, if it had been laid Sciens, it had been actionable, but as it is here, it is Damnum tf- deceptio. Ass. pi. 8; 2 Cro. 197, the Difference, where the Party hath the Goods in his Possession, which he atlirms to be his own. That the Affirmance inducetli tlie Buying, and the Eviction by the rightful Owner is the Damage. 2 Cro. 474, 196, 197; Mo. 126. 1 Roll. 96. ^ Attorney-General. Admitted, if an Atlirmation with an Intent to deceive had been laid, the Action liad lain, but it is not so here. 2 Cro. 474. Holt, Ch. J. Atnrniation to suj)j)ort the Action ought to lie at the Time of the .Sale, and there it is an Inducement to buy, and the Difference taken is good, where the Plaintiif may as well satisfy himself as the Defendant ; and where it lieth only in the Conusance of the Defendant, who affirms. Yelv. 20. Sciens is supply 'd by the Verdict. DoLBEX, inclined, that the Action lay, and tliat there was such a Case in this Court .'^even Years ago. Afterwards, in this Term the Case was argued again, and per Cur', the Action well lieth. ^^ Cro 44; Jones, IHC; 1 Roll. 91. Scietis omitted, and yet the Action lies. 1 Sid. 146. Holt. That Credit given on the Affirmation makes the Action lie. Eyres agreed on the Case. Jones, 196. Judgment pro Quer'. MoiJLKV r. A'i"i'i:N'p.oi:()r(;ir. E-XCIIKI^IKR, 1S49. [3 Errhrtiurr H'-ports. 500.] .\^M Mi'siT. The first eount of the declaration stated, that in fon- Bideralion that the pbiintifT woubl l»uy of tile defendant a harp for £15 t'jfl., the defendant j»romi defendant, if the court .should be of opinion that the ))laintiir was not entitled to recover.' Erle, C. J. I am of opinion tiiat this rule should be di.scharged. The [)biintiir l)rings his action to recover back money which he j)aid for goods l»f)ught by him in the shop of th(> defendant, which were afterwards lawfully cbumciir(>iif;li, ante, will \w fouml collcftrd tho jfri-ator nunilMT li(>(l warrnnty tliiit tin* vondnr in tlio owner nnard r. .lohnm.n '1«_>1> 10 John.n. 77, 79.— Ed. CHAP. II.] ROSWEL V. VAUGHAN. 471 another, and there he no covenant or warranty of title, the rule of caveat emptor applies, and the party huys at his peril;" for which he cites the dicta of Lord Holt in Medina v. Stoughton, 1 Salk. 210; 1 Ld. Kaym. 523, and of Bullek, J., in Pasley v. Freeman, 3 T. R. 57, 58. "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 fair price, he is understood to warrant the title." Thus the law stands that, if there be declaration or conduct or warranty whereby the buyer is induced to believe that the seller has title to the goods he professes to sell, an action lies for a breach. There can seldom l)e a sale of goods where one of the.th in facto, that Evan Thomas was presented, admitted, instituted and inducted to that vicarage on the last day of August. 35 Eliz. and took the tithes, and so the plaintiff lost them. The defendant pleads not guilty; and found against him. And it was now moved in arrest of judgment, that the action lay not; for an action in the nature of deceit lies not where one sells a thing which he hath not any property in: and although he took upon him in discourse that he was an owner, and had right to sell, unless he warrants that the other should enjoy it accordingly (such warranty ought to be at the time of the sale), it is not good : but here is not any warranty nor affirmance at the time of the sale, that he had any right or title to soil ; for his allinnanee that he was vicar, and had a right to sell, was upon the ninth of June, and the sale was KJtii June after; and in proof hereof he relied upon 5. lien. 7. jil. 41.; !>. Hen. 7 pi. 21. and Chandler v. Lopus, Ante. 4. Tanp'ieli), Chief Haron , and ALTiiA^r, were of that o])iiiion. But if a man sell victuals which is corrupt, without warranty, an action lies, because it is against the commonwealth; as i). lien. (>. pi. 53; 7. Hen. 4. pi. 15. and 11. Edw. 1. pi. (i. and although the Book of Assi.so, 42. .\ss. pi. S. was objected, where one took goods from another and ."old them, and the owner retook them, that an action upon the case was brought in nature of deceit for this falsity in sale, without any warranty; Tani-'IKLO thereto an.swered, that the said book is not adjudged, l)Ut the party admits it, and takes issue; yet if it were allowed to be law, it is because he there had possession by /or/, and so had colour in show to be owner; and he was deceived by buying of him who had only gained a tortious possession : and although he had not any right, yet every one took cognizance of him as owner, and be himself knew that he was not right owner; which is the reason thai the action is maintainable: but here he had not any pos.<*ossion ; and it is no more than if on<' should mA] lands wherein another is in pos.session. or a horse whereof another is possessed, without covenant or warranty for the enjoyment, it is at the jx-ril nf liim who buys, and not reason he nifntlnK on tho cane of li'Apostro t". Lr I'liiiHlrifr ( ITOH), wliirli is citi-d in 1 1'. Wmn. .'{|H. Hiiid: "My nrrount of tliiit vix**' i** Wiircront from tliat in 1 P. \\'in'<. . . . It wiiM licM liy tlic fourt Ihnt ofTcrinj; lo hcII urncriilly wum snfllciont evidence «»f offi-rinj,' to m-II hh owner." — Kd. ClIAI'. 1 1. J SERJEANT MAYNAUD's CASE. 473 should have an action l)\' tlic law, wlici-c lie did not provide for him- self. Wherefore it was adjudged for the defendant.^ SERJEANT MAYNx\RD'S CASE. TTioTT Court of Chaxckry, IGTG. I "^ Free man, 1.-] He bought an Estate of one J. t>. and upon the Bargain it was agreed, that a Recovery should be suffered within the Space of three Years, and he paying his Money before the Recovery was suffered, took a Bond of the Vendor, that if so be the Recovery was not suffered in the Space of tliree Years, that the Serjeant reconveying the said Lands should be repaid his ]\Ioney; the A^endor tenders a Recovery, but before it was suffered, a third Person makes a Title to the Land, and thereupon the Serjeant exhibited his Bill to have his Money repaid. In this Case it was said Ijy Mr. Attorney, that if a Alan sell another's Land, and covenant to discharge it of such particular Incumhrances, and before the Payment of tlie Aloney other Incumbrances are dis- covered, this will prevent any Suit for the Money till all the Incum- brances are discharged. It was said likewise by Mr. Kech, that if there be no Covenants against any Incumbrances, yet, if before Payment of the Aloney any are discovered, the Party may retain his Money till they are cleared; quod fuit concess. per CanccUar'. But it was said by Sir John King, and not denied per Cur' , that those must be Incumbrances made by the Vendor himself, or otherwise the Party cannot detain the Afoney, unless they be covenanted against. But in thisCase the Lord Chancellor [Nottingham] said he could give no Relief; for here the Serjeant hath parted with his Money, and taken a Bond for Repayment of it if the *"I lay out of the question the case in 2 Cro. 196. and all other cases which relate to freehold interest^i in lands ; for they go on the special reason that the seller cannot have thoni without title, and the buyer is at his peril to see it," per BiLLER, J., in Pasley r. Freeman (1780) 3 T. K. 51, 5f). "Note, that by the civil law every man is bound to warrant the thins that he selloth or conveyeth, albeit there be no express warranty: but the common law bindeth him not, unless there be a warranty, eitlicr in deed or in law: for caveat emptor." — Co. Litt. 102a. See Thomas & Fraser's note to Walker's case (1/S8fl) 3 Rep. 22a. — En. *The case is also reported in 3 Swanston 651, and. after a rear^runient, i6. 653. In the first of these, Lord Nottingha-M is quoted thus: "Shall the loss fall upon the defendant, too, when he hath sold it without any covenants or warranties, and without any other conditions than what are performed? Caveat emptor is a very needless advice, if the chancery can establish another rule instead of it, by declaring that equity must suffer no man to have an ill bargain." — Ed. 474 SERJEANT MAYNAKD's CASE. [BOOK II. Recovery were not sufforoJ in thivc Years time, he reconveving his Estate; and here the Kecoverv being suffered, he hath no Pretence by his own Agreement to liave it repaid ; and this Court cannot help him, unless it should take upon itself, where any ^lan had a l>ad Bargain, or was cheated in his Title, to helj) him to his Money again; and here being no manner of Fraud or Surprise in the Case, if he i)e not helped by his Covenants, he will not be helped in Equity; but for the Matter of Reconveving, he held that if the Serjeant. should recon- vey such Title as he had from them, be it more or less, or none at all, yet being a Relative to convey, it would have been well enough ; but here the Recovery being suffered according to the Agreement, though nothing passed by it, he held the Party had well ])erformed his Agree- ment, and so no Reconveying nor Repayment of the Money to be made.^ 'Accord, on demurrer, Unston v. Pate (1794) 4 Cruise, 90. — Ed. '"It docs not appear to be dearly settled how far, or in what cases, this court will interfere to rescind a contract of sale, after it has been consum- niated by the execution of the conveyance, without any covenants of warranty, where there is no fraud, but wlicre l)<)th parties were under a mistake as to the title of the vendor. Hy the civil law, an action of rcdhil)iti()n, to rescind a sale and to compel the vendor to take back the property and restore the purchase money, could be broupht by the vendee, wherever there was error in the es- sentials of the affreement, altliouph both parties were ignorant of the defect which rendered the pr(i|)crty sold unavailable to the purchaser for the ])urpose9 for which it was intended. This principle of the civil law aj)jiears to have been follf)wed in the courts of some of our sister States; :ind the case of Hiti-hcock r. fliddinj.'-, 4 Trice, l.'J"), nujst have been jhrided by Chief IJaron Ricii.MtDS, on the same principle. I afrree, however, with the learned conunentator on Amer- ican law, that the weight of authority, both in this State and in England, is against this principle, so far as a mere failure of title is concerned; and that the vendee, who has consummated his agieement by taking a c be allowed to enter into an agreement to cli-^'eive eoch other. ... I must not be tohl that a Court of Equity cannot inter- fere where there is no fraud shown. If c«>ntraeting parties have treated while under o mistake, that will l»e sufficient grcnind for the interference of a Court of Equity; but in thin ease there is much more. Suppose 1 sell an estate inno- cently, whi. there was a previous eviction under a paramojint title; but tlie aiithority of that case is (piestione^e for a Deceipt, A. 8. 1 Foiib. 366." MAKTIN r. .McCOiniirK. COUKT OK .VlM'KALS, lS.54. [8 New )'ork-. 331.] The appeal in this action was from a judgment of the superior court of the city of New York. The questions decided arose uj)on the pleadings. The plaintiff sought to recover as money received by the defendant to his use. The action was tried before Mr. .lusiice .M.\s()n, at sj)eeial term, who ordered a judgment for the defendant wliich was allirmcd at general term. (See I Sand. 366.) The ])laiiilifT apjiealed to this court. JoMNHON, .1., delivered the opinion of the court. In this case the defendant was in possession of an instrument under the seal of the corporation of the city of Xew York, by which I hi re purported to bo created in him an estate for the term of one huinlred years, in a houHe and lot of land in the city of New York. 'IMie plain! ilT was at the time in possession of the bouse and lot, claiming to lie and being seized thereof in fee. unless the lease held l)y the defendant created a valid term ff»r years in him. The defendant as matter of fact bc- '.\any, who afterwards having forgotten the facts paid the loss. The court held that this fact of forgetting was no answer to the action. It is not necessary to pursue this line of cases, for they do not touch any ground upon which this plaintiff can succeed. He has entered into a contract which has been executed, and his position is that of one peeking to rescind the contract and get back the consideration paid. Xo case of fraud is pretended. "McCormick and the plaintiff both believed that the lease was valid, and one bought and the other sold under that belief. The parties did not deal witli each other upon the footing of the compromise of a doubtful or doubted claim, but upon the ground 482 MARTIN r. MCCORMICK. [bOOK II. of a conceded right in tlie defendant. He was assumed by botli of them to have become the owner of a term for one hundred years in the premises in question, and the parties dealt with each other upon that basis for the sale and purchase of that interest. Then as to the subject matter upon which the sale was to operate, the plaintilf having actually rt'clecnu'd the premises before the execu- tion of the lease to the defendant, the authority to convey which the corporation had acquired was defeated, and their lease was wholly inoperative to confer upon the defendant any right whatever, and had no more significance or ethcacy in law than if it had remained un- executed. It follows, that the assignment executed by McCormick to Martin did not convey to him any right. The subject matter to which it related had no existence.* The plaintiff in my judgment occupies the same position which any other person would have occupied who had dealt with the defendant for the term ot one hundred years, and be- come the purchaser of it. Now the term which was the subject of the contract, contrary to the supposition of both parties had no existence, and in all that class of cases where there is mutual error as to the existence of the subject matter of the contract, a rescission may be had ( 1 Story Eq. §§ 141, 142, 143). The case of Hitchcock v. Giddings, 4 Price, 135, was a bill by a vendee of a remainder in fee expectant upon an estate tail. A recovery had been suffered at the time of the contract, though both parties were ignorant of the fact, and there had been no fraud from knowledge or concealment of the fact, and it was decreed that a bond given for the purchase money should be delivered up, and the interest which had been paid upon it should be refunded. I do not see how the principle of this case can be distinguished from that at bar; for surely it can be no ground of (liirercnce in result, that in the one case an estate which had once existed had at the time of the contract come to an end, while in the other the estate which was the subject of the contract had no existence at any time, .\llen I'. Hammond, 11 Pet. 71. The judgment below should be reversed, and the sale be declared rescinded, &c. HroGLEs, Ch. .)., and (Jakdi.vkk, Jkwktt. Tacciaht. ^roHSE and Wii.i.iAiM), .T.T., concurnMl. Mason, .J., was in favor of nuMJifyiiig the judgment of the superior court, so as to dismiss the complaint without prejudice to an action for specific relief, by avoiding tlie contract for the purchase of the lease. Judgment reversed, &c.' '\Vhil*> \h\n rntM> illiiHtrntoH tho dortrinp nf tlio procorlinjr »potion, it ih placed hpff n<* Mhowlny wlicn (bo nil*' of ravrat rmjitnr fiiil-* an to roalty. — Kn. 'In CrippH V. lUnd ( ITtiO) fl T. U. 000, tlio plaintiff wnn pcrniittod to rc- CHAP. II.] TRICE V. NEAL. 483 (3) Mistake as to the Validity or Amount of the Claim, or as to a Collateral Fact. PRICE V. NEAL. King's Bench, 1762. [3 Burrow, 1354.] This was a special case reserved at the sittings at Guildhall, after Trinity term, 1762, before Lord Mansfield. It was an act ion upon the ca se brought by Price against Xeal, wherein Price declares that the defendant Edward Neal was indebted to him in £80 for money had and received to his the plaintiff's use; and damages were laid to £100. The general issue was pleaded, and issue joined thereon. It was proved at the trial, that a bill was drawn as follows : — "Leicester, 22d November, 1760. Sir, six weeks after date pay Mr. Eogers Ruding or order forty pounds, value received, for Mr. Thomas cover as money had and received the purchase price of leasehold interest, to which the defendant, the seller, had no interest; and so as to purchase of land in Johnson v. Johnson (1802) .3 B. & P. 162; but in both these cases everything passed in parol, no deeds being given. See Taylor v. Read (1872) 19 Minn. 372; Pipkin v. James (1839) 1 Humph. 325, S. C. 34 Am. Dec. 652. "If the title fails for want of authority in the person who makes the deed to act in the capacity in which he professes to act, the consideration may be recovered back. Shearer v. Fowler, 7 Mass. 31 ; Williams v. Reed, 5 Pick. 480; Dill V. Wareham, 7 Met. 438; Holden v. Curtis, 2 N. H. 61."— Earle v. Bick- ford (1863) 6 Allen 549, 550. So, if title fails because the land is seized by the grantor's creditors, Leach v. Tilton (1860) 40 X. H. 473. One hypothecating collateral does not warrant the title, Ketchum r. Bank of Commerce (185!)) 19 N. Y. 499. See also Thomas v. Bartow (1872) 48 X. Y. 193; Campbell r. Brown (1842) 6 How. (Miss.) 106. In suit to recover money paid by purchaser of real estate, alleging defective title, the court said, citing Hellreigcl r. ^Manning (1884) 97 N. Y. 56: "We disagree with the court at general term upon the necessity in such case as this of showing that the title is absolutely bad. We think that if there were a reasonable doubt, such as to efTect the value of the property, and to interfere with the sale of the land to a reasonable purchaser, the plaintiff's cause of action would be sustained." Methodist Episcopal Church Home v. Thompson (1888) 108 X. Y. 018: But in Bcrnei r. Mayor (1881) 56 Md. 351. it was held that to defeat an action for recovery of purchase money, a perfect title nuist be given. In an action on a note given for the purchase price of land, the defendant was not permitted to show a partial or even total failure of title. Lloyd v. Jewell (1821) 1 Greenl. 352; Hammatt r. Emerson (1847) 27 Me. 308 S. C. 46 Am. Dec. 598 and note: In Tourville r. Xaish (1734) 3 P. Wms. 307, it was said that one sued on bond given for purchase of land, on which was aa 484 I'KU'K V. ni:al. (hook ii. Poughfor; as advised by, Sir, your luunbk' sorvaut, BL-njainin Sutton. To Mr. John Price in Bush-lane, Cannon-street, London." Indorsed "R. Kuding, Antony Topliani, Hainniond, and Liioche. Received the contents, James Watson and Son; witness lOdward Xcal." That this bill was indorsed to the defendant for a valuable con- sideration, and notice of the bill left at the plaintiff's house, on the day it became due. Whereupon the plaintiff sent his servant to call on the defendant, to pay him the said sum of t lo and take uj) the said bill; which was done accord injj;ly. That another bill was drawn as follows: — ''Leicester, 1st February. 17(!1. Sir, six weeks after date pay ^Ir. Ko^a-rs Ruding or order forty pounds, value received, for Mr. Thomas Plou<;hfor; as advised by. Sir, your humble servant, Benjamin Sutton. To Mr. John Price in Bush-lane, Cannon-street, London." That this bill was indorsed, *'R. Ruding, Thomas Watson and Son. Witness for Smith, Right and Co." That the plaintitT accej^ted this bill, by writing on it, "Accepted John Price;" and that ])huntilT wrote on the back of it: "Messieurs Freame and Barclay, pray i)ay forty pounds for John Price." That this bill bcMUg so accepted was indorsed ti» the defendant for a valuable consideration, and left at his bankers for payment; and was paid by order of the plaintiff, and taken up. equitable incunibrance, of which he had no notice at tiiiu' of purchase, could, on such suit l»cin<,' hrou^'ht, ^o into equity and secure order j)crniitlin;; him to retain sullicicut from amount due to dischar<.'e the incuml)rancc. See also Bowan v. Thrall (IS.'JO) 28 Vt. :iH2. "He who purchases a tract of land, knowing' tlic title to he defective, takes the risk upon himself. Alexander r. Kerr, 2 Kawle, 00; Walker r. Qui^, •> Watts 90."— Rohr v. Kindt (184-2) :i W . i S. afi.'l, nfifj. S. C. 30 Am. Dec. 5:{, and note; and nee Caswell r. .ManufiH-turin;; Co. (1817) 14 .Johns. 4r).'{. As to the necessity of an eviction, either as a defence to suit for j)urchase AUinvy, fir as an essential for recoverinj^ purchase moiu\v jiaid, see l'ri>l>ce r. HoJTna^de (1814) 11 .Johns. .'50; Vihliard r. .Johnson (IHiil ) l!» .Inlms. 77; Whitney v. Lewis (18;j!l) 24 Wend. i:n. F'or discussions of question of danui;,'es for hrcacli of cnvcMant to convey, see Flureau r. Thornhill (1770) 2 Wm. Hlack. 1078; Main r. Kother^'ill (1874) L. R. 7 H. I.. I.'i8: Kirkpatrick v. Downing (1874) 58 Mo. :12 ; S. C. 17 Am. Rep. 078 antl note; also notes in ."ia Am. Hep. 008-014; :{!» .\m. Der. .'iO ; and an article hy Washburn in 11 Alb. L. J. 280. As to what satisfies a c«)nfract to convey in fee, sec I''uller v. Hubbard (1820) Cowen, l.'J, S. C. 10 .Xm. Dec. 42.'J, and note; or it contract to convey a gnoil title, Tinncy v. Ashley (18.12) If) Pick. 540. S. C. 20 Am. Dec. 020 and note; Demesmey v. fJavelin (1870) .SO 111. O.T ; and see 2 llilliard. Vendors 39 rt acq., and note on pa^e 40; n«)te 11 .\m. Dee. .'{4; or a conlract to convey nil one's ri^ht, title, and interest. .Ii>bn>«on r. Tord (18.'{:{) 1 Dana. 470. S. C 26 Am. Dec. 102 and note.. An;di'n, N'endors, .xiii, sec. ii. — Ed. CIIAl'. 1 1. J PHICK V. NKAL. 485 Both these billsjwere forged by one Leo, who has l)een since hanged for forgery. The d efendan^Xcal iiotcd innocciiitlv and bona fide, wit hout the least privity or suspicion of the said forgeries or of either of them; and paid the whole value of those bills. The jury found a verdTc-f for the plainuff, and assessed damages £80 and costs 40s., subject to the opinion of the court upon this question, — "Whether the plaintiff, under the circumstances of this case, can recover back from the defendant the money he paid on the said bills, or either of them." Mr. Stowe, for the plaintiff, argued that he ought to recover back the money, in this action, as it was paid by him by mistake only, on supposition "that these were true genuine bills;" and as he coidd never recover it against the drawer, because in fact no drawer exists; nor against the forger, because he is hanged. He owned that in a case at Guildhall, of Jenys v. Fawler et ah, 2 Str. 94G (an action by an indorsee of a bill of exchange brought against the acceptor), Lord Kaymoxd would not admit the defendants to prove it a forged bill, by calling persons acquainted with the hand of the drawer to swear "that they believed it not to be so;" and he even strongly inclined, "that actual proof of forgery would not excuse the defendants against their own acceptance, which had given the bill a credit to the indorsee." But ho urged, that in the case now before the court the forgery of the bill does not rest in belief and opinion only, l)ut has been actually proved, and the forger executed for it. Thus it stands even upon the accepted bill. But the plaintiff's case is much stronger upon the other h\]\ which was not accepted. It is not stated "that that bill was accepted before it was negotiated;" on the contrary, the consideration for it was paid by the defendant before the plaintiff had seen it. So that the defendant took it upon the credit of the indorsers, not upon the credit of the plaintiff; and therefore the reason, upon which Lord Raymond grounds his inclina- tion to be of opinion "that actual proof of forgery would be no excuse," will not hold here. ]\rr. Y^afes. for the defendant, argued that the plaintiff was not entitled to recover back this money from the defendant. He denied it to be a payment by mistake, and insisted that it was rather owing to the negligence of the plaintiff, who should have inquired and satisfied himself, "whether thu bill was really dra^\Ti upon him by Sutton, or not." Hen^ i>j no fraud in the def(Midant, who is stated "to have acted innocently and hmm fide, without the least privity or suspicion of \ho forgery ; and to have paid the whole value for the bills." Lord ^lAXsriELD stopped him froMi sjning on. saving that this was one of those cases that could never be made jdainer by argument. 48G PRICE V. NEAL. [BOOK II. It-isan action upon the case for money had and received to the plaintiffsu??: In uJiielritction, the plaintiff cannot recover the mOTic}-, unlf^s it he against conscience in the defendant to^f^iin it^; and fTTcat liberality is always allowed iii this sort of action. But it can never be thought unconscientious in the defendant, to retain this money, when he has once received it ujjon a bill of excTianffe indorsed to hira for a fair and valuable consideration, whicJi he had bona fide paid without the least privity or suspicion of any forgery.* Here was no fraud ; no wrong. It was incumbent upon the plain- tiff to be satisfied "that the bill drawn upon him was the drawer's hand," before he accepted or paid it ; l)ut it was not incuml)ent upon the et\veen parties thus equally innocent and eqiially deeeived. hut where one is hound to know and art ufion his knowlcd^re, and the otlier has no means of knowled^je, Hhould he thrown upon the latter in exoneration of the former. The safest rule for the eommereial ptddie, as well as the most consistent with justice is to allow the loss to remain where, by the course of business, it has been placed." — C'ommercial A Farmers' Nat. Bank r. First Nat. Hank (IRfiR) .lO Md. 11, 22. "The f>laintin', in fact, never asked to see the draft, but of his own accord paid it without siyht. If ne>;lit.'ence is charp-able to eitlier party, it is clearly with the plaint ifT in payin;.' the draft under such < ircumstances. Hut if. in this respect, the parties stand on an e(|iiiil fnotin<.'. then the loss must fall upon him who has paid the money rather than ujxrn him who has received it, Itoth parties aelin;j in {.'"od faith. In the fJlouccHter Hank r. Salem Hank, 17 Mass. 41, a. ease in principle like the one at bar. Pahkkr, .1., in ctwecn two persons having ixpial efpiities, but will let the loss lie where it has fallen. It will certainly be a Hati>4faction to the writer, if he has helped tf» vinciuenci' of it. given credit to the paper. In all such cases, either of acceptance or payment, the foundation uj)on which the drawee is made to .suffer the loss, is the imputed negligence in accepting or paying, until he has ascertained the bill to be genuine; and, in ca.>*e of payment, notwithstanding lu- has done it in mistake, and parts with his money without receiving the supposed equivalent, and notwithstanding the holder has ol)tained the money without consideration, the former cannot be relieved from the con- sequence of his negligence at the expense of the lattcT, and the latter may in e H. (S: C. 902. In that case, as in Smith v. Mercer, the payment was made by the bankers of a supposed acceptor, aiul the forgery was discovered and notice given the next day.- As there were indorser- "'Thcro JH nothin;; in the tliHtinction made l>y iho (•(iiirt in this case (Wilkin- son r. .Johnston) aw tc tin- diircrfncj' liotwocn payment by payor for honor, and paj'nicnt by ordinary drawro." ^lrt. note of Mr. Amos. When' the holder of a note with a p-nuine endorseinont of tlie payee, known to the lioliler as an iu-<-rnniiio(hition endorser, aecepted in disdiar^'e and pay- ment of tliat note, when it he<'anie due. a second note made in tlie same way between the Hanic parties, but on wliicli the maker luid forced tlie name of the payee, he (the holder) was perniittetl to ro<'over af^inHt the payee on the first endorsement. Allen r. Sharpe (1H71) :{7 Ind. 07. In Stephenson v. Mount (1K«17) !!• I.a. .\nn. 205, the payr)r for honor, of a toTfif^l e of business has plaeed it." And he very reasonably con- cludes, that "it would seem to be a i)rincii)le of natural justice, that where a loss has happened he, throuj^h whose nu-ans it haiij)ened, should sustain it, althoujxh innocent, rather than he who is not only innocent, but wliulli/ without iiiipulation of neyliyence." In Levy v. The Bank of the Tnited States, 4 Dall. K. 'i'M, and Bank of St. Albans v. Farmers' and Mechanics' Bank, 10 Verm. R. 141, the payment was made upon a check, purporting to be drawn by- a depositor upon the plaintiifs. In the first case, the fortjery was de- tected and notice ^nvcn on the same day, and in the other, not until after the expiration of two months; and in Imth. the right to retain the money was sustained. While the fi"st case is certainly question- able, the last may have Invn correctly decided. The Canal Bank v. The Bank of Albany, 1 Hill, 287, was the case of a forged indorsement of the payee, and the money |>aid by the drawees was recovered l)a(k ; although the forgery was not discovered for two months after the i)ayment, and tlie remt'dy against other in- dor.sers was lost. We do not cite this case as bearing directly upon the (piestion under discussion, as it is well settled, that ))ayment by the drawee does not in- volve an admission of the genuineness of the signature of any indorser* ; if it can be doubted tbat the time l)i)tli for the noticf jiikI ri'tiini is a reason- nbb- time."— Rich r. Kelly (1858) W I'a. SI. f)!'?. ;"):!(); iind sec n«.te to Hull v. Bank, infra. — Ki). •See Bobbett v. Pinkett (1870) 1 Kx. Div. .{(is ; Indiana National Hank r. Hattrtclaw (1884) J»8 Ind. 85; Buckley r. Second National Bank (1872) 35 N. J. 400; Kleinwort, Sons & Co. r. Coniptoir National, etc. (18»41 2 Q. B. l.J7; Fine .\rt Society r. I'nion Bank (188r.) 17 (.'. B. 70.".. ".\nalanous to the forf,'ed endoi»enicnl cases are those where tlie defendant buys, under a forf,'ed power of attorney, a st(K-k certilicate. which he surrenders to the company and takes a new certificate in his own name. The tith" of the true owner is not afTecteu<' a fresh certificate to the latter, but wouhl tlu-n, of course, be eiititlcil to have the second certificate delivered uji. The loss would fall on the itniocent i)urchaser. Metropolitan Saving's Bank r. Mayor (1884) tl.J Md. (i ; Sinnn r. .Xn^'loAmer- ican T.!ci.'ra|di Co. ( 187») L. U. 5, (). B. 0. 1H8. The < ase of Boston, etc., R. R. Co. r. Richardson (188.'{) 135 Mass. 273, went loo far in char^Mii^c the innocent purchaser as a warrantor. If. apiin. the innocent purchaser had paid his money on the strength of the new certificate, the pcar to be unsdund, and the conclusions drawn from them cannrtt therefore be sustained." Bernheimer v. Marshall & f'o. (18.-|8) 2 Minn. 7H. See also contra Leather v. Simpson (1871) L. R. 11 Equity 'MH. .Jolinston r. rommercial Bank (1885) 27 W. Va. 34.3— Printed po.st. — Ed. CHAP. II.] ELLIS & MORTON V. OHIO LIFE INSURANCE CO. 499 payment of bills and cheeks. For myself, I must be permitted to say, that I can see very little foundation in principle for this opinion. The ground upon which the drawee is denied the right to correct the mistake originating in his own negligence, is the prejudice arising to the holder from making payment instead of suffering the paper to be protested. 1 do not say this prejudice must be athrmatively proved; the law may, in many cases, presume it. But where the only prejudice which the party could sustain would be the loss of remedies against other parties, and when the law by its own fixed rules determines that those remedies remain unimpaired, I think no such presumption can arise. And such is not only the opinion of Mr. Chitty, but he thinks it the fair result of the modern English cases. After alluding to the grounds of the contrary opinion, he says: "But, on the other hand, it may be observed, that the holder who obtained payment, cannot be considered as having altogether shown sufficient circumspec- tion; he might, before he discounted or received the instrument in payment, have made more inquiries as to the signatures and genuine- ness of the instrument, even of the drawer or indorsers themselves; and if he thought fit to rely on the bare representation of the party from whom he took it, 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 considerations have influenced the court in determining, whether or not the money shall be recoverable back." To this may be added, the repeatedly expressed opinion of the courts of New York. \Ye pass without any remark, or the expression of any opinion, the claim of the plaintiffs, that, as the defendants were confessedly liable, under the custom, to return the money for one day, as there were no parties upon the paper to be made liable by notice of nonpayment, and as the money was irrecoverably gone before the check was pre- sented, unless recovered from the forger, whoso liability still con- tinues, the failure to give notice until the forgery was discovered, did not, in presumption of law, prejudice the defendants, and that it could only operate against the plaintiffs when it was shown that actual loss ensued : and. for the purposes of the case, we yield to the defend- ants the position, that, after the expiration of that day, and after the plaintiffs had the opportunity to examine the signature, they stood upon the same ground as though they had paid on sight of the check. We do not examine these projiositions, because we tliink the case now depends upon much more obvious considerations. Recurring again to the fact, that the plaintiffs gave evidence 500 ELLIS 4 MOHTOX V. OHIO LIFK INSLUANCE CO. [BOOK II. tending to establish a course of business, which reijuiivd the defeud- ants to take tlie first precautionary step for the detection of the forgery, wliich tliey wholly omitted to do, we proceed to apply the principles, deducible from the cases referred to, to that attitude of the controversy. Viewed in that light, the case is most clearly within the principle upon which Wilkinson i*. Johnson was decided. In that case, in consequence of the relation of the parties, it became the duty of the holder to exercise active diligence to ascertain the genuine- ness of the bill. In this case, a like obligation arose from the course of business i)etw(.'en the parties. In this case, as in that, the attention of the plaintitfs might be "reasonably lessened," under the supposition that this obligation had been regarded. And while it is true, here as there, that the plaintiffs ought to have satisfied themselves of the genuineness of the check before making payment, yet the fault "was not wholly and entirely their own, but began, at least," with the defendants; and the payment was made, not only "to a person not wholly free from blame," but to one greviously in fault. (^uite as clearly is it within the rule of Chief Justice Parker, re- quiring the loss to fall upon the party to whose "fault or negligence" it can be traced, and that of the supreme court of New York, affirm- ing the general proj)osition, that where the jiarties are equally inno- cent, or e({ually in fault, and money is paid u|)()n a mutual mistake of facts, "in respect to which both were equally bound to inquire," it niJiy be recovered back. In this case, there is every reason to be- lieve, that if the defendants had required the person presenting the check to show who he was, he would have declined tiie ordeal, and it would not have been bought or paid. The loss may, therefore, be traced directly to their negligence. But whether this would have prevented the fraud or not, it is enough that both ])arti('s were bound to inquire, and, allowing both to be in fault, the result is precisely the same. The case of Goddard v. The Merchants' Rank, is full to the purpose; that, in order to bring the drawee within the exception to the rule, which allows money paid under a mistake of facts to be re- covered back, the whole responsibility f)f investigating must be cast upon him by the holder, and, as between them, he must be left in pos- session of every effective means of pro«jecuting the in<|uiry. If the holder iloc-; not see fit to recpiire this, or takes any part of the duty upon himself, or deprives the drawee of any of these means of informa- tion, the ease, in the language of C J. Hudnsov. "is out of the excep- tion, and within the general rule." .Viid in all cases within the gen- eral rule, all the Xew York cases allirm it is sulhcient to give notice when the forgery is discovered. To entitle the holder to retain money obtained by mistake, upon a forged instrument, he must occu|)y the vantage ground, by putting the drawee alone in the wrong; and he must be able trulhftilly to a.-«ert, that he put the whole res|)onsibility ujjon the drawee, and relied CHAP. II.] ELLIS & MOIJTON V. OHIO LIFE INSURANCE CO, 501 upon him to decide, and tliat tlie mistake arising from his negligence, cannot now be corrected without placing the holder in a worse position than though payment had been refused. If the holder cannot say this, and, especially, if the failure to detect the forgery, and con- sequent loss, can be traced to his own disregard of duty, in negligently omitting to exercise some precaution which he had undertaken to perform, he fails to establish a superior equity to the money, and cannot with a good conscience retain it. To allow him to do so, would be to permit him to take advantage of his own wrong, and to pervert a rule, designed for his protection against the negligence of the drawee, into one for doing injustice to him. Nor is it anything remarkable or unusual that such an obligation should arise, from a settled course of business between the parties, or be established by the proof of a custom ; or that the holder should, for his negligent failure to regard it, be deprived of rights which he would otherwise be entitled to demand. Xo court has been more reluctant than this to allow local customs to interfere with the gen- eral principles of law ;^ but to a certain extent, and within certain limits, it becomes absolutely necessary to enforce them, or to disre- gard the implied conditions and understandings upon which parties have dealt. To allow them to operate against third persons, who cannot be shown to have had any knowledge of their existence, is one thing; and to hold the immediate parties to the controversy, bound by a course of business upon which they have uniformly acted, or one embarked in a particular business, at a place where it has been found necessary to its safe or convenient prosecution, that a general custom should be observed, under obligations to conform to it, is quite another. Every one engaged in a business, undertakes to bring to it a competent knowledge of its rules and principles; and those who deal with him, have a right to rely upon his having regarded them. The custom which the plaintiff sought to establish, seems to have been one of the most reasonable character. It is a great error to sup- pose, that the drawee of a bill or check is bound to rely alone on his knowledge of the handwriting of his customer or correspondent. The testimony in the case, as well as every day's experience, shows this alone to be an insufficient security, when dealing with strangers and in large amounts, against the ingenuity with which forgeries are now committed. The next most effective precaution, is that of requir- ing the liolder to furnish some reliable information of himself, and of his right to the paper. But when another bank intervenes and takes the check, this cannot be resorted to by the drawee. As between the banks, therefore, the observance of the custom becomes a matter of mutual protection, and saves to the drawee the benefit of this precaution. While the bank taking the check, by its exercise, is consulting its own security, as well as that of the bank upon which 502 ELLIS 1 MOKTOX V. OHIO LIFE INSURANCE CO. [BOOK II. it purports to he drawn, it gets a full ivmuneration for its care, in the reciprocity atrorded in relation to checks drawn upon itself, and taken in like manner. When the defendants purchased this check, they knew full well that it deprived the plaintiffs of the ability to make this part of the investigation, and that it would be paid to them without any examin- ation whatever; and, if the custom really exists, they nmst have known equally well that, in afterwards passing upon the genuineness of the paper, the plaintiffs would have a right to rely, as an important ele- ment in forming a conclusion, upon the supposition that the defend- ants had made the investigation, and were satisfied with the result. And, while it may i)e very true, that they did not warrant the genuine- ness of the checks, in the package which they presented for payment ; yet, in the event supposed, they did what was equivalent to affirming — that they had checks for the amount they asked, received from per- sons either known to them, or of whose identity and honesty they were satisfactorily informed. But the short answer to all this, made b}(»counsel for the defend- ants, and adopted in the superior court, is, that negligence alone, however gross, and however injurious to the plaintiffs, cannot affect the defi-ndants; that unless they "have been proved to be complicated with the fnmd by which the plaintiffs have suffered, they cannot l)e held to refund the amount that has been paid to them." And they very correctly say, that there was no proof of any such fraud or complicity in the forgery. This position is grounded upon the author- ity of several recent English decisions, in relation to the proof neces- sary to impeach the title of a holder of negotiable paper, in conflict with many earlier cases in that country. Gill r. Cubitt, 3 B. & C. 400, was the case of an accepted bill, whifh had been stolen, and was afterwards discounted by the plain- tiff (a broker) without knowing the name of the holder, though his features seemed familiar, and without asking any questions as to his right to the bill. C. J. Ahuott left to the jury the question, "whether the plaintiff took the l)ill under circumstances which ought to have excited the suspicion of a prudent and careful man?" and he put to them this very significant in(juiry, what they woidd think of a sign like this: — '^liills disrountrd fur jirrsotis whose frnturrs are famiUar, and no f/uesiions a.*iked." The defendant had a verdict, and the court refused to disturb it. This decision was followed in several subse- quent cases; until at length, in Crook r. Jadis. 5 B. & Ad. 911, which was also thfr case of an accepted bill, fraudulently put in circulation, Lord Dknman told the jury to find for the ])laintifT, "if they thought he had not been guilty of grosx negligence in taking the ])ill ;" and his ruling was sustained by the whole court. This case, again, governed several others; until, in Goodman i\ Harvey, 4 Ad. & Ell. 870, Lord Dknman and his as.sociates took another step, and held, CIlAl'. II.] ELLIS & MORTON V. OHIO LIFE INSURANCE CO. 503 that "gross negligence only could not be a sufficient answer, where the party has given consideration for the bill. Gross neg- ligence may be evidence of mala fides, but is not the same thing." And they add : — "We have shaken off the last remnant of the con- trary doctrine." It is not a little remarkable, if these cases can properly have so commanding an influence upon the question before us, that they should not have been alluded to, either by the court or counsel, in any of the cases to which we have referred. They present an im- portant question, and, when it shall properly arise, one which will deserve careful attention; but, in the decision of this case, we re- gard it alike immaterial, whether the rule of Lord Texterden, or the first impression, or "sober second thought" of Lord Denjian, is adopted. They were all actions brought upon genuine bills, either stolen, lost, or fraudulently negotiated; and the rule which governed them all, has its foundation in that public policy which fosters the circulation of bills, as a medium of exchange, answering the pur- poses of currency. But the law has shown no such anxiety to facilitate the circulation of forgeries. On the contrary, however innocent and careful the holder may have been, if he is obliged to trace his title through a forgery, the instrument is a nullity in his hands. Before any encomiums can properly be passed upon the peculiar and happy adaptation of the bill of exchange for circulation, or any foundation can be laid for insisting that the title of the holder shall not be af- fected by anything that may have attended its private history before reaching his hands, — a bill must exist, of which title may be predi- cated, and to which such considerations may be referred. We do not say that every name appearing upon it must be genuine : but there must at least, either at its inception, or coming upon it afterwards and impliedly warranting the previous signatures, be some one liable to pay it before it acquires the character of a bill, in any respect or for any purpose. The rule insisted upon, is a rule alone applicable to the protection of hfjal titles, and to the instruments liy which such titles may be acquired, and to no other. What title did the defendants get when they took the paper appearing in this case? Certainly, none. It was as perfect a nullity as though no word had been written upon it. No one appeared to be liable upon it but the drawers, and their names were forged. Even the felon, although liable for his fraud, was not liable as a party to the paper. With exactly the same propriety could a plea of purchase, for a valuable consideration without notice, be sustained upon a forged deed, as this rule applied to a paper of that description. If the defendants are entitled to retain the money, it is upon a different principle, resting upon different considerations, and with other and different objects. Confessing the nullity of the paper as a muniment of title, they must stand upon their interest, to know 504 ELLIS 4 MORTON I'. (JllIO LIFE INSURANCE CO. [BOOK II. it at the earliest moment, and their riglit to exact the information from the plaintilfs, when it was presented for payment. Tlie negli- gent omission of the plaintilfs to discharge this duty, resulting in injury to the defendants, lies at the very foundation of the rule, which subjects them to the loss and allows the defendants to retain the money. But it would indeed be singular, if the one party could be visited with consequences so severe, upon the mere legal imputation of negligence and injury, and the other stand wholly unaffected for their negligence, however gross and injurious it might have been. As was said, in the Bank of Commerce r. The Union Bank, "the plain- tiffs' right of recovery rests on equitable grounds;" and,, in our opin- ion, they place themselves uj)on the highest equitable ground for a return of the money, when they show that it was theirs, that they parted with it by mistake, and without consideration, upon a forged instrument which the defendants, by their negligent disregard of duty, had contributed to induce them to act upon, as genuine. In the forum of conscience, it is true, there may be a wide difference between intentional injuries and those arising from negligence. But no man operates quite as absolutely in this world as though he was the only man in it ; and the very existence of society depends upon compelling every one to pay a proper regard to the rights and interests of others. The law, therefore, proceeding upon the soundest jjrineiples of moral- ity and public policy, has adapted a large number of its rules and remedies to the enforcement of this duty. In almost every depart- ment of active life, rights are in this manner daily lost and acquired, and we know of no reason for making the commercial classes an exception. The necessity for care and caution on tlie part of those who use bills and checks, to prevent injury to those upon whom they are drawn, is strikingly illustrated in another class of cases, which turned upon a principle very analogous to the one that we have applied to this. As a general proposition, it is perfectly well settled, that pay- ment upon a forged cheek or order cannot be charged by the party pay- ing, against the i)arty })urporting to have drawn the paper; but the latter will be entitled to recover the money intrusted to the former, however innocently or with whatever caution the payment may have been made. Hall v. Fuller. r> B. & C. 7r,() ; .Tohnson r." Windle, 3 Bing. X. r. '>'i:>: Hobert.s r. Tucker, 12 Q. B. r^OO. But vet. in Young r. Orote, l Bing. 2r)3. whore the customer had entrusted iiis wife to fill up checks in his absence, and this had been 8o inartificially and carelessly done, as to be easily changed from £.10 to £,^'}(), the banker was held entitled to a credit for the larger sum. In the very recent case of Orr r. The Union Bank of Scotland, in the house of lords (20 Eng. Law ^ K(\. Bep. 1), Lord Chancellor Chavwortii. in speaking of tlie general rule, and of the exception engrafted uj>on it by this case, says: "The decision went on the CHAP. II.] HARDY & BROS. V. CHESAPEAKE BANK. 505 ground that it was the fault of tlie customer; the l^ank had been de- ceived. The principle is a sound one, that when the customer's neg- lect of due caution has caused his bankers to make a payment on a forged order, he shall not set up against them the invalidity of a document which he has induced them to act on as genuine." We have thus, at much greater length than was intended at the outset, stated our views of this case. We have nowhere doubted the wisdom or policy of the rule, which allows an innocent holder to require the drawee to pass upon the signature of the drawer, and makes him responsible for the decision he makes; nor the justice of permitting the former to retain the money received upon a forger}', when some one must suffer by the mistake. But we must be better informed than at present, before we shall be able to perceive the justice or propriety of permitting a holder to profit by a mistake which his own negligent disregard of duty has contributed to induce the drawee to commit. Should the plaintiffs be ultimately able to satisfy a jury of the state of facts which their evidence before conduced to prove, tbey would, in our opinion, have established a clear right to recover. Judgment reversed and came remanded. Thurmax, C. J., and Swax, J., dissented.^ Ix Flardy & Bros. v. Chesapeake Banl (1879) 51 Md. 562, 585, Alvey, J., delivering the opinion of the Court, said: "1. It is now perfectly well settled, that the relation between banker and customer, who pays money into the bank, or to whose credit money is received there on deposit, is the ordinary relation of debtor and creditor ; and that when the liank receives the money as an ordinary deposit and gives credit to the depositor, the money becomes the funds of the bank, and may be used by it a.s any other funds to which it may be entitled. It is accountable for the deposits that it may receive "'To the same effect, Nat. Bank ?•. Banps. lOG :Mass. 441; Danvers Bank r. Salem Bank, 151 Mass. 280; Pcoplo's Bank r. Franklin Bank. 88 Tenn. 299; Rouvant v. San Antonio Bank, 63 Tex. 010. The French law is the same. 2 Par- dcssus, Cours de Droit Comni. (3 ed.). § 50.5: 2 Bedarride. Lettre de Change (2 ed.). § 377. ''But see contra, Howard r. Mississijijii Bank. 2S La. Ann. 727: Conim. Bank v. First Bank, 30 lid. 11; Salt Bank r. Syracu.«e Inst. 02 Barb. 101; St. Albans' Bank v. Farmers' Bank. 10 Vt. 141. It would not be surprising if the.se last four cases should not be followed even in the jurisdictions in which they were decided." Ames, "The Doctrine of Price r. Neal." supra. Of course, while drawee must know drawer's sijjnature, if the drawee is misled by the bad faitii or negligence of the holder, he may recover from the holder. First National Bank v. Richer (1874) 71 111. 439. Bigelow, Bills, Notes and Clioques, 225. — Ed. 506 JOHNSTON r. COMMERCIAL BANK. [BOOK II. as debtor, and in respect to ordinary deposits there is an implied agreement between the bank and the depositor that the checks of the latter will be honored to the extent of the funds standing to his credit. Ilorwitz r. EUinger, 31 Md. VJ2, 503; Foley v. Hill, 2 C. & Fin. 28; Thompson r. Kiggs, o Wall. W3\ Bank of thf Kepul)lic r. Millard, 10 Wall. 152, 155. TlK-re is no f the one paid is no defence. Corn Kxiiian^'e Hank r. Nassau Hank (1883) 1»1 N. Y. 74. Hut a iianker is not lield to a knowled>;e of the si^mature of a drawer, a depositor, when he discounts the bill. Fuller r. Smith (1824) 1 C. Si P. 1!>7. "The liability of the banker, however, for a loss occasioned l)y neglect, to exercise such vigilance, is conflru-fl to the maker alone. So far as other i)artie!i through whose hands un altered clu-ck passes are concerned, they have the same CHAP. II.] JOIIXSTOX V. COMMERCIAL BANK. 507 been signed bv said B. R. John.^ton, payable to the order of Philip Metzner, and ne^n)tiated l)y said bank, and after maturity paid by said supposed maker, who afterwards discovered that his signature thereto was a forgery. The declaration contained the common counts in assuwpsit, no special count. The defendant demurred to the declaration, which demurrer was overruled, and the defendant pleaded non-assumpsit. The case was tried before a jury and verdict was rendered for the plaintiff. The defendant moved to set aside the verdict and grant it a new trial, which motion was overruled, and judgment was entered on the verdict. The defendant took a bill of exceptions to certain rulings of the court, which bill certifies all the evidence in the case.^ Under these circumstances can the defendant, the Commercial Bank, be required by law to pay back the money so paid on said forged note ? The leading case on the subject, so regarded in all the l)Ooks, is Price V. iSTeal, decided in 1763, 3 Burr. 1354. It was an action on the case brought by Price against Neal, wherein Price declares that the defendant, Xeal, was indebted to him to £80 for money had and received to his, plaintiff's, use, and damages were laid at £100. It was proved at the trial, that a bill was d^a^^'n as follows :- In Smith v. Mercer, 6 Taunt. 76 (IE. C. L. 312), the defendant took a bill accepted payable at the plaintiffs', who were the drawer's bankers and endorsed it to their, the defendants', agents, to whom the plaintiffs paid it when due, and seven days after sent it as their voucher to the drawee, who apprized them, that the acceptance was forged. It was held by three judges, Dallas, Heath and Gibbs, C. J., against Chambre, J., that the plaintiffs could not recover from opportunity for dotocting framlult'iit alterations in the body of the check that the banker has, and as to them, after payment, he is responsible only for the genuineness of the maker's signature. Bank of Commerce v. Union Bank, 3 N. Y. 230. The principle stated in White v. Continental Bank, 64 X. Y. 316; Marine National Bank t\ National City Bank, 59 N. Y. 67, and kindred cases, that the drawees of a check or bill are held to a knowledge of tlie signature only of their correspondents, the drawers, and not for a want of genuineness of the body of the instrument, applies only between them and such other par- ties as have equal ojipnrtunity of inspection, and equal means for determining the existence of an alteration. Such parties take the paper relying solely upon the reputed responsibility of their transferers and the other parties to it. and its apparent genuineness, and they therefore deal in it at their peril. They have no duty to perform in respect to it except that of guarding their own in- terests, and in buying and transferring it to others they take the risk of loss occurring from fraudulent alterations."' — Crawford r. West Side Bank (1SS5) 100 N. Y. 50, 54.— En. 'A part of the opinion giving details of the transaction, matters of evidence and jury charges refused, has been omitted. — En. ■The learned Court here quoted in crtoiso from Price i\ Neal. atitc. — En. 508 JOIIXSTOX V. COMMERCIAL BANK. [BOOK II. the defentlants the amount which they had thus paid tluMu on the forged acceptance. Dallas, J., said: "And though the facts are not precisely tlie same, I think tlie case of Price v. Neal, 3 Burr. 1354, and 1 Bl. 390, furnishes a rule, which ought to govern the present." GiBBs, C .!., said: "A narrow and particular ground is with me conclusive in this case. If the acceptance had heen genuine and the plaintiffs had refused payment, the defendants had their remedy against the supposi', referred to by Judge Allen was a dissenting opinion from the majority of the court, who he evidently thought were in that ca.se, "frittering away" by an exception to the general rule, and thus overthrowing "valuable and well-settled prin- ciples of commercial law." To the same effect is Stout v. Bennett, 3!) Mo. 277; Young & Son t\ Lehmon, Darr & Co., (;3 Ala. 519; Bernheimer v. Marshall & Co., 2 Minn. 78, and Hoffman & Co. v. Bank of Milwaukee. 12 Wall. 181. I will now refer to some cases cited by counsel for j)laintifr, the defenthint in error. The case of Goddard v. Merchants' Bank, siiprn, was a case in which it appeared that a forged l)ill purporting to be drawn by a bank in Ohio was presented to the drawees in New York and payment H'fused on Sntiinldii for want of funds of the drawer. On }foii(hni following the plaintiff on being informed of the matter, called at the office of the notary, who had the bill for protest and notice, and left his check for the amount in order to take up the bill for the honor f»f the drawers. In conse(|uence of the absence of the notary from hi8 oflice he did not see the bill, but left word to have it sent to his place of business. The notary on the same dav delivered the check over to the holder of the bill but did not send the bill to the plaintifT. The plaintiir called airain the next dav at the olVice of the notary and on Ix'ing shown the iiill a.scertained and pronounced it to be a ff)rg('ry. It was held by a majority of the court. Hi'ogles, Judpe, and Jewett, Judge. (liM>eiif ijig. that under the circumstances the plaintilT was not chargeable with negligence, and that he was entitled to recover the CHAP. II.] JOHNSTON V. COMMERCIAL BANK. 513 rnoncy ho had paid on the ground of mistake. To the same effect is Canal Bank v. Bank of Albany, 1 Hill, 287. The case of Lawrence ct al. v. American National Bank, 54 N. Y. 432, only lays down the general rule, that money paid under mistake of fact may be recovered back. That this is the general rule is nowhere doubted. In National Bank of Commerce v. Banking Association, 55 X. Y. 211, it is h.eld that a bank is not bound to know the handwriting or genuineness of ihv (illing up of a check drawn upon and paid by it. It is legally concluded only as to the signature of the drawer and" its own certification; therefore, when a bank has paid by mistake to a bona fide holder of a certified check, which after certification had been fraudulently altered by raising the amount, it can recover back the amount thus paid, unless such holder has suffered loss in con- sequence of the mistake. It is also held in this case that a mistake in recognizing a forged instrument as genuine is binding only when the forgery is such that it ought to have been discovered by a bare inspection of the instrument without reference to anything outside of it, not even to is himself at fault or has been guilty of fraudulent practices, which may have thrown the drawee off his guard. Welch V. Goodwin, 123 Mass. 71, seems to have boon decided without much consideration, and virtually overruled Gloucester Bank v. Salem Bank, 17 Mass. 33. without noticing it and without referring to one of the many authorities we have cited. Lord, Judge, said: "The question which we are called upon to decide is, whether under any circumstances, a party may recover hack money upon a security being a forged signature of himself, supposing it at the time of payment to be his genuine signature. We can have no doubt that he may. This is entirely clear in case he was induced to make the pay- ment by fraud or misrepresentation. Nor is it necessary that fraud or misrepresentation should exist. An innocent mistake whether arising from natural or tomporarv infirmity, or otherwise made without fault on his part, entitles him ir('mis(\s. It does not appear that the assessment on lot 27 was, in fact, cancc^lbvl of record, or that the evidence that the lien was discharged, authorized to be given by section 16, chapter 579 of the Laws of 1853, was required or was furni.shed. If an entry was made of its ]>ayment, no reason is shown why, upon discovering the mistake, it might not have been corrected, and the collection enforced against the person liable to pay the a.ssessment, or upon his default, by a sale of the land in respect to which the asse.«wment was made. It does not appear that there has be«'n any change of title to lot 27, and the rights of snbsecpient pur- chasers are not in question. The plaintiff did not intend to discharge the liability of fhe owner of that lot when he paid the assessment, and altliough the money was received by tlie city in discharge of the assessment on lot 27, it could, on being apprised of the mistake, have returned the money to the plaintiff, and been restored to its original position.' The Mayor v. Colgate, 12 X. Y. 140. Mn Curncn v. Mayor (1880) 70 N. Y. 511, .'il.'). Danfortii, I., in connnrnt- injf ujM»n tin- ciiHt', nnyH: "And it may well Im- tliat if it luui tlirn* :i|)|H'arc(l that aftor the miHtnkrn payment tlir property aHSpHspd had pawHed into the handH of one htiyine 5" ^ood faith, and for value, and that the perHon aHHesned had Iwrome inHoh'ent Hinre the payment, the defendant would have been per- mittefl to retain the money." — Ed. CHAP. II.] MAYER V. MAYOR. 517 The city received the money upon a lawful demand, but from a person who was not legally liable to pay it, and we do not find that the circumstance that money paid by mistake is received upon a valid claim in favor of tlie recipient against a third person prevents a recovery back, provided the claim against the party who ought to pay it is not thereby extinguished or its collection prevented. 43 X. Y. 452 ; 14 id. 433. The claim is made, on behalf of the city, that the money collected on local assessments is not collected for the benefit of the city, or received into the treasury for its use; and that the city in making local improvements acts for the benefit and in behalf of the owners of the land on which the assessment is made. The paving of streets, the construction of sewers, and works of like character within the city, are spoken of as local improvements, but they are instituted l)y the corporation, and are public improvements as strictly as any other improvements undertaken by the corporation. The statute, in view of the special benefits which are supposed to result from them to the owTiers of lands near which they are made, imposes the expenses incurred in making them in whole, or in part, upon the property within the district specially benefited. But the work is a public work. The city contracts for the performance, and, by chapter 397, Laws of 1852, and subsequent statutes, is authorized to borrow the money upon its bonds to pay in the first instance the expenses incurred in prosecuting it. The city treasury is entitled to ultimate reimburse- ment from the owners of lands which may be locally assessed, and, upon their default to collect the expenses, by a sale of the land; l)ut it receives the money collected through local assessments in its own right, and not as agent or depositary, either of the landowners or the holders of the bonds. We are of opinion that no obstacle to the plaintiff's recovery exists, and that the defendant cannot justly claim to retain the money received under the circumstances disclosed. The judgment of the General Term should be affirmed, with costs. All concur. Judgment afprmca.^ >See also Woolley r. Staler (1883) 39 Ohio St. 354. Whenever the consideration fails heeause of a mistake as to the existence of a claim, to extinguish which money is paid, the plaintiff may usually re- cover the amount expended. As where a plaintiff indorsed a bill to the defend- ant on a debt due the latter, but the defendant failed to protest the bill at maturity, thereby discliarf^ing the plaintiff. He afterwards discovered, as he thought, that bill was void for not being stamped as an English bill should be. and the plaintiff, being of the same opinion, paid the defendant the amount of the bill. In reality the bill was foreign and so properly stamped. The plain- tiff was allowed to recover. Milnes r. Duncan (1827) B. «S: C. 071: and see Bell V. Gardiner (1842) 4 M. & G. 11. In Mills 1-. Alderbury Union (1849) 3 Ex. 500. tlie plaintiff was surety for 518 CALKIXS V. GRISWOLD. [BOOK II. CALKIXS I'. GRISWOLD. Supreme C'oiut of New Yuuk, 1877. [11 II till, --ios.] Appeal from a judgment in favor of the defendant, entered on the report of a referee. The action was brought to recover money luid and received by the defendant, which was alleged to belong to the plaintiffs, and also for money alleged to have been paid by the plaintiffs to the defendant Ijy mistake. The defence set up was an accord and satis- faction. The amount claimed by the plaintiffs was over $160. The referee reported in their favor for thirty-four dollars and twenty-two cents only (l)eing twenty-seven and one-half dollars, with interest), and the defendant entered judgment for his costs, less that sum. The essential facts were: On an accounting between the plaintiff and the defendant for a running account and for the purchase of grapes by the former from the latter, as neither party knew the weight of the grapes and crates, they agreed that the weight was 65,600 pounds, and the plaintiff settled accordingly. As a matter of fact the total weight of the grapes was 5o,5)oi) pounds. The plain- tiff sued for excess paid on the false estimate, and also for an over- payment by reason of an error in the mere computation on the first payment.* The referee decided, as matter of law, that the agreement of the tenth of March oj)erated as an aecord and satisfaetion in respect to the .several items included therein, and precluded the j)laintiff from recovering the excess paid on account of the grapes, but that the overpayment of twenty-seven dollars and fifty cents having occurred in con."n"'"f "^ '♦• '•<* "'"* permitted t.. re.nv.r l'"r u «rilire defendant had recovered from one insurance company the full amount of insurance, and then from the plaintitf company the amount of its policy, the whole heinp greater than the value, the i)laintiff was permitted to recover his proportionate amount of the excess. Irving r. Richardson (IS:?]) 2 B. (St A. 19.-?. See also Bruce r Jones (isr.3) 1 H. & C. TOO: Kenny r. Clark- son (ISOO) 1 .Tohn<. .3S;i: Watson r. Ins. Co. (1811) 3 Wash. C. C. 1: Burnand V. Rodocanachi (1S82) L. R. 7 App. Cas. 3.33; Clarke r. Western Assurance Co. (1892) 14G Pa. St. ,"501. So. if one partner sells to another subject to a deduction on a contingencT, which occurred, but of which the partner paying, o\vning to his own negligence, 522 BANK OF OMAHA V. THE MASTIX BANK. [BOOK II. FIKST NATIONAL I'.ANK oF OMAHA v. TllK MASTIN BANK AM) K HUSKY C0ATE8, ASSIGNEE. ClHCUIT COUKT OF THE UNITED STATES, 1880, [2 McCrari/. 438. J This case is submitted to the court for final decision upon an agreed statement of facts, from which it appears that the phiintilT and the Mastin Hank, between July 1 and August 1, 187S, liad maintained a correspondence and account, and had remitted to one another divers sums of money, and also demands, notes, bills, and accounts against third parties for collection and credit. On the twenty-seventh of .\ui:ust, 1.S78, the Mastin Bank, then having a tonsiderahie balance in the hands of the plaintill", directed the plaintill" to remit said balance to the Metropolitan National Bank of New York, to the credit of the Mastin Bank, in even hundnMls of dollars. At the time the books of the phiintitr showed a balanc" due the Mastin Bank of a little more than $8,800; and accordingly the plaintiff remitted to the said Metro- politan National Bank of New York $8,800, to be placed to the credit of the Mastin Bank. Prior to that time, however, the plaintiff had sent to the Mastin Bank for colleftion a draft drawn l>y one Faut for $3,141, whieli said .Mastin Bank had collected on the seventeenth of July, anil ilnly credited the plaintiff on its l)ooks; but the plaintiff by mistake omitted to eharge the said sum to the "Mastin Bank, and therefore sent to the Metropolitan National Bank a larger amount of money than was duo to the Mastin Bank. \ few days after this transaction the Mastin Bank failed and made an a.ssignment to the respondent. Kersey Coates, assignee, under the laws of the state of Missouri, transferring to him all its property and credits of every kind wliatsoever. The assignee demanded and received from the Met- ropolitan National Bank the money held l)y it to the credit of the Mastin Bank, including the .Mim whieb plaintiff had sent to it by mistake, and which it is agreed ainounts, less certain credits, to $l,Hl(;.ti2. Plaintiff, as .soon as advis(»d of the mistake, demanded the return of the money from the Mastin Bank, as well as from the Metropolitan National Bank, and also made the sanu' detmmd upon the assignee after his appointtiient. MfCuAUV. Circuit Judge. The fact is admitted by the agreed state- waH i(fnornnt, lip may rorovor Uw anunint ho paid. r rwovcrotl. Stewart r. Kindol (1H!)0) 15 Colo. 530. — Ki). CIIAI'. II. I BANK OF OMAHA r. THE MASTIX BANK. 523 inent that plaintiff sent to tlie Metropolitan National Bank in Xew York, to be ])laced to the credit of the Mastin Bank, the money now in controversy in consequence of a mistake of fact. When the plain- tiff stated the account in order to ascertain the sum to be sent to the New York Bank, one item thereof was omitted by reason of an error of the accountant, or because the bank had not received notice at that time of the collection, by the Mastin Bank, of the Faut draft. The result of the transaction was that the plaintiff sent to the Metropolitan National Bank, to be credited to the Mastin Bank, more money than was due to the latter ; or, in other words, there was placed in the hands of said Metropolitan National Bank $1,816.22 which did not, in equity, belong to the Mastin Bank. It was, however, placed to the credit of that bank, and after the assignment it passed into the hands of the assignee. As between the original parties to this transaction it cannot be claimed that the Mastin Bank acquired any interest in or right to the money now in dispute. It is a principle of equity too plain to require a citation of authorities to support it, that where one person, by mis- take, delivers to another money or property without consideration, he may recover it back ; and where the identical property cannot be found and recovered, equity permits him to pursue and recover the proceeds wherever he can find them, unless they have pas.sed into the hands of an innocent holder. Where both parties intended the delivery of a particular sum of money, and where, by the mistake of both, a larger sum was delivered, the party receiving the excess becomes, in equity, a trustee for the real owner thereof and bound to deliver it upon demand to him.^ The ground upon which this rule proceeds is, that mistake or ignorance of facts is a proper subject of relief when it constitutes a material ingredient in the contract or acts of the parties, and disappoints their intention by a mutual error, or where it is in- consistent with good faith, and proceeds from the violation of the obligations which are imposed by law upon the conscience of either party. It is equally clear that the plaintiff has a right to relief against the assignee wiio claims by a general assignment under the laws of Mis- souri, for the reason that the assignee is deemed to possess the same equities only as the debtor himself would possess. It is my opinion that upon the principles of equity the plaintiff is entitled to recover the sum of money in controversy in this suit, and decree will be entered accordingly. 'Conf. T'tica Hank v. Van Gieson. IS Johns. 435. It was held in I.anih r. Cranfield, 43 L. J. Ch. 408. by Jcssel. M. R.. that the sole remedy for the recovery of money so paid was at law. See. however. Binp- iuiiu r. Uinsham. [(174S) 1 Ves. Sr. 12l)] ; Henderson r. Overton. 2 Yerg. 304: Ncal V. Read. 7 Bax. 334. — Judge Keexer's note. — Ed. 524 IILLL r. liANX Oi' SOLTli CAHULl.NA. [BOOK II. HULL r. BANK OF SOUTH CAROLINA. Court of Ai'1'i;al.s of Soltii Carolina, 1838. [DiuUcij (.S. C), '.>:)!>.] Before O'Xeall, J., at Charleston, May Term. 1837. This action was brought to recover money paid l)y mistake to the defendant. The case proved was that one Ilopton was indebted to tlie defend- ant in the sum of $78. The defendant being informed tluit Hoj)ion ha«l money in the Bank applied to him for a check, and he was told both by him and another ])erson that Ilopton had no funds there. The defendant, however, persisted, and lloj)ton at last gave the cheek, and the defendant receipted his account in full. He presented tin check at the Hank, and it was paid. On the evening afterwards, it was discovered that Hoidon had before the j)ayment of this check drawn out all his funds. The i)ayment was made on the assurance by the Book-keejjcr, that Hopton's account justified it, though he did not refer to the ledger, which would have prevented the mistake. On the ne.xt day notice of it was given to the defendant and he was asked to correct it. and refused to do so. A motion for non-suit was made and dverruled. aneals for a non-suit, on the grounds: 1st. Because the drawer of a Bank check, after the same had been paid on presentment, can have no recourse against the payee. I'd. Because there was no legal evidenci' that the drawer had not funds in the Bank at the time it was presented, and in absence of such evidence the plaintiff had n<> right to recover. 3d. Beoiii.we there was no tender proved of the cheek to the defend- ant, and that having released his account, he was de|)rive(l of the only proof of his debt by the act of the plaintiff. •Ith. Because no credit is given to the payi-e of a check liy the Bank; an«l then' is no privity betwei-n them. ;\nd f«ir a new trial — 1st. BccauHC the judge charged tbr jury that tiie j)l;iintifT was en- ClIAI'. 11. I irULL r. IJAXK OF SOUTH CAROLINA. 525 titled to recover in iiiiv event, except they believed that the plaintiff intended to make an advance to the drawer of the check. 2d. Because the verdict is contrary to the law and the evidence. Butler, J., delivered the opinion of the court. The presiding judge held that if a mistake in fact had been made by the Bank in paying the money, they were entitled to recover it back in an action for money had and received. This question is to be decided rather Ijy authority than general reasoning on the subject. No part of a commercial community is more interested in commercial usages than Banks, and they cannot com- plain when they are required to strictly conform to them. They cannot always guard against fraud and impositions, but they may against mistakes, depending on an inspection of their own books and accounts. Mistakes may be prevented, which cannot be remedied. They accepted and paid the check presented by the defendant, for and on account of llopton the drawer, whose money they had kept for his convenience and accommodation. The privity of contract w'as between them and their customer Hopton, and not between them and one who may have happened in the course of dealing to present a check drawn by Hopton. In the case of Levy v. The U. S. Bank, 4 Dallas, 234, the {plaintiff presented a bill of exchange; the Bank gave the plaintiff credit on the books, believing that the bill was genuine ; the bill turned out a forgery, and the Bank cancelled the credit ; the plaintilf, however, contending that he was entitled to recover the money, because the Bank had duly accepted the papers, and had done that which was equivalent to payment. The principle difhculty in the case was, whether the credit in the books amounted to payment; and it was held by the court that it did, and the plaintiff recovered. It seemed to have been conceded that if the Bank had paid the money, there w^as no doubt of Levy's right to retain it. In the case of Price v. Xeale, 3 Burrows, 1354, the defendant accepted a forged bill ; Lord Maxsfield said it was an established principle that once a drawer of a l)ill had accepted it, he could not refuse to pay; or once having paid it, could not recover it back; unless there was fraud on the ])art of the endorser who procured the acceptance. And in Jeneys v. Fawler, 2 Strange, 94fi, it was held that once a hill has been accepted, it is not necessary to prove the hand writing of the drawer, for the acceptor was liable to the payee. The question in the above cases arose on bills of exchange, and it is attempted to distinguish them from bank checks. A Bank check has all the characteristics of bills of exchange, and cannot be dis- tinguished from them. Indeed they perform not only all the offices of bills, but are more generally used for the transfer and payment of monies. They are mercantile agents which should not be crippled in their daily and hourly operations. Before one reaches the Bank after it has been drawn, it may have paid and discharged many 526 HULL V. HANK OF SOrTH CAKOLINA. [bOOK II. debts, and after it has been accepted and paid, all the intervening holders in general are discharged from all liabilities to the bank; it becomes then a transaction between the Bank and the drawer, the Bank not unfrequently paying the money on checks of the drawer, when in fact he has no deposit. In a note in 1 Camp. 4'^5, checks and bills are both spoken of and put upon the same footing; and it seems to be clearly laid down and settled, that a check once credited in the books of a bank is an acceptance, and subjects the accejjtor to jjayment ; and that when the check has been actually paid, that the Bank must look to the drawer for redress, and not the payee ; G East, 109 ; Co.x r. Masterman, 17 & E. C. L. R. 517. This case is decided entirely as the case made by the presiding judge. For if the plaintifT by fraudulent contrivance procured the check to be drawn, and obtained the payment of it under false pretences, or wilfully and designedly suppressed the truth where he should have told it, he might be held lialde. Fraud contaminates all contracts, and would deprive a payee of a check or bill of all the protection which the law extends to those who act in good faith. This last point of view depends on the facts of the case, which may fairly be considered by another jury, under proper instructions from the court. The motion for a new trial is granted.^ 'In Chambers r. Miller (1802) 13 C. B. N. S. 125. the defendants as draw- ers paid a eheck to tlie j)laintifT as holder. While the plaiiitiir was eonntinj? over tlie irioney, the ea^hier who paid him, havinji discovered tliat the drawer had insullicient funds in the bank to meet the eheek, demanded the money baek, and on the plaintiff's refusal to return it, detained him foreibly until he did, under threat of arrest for stealing'. The court held that title to the money passed to the plaintifl", notwithstanding the cashier's mistake. But where there are two branch banks of the same institution, and a cheek of a dejidsitfir ftf one is paid by the other, the court declined t<> consider this pay- ment witliin the present rule. Woodland v. Fear (1857) 7 K. & B. 510. .\ draft j^'iven in exchanc no re<'overy. Peterwin v. I'nion National Bank (IKOO) 52 Ba. St. 20fl: Martin r. Morjrnn ( IRlO) 3 Mf>f)re C. I*. 035. And it has been licld a fpiestion for the jury whether or not, under a custom which pave a limited time to the bank for rejecting for CHAP. II.] LEATHER V. SIMPSON. 537 In Leather v. Simpson (1871) L. R. 11 Equity, 398, the plaintiff accepted and paid two bills of exchange on the faith of bills of lading, which, it was afterwards discovered, were forgeries. In delivering a decision, denying tlie plaintiff a recovery. Sir R. Malins, U. C. said : "As to the general law of misrepresentation, I do not think it nec- essary to go into it in this case, because the law is perfectly clear, that if the court was warranted in treating this as a representation lack of funds, a check was received as a deposit. National Bank v. Burkhardt (1879) 100 U. S. (i86. Where the question arises between banks operating under Clearing House rules, the plaintill' seeking to recover for bad paper accepted but returned after the time limit fixed by the rules, various considerations have been said to control. In Preston v. Canadian Bank (1883) 2.3 Fed. 179, the court insisted on the strict time limit, refusing a recovery on a check returned fifteen minutes after the limit. In Merchants' National Bank v. National Eagle Bank (1869) 101 Mass. 281 [ace. Merchants' National Bank v. National Bank of Common- wealth (1885) 139 Mass. 513], recovery, on check returned after time, was permitted, the defendant not having changed his position; though the same court in Boylston National Bank v. Richardson (18G9) 101 Mass. 287, under practically the same state of facts, having found laches, refused a recovery. In New York, recovery seems to depend on the laches of the plaintiff and the change of position of defendant. Allen v. Fourth National Bank (1874) 59 N. Y. 12. In England, the unprovisional issuing of a credit slip seems conclusive, where the funds are insullkiont. Pollard r. Bank of England (1871) L. R. 6 Q. B. 023. See note to Cocks v. IMasternian, cited in Ellis v. Ins. Co., ante. For a discussion and criticism of these cases, see Keener's Treatise, 81 et seq. As to when an acceptance may be retracted, see Dearborn National Bank v. Carter Rice & Co. (1890) 152 Mass. 34; Trent Tile Co. v. Dearborn National Bank (1892) 23 Atl. 423. As to the right of a drawee to withdraw a certification once given, the courts are not agreed, though it would seem a witlidrawal may be allowed when the certification was owing to mistake as to the amount of funds, and the defendant has not changed his position. Bigelow, Bills. Notes and Cheques, 69. "The defendant certifi(>d the check in question as being good. The plaintiff took the check in the ordinary course of business, for value and in good faith. There is nothing shown to impeach his title. The cheek turned out to l>e a forgery. It cannot be questioned that the bank is liable to make good its certificate by paying tlie check. Farmers' and Mechanics' Bank r. Butchers' and Drovers' Bank. 26 How. Pr. 1; Price r. Neal. 3 Burr. 1354: Com'l. &c. Bank v. First Nat. Bank, 30 Md. 11. The principle upon which this liability rests is stated by Hoi.T, Ch. J., in Hern r. Nichols. 1 Salk. 2S0. namely, that 'seeing somebody must be a loser by this deceit, it is more reason that he that confides in the deceiver should be loser, than a stranger,' and has become an established rule of law in cases identical with this." — Hngan r. Bank (1872) 64 Barb. 107. And see note in this point in 17 Am. St. Rep. 800. — Ed. 528 LEATHi;i{ V. siMi'soN. [book II. by the Union Bank of London, as if they had said, 'We hold the hill of ladinill of lading' — then if they had so undertaken, and it turned out to be a bad bill of lading, it would have been money obtained on a representation which was untrue; and the rules of this court are settleil. tliat when a representation in a matter of business is made by one man to another calculated to induce him to adajjt his conduct to it, it is perfectly immaterial whether the representation is made knowing it to be untrue, or whether it is made believing it to be true, if, in fact, it was untrue; because every man making a representation inducing another to act on the faith of that representation must make it good if he takes upon himself to represent that which he docs not know to be true, and he is equally bound if he made it without knowing it to be untrue. Therefore, if the memorandum relied upon had amounted to a rc[)resentation that the document was genuine or a guarantee, the conse<|uence would be j)lain that the plaintiffs must have been indemnified by the Union Bank of London, and the money they have received must have ))een returned, because it was obtained upon a rei)resentation which turns out to l)e untrue. If there be a distinction between this case and the cases of Thiedemann r. CJold- schmidt, 1 De G. F. & J. 4. and Robinson v. Reynolds, 2 Q. B. 196, I confess it appears to me to be rather more unfavorable to the plain- tiffs, because in Thiedemann v. fJoldschmidt the money had not been paid, whereas here they elected to pay the money on a rebate of in- terest before the bill became due, which precludes them from saying that it had not arrived at maturity. The |)liiintifT Beach trusted to his own correspondent Shute, tliat he would not transmit anything but a genuine bill of lading. The equities between these parties are equal; the parties are equally innocent in th(> transaction; they have all been imposed upon; but there is this difference, that one of them, by the course of the transaction, has been in possession of the money, and I am at a loss to see any ground upon which I can be justified in making a decree that that money should be restored. I can see no distinction betwi'cn a bill filed to liave the acee|)tance delivered up before it has arrived at maturity, and a bill filed to have the money restored after the bill has arrived at in.iturity. or li:i< been treated as having arrived at maturity, and the ;iniount of it paid. "Upon these grounds I am of opinion that the l»ill fails, and must be dismis.«ed."' TonccTriititr tliis niHi', Mr. .\iiu'h says: "This ;roun(i that ttu- ^ex 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. 18-10, by which he gave his [iroperty equally among.^t hi.'* eight brothers and sist(>rs, of whom (Jeorge Carter was one. This will was proved after his death, which took place in 1847, by John Carter the younger. George Carter being largfly indebted to Stuckey's Banking Conij)any, by deed dated the 15th .lamnirv. 1855, conveyed to the banking company his CHAP. II.] AIKEN V. ELIZABETH SHORT. 531 one-eighth share in the property of Edwin Carter, to which he pro- fessed to be entitled under this will, subject to the charges upon it. George Carter was at that time indebted to the defendant, as execu- trix of Francis Short, in the sura 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 loth 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. In May, . 1855, the bank made arrangements to sell the property. Before the execution of the conveyance one Richardson, acting as attorney for the defendant, applied to the bank for payment of the £200, and interest, stating tiuit he had applied to George Carter, who had referred him to the bank. The bank accordingly, through their attorney, paid to the defendant the sum of £22G 16s. 6d. The bond and instrument of mortgage were handed over by the defendant 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 Edwm 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 defendant's testator, and was attested by him. Under this will George Carter took only an annuity of £100, which ceased upon his making any assignment. The bank then applied to the defendant to refund the £226 16s. 6d. previously paid by them to her, and on her refusal to repay the money brought tlie present action to recover it back. Upon these facts, the learned judge directed a verdict for the plaintiff, reserving leave to the defendant to move to enter a verdict for him. Pollock, C. B. We are all of opinion that the rule must be abso- lute. The case, when examined, is quite clear, and the facts lie in a narrow compass. The defendant's testator. Short, had a claim on Carter, — a bond and a security on property which Carter afterwards mortgaged to the bank. The defendant, who was the executrix of Short, applied to Carter for payment. He referred her to the bank, who, conceiving that the defendant had a good equitable charge, paid the debt, as they reasonably might do, to get rid of the charge affecting their interest. In consequence of the discovery of a later will of Edwin Carter, it turned out that the defendant had no title. 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. 532 IIAKRI.S V. LOYD. [BOOK II. and persons to whom lie was indebted went to an otliee and received instalments of the debts due to them, could the party paying recover back the money if it turned out that he was wronj; in supposin^r that he had funds in hand? The money was, in fact, ])aid by the bank, as the agents of Carter. Platt, B. I am of the same opinion. The action for money had and received lies only for money which the defendant ought to refund ex crquo ei bono. Was there any obligation here to refund? There was a debt due to Short, secured by a bond and a supposed equitable charge by way of collateral security. The property on which Short had the charge was conveyed by Carter to the bank. Short having died, the defendant, his executrix, applied to George Carter for pay- ment 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 (le])tor was actually due to her, and there can be no obligation to refund it. Bk.vmwkll, B. ^ly brother Martin, ])efore he left tlu^ 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 jiaid 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. See Wilson v. Thorn- bury, L. K. 10 Ch. 239. 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 im- possii)Ie to say that this ca.se falls within the rule. The mistake of fact was, that the bank thouglit that they coidd sell the estate for a better price. It is true that if the plaintiff could recover back this money from the defendant, there would l)e no dilliculty in the way of the defendant suing Carter. In Pritchard t'. Hitchcock, (! M. & G. 1.51, a creditor was held to be at liberty to sue upon a guarantee of bills, though the bills had been in fact |)aid, but the money after- wards recovered back i)y the assignees of the acceptor, as having been paid by way of fraudulent preference. But that does not show that the [jlaintilTs can maintain this action, and I am of o|)inion they cannot, havinir voluntarily parted with their money to purcluise 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. Huh nhsolnte. I.\ Ilnrrxs v. Loijil ( \H'.V.)) the plaintiff, a trustee under a trust deed for the creditors of .\. f)aid to the defen conscience of either party. But where each party is equally innocent, and there is no conceal- ment of facts which the other party has a right to know, and no surpri.so or imposition exists, the mistake or ignorance, whether mutual or unilateral, is treated as laying no founilalioii for e(]uitable inter- ference.' Story's K(|. Jur., § 151." CHAP, II. J STEl'liEXS V. BOAUD OF EDUCATION. 535 STEPHENS V. BOARD OF EDUCATION. Court of Appeals of Xew York, 1879. [79 New York, 183.] Appeal from judijnient of the General Term of Supreme Court, in the second jutlicial de})artnient, in favor of plaintiff, entered upon an order overruling exceptions and directing judgment upon a verdict. This action was brought to recover moneys alleged to have been received by defendant belonging to plaintiff. The facts appear sufficiently in the opinion.^ Andrews, J. There is no dispute as to the material facts. On and prior to the 18th of December, 1871, one Gill was a member of the board of education of the city of Brooklyn, and, as attorney for said board, received $3,600.84, the money of the board, which he wrongfully converted and appropriated to his own use. Soon after the date mentioned, he procured from the plaintiff on a mortgage forged by him on the property of a third person $4,129.34 in a check of the plaintiff which on the 21st of December, 1871, he deposited in a bank, to his credit, and on the same day drew his own check on the bank in which the deposit was made, to the order of the board of education for the amount of the money fraudulently appropriated by him and delivered the same to the board, and the board thereupon credited the check to Gill in discharge of his debt. The check was paid in due course, and the money received thereon was used by the board in its business. The plaintiff, about two months thereafter, ascertained that the mortgage received from Gill was a forgery, and then demanded from the defendant the money received from Gill. The defendant had no notice, when it received the check from Gill, of the fraud by which he obtained the money of the plaintiff, nor had it any information as to the source from which the money to his credit in the bank was derived. The first information which the defendant had of the facts in respect thereto was at the time of the demand made by the plaintiff, before referred to. The question is presented whether, under these circumstances, the plaintiff can maintain an action to recover the money received by the defendant from Gill and ap])lied in payment of the debt owing by him to the defendant. We are of opinion that the action will not lie. The money having been obtained by (lill from the plaintiff by fraud and felony tbe former acquired iion a proniis.>Jory note in thi- sum of $10:{. .\[ipellec had sold personal property to Fnglish, and in })art payment therefor had beconu' the owner of his note on app<'llaiit. English owed her a balance over and above the note. .\p[)ellee put this not(! into the |)ossession of appellant, and |)aid him $1'..' in cash. r[)on receiving this note and the $12 in cash, the follow- ing endorsement was made upon tin* $100 note held by ai)pellaiit, viz.: "Wabash, September 7th, 1877. Heceived of Charlotte Wiley one CHAP. II.] LEMAXS V. WILEY. 539 hundred and fifteen dollars in full of this note and interest." This credit consisted of the English note so received by appellant, and the $12 in cash; and they together equalled the principal and interest of the note upon which the credit was so made. After this endorsement was so made, the note containing it was sur- rendered to appellee, and she has held it ever since, and made no offer to return it to appellant. On the same day this note was so sur- rendered, a son of aj)pellee paid to appellant $46.70, which was credited upon the $300 note held by appellant, as follows: "$4«.70. Wabash, September 7th, 1877. Received of James Wiley forty-six and 70/100 dollars." On the next day appellant received of appellee, or of the money due her from English, $78, and the same was endorsed upon the $300 note, as follows: "$78. September 8th, 1877. Received by the hands of C. Wiley seventy-eight dollars, to apply on the within note." Appellee wanted the endorsements made on the notes, so as to show that she had paid tlic money. After the endorsements were made, they wore read over to her. At that time appellee was living upon the land, and there was some talk al)out paying off the mortgage. William Riley, a son of appellee, told her that if the land should be sold she would got her money back. In the fall of 1878, the residue of the $300 note not having been paid, appellant foreclosed his mort- gage for the balance due upon that note, giving credit for the amount endorsed upon it. To this foreclosure proceeding appellee was a party. As we have said, the above are the undisputed facts in the case; they are gathered, in the main, from the testimony of appellee. Appellant testified that all of the money received by him, including the English note, was received as payments upon the notes held by him, and that, in pursuance of such payment, ho surrendered one of said notes to appellee. In testifying in the case, appellee's sons, as well as herself, almost uniformly speak of the payment to appellant. Upon the whole evidence in the case, there can scarcely be a doubt that the note and money received from appellee by appellant were ^aid and received in full payment of one, and in part payment of the other, of the notes held by appellant. It is contended, however, that the testimony of appellee tends to sustain the verdict and make good the averments of the complaint, and that, therefore, the judgment cannot be reversed upon the weight of the evidence. The statements of appellee, other than as contained in the above stated facts, are as follows: "I let him liave the money. At the time I let defendant have the money he held two notes that were due. given by my deceased husl^and ; and when he came he said he wanted money on them, and if he could not get some he would have to foreclose the mortgage on the land; he came with the notes, and I traded notes; nothing was said, par- 540 LEMANS V. WILLY. [liOOK 11. ticular, about paying out the farm; 1 suppose lie wanted money, and 1 paid it lo him; after the endorsements were made he read them over to me, and said tliat it was according to hiw, and that I would get tile money back when it was settled up ; if we did not pay out the land, I was to get my money back, though he did not just say that; he did not say that he would ])ay it back, but that I should not lose anytliing by it; William Wiley (a son) said if the land was sold I would get my money back ; I paid $115 and $78; I got the $100 note of defendant, and have had it ever since." It is true, that in another ])lace .she says that .^ho did not pay the money upon the note and mortgage, but her testimony as a whole shows that she did pay it in exchange for the $100 note, and as part payment of the other note held by appellant. The rule that this court will not reverse a judgment when the evidence tends to sustain the verdict or finding does not go so far as to authorize an allirmance upon an isolated statement of a witness wliich is in conflict with other statements of the same witness. Taking the whole of her testi- mony together, there is nothing showing, or tending to show, that appellant obtained the money and note from her "through the medium of oppression, imposition, extortion or deceit," nor that it was paid over and the notes exchanged through mistake of facts; nor is there anything to show a want or failure of consideration, nor that there was a special contract whieh had been rescintlcd. There was no contract or promise on the part of appellant to receive the money or note as the money and note of appellee, or to in any way return the one or its amount, or repay the other. The consideration was ample. Aj)pellee was not personally liable upon tln' notes held by appellant, but she was the owner of the undivided one-third of the land held for the purchase-money and covered by the mortgage, and was interested in the extinguishment of those liens, and, liesides, appelliint ."surrendered a note that might have been enforced against the land, or against the ])ersonal estate of ai)|H'llee's husband, if there was any. This note is not shown to have been ji worthless thing, and we know of no rule of law or efpiity which will sanction her holding it, and recovering of ap[iellant what she paid for it. It is not a sutlii'ient answer to say that she was not legally liable upon the notes held by apf)ellant, nor for the purchase-money for the land. She had tlie iindoiii)ted right to make the payments, and had the balance of the debt been paid, and the lanf \V««m( r. Iloimtnn (IRU) 1 IIiinin^'1r>n, 17<', antr, in note to Mowntt r. \Vri;;lit. antr, .IDD, 405. And tlio princi|tiil oiisc nhnuld 1)0 read in connection witli the section «)n niistnko of law, aulf, .'MJ-lOtl. — Kd. CHAP. II.] MORRIS V. TARIN. 545 the company that drew the bill, repaid the Defendant the principal, interest and charges, with 20 per cent, damages: But, afterwards, conceiving that he had paid the 20 per cent, damages in his own wrong, he l)rought this action to recover back the amount. The Court held the case under advisement till the 21st of November, ■when the President delivered their opinion as follows : Shippen, President. This is an action for money had and re- ceived to the Plaintiff's use. The facts are, that a bill of exchange was drawn on a house in France by Benjamin Harrison & Com- pany, of which company the Plaintiff was one, in favour of the Defendant, or some other person who indorsed the bill to the De- fendant. The bill being presented to the drawee, he refused to accept it, and a protest was made for non-acceptance — The bill with the protest was sent back, and the Plaintiff being applied to for pay- ment, voluntarily paid the Defendant both principal and damages. This action is brought on an implied assumpsit to recover back part of the money, to wit, the damages, as paid by mistake; the Plain- tiff contending, that to compel him to the payment of damages, there ought not only to have been a protest for non-acceptance, but like- wise a protest for non-payment ; and that having paid those damages, ■when by law he was not obliged to pay them, he ought in justice to recover the money back. This is a liberal kind of action, and will lie in all cases where by the ties of natural justice and equity the Defendant ought to refund the money paid to him; but where the party might with a good conscience receive the money, and there was no deceit or unfair practice in obtaining it. although it was money which the party could not recover by law, this action has never been so far extended as to enable the party who paid the money voluntarily, to recover it back again. The case of Lowrey r. Bourdieu in Doug. 452, and that of Farmer v. Arundel in 2 Black. R. 825, are full to this point. In the present case the Defendant had presented the bill to the drawee for acceptance, and on refusal got it protested. Shortly after, and before the day of payment, an arret from the King of France prohibits the creditors of the drawee from suing him ; upon which the bill was immediately sent back, and Mr. Morris, without waiting for a protest for non-payment, voluntarily takes up the bill and pays the damages. A protest for non-payment , however, appears to have been made in France before the money was paid by Mr. Morris, although he did not know it. The Defendant has acted with fairness, and lain out of his money, and might with a good conscience receive the legal damages. The point of law principally agitated in this cause, whether a protest for non acceptance only, is sufficient to recover the money from the drawer, is not material to be determined in this action. 546 STRATOX V. KASTALL AND ANOTHER. [BOOK H. because, as it is voluntarily paid, and the Defendant might con- sistent with justice receive it, whether that point of law is for, or against the Plaintiff, we think he cannot recover the money back. Judgment for the Defendant. STRATOX V. RASTALL AND ANOTHER. King's Bench, 1788. [2 Term Reports. 366.] This was an action of assumpsit for money had and received by the defendant (and one Williani Avarne, who was outlawed at the suit of the plaintiff) to the use of the plaintiff, and for money lent and paid ; to which the defendant pleaded the general issue. At the trial at Guildhall at the Sittings after last Michaelmas Term, before Duller. J., a verdict for £-425 was found for the plaintiff, subject to the oj)inion of the court on a case stated. It appeared that defendant and Avarne were desirous of granting an annuity of £100 for their joint lives and the life of the survivor. The plaintiff agreed to and did actually purchase on October 23, 1780, the annuity for £575, and paid the said sum to defendant and Avarne, Vho receipted for the same, and gave a bond (with a warrant of attorney to enter up judgment) for £1150 to secure the payment of the annuity. By a contemporaneous indenture tiie defendant sub- jected the rents and profits of certain messuages, lands, etc., to the payment of the annuity in question. Neither the bond, warrant of attorney nor indenture, was enrolled within the time prescribed by the statute respecting the grants of life annuities, whereby the same became void.^ AsHiiUKST, J. I think the plaintiff may maintain this action. For wherever a man has received money upon a .consideration which afterwards fails, that person from whom he received the money has a right to recover it back as money had and received to his use. Here the plaintiff has paid a .sum of money on a consider- ation which has failed, and the only <|uestion is from whom he is en- titled to recover it. I am of f)j)ini()n that he is entitled to recover it either from the defendant and Avarne, or from either of them. In- deed it appears from the whole of this transaction that the plaintiff had no confidence in Avarne, but relied wholly on the defendant. Avarnr had no property; it was the defendant who gave the security. That being the case, and the consideration having failed, is the plain- 'Short Htntonipnt suttstitiitcd for the nri^'innl report. — En. CHAP. II.] STRATOX V. HASTALL AND ANOTHER. 547 tiff deprived of his remedy against the defendant because he under- stood that the money was originally raised not for the use of the defendant, but for that of Avarne only? The plaintiff had nothing to do with any private agreement between the defendant and Avarne; he advanced the money entirely or principally on the credit of the defendant. If the plaintiff' had been asked whether he would have trusted Avarne only, he would have said no; the receipt imports it. As between these parties, both the defendant and Avarne received the consideration money; and the plaintiff shall not now be permitted to aver against his receipt. BuLLER^ J. I am of opinion that the plaintiff cannot maintain this action against the defendant. It was clearly understood at the trial that Avarne in fact received the whole of the consideration money ; and on this case it must be taken that the defendant was only a surety. I will first consider this as a question of strict law. On Avarne's proposing to raise a sum of money by way of annuity, offering the defendant as a suret}', the plaintiff advanced the money upon the security of both for the payment of the annuity. Xow on strict principles of law, if that contract become void by the act of the plaintiff, on what ground can he recover back that money; for the neglect of a plaintiff cannot raise a debt in a defendant. It formed no part of the contract; and if he can recover at all, it must be on equitable principles. But as against a surety, the contract cannot be carried beyond the strict letter of it. Then can the plaintiff recover against this defendant on equitable principles. Of late years this court has very properly extended the action for money had and re- ceived ; it is founded on principles of justice, and I do not wish to re- strain it in any respect. But it must be remembered that it was ex- tended on the principle of its being considered like a bill in equity. And therefore, in order to recover money in this form of action, tiie party must shew that he has equity and conscience on his side, and that he could recover it in a court of equity. Then as to the equity in this case ; it appears that the money was advanced for the use of Avarne, and that he only was benefited by it. But there is no equity in saying that a person, who has only lent his name by way of securing the payment of the annuity, shall be answerable for the consideration money of that annuity for which he has not pledged his security, and from which he has received no benefit whatever. Could the plaintiff recover this money against this defendant in a court of equity? The case which has been cited by the defendant's counsel is very strong to shew that he could not, and that equity distinguishes between the persons who join in a receipt and him who actually receives the money ; and that the receipt is not conclusive against him, as he was only a surety and in fact received no part of the consideration money. In conscience, he only who received the money ought to be obliged to pay it back : and a court of equity would enquire in this case. 548 STILVTOX V. UASTALL AM) ANOTHER. [BOOK II. whether the party had received the money or not. Xow if a court of equity would give tliis phiintilT no relief, we ought not to permit him to recover in a court of law in an action not founded upon equitable principle. So that whether this is considered as a question of strict law. or upon the equitable principles which have prevailed in actions for money had and received, I think the plaintilT is not entitled to recover. Grose, J., desired to have further time to consider of his opinion; and on Monday, April 21, he delivered it as follows. This is an action for money had and received. There has been no express promise made in this case; the action therefore, if it can be supported at all, must be founded on an implied one. The prima facie evidence of this is the receipt which was signed by the defendant jointly with Avarne, whereby they both acknowledged to have received the money. But this mu.st be taken with all its concomitant circumstances; and from them it appears that the defendant, in consideration that the plaintiff would advance £575 for the benefit of Avarne, undertook with Arnrne to become surety, and did become surety, for the payment of an annuity of £100; and accordingly a bond was entered into by both to that elfect. By the subsequent neglect of the plaintiff that bond is become of no use. But the plaintiff says that, under these circum- stances, the law implies a promise by the defendant to repay the money advanced as money received to the plaintiff's use. But no ca.se has been cited to shew that under such circumstances the law implies such a promise. And in reality the money is not received by the defendant to the u.se of the plaintiff, nor lent to the defendant; but advanced to Avarne and the defendant for the IxMu-fit of Avarne in consideration of an annuity secured by bond to the plaintiff. Then it is neither money lent to be repaid, nor received for the use of the plaintiff. So that in strict law the evidence does not ))rov(' eitlier count of the declaration. How stands the case then upon i'(piital)le princijjles. It appears |)laiiily that in fact the defendant has had no benefit from this money. Avarne had the whole; then Avarne should "be answerable for tlie whole. It is true that the defen(hint consented to become surety for Avarne, but he was surety for the ])ayment of the annuity, and not for the repayment of the consideration money; and he entered into a security which the plaintiff has destroyed: but that raises no (-(Hiity against the dcfcnchmt who has received no benefit in favour of the plaintiff who is alone in fault. And therefore the action cannot be 8upi)orted cither upon legal or equitable grounds. The I'fjstca to be delivered to the defendant. CIIAl'. 1L] PLATT V. liUO.MAGE AND AXOTllEll. 549 PLATT V. BROMAGE AND ANOTHER. Exchequer, 1854. [24 Law Journal, 63.] This was an action by the plaintiff as assignee of the estate and effects of John Jones, an insolvent. The first count was in trover, for converting the goods of the insolvent before his insolvency, and the second count was for money payable to the plaintilf as assignee, for money, received by the defendants, to the use of John Jones, before his insolvency. The defendants pleaded Xot guilty, Xot pos- sessed, Leave and license, Never indebted, and other pleas. At the trial before Williams, J., at the Breconshirc Spring Assizes in last year, the facts appeared to be these: — In October, 1850, John Jones, the insolvent, a farmer residing at Llangoed farm, in the county of Brecon, being indebted to the defendants, Messrs. Bromage & Snead, who were bankers at Brecon, in £660, for money advanced by them to him, assigned to them his stock, crops, etc., at Llangoed, by way of mortgage, for securing that sum and interest. Shortly afterwards, Jones took a smaller farm, called "Tregunter," where he continued till September, 1852, when his difficulties increasing and the debt to the defendants being unpaid, the latter, with the consent of Jones, took possession of and sold the stock, crops, etc., at Tre- gunter, together with a quantity of wheat, to which he was entitled as outgoing tenant of Llangoed farm. It appeared probable that the insolvent had assented to the sale of his stock and crops on Tregunter farm, under the belief that the defendants were entitled to sell it under the assignment. Under these circumstances, it was contended, on be- half of the plaintiff, that he was entitled to recover in respect of the stock, crops, etc., in Tregunter, on the ground that they d'd not pass to the defendants under their assignment. The learned judge reserved the point, and the defendants had a verdict, leave being reserved to the plaintiff to move to enter a verdict for him. J. Evans now moved accordingly (Xov. 7). and renewed the ob- jection taken at the trial. Per Curiam.^ We will consult the learned judge who tried the cpuse. Cur. adv. vuU. Pollock, C. B., now said: This was a case in which a rule was moved for by Mr. Evatis. The facts were of this kind : The plaintiff, as assignee of an insolvent John Jones, claimed to recover certain effects sold to pay a debt due to the defendants, who were bankers at Brecon. The defendants, ^fessrs. Bromage iS: Snead. had had assigned 'Pollock, C. B., Pauke, B., Aldeuson. B., and Pl.vtt, B. r»r)i( I'LATT r. BHOMAGE A.\I) ANOTMKK. [BOOK II. to them, to secure certain advances made by them, all the property in a certain farm called *'Llanii<»ed F'arm;" the assi<:nment also contained expressions sufficient to include future-acquired property; but that could not be done, the law not admitting of anything being assigned by dcH?d, except that which actually exists. Then the defendants applied to have the security rendered available entirely with the con- sent of the insolvent; whereupon the projK'rty that was in the security was sold, and that not being sufficient, also a seizure was made upon another farm, called "Tregunter," entirely with the consent of the insolvent and the defendants, and this action is brought to recover in respect of so much property as did not pass by the deed between the parties. The point was reserved. We think there is no weight in the objection made on behalf of the plaintiff. If the insolvent assented to the act being done, it canno't be set aside, though it was proved that there was a mistake in point of law, or a mistake in point of fact: it is his doing, and he assented to it when it was done. There was a difference of opinion among the jury, whether or not he was under a notion that the proj)erty i)ass('d by the deed: I think it is (juite imma- terial whether he entertained that notion or not. There was no fraud. When a person does by some mi0) 32 N. H. 4H4; Mnrrill r. Nhvph ( IHH.'J) m M... AM; Piatt r. N. Y. ami Soa Hoarh Uy. Co. (iHIlfi) » .\|ip. Div. ( N. Y.) H7 ; SmitlnirHt r. VMinnnilH (1802) 14 X. J. Eq. 408 (hut cdnipnro f«)r law lioMinji. I^ «ikor v. IVckwolI (1870) 38 N. J. L. 253). Contra: Moody r. NVripht (1847) 13 Mot. 17 (hut hoc Chase v. DonnT (1881) 130 MaHw. Sfifl). For tlu- anoninlou.H Nrw York doctrino, see CHAP. II. J BUEL V. BOUGIiTON. 551 BUEL V. BOUGHTON. Supreme Court of Xew York, 1846. [2 Denio, 91.] Error to the Onondaga C. P. Buel sued Boughton for money had and received to his use; and the case was substantially as follows: One Charlotte Smith held a bond against the plaintiff for $2650, pay- able in six equal annual instalments, with annual interest from April 1, 1843. James H. Fuller, in right of his wife, owned and had an interest in the bond to the amount of $498.10. On the first day of April, 1843, the plaintiff gave James H. Fuller his negotiable promis- sory note for said sum of $498.10, having more than two years to run. The plaintiff agreed to make the note payable with interest ; but inter- est was left out of the note by mistake in drawing it. On the day of the date of the note Charlotte Smith indorsed and receipted the amount of the note on the bond. On the day the note was given, James H. Fuller transferred it to Almerin Fuller, who indorsed the amount of the note on a bond which he held against James, which bond was on interest. This was done on the supposition that the note was also on interest. About twenty days afterwards Almerin Fuller transferred the note to the defendant, who indorsed the amount of the note, and of the interest which was supposed to have then accrued upon it, on a bond which he held against Almerin Fuller, which bond was on interest. On the 23d of May, 1845, the plaintiff paid the note to the defendant, and by mistake, supposing the note to have been written with interest, paid the defendant $71.20 for interest on the note, and took it up. The plaintiff brought this suit to recover back the sum so paid by mistake for interest. The defendant set up the other facts which have been mentioned as an answer to the action ; and the court decided in his favor. A verdict and judgment having passed for the defendant, the plaintiff now brings error on a bill of exceptions. ^ By the Court, Broxson, C. J. This is a remarkable case. The plaintiff first omitted, by mistake, to make the note payable with interest, as he should have done: and then, by another mistake, he corrected the first error by paying interest, when the note itself im- posed no such obligation. And thus by two blunders the parties have come out right at last. Or at least, the plaintiff has paid no more than Kribbs r. Alford (1890) 120 X. Y. 519: Rochester Distilling Co. t\ Rasey (1894) 14'2 X. Y. 570; Kirchwcy Cases on Mortpa-je, 175; Central Trust Co. v. \Vest Ind. Imp. Co. (1901) 100 X. Y. ;U4. On the jjeneral subject see Kirch- wey's Cases on Mortfrages, 40-109; Jones on Mortgages (6th ed.) §§ 153 €t scq.; Bispham's Principles of Equity (7th ed.) chapter 8. — Ed. 552 BUEL V. BoiGHTOX, [book II. he ought to pay ; and there would be no ground for an action to recover back the money paid for interest, if the payment had been made to James H. Fuller, the payee of the note, against whom the first mistake was made. One party would in that case have paid, and the other re- ceived just what in justice and honesty ought to be paid and received. But the payment was not made to James H. Fuller; and this leads me to notice that not only the })laintitf and James H. Fuller acted from beginning to end under the mistaken supposition that the note was made payable, as it should have been, with interest ; but the note was twice transferred, and both Almerin Fuller and the defendant took it under the same mistake of supposing it carried interest. Xow as against the plaintilT, James H. P\iller had an eipiitable claim to have the mistake corrected, so as to give him interest on the debt. Then Almerin, having taken and paid James for the note as though it were on interest, had an equitable claim to have the mistake cor- rected, so as to give the interest to him. The same thing is true as between the defendant and Almerin. The defendant took and paid him for the note as though it carried interest. And thus by a series of mistakes the ecpiitable claim to interest which was originally in James passed from him to Almerin. and from Almerin to the defend- ant ; so that, at the time the money was paid, the defendant was the person who was ('([uitably entitled to receive it. Tie could not have sued the j)laintifr for it at law in his own name; but in a court of equity the money would have been awarded to him, and not to James II. Fuller. It has come into the defendant's hands without .suit, and from the person who ought to pay it ; and I see no sulhcient rca.son for re(|uiring it to be refunded. Whether the defendant could sue at law in his own name to recover the money; or whether, having fairly got it, this action for money had and received to the plaintiff's use can be maintaineil, are very difTerent questions. This is an equitable action, which may be defended u|)on tiie same eq\iital)le jirineiples as tho.se upon which it is maintained. .\s a genral rule, the question is, to which party ex fpr/uo et bono does the money belong ; and in this case, I think it belongs to the defendant, who has got it. Let us sup- pose that the plaintifT had refused to pay the interest to the defendant : but, l>eing liable to pay it to some one. he had |)aid it, either voluntarily or by compulsion, to James II. Fuller, between whom and the plaintifT the original mistake was made. James might then have been com- pelled to pav the money to .Mmerin ; and .Mmerin to the defendant. Or if we begin at the other end, the defendant might have fallen bark u|)(»n .Mmerin. and compelled him to correct the mistake by payin;.' the interest; Almerin could have gone back in like manner upon James; nnd James upon the plaintifT. .\nd .so in any way of viewing the matter, the plaintifT was bo\inrl in ecpiity and good conscience to pay the money; and the defendant was the man who in equity and good con.scicnce was entitled to receive it. lie has got it ; and to CllAl'. 11. I JACKSOX r. MCKNIGHT. 553 allow the ])lainliff to recover it back, would be to make this the first in a circuit of four actions which would end in leaving the money just where it was at the be^nnning. It is said that although the plaintiff has paid the interest to the defendant, he may be compelled to pay it again in an action on his bond to Mrs. Smith. But I think not. It fully appears that the principal sum of money for which the note was given belonged to James II. Fuller; and of course he was entitled to the interest which should afterwards accrue on that sum. If the indorsement made on the plaintiff's bond would not of itself preclude Mrs. Smith from re- covering the interest in question, it would clearly be enough to show- in addition, that the plaintiff' had corrected the error by paying the interest. But if the plaintiff should succeed in recalling the money, then undoubtedly Mrs. Smith, on proving the mistake in giving the note, and that the plaintiff' had not corrected it, might recover this interest for the benefit of James H. Fuller. But by leaving the money where it is, the whole series of mistakes will be corrected, and all parties, unless it be the plaintiff, will be satisfied. Judgment affirmed. JACKSOX, RESPOXDENT v. McKXIGHT, APPELLAXT. Supreme Court of Xew York, 1879. [IT II un, 2.1 Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The action was brouglit to recover money alleged to have been paid to the defendant under a mistake of fact. Learned, P. J. On the 23d of March, 1875, the defendant was the assignee and owner of a hand and mortgage executed by the plaintiff, which had become payable several years l)efore. The interest had been payable annually on the tenth of September, and it had in fact been paid up to Septeml)er 10, 1874. On the day first mentioned, the defendant stated to the plaintiff that $230 of interest, payable Sep- temiior 10, 1874, were unpaid, and the plaintiff thereupon paid the defendant $230 for such interest, not remembering, at the time, that the interest had been paid to that date. In January, 1870, the defend- ant assigned the bond and mortgage. After a l-ipse of two years the ]ihiintiff sued to recover l)ack this money as overpaid by mistake. The difficultv is that, at the time when the plaintiff made this pay- ment, he was owing the defendant a much larger amount, overdue and payable on the very obligation upon which this payment was made. Clearly, if the plaintiff had handed the defendant $230 to apply on the bond and mortgage, he could not have recovered that sum back. 554: ILLINOIS THIST AND SAVINGS BANK V. FELSENTIIAL. [BOOK II. But in this present case he claims to recover, because it was intended as a payment of interest whicli had, in fact, been paid ; and not as a payment of principal, which had not. The payment, however, was really made on the debt. The plaintiff is, and always will be, entitled to a credit for .ayni('nt. See also Earle v. Bickford. (\ Allen, 54!»; BIcthen v. Lovering, r.H Maine, 437. The judgment of the Circuit Court in the present case appears \:{. — Kn. CHAP. II.] FULLER V. TUSKA. 506 We regard the case of Bishop v. Brown, 51 Vt. 330, decisive of the question. It is there said : "'If the mistake was induced by the fraud of the party receiving the same, and he had knowledge of the overpayment at the time, or jf he had subsequently discovered the mistake, the duty was then cast upon him to rectify the mistake and repay the money. Thereafter he knowingly has the money of the other party to the transaction in his hands, which he holds against equity and good conscience, and there is no apparent reason for any demand for the repayment of the money before suit. But where the overpayment arises from the mistake or negligence of the party making it, and without the fault or knowledge of the party receiving it, it is reasonable that the party so receiving the overpayment should not be subject to a suit until he has been notified of the overpayment and called upon, and had a reasonable opportunity to rectify the mistake." That the payment was expressed to be "on account," and not in final settlement, can make no difference with the rights of the parties, but serves only as evidence of the mistake or negligence of the party making the overpayment, in supposing that he was only paying on account, when in reality he was paying a larger sum than the whole amount actually due. Xor can it affect their rights that the amount of such payment was, at the time of suit brought, unascertained. Xo formal demand or of any specific sum is necessary. '^Whatever language gives him (the defendant) notice of the overpayment, and calls upon him to rectify the mistake, is sufficient." "The money all the time is the property of the party making the overpayment, but having come into the possession of the other party without his fault or knowledge, he is entitled to be notified of the fact that he has the money in his possession, and to be called upon to Tectify the mistake, before he is subject to a suit for the recovery." Bishop v. Brown, supra. Judgment affirmed. FTJLLEE V. TUSKA. City Court of New York, 1891. [13 New York Supplement, 580.] Ehrlicti. C. J. The complaint alleges that the plaintiff loaned to the defendant 150 shares of the stock of the Chicago, ^lilwaukee & St. Paul l\ailroad Company, which the defendant failed to return, to plaintiff's damage $744.35 ; that the defendant thereupon acknowl- edged an indebtedness to the plaintiff to that amount on the transaction stated, paid on account thereof $1.30, leaving $743.05 due. The 666 BOWER V. THOMPSON. [book ir. defendant demurred, on the ground that the complaint did not state facts sutlicient to constitute a cause of action. The demurrer was overruled at special term, and properly so. The complaint in sub- stance shows that, after the defendant failed to return the l)orro\ved stock, and acknowledged in consequence iiis liability in tiie form of an indebtedness for $74-1.35, the plaintiti waives the tort, and sues upon the contract to pay this amount of money. Xo demand for the stock was necessary under such circumstances, and the commence- ment of the action is a sufficient demand for the money. Tiie Code has done away with all technical rules of pleading, and nothing more reed be alleged than is necessary to be proved. Code, § 518; Mann v. Morewood, 5 Sandf. 504; Glenny v. Hitchins, 4 How.'Pr. OS; Plank- Eoad Co. V. Rust, 5 How. Pr. 390. And the complaint suthciently sets out the cause of action. It follows that the demurrer was properly overruled, and that the interlocutory judgment must be affirmed, with costs. BOWER ET AL. r. TlTO:\rPSOX. Supreme Court of Xew York. 1892. [19 New York Supplement, 503.] Appe.vl from Cayuga county court. Action by M. E. Bower and another against Edwin B. Thompson for money had and received. Erom a judgment affirming a judg- ment for |)hiintiff's in justice court, defeiidaiit aj)|)eals. Affirmed. Argued before Dwkmit, P. J., and M.vccj.mheu and Lewis, .JJ. DwioiiT, P. J. The action, so far as presented by this appeal, was for money iiad and reci'ived, being tlie sum of $*^5 paid to the defendant l»y the plaintiffs a second time, by mistake of the latter. The only defence here suggested was the absence of a deiiumd before action l)rought. Whether the defence was tenable dej)ends upon whether the mistake was mutual and the overpayment innocently re- ceived l»y the defendant; or wli(>ther it was by mistake of the plaintilTs only, and the defenrlant knew at the time that he was receiving money to which he was not entitled. In the former case the obligation to refund did not arise until notice of the mistake and a denuind of repayincnt (Mayor, etc. r. Erbcn. 3 ,\bb. Dec. 25.'); Southwick r. Bank. H4 X. Y. 130) ; in tlie latter itjiro.se upon the instant the money wa.H received. Sharkey v. Mansfield. 00 X. Y. 228. The distinction and the reasons for it are obvious. In his opinion the learned county judge says the circumstances iiuliciite to him that th(» case is governed by the authority la-^t cit«'d, "and tiuit the defendant knew at the time of the settlement that he was receiving $25 that he was not entitled CHAP. II.] BOWER V. THOMPSON. 567 to." Such, it may l)e presumed, was also the effect of the testimony upon the mind of the justice; and the case is not one in which either the county court or this court should interfere with the conclusion of fact. That conclusion does no violence to the evidence, even as it appears more or less imperfectly reproduced in the return, while the justice had the advantage of hearing the full oral testimony of the parties and observing their appearance on the stand. And, the fact being found that the defendant knew at the time of receiving the over- payment that it was such, the case was within the second category above described, and no demand was necessary to recover the amount. The judgment appealed from must be affirmed. Judgment of the county court of Ca}aiga county affirmed, with €Osts. All concur.^ 'In Martin v. Home Bank (1899) 100 X. Y. 190, 201, it is said: "Nor was any demand upon the defendant for the payment of the money necessary be- iore this action was commenced. The defendant was not a bailee or trustee that had rightfully become possessed of the money, but a party that had con- sciously received what did not belong to it. The defendant received and held the money as its own, and the duty to restore it arose at the moment it was received, and existed at all times thereafter. Sharkey v. Mansfield, 90 X. Y. 227, 229." The eases on the subject of demand as a prerequisite to recovery are not numerous, due to the fact, it would seem, that a demand is ordinarily made before beginning legal proceedings. An English case frequently cited is Freeman v. JeflTries (1869) L. R. 4 Ex. 189, but in this value of the leasehold assigned was determined by experts, and the valuation — although certain items were omitted — was really in the nature of a compromise. Tlie question of demand was therefore obiter, although it was argued and carefully considered by the court. For American practice, tlie following cases will probably suffice: Taggart V. Trevanny (1891) 1 Ind. App. 339; Baldwin v. Hutchinson (1S03) 8 Ind. App. 454; Bogle v. Gordon (1888) 39 Kas. 31; Willis v. French (1892) 84 Me. 593; Walker v. Bradley (1825) 3 Pick. 261; Gould v. Emerson (1894) 160 Mass. 438; Northampton National Bank r. Smith (1897) 169 Mass. 281; Deaver v. Bennett (1890) 29 Neb. 812; Mayor of N. Y. v. Erben (1863) 10 Bosw. 189 (on appeal, 1868, 3 Abb. App. 255): Reid v. Supervisors (1891) 14 N. Y. Supp. 595; Leach v. Vining (1892) 18 N. Y. Supp. 822: Wyckoff r. Curtis (1894) 7 Misc. (N. Y.) 444: Hamer r. Brainard (1891) 7 Utah. 245; Stoddard r. Chapin (1843) 15 Vt. 443; Braincrd v. Champlain Transp. Co. (1857) 29 Vt. 154; Bishop r. Brown (1879) 51 Vt. 330: Varnum v. Highgate (1893) 65 Vt. 416. In several of the above cases, the question of the running of interest before and after demand is discussed. — Ed. 5G8 DUKE OF AUGYLE J'. IIALCRAIQ. [BOOK II. (c) The Effect of a Change of Position by Either Party. KER r. RUTHERFORD. Court of Sessions of Scotland, 1684. [Morison's Dictionary of Decisions, 2928.] A DEBTOR, who had paid to the obtainer of a decreet of furth- coming, and got his discharge, being thereafter decerned at the in- stance of an assignee, whose assignation had been intimated before the arrestment, pursued the arrester upon the warrandice in his dis- charge. Alleged for the defender; He could not be liable, seeing suian re- cepit, and the pursuer had not obtruded, as he ought, the anterior inti- mation of the assignation, during the process of furthcoming; which, if he had done, the arrester would have secured himself against the other estate of the common debtor, who is now become bankrupt. The Lords sustained the allegeance, and assoilzied. Fol. Die. V. 1. p. 186. Ilarcarse, (Arrestment.) No. 81. p. 15. DUKE OF ARGYLE v. HALCRAIG. Court of Sessions of Scotland, 1723. [Morison's Dictionary of Decisions, 2929.] Archibald Earl of Argyle. anno 1672, granted bond to Mr. John Eliies for ')()()() mcrks ; who, of the same date, gave a back-bond, de- claring, "That he had a bond from Donald and Ronald ('ampl)ells, for £2250 Scots, whereof if he received any i)art, he obliged him, his heirs, &c. to allow the same in payment of the 5000 merks." This bond of 5000 merks, coming bv progress into the jxTson of the Tjord Hal- craig, the late Duke of .Argyle granted eorroboratiou thereof, nar- rating, "That in regard this sum was by progress in the person of the Lord llalcraig, therefore he obliges himself to pay the same." All this while, the back-bond was entirely unknown, either to the late or pn-sent Duke, till .July 1715; at wliieli time, by jiaynient made, and imputing the sums contained in hoiiald and Uonald Canipbeirs bond, the 5000 merks bond was not only extinguished, but a ('f)nsiderable sum over indrhitr paid; whereuj)on a |)ro('(ss was intented against the Representatives of the late Lord llalcraig, concluding an ex- CIIAr. II.] DUKE OF ARGYLE V. HALCRAIG. 569 tinetion of the bond, and repetition of £1277 Scots, paid over and above what was really due. It was pleaded for the defenders, Imo, That the Duke corrobo- rating the bond in the Lord Halcraig's person, and expressly obliging himself to pay, was bound to the assignee by his own contract ; after which the assignee needed not be concerned, whether any part was paid to his cedent or not ; 2do, If the debtor was ignorant of the back- bond, and of any payments made to the cedent, sibi imputet; it is more just, the original creditor's representatives being now bankrupt, that the debtor, whose business it was to know, should suffer by his igno- rance, than the assignee : The assignee, in taking the corroboration, took all reasonable precaution for his security; and he had thereby reason to rely upon his assignation, as absolutely good, and free of all exception. Anstuered to the first; It is in vain to plead upon the corroboration, which in no view can import a more express acknowledgment of the assignee's title, than the actual payment that was made to him; and. therefore, since a condictio indehiti is competent, when payment is made indehite, errors facti, which was truly the case here, the Duke not having known of the back-bond, it will not be the less competent that a corroboration intervened : And the reason of both is the same, corroboration and payment are neither of them absolute unqualified acknowledgments of the creditor's title ; they go upon the supposition, that the title is otherwise well-founded; if which prove false, what- ever is built thereupon must fall to the ground. To the second answered. If the original creditor's representatives are bankrupt, that naturally falls upon the assignee, whose faith he followed, and not the debtor. The debtor truly made twice payment, and has a condictio indehiti, well-founded thereby against the assignee; which action cannot be taken from him, unless the assignee will qualify some fault, some negligence of the pursuer's, which yet cannot be done, by reason that the back-bond truly had fallen aside long before his time ; and he was no way negligent as to that matter. And if they ascribe this effect to the pursuer's inculpable ignorance, then it must follow in general, "That a debtor can never obtain a condictio indehiti, if the cedent became insolvent any time after the payment, of which repeti- tion is sought ;" a position that is apprehended to be without any foun- dation in' law : For, as inculpable ignorance is never reckoned sufficient to bear out an action of damages for reparation ; as little to bear out an exception of damages, in order to take away an action that is otherwise competent. Replied to this last; It is sufficient to qualify that the loss hap- pened through the ignorance and error of this pursuer : For, since one of them miist bear the loss, it is more equitable that it fall upon the pursuer, who was in an error, than the defender who was in none; and no body ought to be prejudged by another's errors. 570 BULLLK V. HAitiasox. [book II. The Lords sustained the defence, That after the assignation to the Lord Halcraig, the late Duke of Argyle did corroborate the bond assigned in the person of the said Lord Halcraig, relevant to assoilzie the defender from any repetition or extinction. Ful. Dic.\\ 1. p. 187. Rem. Dec. v. 1. So. 39. p. 78. BULLKH V. IIAIUUSOX. Kino's Bench, 1777. l^Coivper, 565.] Upon shewing cause why a new trial should not be granted in this case, Lord ^Lvn.sfield read his report as follows : This was an action for money had and received, brought I)y the plain- tiff against the defendant, to recover back a sum of £'^]()0 paid liim as due upon a policy of insurance, as agent for the insured, Messrs. Ludlow and Shaw, resident at New York. This sum the plaintiff had paid, thinking the loss was fair. Notice of tiie loss was given l)y the defendant to the plaintiff on the 20th of April. Part of the money was paid at that time, and tiie remainder on the 6th of May follow- ing; on which day the defendant passed the whole sum in his account with Messrs. Ludlow and Shaw, and gave cri'dit to them for it against a sum of £.3000 in which they stood indcl)ted to liim. On the ITth of May, notice was given by the plaintiff to the defendant that it was a foul loss. At this time, nothing liad haj)])eiie(l to alter the situation of tiie defendant, or to make it diirereiit from what it was on the 20th of April. He had accepted no fresh l)ills, advanced no sum of money, nor, given any new credit to his principals; but affairs between them and him remained precisely in the same situation as on the 20th of April. The qu<'stion at the trial was, whether this action could l)e maintained against the defendant, as ar/ent of the insured; which depended on this; whether the defendant's having ])lacod this money to the account of his ])rincipals, in the manner before stated, waB ecjuivalent to a jjayment of it over. In general the principle of law is clear; that if money be mispaid to an agent expressly for the use of his j)rincipal, and the agent has I)aid it over, he is not liable in an action by the person who mispaid it: because it is just, that one mn!i should not l)e a loser by the mis- take of another; and the person who made the mistake is not witho\it redress, but has his remedy over against flie j)rin(ij)iil. (>n the otJicr liand it is just, that as the agent ought not to lose, he slinuld not be a gainer by the mistake. And tlu-refrtre, if after the j)ayment so made to him, and before be has j)aid the money over to his princi|)al. the person corrects the mistake; the agent cannot afterwards pay it over to CHAP. II.] BULLER V. HARRISON. 571 his principal, without making iiinist'li" liable to the real owner for the amount. But the present ease turns upon this; that the agent was precisely in the same situation at the time the mistake was discovered, as before. At the irial I inclined to think the plaintiff ought to re- cover; but did not direct the jury; and they found for the defendant. I am satisfied I mistook in leaving it open to the jury : For it is clearly a ques<"ion of law, not a matter of fact: And in conscience the defendant is not entitled to retain the money. Therefore I should have left it to the jury in this manner; if you are satisfied that the money was paid by mistake, and the defendant's situation not altered by any new circumstance since, but that every thing remained in the same state as it was on the 20th of April, you ought to find for the plaintiff. Mr. Bearcroft and Mr. Davenport showed cause. Mr. Wallace and Mr. Dunning were in support of the rule ; but Lord Mansfield thought the case so clear, that his lordship stopped Mr. Dunning, as being unnecessary to give himself any trouble. Lord Mansfield. I am very glad this motion has been made : for I desire nothing so much, as that all questions of mercantile law should be fully settled and ascertained ; and it is of much more consequence that they should be so, than which way the decision is. The jury were embarrassed on the question whether this was a payment over. To many purposes it would be. It is now argued, that this is not a inere placing to account, but a mailing rest. If it were, it would not vary the case a straw. I verily believe the jury were entangled in consider- ing it as a payment over. There is no imputation upon a man who trusts to a misrepresentation of the insured. It is greatly to his honour; but it makes it of consequence to him to know, how far his remedy goes if he is imposed upon. The whole question at the trial was, wdiether the defendant, who was an agent, had paid the money . over. Now, the law is clear, that if an agent pay over money which has been paid to him by mistake, he does no wrong ; and the plaintiff must call on the principal. And in the case of Muilman r. , where it appeared that the money was paid over, the plaintiff was non- suited. 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 hajipened? Certainly not. In this case, there was no new credit, no acceptance of new bills, no fresh goods bought or money advanced. In short, no alteration in the situation which the defendant and his principals stood in towards each other on the 20th of April. What then is the case? The defendant has trusted Ludlow and Co. and given them credit. He traffics to the country where they live, and has agents there who know how to get the money back. The plain- tiff is a stranger to them and never heard of their names. Is it con- scientious then, that the defendant should keep money which he has got by their misrepresentation, and should say, though there is no 572 ' SKYRING V. GKEENWOOD A- COX. [BOOK II. alteration in my account with my principal, this is a bit, I have got the money and I will keep it ? If there had been any new credit given, it would have been proper to have left it to the jury to say, whether any prejudice had happened to the defendant by means of this payment: But here no prejudice at all is proved, and none is to be inferred. Under these circumstances I think (and Mr. Justice Aston with whom I have talked the matter over is of the same opinion) that the defendant has no defence in point of law, and in point of equity and conscience he ought not to retain the money in question. Mr. Justice Willes and Mr. Justice Ashhurst were of the same opinion. Per. cur. Kule for a new trial absolute. SKYRIXG, ADMINISTRATOR OF G. SKYRING v. GREEN- WOOD AND COX. King's Bench, 1825. [4 BarncwcU & Cresswell, 281.] Assumpsit for money had and received by tlie defendants to the use of G. Skyring in his life-time and to the use of the plaintiff, as ad- ministratri.x since his death. Plea, general issue. At the trial before Abbott, C. J., it appeared that the defendants were [)aymasters of the Royal Artillery and had given credit in ac- count to an ofliccr in that corps, tlie late Major Skyring, from the 1st January, 1817, to the 5th November, 1820, for certain in- creased pay, erroneously supposed to be granted by a general order of the 27th August, 1800, to an officer in the situation of the late Major Skyring, and a statement of that account was delivered to him in 1821. ' In December, 1810, the defendants were informed by the board of ordinance that tlie inereased pay granted by the order of ISOd would not be allowed to olfieers in the situation of Major Skyring. The de- fendants, however, did not eonimunicate this information to Major Skyring until 1821, and subse(|uenlly to that time, they continued to receive his pay.* ,\!«fU)TT, C. J. It is not necessary to decide in this case, whether the defendants by reason of tlieir character of paymasters are estop))ed, by the account which they have rendered, from saying that there was n mistake in it. The opinion whieli I entertained at the trial was founded on a particular fact in this case, and that opinion remains 'ThJH Htatcmcnt in taken printipnlly from the hcadnote to the case. — Ed. CHAP. II. J SKYRIXG V. GREENWOOD & COX. 573 unaltered. The defendants, as paymasters, received sums from gov- ernment generally on account of the corps, and an order having been issued for an increase of pay, they rendered an account to Major SJcyring in 1831, in which they gave him credit for the increased pay to which they supposed him to be then entitled, and upon that account there appeared to be due to Major Sl-ijring a balance of £116 9s. 7d. If he had drawn a bill upon them for that amount, it probably would have been paid, and if they had paid the money, it is quite clear that they could not afterwards have recovered it back, on the ground that according to the true construction of the order it was not due to Major Sky ring ; and if the defendants could not have recovered it back, they ought not now to be allowed to set it off. The defendants afterwards continued to receive further sums on account of Major Shyririg, and the money so subsequently received by them must be considered as paid off, if they are entitled to bring back into the account the sums which they had given him credit for, in respect of the increased pay. The particular fact in this case upon which my judgment proceeds is, that the defendants were informed in 1816 that the Board of Ordnance would not allow these pay- ments to persons in the situation of Major Skyring, but they never communicated to him that fact until 1821, having in the mean time given him credit for these allowances. I think it was their duty to communicate to the deceased 'the information which they had re- ceived from the Board of Ordnance; but they forbore to do so, and they suffered him to suppose during all the intervening time that he was entitled to the increased allowances. It is of great importance to any man, and certainly not less to military men than others, that they should not be led to suppose that their annual income is greater than it really is. Every prudent man accommodates his mode of living to what he supposes to be his income; it therefore works a great prejudice to any man, if after having credit given him in ac- count for certain sums, and having been allowed to draw on his agent on the faith that those sums belonged to him, he may be called upon to pay them back. Here the defendants have not merely made an error in account, but they have been guilty of a breach of duty, by not communicating to ]\Iajor Skyring the instruction they received from the Board of Ordnance in 1816; and I think, therefore, that justice requires that they shall not be permitted either to re- cover back or retain by way of set-off the money which they had once allowed him on account. Bayley, J. This may be a case of hardship upon the defendants, but they have brought it upon themselves. This is an action for money had and received. If the defendants are entitled to set off the sum they claim, the action is not maintainable. From the year 1816 to 1821 the defendants had given credit for certain sums, as if Major Skyring was entitled to them. I think they were guilty of 574 SKYRIXG C. GREENWOOD & COX. [bOOK II. a neglect of duty in not communicating to him the information thoy hail received from the Board of Ordnance in 181G. Suppose that the balance of the account delivered in 18v'l had been paid to Major Skyring, and that no subsequent pay had been received for his use by the defendants, and tliat they had brouglit an action to recover back the money paid. It would have been a good defence to tliat action to say that the defendants had voluntarily advanced money to the de- ceased when he asked no credit, and that they had told him that they had received the money for his use, and that on the faith of their representation he had drawn it out of their hands as his own money, and had been induced to spend it as such ; and if they could not recover the money back, neither ought they now to be allowed to retain other monies belonging to the deceased, upon the ground that they have paid or allowed him in account money which they had not in fact received to his use, but which they suffered him to consider his own for a long jjcriod of time. I think they cannot now be permitted to say, that the money which they allowed him in account as money received by them to his use, was not money received to his use. The rule for a new trial must therefore be discharged. HoLHOYD, J. The present action is brought for money had and received by the defendants to the plaintilT's use, subse(iuently to the communication made by the Board of Ordnance to the defendants, and of which the deceased was not informed till 1831. The plaintiff has a right to recover, unless the defendants have a debt to set off. Xow ^lajor Skj/ring had a riglit to expect that money belonging to him would Ijc received by defendants for him, and that all payments made by them were on account of monies so received by them. Sup- po.se that Greenwood and Co. had paid Major Sh-i/ring the balance of the account in 18'^1, and that no money belonging to him liad come subsequently to their iiands, they could not have recoverecl tliat money back, on the ground that they had |)aid it to him under a mistaken notion that he was entitled to it. A payment, therefore, made under sucii circumstances, would not create a debt between the defendants and Major Sh-i/ring. Here, it is true, the defendants did not pay the balance. Bui they now say, that .some of the money whicli they paid to Major Ski/riiig was not paid to him, on account of monies received for him by them, but was jiaid by them under the mistaken notion that he was entitled to it, and, therefore, that such ])ayment constituted a del)t from Major Sl-iirimi to them, which they are now entitled to set off ; but I think, fur the reasons alre:idv given, it did not constitute a debt, and that being so, tlie j)laintiir is entitled to recover. Hule discharged. CHAP. II.] NEWIIALL V. TOMLINSON. 575 NEWHALL AND ANOTHER v. TOMLINSON AND ANOTHER. Common Pleas, 1871. [Law Reports, G Common Pleas, 405.] Action for money had and received, money paid, interest, and money found due upon accounts stated. Plea, never indebted. The cause was tried before Willes, J., at the last assizes at Liver- pool. The facts were as follows: The plaintiffs and the defendants were respectively cotton-brokers in Liverpool. In April, 1870, the plaintiffs bought of the defendants 74 bales of cotton ex Glen Cora, each acting for principals whose names were not disclosed, and, ac- cording to the usage of the cotton-market, each treating the others as principals in the transaction. 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 De- cember, when the plaintiffs demanded back that sum. The invoice for the cotton (which was delivered on the 22d of April) was headed as follows: "Messrs. Newall & Clayton, bought from \Y. D. Tomlin- son & Co." etc. ; and it was not until after the discovery of the mistake that the plaintiffs were informed (as the fact was) that Messrs. Dixon. & Co. were the defendant's principals. In the meantime the defendants, being creditors of their undis- closed principals and holding the goods as security, credited their principals with the amount received from plaintiffs. The learned judge, before whom the case was tried, directed the jury to find for the plaintiffs, damages £509 15s., reserving leave to the defendants to move to enter a verdict for them, or a nonsuit, 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 principals 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 ns ])eing due to the defendants personally: and each were liable personally to the others for the due performance of the con- tract. 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. Tliev had made large advances to their 576 NEWHALL V. TOMLINSON. [BOOK II. principals, Messrs. Dixon li- 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 »S: Co. ; nor did they in point of fact hand it over to tiu-m. It is true that tlie defendants were shown to have made furtiier advances to Messrs. Dixon & Co. suhsequently to tiie receipt by them of this money. That, however, could not make it money had and received by Messrs. Dixon & Co. to the use of the plaintiffs, so as to enable them to sue ^lessrs. Dixon & Co. for it. The mistake originated with the defendants themselves, and they alone are re- sponsible. The cases relied on are clearly distinguishable. In Shand V. Grant, 15 C. B. N. S. 324 the defendant received the money as agent of the shii)Owner, and for the puri)ose of handing it over to him. The case was put entirely upon the ground that tlie 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. Russell, the same view was taken, and the decision proceeded upon the ground that the defendant was a mere agent. CocKnuR>J, 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 ( 1 B. & S. 424, at p. 432 ; 30 L. J. Q. B. 308, at p. 312) : "We are of opinion that the ]daintiff fails upon the facts. Xot only is it clear that the defendant was acting solely as agent, but (the court having power to draw inferences of fact) we arc of opinion that the plaintiff was aware that the de- fendant was aeting 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. Eule, C. J., delivering the judgment of that court, says (\ B. & S. 14, at p. 15; 32 L. J. Q. B. 207, at p. 208) : "The de- fendant who received this money from the i)laintiff received it as agent for a foreign principal. The 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 aeeounted for in a settlement of account api)roved 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 lieforo he received notice not to |>ay it, and before he knew that there was no legal dutv on liini to do so? There is nothing in this case to deprive the defendant of the right of an ordi- nary agent so to protect himself." Here the defendants were not mere agents. They were dealing as principals, and entitled to a|)ply the proceeds of the sale of the cotton to their own use. For these reasons I am of (»j)inion that the direction of the learned judge was riglit, aiiil that tjjere siiould i)e no rule. CHAl'. 11. I XKWUALL V. TOMLIXSON. 577 Byles, J. I entirely agree with what has fallen from my Lord upon the first point. The defendants did not receive the money as mere agents : they received it for their own use and benefit. In addition, I would observe that the defendants here are seeking to excuse one mistake by another. They paid over (or accounted for) the money to tiieir employers, if not with recollection, yet with notice of the facts. If they were mere agents, they were bound to remember. On both grounds, th(>n>forc. I think the verdict was right. Montague S:Mrrii, J. 1 am of the same opinion. Upon the facts appearing, 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 some sense principals, and had a right to approi)riate the money in satisfaction of their advances to Dixon & Co., and they did so. What is said by Lord JIaxsfield in Buller v. Harrison, 2 Cowp. 568, seems to me to be very much in point : "The law," he says, "is clear, that, if an agent pay over money whieli has been paid to him by mistake, he does no wrong ; and the plaintiff must call on the principal : and in the ease of ]\Iuilman v. , where it appeared that the money was paid over, the })laintiff 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? Certainly not." If the argument of Mr. Quain were to prevail, the defendants clearly would be in a better position than if the mistake had not happened. They received the money and appropriated it towards satisfaction of their own debt. I think the defendants were not, to use the words of Erle, C. J., in Holland v. Russell, 4 B. & S. 16, agents altogether. As between themselves and the plaintiffs, they were principals. Brett, J. I am of the same opinion. The defendants were origi- nally liable because under a mistake they received money which they were not entitled to. Tliey cannot get rid of that liability, unless they bring themselves within the rule as to an agent who has re- ceived money on account of his princii)al and has paid it over tcr him. It seems to me that they have failed to bring themselves within that rule. They did not receive this money for their principals. They stood with regard to the plaintiffs as original contractors. I should be sorry, however, to decide the case on that ground alone. The money in question was received by the defendants, not only as between tlie plaintiffs and themselves, but also as between Dixon & Co. and them- selves, 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 £500 15s. in question to the use of their princi- pals ; and consequently they do not bring themselves within the rule 5T8 CLAKK V. ECKROYD. [BOOK II. relied on. I will only add that I found my judgment entirely upon that view, and I do not rely on the ground that the money was re- ceived by the defendants through a mistake of their own.^ Rule refused. CLARK V. ECKROYD. Court of Appeal of Ontario, 1886 [12 Ontario Appeal Reports, 425.] This was an appeal by the defendant from the judgment of the Common Pleas Division, reversing the judgment of Wilson, C. J., at the trial, and directing judgment to be entered for the plaintiffs. The plaintitfs ordered goods from the defendant in Montreal to be shipped to them in Toronto, and three several consignments were made, one of which having been addressed to "J. H. Clark & Co.," instead of "'H. E. ("lark & Co.," never reached the plaintiffs, but was, after remaining eighteen months in possession of the carriers, in due course sold for payment of the charges thereon. The plaintiffs in ignorance of the non-receipt of the third consignment accepted and paid the defendants' draft for the amount of the invoices of the three consignments. Subsequently they discovered their error and demanded a return of the amount paid — some $335.92 — which the defendant refused.- Nevillr, for the appellant. — It may safely be asserted here that but for the culpable negligence of the plaintiffs the loss which has occurred would not have arisen. The plaintiffs are compelled to admit that notice of the consignment of the goods to them had been sent and received, yet although thereby the responsibility was cast upon them as the purcha.^Jers and consignees of the goods to apply to the railway company they entirely neglected such simple duty. The plaintiffs are thus shewn to have been guilty of gross negligence, which 'The prinripal case and Durrnnt r. Ecclpsiustirnl rominissionprs (1880) L. R. fl Q. n. D. 2.34 (tlio fnrtH of which nro sullicicntly ^'ivcri in ("lurk r. Kckroyd, poHl) nro >i«unlly fitod as cstnlilishin;; \ht- dixtrinc Ihat chan;,"' <>f l)<)Hiti(in on thp part fif the dofi-ndant \» no l)ar (ci |)laintiir's ri'c«)vpry. They rortainly aro ri[)p()>ti-d to tho earlier eani-H r)n tho mihje<'t. such as ('«K-ks r. Mastcrinan ( 1S21)) 1> It. & ('. !>0'2. This line of cases is, however, distinfjuishahle in that a positive duty is ineiinihent u|)on the [)hiintifT to notify the defendant in order that the latter may not \itno his rijjhts against other parties to the instrument. In the nlmence of a duty, then, mer<' ne;;lij;ence wouhl seem no lonjrcr to bar [ihiin- tiff't* riyht to recovery, even aUhouph defendant is prejudi(«' general public, of whom fhat person is one. and not merely the neglect of what would be prudent, in respect to the party himself or even of some duty, owing to third persons, ^v^th whom fhose seeking to set \\p estopjx'l, are not privy." Se<' also Dickson v. Heuter's Telegrajdi Co., 3 C. I*. D. p. 1, per Bramwell, L. J., "Before any ])erson can complain of negligence, he must make out a duty to take care ; and that duty can only arise in one of two ways, either by contract, or by the law imposing it." In Durrant v. The Keclesinstical Commissioners, (I (.). B. D. 234, the plaintifT by mistake had paid the defendants who were own(>rs of the tithes of a parish, tithe rent chargetl in respect of lands which CHAP. II.] CLARK V. KCKUOYD. 581 were not in his occupation, lie did not discover his mistake until the two years limited by law for the recovery of a tithe rent charge had expired, and the defendants had lost tlieir remedy for the arrears against the lands actually chargeable. It was argued that the plaintiff ought to have known the facts, and that his laches had altered the position of the defendants; but it was held that there was no duty cast on the plaintiff in relation to the defendants, which made his delay in discovering the mistake, laches on his part and that he was entitled to recover. What legal duty then did the plaintiffs owe the defendant in the present case? If, as I think, there was none at the time the draft was accepted and the money paid, none would arise afterwards, short of the time when the mistake was actually discovered. The defendant believed he had sent the goods, and said so : the plaintiffs believed they had received them and, in effect, said so too; for the defendant's case may be put as high as that. Both were mis- taken, but the plaintiffs in saying so were neither inviting the defend- ant to act, nor to refrain from taking action about the goods, for nothing was then known to them, which made it their duty at their peril, to be accurate; in other words which made it their duty to take care, more than if the goods had never left the d'^fendant's warehouse, and the subsequent loss had occurred by reason of their being l)urnt, or stolen, or injured there from any cause before the discovery of the mistake. That it was not discovered sooner may have been negli? gence, but it was negligence in relation to the plaintiffs' own l)usiness, negligence in relation to something which would have been prudent, in respect to the plaintiffs themselves, but not of any duty they owed to the defendant. The origin, and real cause of the loss was the defendant's own neglect in mis-sending the goods. On the decisions referred to the judgment is right, and the appeal should be dismissed. BuRToy. J. A. I agree in affirming the judgment upon the question of estoppel, and in addition to the cases referred to by my Brother OsLER would refer to tlie case in this Court of the Agricultural Saving Association v. Federal Bank, 6 A. R. 200, where the same question was fully considered. Hagarty, C. J. 0., and Patterson. J. A., concurred. Appeal dismissed, with costs} 'The autliorities on this subject arc in oonfusion, and abound in dicta more or less relevant and more or less soimd. For cases on this subject in the Federal and State Courts, see 15 Am. & Eng. Encyc. of Law (2d ed.) 1106, 1107 and notes. For the Scotch law on this question, see 3 Green's Encyc. of Scots Law (article Condictin indehifi) 170. For the Continental law on the subject of payment by mistake due to plaintitFs negligence, when a recovery would prejudice the defendant's legal 582 KELLY V. SOLAKI. [BOOK II. {d) The Effect of Plaintijf's Negligence. KKTJ.Y r. SOLAKI. EXCUEQUEK, 1841. [9 Meeson tf- WeLsby, 54.] » Assumpsit for money paid, money had and received, and on an account stated. Plea, noi} assumpsit. At the trial before Lord Abin'geh, C. B., at the London sittings after Trinity term, it ajjpeared that this was an action !)rought by the plaintiff, as one of the directors of the Argus Life Assurance Company, to recover from the defend- ant, Madame Solari, the sum of £li)7 10s. alleged to have been paid to her by the company under a mistake of fact, under the following circumstances. Mr. Angelo Solari, the late husband of the defendant, in the year 183i) effected a policy on his life with the Argus Assurance Company for £20(). He died on the 18th of October, 1840, leaving the defend- ant his executrix, not 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, Vr. Bates and Mr. Clift. that tho policy had lapsed by reason of the non-payment of the premium, and ^Ir. Clift thereupon wrote on the policy, in pencil, the word "lapsed." On the nth of F'el)ruary, 1841, the defendant proved her husband's will; and on the 13th. applied at the Argus office for the payment of the sum of €1000, secured upon ripht'*. <*of»: Fn-ndi f'ndc f'ivil (Diilloz) .\rts. l.'^Tfi. l.'?77: I>au(livT.acantinoiio & Hardo's Trnitt' dc Droit Civil: l^ps 01)Ii;,'ati()ns. vol. iii., part 2. pp. lOOIMO?" ; Italian Civil Code ( P'reneh translation of Pnulhoninic) Art. 114(5; Spanish Civil Code (edition of Falcon) Art. 1800. Tlie cited editions of the Italian and Spaninh Codes are annotated with references to the various lioMin^s of the Continental and S|)anish-Anierican countries, includinp Louisiana (Civil Code, Arts. 2271I-2200) . These provisions, dilFcrinp somewhat in formal expression, are all imscd upon Articles l.'lTn. I.'ITT «>f the Krem-h Code. The Spanish text is fuller and may sctve as a mor has abandoned the |)ledf;e. or cancelh'd the warranties of his ripht. A person who has unduly made a i>ayment can only a paid to another under the intluence of a mistake, that is, upon the supposition that a specific fact is true, which would entitle the other to the money, but which fact is untrue, and the money would not have l)een 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 ; though a demand may be necessary in those cases in which the party receiving may have been ignorant of the mistake. The position that a ])erson so paying is precluded from recovering by laches, in not availing himself of the means of knowledge in his power, seems, from the eases 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, 1 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 fact be tiue 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 l)ack, however careless the party paying may have been, in omitting to use due diligence to inquire into the fact. In such a case the receiver was not entitled to it, nor intended to have it. (JruNKV. B., concurnMl. RoLFE, B. I am of the same opinion. With respect to the argu- ment, that money cannot be recovered back e.\cei)t where it is uncon- scientious 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. Rut I agree that Mr. Plntl has a right to go to the jury again, upon two grounds: first, that the jury may possibly find that the directors had not in truth forgotten the fact; and secondly, they may also come to the conclusion, that they had dt'termined that they would not expo.se the ollice to unpopularity, and would thcrd'ore pay the money at all events; in which case 1 quite agree that they could not recover it l)ack.* Rule nhsohilf for a iinr trial. «In TownHond v. Crowdy (IH(JO) S C. 11. \. S. 477. plaint itr lM.u;,'lit cmt ii partnfT for a prifc, Mul)j«'ct to a (Ifdiu-tion, in cane piidits fell olT. Il«' i)aid without deduction, not having diwovcicd. as if careful he ini^lit have done, that profits fill ofT. On action f«>r nmncy fnu\ and rifcivod to the pIuiiitilTH use, it wuh licld that plaintifT's nc>;lif;rncc was no bar to Iuh recovory. "It BPCmH, from a lon^ wripH of jascH, from Kelly r. Solari, 9 M. & W. .'>4. down to DailH v. F.loyd, 12 Q. B. 5.11. that, whoro a party pays money under a miHtakc of fact, he ih entitled to recover it back, althouj-li be may at the time CHAP. II. J I'ERllY V. NEWCASTLE INSURANCE CO. 585 PERRY V. NEWCASTLi^ MUTUAL FIRE INSURANCE CO. Queen's Bench of Upper Canaua, 1853. [8 Upper Canada Q. B. 3G3.] Assumpsit — common counts — money paid — money received, and on account stated. Plea : Non-assumpsit. The plaint iifs insured their mill with the defendants for three years, from the 1st of September, 1848, to the 1st of September, 1851 — paying at the time £12 10s., and 5s. for the policy. In 1849 they paid further £50 on account of their premium note for £250 which they had given according to the statute. They did not pay this £50 to the defendants in cash, but by a note given by one of the plaintiffs for discount and indorsed by a third party, and which was taken up when due. These payments were made to .satisfy assessments made by the company on the premium note, according to the act, and were made in July and October, 1849. The policy, dated the 1st of September, 1848, was given by the clerk of the company to one of the plaintiffs; it had the seal of the company to it, and the signature of their secretary, but not of the president — which omission of the president's signature the secretary swore at the trial was accidental — and he stated that when he gave the policy either to one of the plaintiffs or to some one for them, he believed that he requested that they would call on the president to get it signed by him. The defendant's counsel, at the trial, contended that the policy be- of the payment have had means of knowledj^e of which he nas neglected to avail himself." — Erle, C. J. "No doubt, at one time the rule tliat money paid under a mistake of fact might be recovered back, was subject to the limitation that it must be shown that the party seeking to recover it back had been guilty of no laches. But. since the case of Kelly r. Solari, 9 M. & W. 54, it has been established that it is not enough tliat 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. Upon the facts of this case, I think the i>laintitr is entitled to recover." — Williams, J. "This is the simple ease of one paying another money which both at the time suppose to be due, but which afterwards turns out. in consequence of a mistake of fact on the part of the payer, not to have been really due. In such a case the law clearly is that the money may be recovered back. The only dis- tinction is between error or mistake of law. for which the payer is responsible, and error or mistake of fact, for which he is not." — WiLl.ES. J. For the doctrine of the principal case, compare X. Y. Life Ins. Co. v. Statham (1870) 93 U. S. 24, and Keener's Quasi-Contract. 52. — Ed. 586 PERRY V. NEWCASTLE INSURANCE CO. [BOOK II. ing under the seal of the company and countersigned by their secre- tary, was binding upon tliem; and that at any rate the phiintiffs could not recover back money voluntarily paid on a contract entered into by them, having the policy in their own possession, and being therefore, as must be presumed, aware of any defect apparent on the face of it. Verdict for the plaintiff, £67 18s.^ Vankoughnct obtained a rule to enter a nonsuit on points re- served at the trial ; or for a new trial on the law and evidence, and for misdirection. KoBiNsoN, C. J. delivered the judgment of the court. , We are of opinion that the rule nisi for nonsuit in this case should be made al)solute, but not from any doubt whether the policy was or was not binding upon the company, being without the president's signature; for we think it clear that it was not in itself binding on account of that omission. The 19th clause of the Gtli Wni. IV. ch. 18, when it provides "that any policy signed by the president and countersigned by the secretary hut not otherwise, shall be deemed valid and binding on the company," makes the signatures of both those officers necessary to its validity — and it cannot be denied that the plaintiffs have been holding a j)olicy since the 1st of SeptcmlxT, 1848, which tliey could not directly en- force by an action at law ; it does not therefore follow, however, that they can su))port this action to recover back money which they have paid on account of the i)reniium note given under the statute. If they were resisting the payment of any further sum on account of the note until a binding policy had issued, or because that which had been issued was not binding — that would raise a different question, as was e.xplaiiu'd in the case of Bell r. Gardiner, 4 ^I. & dr. 11, which was cited l)y the plaintiffs' counsel in the argument, but which in its general bearing is 'unfavorable to the plaintiffs' recovery under the general circumstances of this case. The general principle is clear, that when a j)ers()n has paid a sum of money to another, with a full knowledge of facts, lie cannot sue for it back again on the ground that he paid it in ignorance of the law, resulting from these facts. As was stated l)y the court in Bell v. (Jardiner, the inference seems almost irresistible that the plaintiffs, having such means of knowledge as they bad in this case, must have been aware of the fact that the jmlicy wliic h they themselves held had not the president's signature. .\nd besides, it was sworn by the person who gave the |)olicy to one of the j)laintifTs, that he believed he mentioned to him that h<' must call and obtain the jiresident's signature. Still we must admit it to be j)ossible that this witness may have been mistaken in supposing that he stated this, and possibly also 'Ttic wtiitciiM-nt of Die <'nHo in nnicli sliortpiied. — En. CHAP. II.] PERRY V. XEWCASTLK IXSURANCE CO. 587 that the plaintiffs might have been able in some way to prove to the satisfaction of a jury that they in fact were not aware that the presi- dent's signature was wanting. And if the jury had been so con- vinced, and had found the fact, then as respects that point in the case, it would have stood on similar ground with the case of Bell v. Gardiner. But here we have the fact that the plaintiffs had the most ample means of knowledge of the defect when they paid the money, and no ground is furnished for questioning that they did in fact know it. We have not therefore any foundation to rest upon for the distinc- tion which the court took in Bell v. Gardiner ; and there is besides this other difference on which the Court then laid great stress, that it was an action in which the defendant was setting up want of con- sideration or failure of consideration as a defence against a demand — not a case in which a party having made a payment with full means of knowledge in his power, was suing to recover back again the money which he had so paid. The case of Hentig et al. v. Staniforth, 5 M. & Sel. 122, cited by the plaintiffs' counsel in this case, does not apply, because there, when the plaintiffs paid the money, it was expected that a license for the voyage would be obtained in time to make the voyage legal; and by accident the license was delayed so long that it became inoperative, for the ship had sailed without it. The voyage was consequently illegal, and no action could have been sustained on the policy. The assured was allowed to recover back his premium, but that was be- cause there was a failure of consideration by reason . of something happening after the payment, and not known at the time of the pay- ment, which wholly frustrated the object. The ease of Oom et al. v. Bruce, 12 Ea. R. 225, was a ease stand- ing on the same ground, and equally inapplicable to the circumstances of the case now before us. The case of Lucas r. Worswick, 1 Moo. & Rob. 293, and of Kelly v. Solari, 9 M. & M. 54, are more to our present purpose; for they are both cases of exceptions to the general principle that money paid with knowledge of the facts, or with such means of knowledge as would raise prima facie a presumption of knowledge, cannot be recovered ])ack. The justice of the decision in Lucas v. Worswick is clear ; and one is glad to find that the court felt itself at liberty to draw the dis- tinction which was drawn in that case — namely, that a party may recover back money which it is clear he must have paid in forgetf ill- ness of certain facts which had without doubt been known to him. The plaintiff there having a claim made upon him for work and labor for £143, contended that he was only liable for £97: but as the defendant pressed for some money on account, he paid him £20 10s., leaving the question as to the full amount of the claim open for future discussion. The defendant afterwards agreed to give up the disputed part of his account and accept the £97 in full, and the plain- 588 PERHY V. NEWCASTLE INSLKANC E CO. [ IU)OK 11. tiff then paid him £!»? — not at the momtmt thinking of the £20 10-;. which he liad already paid on account. He soon became sensible of his mistake, and demanded back the £'-^0 lOs. which he had thus paid twice over; but the defendant insisted on retaining it. It would be a reproach to our law if under such circumstances the payment could not be recovered back, though undoubtedly it was money j)aid with a knowledge of the fact, but amounting to the same as want of knowl- edge of it at the moment. The knowledge was not present at the time, and no man couhl doubt that the payment must have been for- gotten ; for the plaintiff could never have intended to pay the same sum a second time. It was therefore a case for an e.xcejjtion mani- festly proper to be made to the general principle that money i)aid with knowledge of the facts cannot be recovered liack. It was most unconscientious in the defendant to desire to retain the money. Here it seems as unconscientious in the plaintiifs to dt'sire to get the premium back — at least till they had gone to the defendants and ascertained that they were inclined to evade the obligation by with- holding the president's signature from the policy. That should have been first put to the test. It is not easy for us to determine whether the ])laintitrs when they paid the £50 (for as to the £12 10s. that payment by the very ])ro- visions of the charter was required to be made Ijefore the policy was perfected) were under the imi)ression that the policy would be bind- ing if it had only the corporate seal ; or whether they paid the money in reliance that the company would raise no difliculty about it, as they had been long insured with them, and the same risk had l)een again clearly accepted and agreed to be continued; or whether the plaintiir meant to have the defect supplied, and merely omitted it from that disposition to procra.stinate which often occasions a thing to be neglected from the feeling that it can l)e done at any time. In either case the ]»laintill's could not demand the money back; and the only rpiestion that would remain with us would be whether, as in tli' case of Kelly v. Solari, 1) .M. ik W. 51. there should not be a new trial, in order that the jurv might find e.\|)ressly whether llie money was paid with a knowledge of the facts and in cons('(|uence of the ))laintifTs" waiving the defect in the |)olicy under any such im|iressions as 1 have mentioned, or whether they paid it in actual ignorance that the president's signature was wanting, or forgetting that circumstance when they made the payment, sujtposing them to have known it before. As to the latter point, we can see no grouml on which it could properly have been left to the jury to have assumed the case to be so, in the absence of any evidence. In F.ucas r. Worswick. 1 Moo. X- Hobb. 29'{, no one conld have imagined otherwise than that the plaintiir inu.Mt have forgotten the previous j)ayment when he p;ii(l the whole money a second time. CIlAl'. II.] I'HRKY V. NEWCASTLE IXSUKANCE CO. 589 But thc! plaint ill's' counsel adiiiitttMl fairly enough on the argument of tills rule, that there was really no pretence for ordering a new trial, since no new light eoulil he thrown on the case hy any evidence in the power of the ])arties to give. And, as it stands upon thc evidence, we think the plaintiffs must fail: for — first, as they had the policy all the time in their own possession, it ought not to he assumed without any evidence whatever leading to such a conclusion, that they did not know in what condition the policy was in regard to its execution. Then, secondly, if they had even noticed the defect for the first time after they had paid the £50, they should at least have gone to the defendants and given them an opportunity to repair the defect before they made it the ground of demanding back their money. And thirdly — which indeed is conclusive of itself against this action — the plain- tiffs cannot be said to have paid their money for nothing, since the company were in fact bound to execute a policy, having accepted the risk and received the money. Their own by-law, as they rightly insisted in answer to this demand, made them clearly liable. It is usual with insurance comijanies to accept the premium and give a temporary receipt, which binds them in case of a loss happening before the policy is drawn out ; and it is necessary that this should be the case, especially in cases like the present of renewed or continued insurance, for otherwise a person might be ruined by a fire occurring within the short time that must elapse before the formal instrument can be prepared and executed. 1 do not consider that the company could in this case have escaped from their liability, after what has taken place ; for if they were dis- posed to be dishonest, they could surely be compelled to execute a valid policy of the proper date, and their by-law would estop them from objecting that it was not in fact executed before the loss. In eft'ect, therefore, the plaintiffs have been all the time insured, as they probably have considered themselves to be, notwithstanding the accidental omission of the ])resi dent's name, which they have had no reason, as it appears, for apprehending would not be made right upon their request at any time. Per Cur. — Rule absolute for entering nonsuit.* 'See further of thi.s question of paj'ment liy mistake, with means of knowl- edge at hand: Guild v. Baldridge (1852) 2 Swan, 295; Columbus Ins. Co. v. Walsh (185.3) 18 Mo. 229; National Life Ins. Co. v. Jones (1873) 1 Thompson & Cook. 466 (affirmed in 59 N. Y. 649) ; Windbiel v. Carroll (1878) 16 Hun. 101: Fnnnl)ers r. Risk (1878) 2 III. App. 499; West v. Houston (1844) 4 Harrington, 170, as note to Mowatt r Wright, ante, 406. In :\Ierchants National Bank r. National Eagle Bank (1869) 101 Mass. 281, 285, Ck.\y, .1., speaking for the court, said: "It is well settled by recent (liH-i-^ions tliat money paid to the holder of a check or draft drawn without fvuids may he recovered back, if paid by the drawee under a mistake of fact. And though the rule was originally subject to the limitation that it must be 590 STANLEY RULE AND LEVEL CO. V. BAILEY. [BOOK II. THE STANLEY KULE AND LEVEL COMPANY v. BAILEY. Supreme Court of Errors of Connecticut, 1878. [45 Connecticut Reports, 464.] Assumpsit, to recover back money claimed to have been paid under a mistake of facts; brought to the Court of Common Pleas of Hart- ford County. The facts were found by a committee, and on the facts the court (Mc^L\nus, 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. 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 to recover a part of the amount, an his cedent. It was answered for CaUundvr. That Glurct being Debitor to him in the like Sum, he had for his satisfaction, assigned him this Bond, so that he having received no more from Mar. than what was due to him by Gloret, he was not obliged to repeit what lie had received, in solution of a just Debt, for repefitlo nulla eat ah eo. (^ui suuni recipit, tamctst ah alio quam vcro dehitorc aolutum est. L. 44. ff. de Condictione indebiti, and L. 2. Cod. eodem solutiex delegatione repetitio nulJaest contra delegaium, sed contra deleijantem, licet sit ex errore solutum. so that Callandcrs Assignation from Gloret to Marx Bond, in satisfaction of a Debt due by Gloret. is a Delegation of Mar. Glorets Debitor, in place of Gloret himself, and therefore there can be no repetition of what was payed by Mar through error against Callander, though it may justly l)e against Gloret. seing Callander has received nothing by the payment of his true Debt, which is according to our ordinar custom, that if any make payment of another mans Debt, upon that Debitors Precept, he can never Kepeit it upon jiretence, tliat it was indibite .^ohitiim. and that he payed by error, when he was not due, and an Assignation being but a Procuratorie in rem siiatn is in the like case. It was answered. That as the Earl of Mar might have excluded Callander, before he got payment, as to this 1000 merk payed to his cedent before his Assignation, so having jiayed. what was not due, he may justly repeit it. as it was found in the Case of Sir James Ramsay against Robertson, the 10 .Inn. Mu'.^. where The Lords decerned liobrrtson, to reprit what he as Executor Creditor had re- covered from Ramsay, upon findinr/ of a discharge of the Debt; and here the pavment was not made by tlie Earl, or by his Warrand. but by the error of his Chamberlains. It was He|)lyed. That what was payed by Ramsay to Robertson was not voluntar, but by a Transaction ujion a depending Process, but voluntar payment, of what was due to a Creditor, though the Payer was not Debitor, can never be repeited, whether it were payed l)y the l]arl, <••• by his Chamberlains, or any other. The Lords found Callander obiigi'd to repeit. if be had a('»|uire(l the Assignation, for payment of a Sum whereby In- was in the same Ca.'M' as his cedent, and was not a Cnnlitor as to what was payed iMiforc hJH Assignation, but found it relevant. Tliat /n's- Assir/nation was in salisfartinn of a Debt due to him by Gloret before the A ssiy nation-, equivalent to the Sum assiqned ; So that he got no more from Marr, or his Chand)crlains, but what was due to him by Gloret. CHAP. II.] CATHCART V. MOODIE. 593 CATHCART v. MOODIE. Court of Sessions of Scotland, 1804. [Morison's Dictionary of Decisions, App. Heir and Exr. 2.] Mr. William Andersone having been the man of business for Lord Rockville's family, was considerably indebted to them at the time of his death (Dec. 1796), when he nominated Mr. Stuart Moodie, advocate, to be his executor. The account due to the Countess Dowager of Dumfries, Lord Rock- ville's widow, amounted to £1054 15s. and as there was then supposed to be much more than a sufficiency of funds for the discharge of his whole debts, payments were made to the amount of £986 5s. 8d. so as nearly to extinguish this debt. It having turned out, however, that Andersone's funds were in- adequate to answer the demands upon him, Moodie raised a summons of multiplepoinding (4th June 1798), in which it was agitated, whether Lady Dumfries should rank upon the debt as at Mr. Andersone's death, or as then outstanding; that is, whether the payments were to be held as dividends out of the interest belonging to Lady Dumfries in the funds, or if she should now rank for the difference between the sum originally due, and the payments made in extinction of it. Mr. Moodie contended, That the whole creditors, after their debtor's decease, are constituted into an aggregate body, for whose behoof the executor is trustee : That therefore he has no right to apply the funds to the payment of one creditor more than to another: Although he can- not make any such selection, still it is held that he may pay prima venienti; but this cannot be to any one making a private extrajudicial demand, but can only be to the person who first obtains a decree; Ersk. B. 3 T. 9. § 43. This Avas not the case here. The payment, therefore; was unwarrantable and there must be room for a condictio indebiti. For although it may be true, that there was a debt truly due at first, there was none due by the the executor, in so far as the funds turn out insufficient. The payment was made by mistake, and therefore not protected I)y the bona fides of the creditors. Carrick v. Carse, 5th August 1778, No. 11, p. 2931. Lady Dumfries having assigned her interest to Robert Cathcart, writer to the Signet, as her trustee, in his name argued : A creditor having obtained payment from an executor, where no diligence has been used for six months after the deatli of the debtor, is not liable in any claim for repetition, though an insufficiency of the the funds may after- ward be discovered. A debt which is not disputed may be paid in this way without any decree. The claim of repetition cannot be supported upon the idea of a condictio indebiti, which implies a want of title 594 ilERCIIAXTS' IXS. CO. r. ABBOTT AND OTHERS. [BOOK 11. in the receiver, or ignorance of some pica in point of fact or law on the part of the payer. Neither of these can be alleged here. The debtor niigiit have obtained decree against the executory funds for the debt, and, when paid, no claim in the way of condictio would be com- petent. Robertson v. Strachan. 2\nh July 1700, Xo. 35, p. 8087: Ersk. B. 2 T. 9, § 23; Lesser Institute. The Lords found, "That the payments made to Lady Dumfries are to be imputed in extinction of the original debt due to her, and that she is not bound to repeat any part thereof." MERCHANTS' INSURANCE CO:\rPANY OF PROVIDENCE v. ABBOTT AND OTHERS. Supreme Judicial Court of Massachusetts, 1881. [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 induced to pay the money l)y fraud and mistake. The five cases were tried together, but are not exactly alike. In the first action, which is brought by the Merchants' Insurance Company of Providence, R. I., against Charles W. Abl)ott and the members of the firm of Denny, Rice & Co., the material facts are shown by the report of the presiding justice and the sjiocial findings of the jury to be as follows: — On March 17, 1870, a woollen mill was destroyed by fire, upon the contents of whicli Abbott held a policy of insurance from the plaintiffs in the sum of $2,500, payable in sixty days after satisfactory proofs and adjustment of loss, and providing that any fraud or false swear- ing in the proofs of lo.ss should avoid the policy. Soon after the fire. Al»t)ott nuide and delivered to the plaintifTs proofs of loss, and they, after a rea.sonai)le investigation, which disdo.sed no grounds for a refu.sal to pay, and in ignorance of any fraud on Abbott's part, adjusted the amount of the loss in accordance with sjuch ))roofs. Denny, Rice & Co. offered evidence of the following facts: At the time of the fin; ,\bbott was indebted to them in tlie sum of aboiii $4,000, In thr bitter part of .Xpril. 1S7(;, Abbott paid them aboui $1,500 in cash, and, as security for the payment of the rest of hi- debt, executed an instrument in writing under seal, l)y which, after reciting the issuing of the policy, and that a claim for hiss had arisen under it, he assigned to them all his "claims upon said insurance com- pany for loss under said policy." and authorized them to demand and Hue for the same in his name, if necessary, r.nd the proceeds to enjoy to their own use, and .generally to do all and every act in and about CHAP. II.] merchants' ins. CO. V. ABBOTT AND OTHERS. 595 the premises which he might do if this assignment had not been made. In June, 187G, 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 part, paid to Denny, Eice & Co. the amount of the loss as adjusted, and took a receipt signed by them in this form : "Boston, May 25, IHTG. deceived of the ^lerchants' Insurance Com- pany of Providence $2,478.80 in full satisfaction and discharge of all claim for loss and damage under this policy by fire March 17, 1876, and this policy is hcrel)y cancelled and surrendered." The sum so paid exactly extinguished tlie debt of Al)bott 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 Abbott, and his proofs of loss were false and fraudulent. The plaintiffs did not learn that they had been defrauded until ilay, 1877, and then at once placed the case in the hands of legal counsel for investigation, and for prosecution, if investi- gation should warrant it; and on January 16, 1878, brought this action. The other defendants had no knowledge of any fraud, nor was any demand for the money made upon them before this action was 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 Alibott's certificate of discharge was no bar to this action ; and, holding that the facts offered to be proved by the other defendants constituted no defence, directed a general verdict for the iDlaintiffs, and reported the case for such dis- position and judgment as the full court shoidd determine. There can be no douI)t of the liability of Abbott in this action. If the money had been paid by the plaintiffs to him, it could l)e 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 monev.^ Kelly v. Solari, 9 M. &- W. 5-1 ; Townsend v. Crowdy, 8 C. B. X.S. 477;' Pearson v. Lord, 6 Mass. 81: Stuart v. Sears, 119 Mass. 143 ; Welch v. Goodwin, 123 Mass. 71 : 2 Phil. Ins. §§ 1816, 1817. Although Ahlmtt has not in fact received the money, the pay- ment of the money by the plaintiffs at his request in discharge of his debt to the other defendants is equivalent to the receipt by Abbott of so much money, and is sufficient to enable the plaintiffs to maintain the action against him upon the special count, if not upon the general *Accor(lintrly. in two othor actions, hidii^'lit l>y tlio Mamifaoturors" Fire and !M;\iine Insurance Co. and the American Insurance Co., respectively, aprainst Ahhott only, to recover back money paid to him liy the plaintiffs \inder the same circxunstances as between them, which were tried, ar^iued and determined with the cases in the text. Tl\e plaintitT* had judgment. o9G merchants' ins. co. v. abbott and others, [book II. count for money had and received. Emerson v. Baylies, i;> Pick. 55; Perry v. Swascy. I'i Cush. 3t). This liability of Abbott to the plaintiffs, being a debt created by his own fraud, is not barred l)y his i-ertiticate of discharge in bankruptcy, l'. S. Hcv. Sts. 5; ."illT; Turner v. Atwood, 124 Mass. 411; Mudg" r. Wiliiiot. TM Mass. 4!)3, and 103 U. S. 217. 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 c. Morgan, '^ Moore, (535; S. C. 1 Brod. & B. 289; Gow, 123; Mason v. Waite, IT Mass. 560. 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 assignment by Abbott to them was made in consideration of that debt, and to secure the payment thereof. The previous exist- ence of the debt does not make the assignment the less a conveyance for value. Blanchard r. Stevens, 3 Cush. 1{)2; Culver v. Benedict, 13 Gray, 7; Ives v. Farmers' Bank, 2 Allen, 236; Kailroad Co. v. National Bank, 102 V. S. 14, 58, 5!). There is no question of the validity or of the genuineness of the a.ssignment. 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 assign- ment of a claim of Abbott upon the plaintiffs for a ciM-tain sum of money. That claim, not being negotiable in Uiru\, 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 plain- tiffs, at Abbott's request, and without any suit, ])aid tin* amount of the los.s, as adjusted between them.selves and Abbott, directly to these defene wrongfully withheld from tliein by these defendants, and which they are therefore bound to |)rove that, as between these parties, tjje plaintiffs have the better right to, and it is inefjuitable and unjust that those defendants should retain. The onlv contract of the plaintiffs was with .\bbott, and the only mistake was a.s betwcfcn them and him. The money was voluntarily CHAP. 11. j .MKUCIIAXTS' IXS. CO. V. AIJJ50TT AND OTHERS. 597 paid by the plaintills in discharge of Abbott's supposed claim ujjon 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 phxintilFs to Abbott. These defendants received the money, not in satisfaction of any promise which the plaintiffs had made to them (for tho plaintiffs had made no such promise), but under the agree- ment of Al)i)ott with these defendants that they might receive it from the pUiintiffs 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 Avith him, and which 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, !» Cush. 177. As between the plaintiffs and these defendants, there Avas 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 hold 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 plaintiffs. The case stands just as if the money had been paid by the plaintiffs to Abbott, and by Abbott to these defendants, in which case there could be no doubt that, while the plaintiffs could recover back the amount from Abbott, neither .\])bott nor the plaintiffs could recover the amount from these defendants. The fact that the money, instead of being paid b}^ the 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. The two forms do not dilfer in substance. In either case, Abbott alone is liable to the plaintiffs, and these defendants hold no money which e.r (vquo et bono they are bound to return either 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., after- wards, by A.'s direction, actually delivers them to C, who has pur- chased 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 598 MERCIIANT.S" INS. CO. V. .VUBOTT AND OTIIEnS. [BOOK II. supposition tliat the bond is sociired 1)V mortgage of property of the bank, or that the l)aiik has funds of the debtor sufficient to meet the check, seeks to recover back the monev so paid. In Aiken v. Short; 1 H. & X. 210; S. C. 25 L. J. (X. S.) Ex. 321, the action was brought by the public officer of a bank against an executrix to recover back money paid to her under the foUovNnng circumstances: George Carter had made to the (k'fen(hint"s testator a bond secured ijy equitable mortgage on property devised to him by Edwin Carter; and had afterwards conveyed the same ])roperty 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 equital)le charge, paid the debt to get rid of the charge affecting its o^^^l 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 defend- ant 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 Xorman's report, after stating the facts of the case, said : ''The bank had ]iaid 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, coidd the party paying recover back the money if it turned out that he was wrong in su])i)osing that he had funds in hand? The money was in fact paid by the bank as the agents of Carter." 1 II. & X. 214. By the similar but fuller report in the Law Journal, it appears that the Chikf Baron, after observing that the bankers "had paid the money, no doubt, in one sense, witiiout any considera- tion," added, "What is that to the defendant, 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 b(> considered rather as paying it for (ieorge 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 deciding that monev may be recovered back because it has been paid under a mistake." "25 l' J. (X. S.) Ex. ^^2^^. Jiarons Tlatt, Martin and Uhamwkll were of the same n]>inion. Baron Pl.\tt said, "The action for money had and received lies only for monev whieh the defendant ought to refund or rrqun rt bono;" and, after stating the other faets. 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 CHAP. II.] merchants' ins. CO. V. ABBOTT AND OTHERS. 599 can be no obligation to refund it (1 11. & X. 214, 215) ; or, according to the fuUej' report, "He refers her to the bank. They, acting as his agents, upon being referred to, pay his del)t. How can that be prop- •erly recoverable? Surely the debt is satisfied. The dobt was due. It is not as thousfh there were no debt due, and there was a mistake of fact ; but here the debt was actua Jy 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." 25 L. J. (N. S.) Ex. 324. Baron Martin said, "The case comes to this: If I apply to a man for payment of a debt, and some third person pays me, can he recover back the money because he has paid it under some misapprehension?" 1 H. & N. 213, 214. In Chambers v. Miller, 13 C. B. (X. S.) 125; S. C. 32 L. J. (X. S.) C. P. 30, 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 over- drawn, 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 j^roperty in the money had passed to the plaintiff, and consequently that the defendants' Justification failed; and his ruling was confirmed by the court in banc. The question whether the de- fendants had a right to take back the money by force, though men- tioned 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. Justice 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 was genuine, and the money was due from the drawer to the payee, and the mistake as to the amount of the drawer's funds in the hands of the l)ankers was a mistake hetween him and them only, with wliich the payee had nothing to do. The Chief Justice distinguished the case from that of Kelly v. Solari, above cited, in that "there the money 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." 32 L. J. (X"". S.) C. P. 33. The like distinction was taken in Hull v. South Carolina Bank, Dudley, 259, 262. and in Guild r. Baldridge. 2 Swan. 295, 303. So in Pollard v. Bank of England. L. P.'fi Q. B. (:23. 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, 600 merchants' ins. co. v. abbott WD oTiiEus. [book II. in behalf of himself and Chief Justice Cockbdrn and Justices Mellor and LisH, that Lambton & Co. could not recover back from the Bank of England the amount so paid, and that the Bank of England there- fore held the amount on the drawer's account. For these reasons, the court is of ojiinion 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, Rice Si Co. and Abbott cannot be jointly charged in this action. They have made no joint contract with the plaintiffs, nor have they jointly received money from the plaintiffs. The grounds of liability of the two are distinct. The liability of Abbott to the jiiaintitr rests upon the ground that, by reason of his frmid and their mistake, they have at his request paid money to the othe^ 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, Rice & Co., who were not iiarties 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 cannot 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 l)onefit of l)oth defend- ants, is therefore unsupported by the evidence, and the objection on the ground of this variance might be taken by the defendants at the trial. Manahan v. Gibbons, 19 Johns. 109. The other four actions are brought against Abbott and the members of the firm of Browne, Stoose S: Clarke. Tlie only particulars appear- ing by the report, in which these cases differ from tlie 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 l)y him to them was in form a simple assignment of all his "right, title, and inti^est in this policy, and all benefit and advantage to be derived therefrom;" and that in the fifth case .Ablmtt signed a separate receipt similar to that signed by them, and tlie cheek given by the pliiiniifTs was ])ayal)le to the order of .\bbott and the other defendants. But a.^ the evidence introduced, as stated in the report, showed that in all these four cases "the amounts dne on the policies as adjusted, assigned to them as aforesaid, were paid to Browne, Steese & Clarke by the insurance companies at the expiration of fhe sixty days allowed by the terms of the policies, and the money kept by fliem, and no part of it paid to .\bbott." a majority of fhe court is of opinion that neither the difTerence in the form of the iissiLrnments in the four case.s, nor that in the form of the receipts and of the check in one of them, can CHAP. II.] MKRCIIAXTS' IXS. CO. V. ABBOTT AND OTHERS. GOl affect the result; but tlmt the assignment in each case, liaving I)een 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 contin- gencies, but only an assignment of a claim upon the company for an ascertained sum 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 de- mands 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 tlie 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 lousiness 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. 133, § 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 plain- tiff 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. 1-39, §§ 41, 79; c. UG. § 4; c. 133, §§ 5, 6. And the court is not ousted of its jurisdiction of a transitory action, once acquired l)y service upon a defendant residing in the county, by a failure to recover against him at the trial. Lucas r. Nichols, 5 Gray, 309. 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 intro- duced by the other defendants tended to show, a.- to the validity and amount of Abbott's del)ts 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 for the purpose of determining these facts. If, COS merchants' ins. co. r. abbott axd others, [book ii. 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, whicli has been fully tried and settled by the verdict, nor tlie question of the other defendants' inno- cence of that fraud, which was conceded at the former trial, is to be open upon the new trial. Winn v. Columbian Ins. Co., 12 Pick. 345 ; Bobbins v. TowTisend, 20 Pick. 345 ; Bardwell v. Conway Ins. Co., 118 Ma^s. 4G0. If, on the other liand, the i)laintiffs elect to dis- continue against the other defendants, judgment must be entered for the latter, and Judgment for the plaintiffs against Abbott alone} 'In Walker v. Conant (1888) G9 Mich. 321. the facts and holding of the court were as follows: "Stripped of all sophistry, the naked case is this: Van Riper obtains $3,000 of the plaintiff upon a forged mortgage, and. out of the money so obtained, pays Mrs. Conant the debt he owes her, wliich is evidenced by a forged note, and secured by o forged mortgage ujjon the same premises described in the mortgage to plaintiff. The money is honestly her due, and she has an equital)Ie right to demand and receive it of Edgar [Van Riper] ; and, believing her .securities to be genuine and valid, she takes the money, and surrenders them up to him to be canceled and destroyed, and in utter ignorance of the fraud perpetrated by Van Riper. . . . "And the autliorities are uniform that where the money is received in good faith, and in the ordinary course of business, and for a valual)le consideration, it cannot be recovered back because the money was fraudulently (jbtained of some other person by the payor. "To hold otherwise would be to put every man who receives money in the due course of his business upon inquiry, at his peril, as to the manner in which such money was procured by the payor. Justh v. Bank, 50 N. Y. 484 ; ^lason V. VVaite, 17 Mass. 503; Warren r. Haight. 05 X. V. 171, 178; Reed r. Bank, fi Paige, 337; Currie r. Misa, 12 Moak. Kng. R. 5!)2, 005; Watson v. Russell, 31 L. .J. (l B. .304; Rapalje v. Kmory, 2 Dall. 51, 54; Stevens r. Board, etc., 71> N. Y. 183." And in Spaulding r. Kendrick (iSitS) 172 Mass. 71, 72, Knowltox, J. (since C. J.), said: "The law of the case is settled by numerous decisions. If a thief gives stolen money, or negotiable securities before their maturity, in payment of his debt, or as security for it, to one who in good faith receives the money or securities as belonging to liim, the creditor can liold tlu' property as against the true owner. .\s l>ctween tlie payor and the payee there is no mis- take wliich affects the validity of the transaction. One receiving money or negotiable se<'urities in payment of or as security for an existing debt is not botind to inquire where the money or securities were obtaincil. It is better that money or a negotiable security, passing from hand to liand to one who rightly reeeivps it for a valuable cftnsideratiim. should carry on its face its own credentials. Men-hants' Ins. Co. r. .\l)bott. 131 Mass. 3517; Lime Rock Bank v. Plimpton, 17 Pick. 150; f;reenfield School District r. First Xaticmal Bank, 102 Mass. 174; Thatcher r. Pray, 113 Mass. 201 ; E.x parte Apsey. 3 Bro. C. C. 205; .Taques v. Marquand. Cowen, 407; Dunlap v. Lima, 40 Iowa, 177. See also Mason r. Waite. 17 Mass. 500, 503; Worcester County Bank r. Dor- chester & Milton Bank, 10 Cash. 488. It has often been decided in this Com- CHAP. II.] WATSOX V. DUYKINCK. 603 SECTION II. The Failure is Due to Xox-performaxce of the Contract or OF A COXDITIOX BY OXE PaRTY. 1. THE DEFAULT IS DEFEXDED OX THE GROUXD THAT, — (a) Performance is Impossible. (1) The Defendant pleads Impossibility. WATSOX V. DUYKINCK. Supreme Court of New York, 1808. [3 Johnson, 335.] This cause came before the court, on a writ of error, from the Court of Common Pleas of the city and county of New-YorJc. The suit below was an action of assumpsit for money had and received to the use of the plaintiff, and a special verdict was found, upon which the court gave judgment in favor of the plaintiff for GO dollars, on which the defendant below brought a writ of error to this court. The sub- stance of the special verdict was as follows: The defendant below, monwealth that a pre-existing debt is valuable consideration for a payment made or a security given on account of it. Blanchard v. Stevens, 3 Cush. 162; Fisher v. Fisher, 98 Mass. 303; Goodwin v. Massachusetts Loan & Trust Co. 152 Mass. 189, 199: Merchants' National Bank v. Haverhill Iron Works, 159 Mass. 158; National Revere Bank v. Morse, 163 Mass. 383." In Youmans v. Edgerton (1878) 16 Hun, 28 (affirmed in 91 N. Y. 403) the same principle Avas applied. It appeared that one A. contracted with B. to convey the latter a tract of land upon payment of the full purchase price. A. assigned his contract with B. to X., and B. assigned his interest in the con- tract for conveyance to Y.. who paid the balance of the purchase price to X., A.'s assignee, and called for a conveyance. It appeared that A. did not have title to the land in question, but this fact was unknoAATi to the various parties other than A. The conveyance not being forthcoming, Y. sues X. in assumpsit as for a failure of consideration, but the court held, and rightly, it would seem, that Y.'s claim against A., not X., who was a purchaser for value froni A. To quote from tlie Court : "Upon the facts found by the referee, the plain- tiff might have an action against Shorer [A.] for breach of contract, or by suit for specific performance, but none against Edgerton [X.], either upon legal or equitable grounds; the money Mhich he got was actually due to him, and there can be no obligation to refund it." 91 N. Y. 403. 411. — See also Newhall v. Wyatt (1893) 139 N. Y. 452. The doctrine of purchaser for value, upon which the right of retention in G04 WATSOX V. DUYKINCK. [bOOK II. {Wattion) on the ITth December, 1805, was master of the sloop Har- riot, bound on a voyage from Xew-York to the island of St. Thomas. Watson agreed with the plaintiff below {Dui/kinck) that, in consid- eration of 100 dollars to be paid immediately, he would suffer the plaintiff' to proceed in the sloop, as a passenger, on the voyage, and to load on board, for transportation, merchandise to the value of GOO dollars, and that the defendant would provide meat, drink, &c. for the plaintiff", during the voyage." The plaintiff* agreed to j)ay that sum, and accordingly paid it on the same day to the defendant. On the 23d December, 1805, the plaintiff embarked, as a passenger, and defendant procured sufficient necessaries, &c., and the plaintiff put goods on l)oard, to the value of (iOO dollars. The sloop sailed on the same da}', on the voyage, and was seaworthy. She sprung a leak, two days after leaving the port of yeiv-York-, and was obliged to bear away for New-London. On her way there, she was unavoidably wrecked on Xonvnlk hhuni, and lost ; the master and crew returned, in 10 days thereafter, to Xew-york. The chief ])art of the cargo was saved and brought to New-York, and the goods of the plaintiff were delivered to him. The plaintiff assisted equally with the crew in en- deavoring to save the vessel and cargo. The expense of saving the cargo, and bringing it to New-York, was paid by the defendant. The average charge on the plaintiff's goods, towards the expenses of sal- vage, was 20 dollars. The defendant provided no other vessel, but the plaintiff went to St. Thomas in another vessel. The usual price these ca.ses depends, is adinii:il>ly -luted in tlic fnllnwing passaj^e from Lord BowK.N'.s opinion in Taylor r. Biakclock ( ISHd) J.. R. 32 Ch. D. 560. 569-70: "IJlakcIock lias ;,'ot a l(';,'al ri^'lit to tliis property, and wliv on earth is it to be taken away from liiin? It can only he taken away from him on the ;.Toiind of Home hrcach of trust which alVccts it. No douht. if he had notice, tlicn his legal title would disajjpcar. would l»c invalidated. It" he was a volunteer he could not stand in a lutter po-ition tlian the jjcrson who conveyed to him: hut if he is not a volunteei, u|)on what principle can you take away his property? "That really rciiuces it to ilic -in!ple question of what is the meaning of the term 'a purcliascr for value" in such cases? '.\ purchaser for value' is n well-known expression to the law. I?y the common law of this country the payment of an exi>-ting ilcht is a fiaymcnt for valuable coJisideratirm. That was always tlie law before tlie reign of (j)ueen l-^lizalu'th, as well as since. Com- mercial transactions are based u|)on that very idea. It is one of the elemen- tary legal principles, as it seems to me. which belong to every civilized coun- try; and many of the comnicriial instrtimcjits which the law recognizes have no other consideration wlialivcr tliaii a jire-cxisting debt. "The man who has :i delit due to him, when he is j)aid the del)t, has con- verted the right to be paid, into .utual jtossession of the money; he cannot have botli the right to lie paid ami the |(ossession of the money. In taking payment he relinquishes the riyht for the fruition of the right. In such a case the transactirm is er)mj>b'ted; an jierson in consideration of an act to be done by another, and the act is not performed, the money so paid may be recovered back. Contracts for carrying freight form no exception to this rule, unless by express stipu- lation of the parties. Chief Justice Ki;nt, in Wat.son r. Diiykinck, .'y ;iny strict rule of hiw. The Court exercises a jurisdiction over attorneys, and that is to i)e exercised accr»rding to law and conscience, and not l)y any technical rules; and considering the circumstances of this case, and the effect of the Act of Parliament which prohibits attorneys from having more than a certain number of clerks, we think that the rcjiort should be con- firmed. This clerk was bound to one only in name. I)ut in reality and in conscience he was bound to two: he was to be instructed by the two CHAP. II.] FERNS V. CARR. 613 who were in partnership together; and they caused him to be bound to one, instead of binding him to the two, in order to satisfy the Act of Parliament, and enable the partners to liave that number of clerks which they could not otherwise have had if Bayley had been bound to the two instead of one of them. In conscience, it appears to me to be a binding to the two; the premium was paid to the two; and the one being dead, and the other having the full number of clerks which the law allows him, and not being able to retain this young man in his service, and instruct him and give him the benefit for which he paid the money, I think he who is the survivor is bound to refund whatever is to be refunded." Then he said the master had found a sum, and that ought to be paid. It is to be remarked on the judgment in that case that the opinion of the Court was that although the bond was to one partner only the clerk was bound to the firm and there was a person surviving and able to fulfil the con- tract with him, except so far as he had put it out of his power to take another clerk. I do not think that case governs the present, because in the present it is admitted that there is no person who can fulfil the contract. I think I may pass over the other cases and come to the case of Hirst V. Tolson, 2 Mac. & G. IS-i, which is hardly, if at all, to be distinguished from the present case, and I suppose if it had not been commented upon in a later case cited to me it would have been my duty to follow it and decide that a portion of the premium was re- turnable. But when the case of Hirst v. Tolson was most carefully considered by the Judges in the Exchequer Chamber, in Whincup i'. Hughes, Law Hep. 6 C. P. 78, they all dissented from it, considering, with all respect to Lord Chancellor Cottenham, that his judgment was wrong and saying there was no debt at law. Now if there is no debt at law, which I must take to be the fact on the authority of that case, it is exceedingly difficult to say there is any debt in equity, and if there is no debt in equity I am thrown back on that which is said to be the paternal and masterful jurisdiction over attorneys. I must say I do not understand what that is. I quite understand it put in another form, that every one who is a solicitor is an officer of the Court, and in respect of his conduct as such the Court has a summary jurisdiction which it exercises in a manner beneficial both to solicitors and others. But I cannot understand how there can be a paternal and masterful jurisdiction which can enable the Court to say that a contract between a solicitor and a third person is to be construed in another way than a like contract between other persons, and that notwithstanding the contract means one thing, the solicitor is to do another because the Court thinks it more honourable. I think if I were so to hold I should be assuming a jurisdiction to enforce a code of morals not written and not to be found definitely stated by any authority, and should be making the rule of the Court to vary, as 614 FERNS V. CAUR. [BOOK II. Lord [John] Seldex (Selden, Table Talk, title Equity) once said it did vary, according to the length of the foot of each Lord Chancellor. I will go a step further and say if I were wrong in the conclusion I have come to, if 1 were to disregard the strict meaning of the contract. I should have great difficulty iii saying that anything ought to be returned in this case. At least I should come to the conclusion that it ought to be a very small sum. The premium was £150; during three years the articled clerk has had the benefit of the solicitor's instruction, and, if he has benefited from it to the extent to which he ought, his services would be of considerable value to the solicitor for the next two years. And 1 very much doubt whether, upon any consideration, anything would be returnable except a very small sum. Under all the circumstances, though not without some doubt, because of the authorities cited, I think I must come to the con- clusion that there is no power in the Court on a contract of this kind to say that any part of the premium ought to be returned.^ 'In the leading case of Whincup v. Hughes (1871) L. R. 6 C. P. 78. it appeared that the plaintiff apprenticed his son to a watchmaker and jeweller for the term of six years, paying a premium of £25. The master duly in- structed the apprentice for one year, and then died. The plaintiff brought an action for money had and received against the master'^ executrix to recover the whole or some part of the premium on the giound of failure of consider- ation. Tlie court, however, refused recovery on the ground tliat there was only partial not a total failure of consideration. The following two cases concerning the riglits and status of members of the legal profession, may be of interest. In Coe v. Smith (1853) 4 Ind. 79, an attorney engaged to defend a cause for $500, but died before the suit was deteniiincd. His administrator was allowed on a quantum meruit, the amount — $175 — which the intestate's .services were really worth to the client. In McCammon r. Peck (1895) 9 Oh. Ct. Ct. 5S'.). tlic sum of $1500 was paid in advance to J. M. Jordan, a distinguished attorney of Cinciiiiiati, to carry a case to final determination. After performing services of tlie admitted value of $250, Jordan died, and the client brought suit to recover the unearned portion of the fee. The Circuit Court permitted recovery, in what would seem to be an unanswerable opinion; but on apjieal, the judgment was reversed, without opinion l)y the Supreriie ('r)»irt, evidently acting on the advice of Lord Man.s- FIEI.D to "decide j)romptly, but never give any reasons for your decisions. Your decisions may be right but your reasons are sure to l)e wrong." The two cases are one in principle, and recovery shoiild have l)een permitted in the latter as well as in the former. In both instances, however, the courts stood by the pro- fession. — Fa). CHAP. II.] KNOWLES V. BOVILL AND ANOTHER. 615 KNOWLES V. BOVILL AXD ANOTHER. Exchequer, 1870. [22 Law Times Reports, 70.] The plaintiff was the holder of a license to use a certain patented invention from the patentee. The patentee intending to apply for a prolongation of this patent, and. also for a patent for a new inven- tion of a similar description, the plaintiff agreed to give him £150 for the free use forever of the former patent, as well as for the free use for three years of the new patent which the patentee was about to take out. The £150 was paid to the patentee, but he died almost immediately afterwards, and in consequence of his death no appli- cation was ever made for a renewal of the former patent, or the grant of one for the new invention. The plaintiff brought an action against the patentee's executors to recover back the £150, on the ground that the consideration of it had totally failed.^ The question for the court was, whether the phiintiff was entitled to the return of the £150. Martin, B. In my opinion the plaintiff is entitled to our judg- ment. The true test in this case is the question, What did he buy? In my opinion he bought an application for the grant of one patent and the prolongation of the other. By the contract he was to take the chance of the failure or success of such application. But what he bought was an application. The result is that the consideration in this case wholly fails, because it is admitted such application never was and now never will be made. The law in some cases implies a contract when the parties have not expressly made one. In cases of the total failure of consideration for a simple contract, it implies a contract to repay the money which has been paid for the consideration 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 re- newal 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 appli- cation made. In point of fact it was not made. Then why is his claim not well founded? ^Ir. Garth invokes a rule of law; he claims *The head-note is substituted for the elaborate statement of the report, and arguments of counsel are omitted. — Ed. 616 LlKi: HT Al,. C LYDE. [bOOK II. to read such a contract with a qiialificatiou implied by hiw that Mr. Bovill is only bound to make such application if he lives; he is to be excused bv death. Mr. Quain may fairly say then, "I am entitled to add a qualification to that qualification, viz., that if he dies the money shall be returned." I am strongly of opinion that the law ought never to implv 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 reason- able? Why should the contractor's death be a benefit to his estate, and inflict a loss on the other party? In such a case the court only introduces a term which it is satisfied, not perhaps that the parties in- tended, but that they would have intended if they had contemplated the circumstances which have arisen. PiGOTT, B. I am of the same opinion. It is quite clear that the in- tention 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 consideration wholly failed. Cleasby, B. It is clear that 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 not, whereas it was admitted if he had lived and not made it the plaintiff would have recovered.* Judgment for plaintiff. (2) The I'hiintiff I'Uads Impossibility. LUKE etnl r. LVDE. King's Bench, 1759. [2 Burrow, 882.] A SPECIAL case from tlie last Devonshire assizes; reserved by Lord Mansfikli). who went that circuit lasf summer. The defendant Lyde sbipped a cargo of l.")!)! (|uintMls of fish, at fhe port of St. John in Newfoundland, on board tlie ship "Sarah." be- longing to the plaintifTs, fo be carried to Usbon. The plaintiffs were to l)e paid freight, at the rate of two shillings per quintal. The orig- inal price of the said cargo was, at Xe\vrniiiHll;iiid, fen shillings and sixpence sterling per quintal. The plaintiffs had also on hoard flic said "Sarah," a cargo of 945 quintals of fish, whidi was tln-ir own property. •Compare Taylor r. \\:\ro (IHO.^)) 1 1'.. & V. N. 11. 2G0, ante, 428.— Ed. CHAP. 11.] LUKE ET AL. V. LYDE. G17 The ship sailed from the port of St. John on 27th November, 1756, and had proceeded seventeen days on her voyage, and was taken on the 14th of December following,- within four days' sail of Lisbon, by a French ship. And the captain, the other otlicers, and all tlie crew (except one man and a boy) were taken out of the "Sarah" and put on board the French ship. The ship "Sarah" was retaken on the 17th of the same December, 1756, by an English privateer; and on the 29th of December, 1756, brought into the port of Biddeford in Devonshire. The plaintiffs, having insured the ship and their part of the cargo, abandoned the same to the insurers. But the freight, which the own- ers were entitled to, was not insured. The defendant had his goods of the recaptors, and paid them 5s. per quintal salvage, at the rate of 10s. per quintal value. The fish could not be sold at all at Biddeford, nor at any other port in England, for more than 10s. per quintal, clear of all charges and expenses in bringing them to such port. And the most beneficial market (in the apprehension of every person) for disposing of the said cargo of fish, was at Bilboa in Spain, to which place the defend- ant sent it in the March following; and there was no delay in the de- fendant in sending the said cargo thither. And it was sold there for 5s. 6d. per quintal, clear of the freight thither, and of all expenses at- tending the sale there. The freight from Biddeford to Lisbon is higher than from New- foundland to Lisbon. From the time of the capture, the whole way that the ship was afterwards carried was out of the course of her voyage to Lisbon. The question was, "Whether ihe plaintiffs are entitled to any, and what freight, and at what rate, and subject to what deduction?" Mr. Husseij for the plaintiffs. Mr. Gould for the defendant. Lord Mansfield said. That though he was of the same opinion at the assizes as he was now, yet he was desirous to have a case nuide of it, in order to settle the point more deliberately, solemnly, and noto- riously, as it was of so extensive a nature ; and especially, as the mari- time law is not the law of a particular country, but the general law of nations: "non crit alia lex EomfP, alia Athenis ; alia nunc, alia posthac ; sod et apud omnes gentes et omni tempore, una eademque lex obtinebit." He said, he always leaned (even where he had himself no do\ibt) to make cases for the opinion of the court ; not only for the greater satis- faction of the parties in the particular cause, but to prevent other dis- putes, by making the rules of law and the ground upon which they arc established certain and notorious: but he took particular care that this should not create delay or expense to the parties, and therefore he always dictated the case in court and .saw it signed by counsel, be- fore another cause was called; and always made it a condition in the G18 LUKE ET AL. l\ LYDE. [liOOK 11. rule, "that it should be set down to be argued within the first four days of the term." Upon the same principle, the motion "to put off the argument of this case to the nyxt term," was refused ; and the plaintiff will now have his judgment within a few days, as .soon as he could have entered it uj) if no case had been reserved, at the expense of a single argument only ; and some rules of the maritime law, ap- plicable to a variety of cases, will be better known. lie said, before he entered into it particularly, he would lay down a few i)rinciples, viz. : — If a freighted ship becomes accidentally disabled on its voyage (without the fault of the master), the master has his option of two things; either to refit it (if that can be done with convenient time), or to hire another ship to carry the goods to the port of delivery. If the merchant di.sagrees to this, and will not let him do so, the master will be entitled to the whole freight ot the full voyage. And so it was de- termined in the House of Lords, in that case of Lutwidge & How v. Grey ct al. As to the value of the goods, it is nothing to the master of the ship "whether the goods arc sj)oiled or not." Provided the freighter takes them, it is enough if the nuister has carried them ; foi- l)y doing so he has earned his freight. And the merchant shall be obliged to take all that are saved, or none; he shall not take some, and abandon the rest, and so pick and choose what he likes, taking that wbi(]\ is not dam- aged, and leaving that which is spoiled or damaged. 11* he abandons all, he is excused freight; and he may abandon all, tliougb lliey are not all lost. (I call the freighter the mercbaiit. and the other the master, for the clearer distinction.) Now here is a capture without any fault of the master, and then a reeaj>tiire. The merchant does not abandon, but takes tlie goods, and does not require the master to carry them to Lisbon, the port of deliv- ery. Indeed, the master could not carry thern in tlie same ship, for it was disabled, and was itself abandoneil to the insurers of it; and he would not desire to find another, because the freight was higher from Biddeford to Lisbon, than from Newfoundland to Lisbon. There can bo no doubt but that .some freight is due, for the goods were not abandoned i)y the freighter, but received by him of the re- ca[»tor. The (juestion will Im- "what freight?" The answer is "a ratable freight," i. e., pro rnin ilinrris. If the master has bis election to |)rovide another .ship to carry the goods to the port of delivery, and the merchant does not oven desire him to do so, the master is still entitl<'il to a projjortinn, pro ruin, of the former part of the voyage. I take the proportion of the salvage here to In- half of the whole cargo, upon the state of the rase as here ngrei-d upon. .\nd it is rea.son- ahle that tin- half here paid to the recajjtor should be considered as ClIAl'. 11.] LUKH 1:T AL. IK LYDE. G19 lost. For the recaptor was not obliged to agree to a valuation, but he might have had the goods actually sohl, if he had so pleased, and taken half the produce; and therefore the half of them are as much lost as if they remained in the enemy's hands. So that half the goods must be considered as lost, and half as saved. Here the master had come seventeen days of his voyage, and was within four days of the destined port when the accident happened. Tlierefore he ought to be paid his freight for 17/21 parts of the full voyage, for that half of the cargo which was saved. I find !)y the aneientest laws in the world (the Khodian laws), that the master shall have a ratable proportion, where he is in no fault. And Consolato del Mere, a Spanish book, is also agreeable thereto. Ever since the laws of Oleron, it has been settled thus. In the Usages and Customs of the Sea (a French book), with observations thereon, the fourth article of the Laws of Oleron is, "That if a vessel be ren- dered unfit to proceed in her voyage, and the mariners save as much of the lading as possibly they can ; if the merchants require their goods of the master, he may deliver them, if he pleases, they paying the freight in proportion to the part of the voyage that is performed, and the costs of the salvage; but if the master can readily repair his ship, he may do it, or if he pleases, he may freight another ship to per- form his voyage." Amongst the observations thereon, the first is,"that this law does not relate to a total and entire loss, but only to salvage; or rather, not to the shipwreck, but to the disabling of a ship, so that she cannot proceed in her voyage without refitting; in which ease the merchants may have their goods again, paying the freight in propor- tion to the way the ship made." The observation adds further, "That if the master can, in a little time, refit his vessel and render her fit to continue her voyage (that is, if he can do it in three days' time at the most, according to the Hanse- Town laws), or if he will himself take freight for the merchandise aboard another ship, bound for the same port to which he was bound, lie may do it; and if the accident diil ii;or and more liberal and enlarp'd viowH rommunicated to forensic invcHtijrntions" (3 C'f)nunentarips. ID). Mr. Carver in his ''nrriap- of Coods hy Sea (4th od.) § .'iCO. snya: "It may be doubted whether the ;;roundH (,'iven for this dcci.sion [Luke v. LydeJ can CHAP. II.] MACKRELL V. SIMOND & HANKEY. 621 MACKRELL v. SIMOND & HANKEY. King's Bench, 1776. [Ahhott oil Shipping {oth Ed.), 333.^] In an action of covenant on the charter-party, in the first count oi' whicli the phiintill' claimed freight for the period of the voyage to Grenada; in the second up to the day of loss of the ship. The de- fendants demurred. Judgment was given for the plaintiff on the first count, and for the defendant on the second. MackreU, the owner of a ship called the Richard, lying in tlie river Thames, let his ship to freight by a charter-party, dated 9th March, 1774, to Simond & another "by the month, for such time as she should be employed in performing a voyage from London to PlyniQuth, and the island of Grenada, and from thence back to London," whereby the plaintiff covenanted, "that the ship should, pursuant to the orders and directions of the freighters, their factors or assigns, prosecute and per- form the voyage above-mentioned, (the dangers and perils of the sea, and the restraint of princes and rulers excepted), and should in such outward and homeivard voyage load and unload all lawful goods:" and that his ship's company and boats should aid and assist in unloading and reloading the said ship's cargoes as customary at the island of Grenada, and that he would ):)ay all port-charges and pilotage. In now be regarded as satisfactory." And see Judge Iveenek's adverse criticism from the standpoint of quasi-contracts in his Treatise, 253. — Ed. 'In the preface to the first edition of Abbott on Shipping ( 1802) the learned author, later Lord Chief Justice of the King's Bench, said: "The case of Mackrell against Simond and Hankey was communicated to me by the late Mr. Justice Buller, who, when at the bar, argued it on behalf of the defend- ants." But in Appleby v. Dods (1807) 8 East. 300, Lord Ellenborovgu refused a recovery for wages on outward because the vessel was lost on the homeward voyage. It is true that the contract provided for pa^nuent only upon return to home port, but inasmuch as freight was earned upon the outward voyage, and freight is, or rather was, the mother of wages, there was a fund out of which the wages could have been paid, and the seaman's labor had either added to or created this fund. .\(1d to this the fact that the express clause about pay- ment was inserted to lucveiit desertion in the West Indies, and, the seaman's right to recovery see;..s too plain for arg\iment. At the present day the rule that freight is the motlicr of wages is expressly abrogated in the United States ( Rev. St. V. S. § 4.'v2."i) and in case of the loss of vessel, the seaman is entitled to wages earned until time of such loss (Rev. St. U. S. § 4526). For Englisli and American law on this subject and citation of authorities, see 25 Am. & Eng. Encyc. of Law (2d ed.) 96 et scq. — Ed. 622 MACKRELL V. SIMOND ^ IIAXKKY. [BOOK II. consideration whereof, the defendants covenanted that they "would load and unload the ship, and give the master proper orders in n.'spect thereof: and that the ship should be discharged out of her said monthly employ on the delivery of her homeward cargo in London. and also should and would well and truly pay or cause to be paid to the said owner, his executors, administrators, or assigns, in full for the freight and hire of the said ship at the rate of £110 sterling per calen- dar month, for all such time as the said ship should be taken up in performing the voyage aforesaid, to commence and be accounted from the day of the date of the said charter-party, and to end and determine on the day of the discharge of the homeward cargo at London, and to be paid one-third part thereof on lier report inwards at the Custom- house, London, and the remaining two-third parts thereof in two cal- endar months then next following." In pursuance of this charter-party, the ship took in goods belong- ing to the merchants Simond t(- Ilankry at London, sailed with them to Plymouth, and there took in other goods belonging to them, and from thence proceeded to Grenada, and there landed the cargo; and received anotlier cargo from the merchant's factor there, with which she set sail for London; but on the way was lost by tempest. The voy- age to Grenada occupied three months; and five months elapsed in the whole before the loss of the ship: after the misfortune the owner brnuglit an action against the mercluints, claiming of them the pay- ment of freight either for three, or for five months. The merchants insisted that nothing was due. The Court decided that freight was payable for three months, the period of the outward voyage. And Lord ilAXSFiELD delivered his judgment to the following effect: "This question depends upon the construction of the cliarter- party. If the parties have expressed their meaning defectively, the Court must be guided by the nature of the thing. The char- ter-party puts no case but that of a )>rosperous voyage out and home; it provides for freight on the supposition that the ship will arrive safe and n'i)ort her cargo; no provision is made for any other case. If the ship be cast away on the coast of England, and never arrive at the port of London, yet if the goods arc saved, freight shall be paid, l)ecause the nitTchant receives advantage from the voy- age. This is not expressed by the charter-party, but arises out of the equity of the case. Freight is the motlier of wages, tlie safety of the ship the mother of freight: that is the gem-rai rule of tlie maritime law. If there l)e one entire voyage otit and in, and the sliip be cast away on the homeward voyage, no freight is due, no wages are due, because the whole profit is lost ; and by express agreement the parties may nuike the outward and hojueward voyage one. Nothing is more common tlian two voyages; wherever there nrc two voyages, iind one is performed, and the ship is lost in the homeward voyage, freight is due for the first. Here the outward and homeward voyage are eo CHAP. II.] UICIIAUDSON ET AL. t'. YOUNG ET AL. 623 t called in the charter-party. The cargo is loaded outwards, and the owner covenants to pay port-chargos on the outward voyage. The whole of that voyage was completed: port-duties are incurred and paid. Nothing however is due on the homeward voyage, though the ship might be out a month." KICHARDSON ET AL. v. YOUNG ET AL. Supreme Court of Pennsylvania, 1861. [28 Pennsylvania State, 169.] 'Certificate ♦from the Court of Nisi Prius. This was a foreign attachment by John G. Eichardson and Joseph Eichardson, trading as Eichardson Brother & Co., against Stephen Young Smith, C. Cox, and Horatio Stevens, in which Stephen Bald- win & Co. were summoned as garnishees. The plaintiffs filed tl\cir declaration in assumpsit, containing two counts, one for money had and received by defendants for the use of plaintiffs, and the other for money due and owing on an account stated; to which defendants pleaded non assumpsit, payment with leave, &c., and set-off; and on the issue thus formed the parties went to trial. The case was this : In the month of February, 1856, the plaintiffs shipped on board the ship Tigress, then lying in the port of Phila- delphia, 14,125 bags of corn, which was owned by them, to be carried and delivered to the plaintiffs in Liverpool; which ship Tigress was owned by the said defendants. The terms of the contract of affreight- ment were contained in the bills of lading. On the 24th day of March, 185G, the Tigress sailed from Philadelphia, bound for Liverpool, having the said corn on board, and having her cargo properly stowed and secured, and being seaworthy in every respect, in charge of a pilot. While passing down the Delaware, she encountered floating logs and ice, by which the bow-port was stove in. The vessel began to fill and sink, and in order to save her she was stranded. The cargo, including plaintiff's corn, was taken out, transferred to lighters, and brought back to Philadelphia in a wet and damaged state. The corn was surveyed and condemned to be sold for account of those concerned, under writs of survey issuing out of the District Court of the United States for the Eastern District of Pennsylvania, and was accordingly so sold by the master of the Tigress for the sum of $7,687.29.^ A general average statement was made, by which the loss payable on the said corn was $l,0,'i5. • This action wr.s brought to recover the amount of the sale of the G24 RICHARDSON" ET AL. V. YOUNG ET AL. [BOOK II. corn, less the said average loss of $1,055, and the sura of $1,033.04 paid to them by defendants on the 3d May, 185(i, on account. The defendants claimed to set otf the sum of $0,425.17, witli inter- est from 185G, for and as the amount due by the ])laintiirs to the defendants for the freight upon the said corn from Philadelphia to Liverpool. The court (Strong, J.) directed the jury to find a verdict for the plaintiffs for the whole amount of their claim, $(1,837.00, reserving the question whether, upon the whole evidence given, the defendants were entitled to freiglit upon the said corn, for the opinion of the court in banc. The opinion of tlie court was delivered, February 4th, 1801, by Woodward, J. At the argument of this cause I was not sure but that some peculiarity attached itself to the contract of affreight- ment, whereby a sliipowner, who had undertaken the conveyance of merchandise and been prevented by the jx'rils of the sea from deliver- ing it according to the consignment, would be entitled to recover frora the shipper either full freight, or freight pro rata itineris. But upon looking into the authorities, I am satisfied that no peculiarity dis- tinguishes the contract of afi'reightment from tliat class of contracts which the law treats as executory and entire contracts. The settled doctrine of the English and American cases is, that entire contracts must be fully performed, and cannot be aj)portioned, although a new contract may be imj)lied from the voluntary acceptance of services or performance different from that for which tlie original contract provided. Cutter v. Powell, Term P. 3t?(). and lh(> notes thereto, in 2 Smith's Lead. Cases, Am. cd.. pp. l-IT). That this doctrine is as applicable to freight as to other things, may Ix- seen from the cases collected and commented on by Judge Story in the note on page 547 of his edition of Abbott on Shipping, and in the note to the case of Vlierboom v. Chapman. 13 ^\. S; \\\ 23!K .\m. edition. But the best cases I have fuuiKl .irc in our own hooks. In Ilurtin v. The Union Insurance Co.. 1 \V. ('. ('. I{. yM), .ludge Wasiiinoton" laid down the law in the.«e few and -iniph' words: "'11' the cargo is not conveyed to its place of destir.ation. u>i tieighl can be demanded. If voluntarily accejjted at any other port by the owner or his su])er- cargo, freight pro rata ilinrris is due." The ease of Amroyd v. The Union Insurance Co., 3 P.imi. Ill, is to the same effect. So is the case of Calhuider j-. 'i'he Insurance Co. of North America, 5 Binn. 525. wherein Chief Justice 'i'ii.(!iiMAy, after discussing Lord Mansi'ikf.d's celebrated case of Tjuke v. Lyde, 2 Burrow, HS3, says, "it seems to have been understood that pro rata freight is not due, unless the consent of the merchant, either by words or aetions, has been expressly given, or may be fairly deduced, to accept his goods at an intermediate port, and such consent being given, the original contract is di.ssolvcil, and a new one arises." CllAI'. II.] KICHARDSON ET AL. V. YOUNG ET AL. 625 h\ llic ease of Cray v. Wain, 2 S. & R. 229, the same doctrine was applied, and a pro rata l'n'ioiiit of (piasi-eon- traetH. — Ed. CHAP. II.] NEW YORK LIFE INS. CO. V. STATHAM ET AL. 627 NEW YORK LIFE INSURANCE COMPANY v. STATHAM ET AL. SAME V. SEYMS. MANHATTAN LIFE INSURANCE COMPANY v. BUCK, EX- ECUTOR. Supreme Court of tiik United State, 187G. [93 United States, 24.] The first of these cases is here on appeal from, and the second and third on writs of errors to, the Circuit Court of the United States for the Southern District of Mississippi. The first case is a bill in equity, filed to recover the amount of a policy of life assurance, granted by the defendant (now ai)pellant) in 1851, on the life of Dr. A. D. Statham, of Mississippi, from the pro- ceeds of certain funds belonging to the defendant attached in the hands of its agent at Jackson, in that State. It appears from the statements of the bill that the annual premiums accruing on the pol- icy were all regularly paid, until the breaking out of the late civil war, but that, in consequence of that event, the premium due on the 8th of December, 1861, was not paid; the parties assured being resi- dents of Mississippi, and the defendant a corporation of New York. Dr. Statham died in July, 1863. The second case is an action at law against the same defendant to recover the amount of a policy issued in 1859 on the life of Henry S. Seyms, the husband of the plaintiff. In this case, also, the premiums had been paid until the breaking out of the war, when, by reason thereof, they ceased to be paid, the plaintiff and her husband being residents of Mississippi. He died in May, 1862. The third case is a similar action against the Manhattan Life In- surance Company of New York, to recover the amount of a policy issued l)y it in 1858, on the life of C. L. Buck, of Vick.^burg; the cir- cumstances being substantially the same as in the other cases. Each policy is in the usual form of such an instrument, declaring that the company in consideration of a certain specified sum to it in hand paid by the •■'ssurod, and of an annual premium of the same amount to be paid on the same day and montli in everv year during the continuance of the policy, did assure the life of the partv named, in a specified amount, for the term of his natural life. Each con- tained various conditioujj, upon the lireach of which it was to he null and void: and amongst others tbo following: ''That in case the said [assured] sliall not j^ay the said premium on or before the several 628 NKNV YOHK I.IFi: IXS. CO. r. STATIIAM. [BOOK II. days lioreinbefore mentioned for the payiiu'iit tlu-roof, then and in everv such case the said company shall not be liable to the payment of the sum insured, or in any part thereof, and this policy shall cease and determine." The Manhattan policy contained the additional pro- vision, tliat, in every case where the policy should cease or become null and void, all previous payments made thereon should be forfeited to the com])any. The non-payment of the premiums in arrear was set up in bar of the actions; and the plaintiffs respectively relied on the existence of the war as an excuse, offering to deduct the premiums in arrear from the amounts of the policies. The decree and judgments below were against the defendants. Mr. Justice Buadlky. after stating the case, delivered the opinion of the court. We agree with the court below, that the contract is not an assurance for a single year, with a privilege of renewal from year to year by pay- ing the annual premium, but that it is an entire contract of assurance for life, subject to discontinuance and forfeiture for non-payment of any of the stipulated premiums. Such is the form of the contract, and such is its character. Kacli instalment is, in fact, part consid- eration of the entire insurance for life. It is the same thing, where the annual premiums are spread over the whole life. The ca.se, therefore, is one in which time is uiaterial and of the essence of the contract. Non-payment at the day involves absolute forfeiture, if such be the terms of the contract, as is the case here. Courts cannot with safety vary the stipidation of the parties by intro- ducing equities for the relief of the insured against their own negli- gence. But the court below bases its dt'cision on the assumption that, when perforjuance of the condition becomes illegal in eonse(iuence of the prevalence of public war. it is excused, and foifciture does not ensue. It supposes the contract to have been sus|ten(lcil during the war, and to have revived with all its force when tlic war ended. Such a suspen- sion and revival do take place in the case of ordinary (U'l)ts. But have they (!V('r been known to take place in the casc^ of executory contracts in which time is material? If a Texas niercliMnl IkkI contracted to furnish some Northern exploicr a thousand cans of preserved meat by a certain day, .so as to be read\ for his departure for the North Pole, and was prevented from furnishing it by the civil war, would the con- tract still be good at the close of the war five years afterwards, and after the rettirn of the expedition? If Ibe proprietor of a Tennessee quarry had agreed, in IHflO. to furnish, during the two following years, ten thousand cubic feet of marble, for tlw construction of a l)uildirig in Cincinnati, could he have claimed to perform the contract in IHO.'). on the ground that the war prevented an earlier perform- ance ? CHAP. II.] NEW YORK LIFE INS. CO. V. STATHAM. 629 The truth is, that the doctrine of the revival of contracts suspended during the war is one based on considerations of equity and justice, and cannot be invoked to revive a contract which it would be unjust or inequitable to revive. In the case of life insurance, besides the materiality of time in the performance of the contract, another strong reason exists why the pol- icy should not be revived. The parties do not stand on equal ground in reference to such a revival. It would operate most unjustly against the company. The business of insurance is founded on the law of averages; that of life insurance eminently so. The average rate of mortality is the basis on which it rests. By spreading their risks over a large number of cases, the companies calculate on this average with reasonable certainty and safety. Anything that interferes with it de- ranges the security of the business. If every policy lapsed by reason of the war should be revived, and all the back premiums should be paid, the companies would have the benefit of this average amount of risk. But the good risks are never heard from; only the bad are sought to be revived, where the person insured is either dead or dying. Those in health can get new policies cheaper than to pay arrearages on the old. To enforce a revival of the bad cases, whilst the company necessarily lose the cases which are desirable, would be manifestly un- just. An insured person, as ])efore stated, does not stand i.nld and no douht would have heen hrou(»ht. .As it was im- poHsihle to hrinfj wuit during the war, this condition was not performed. It was held hy th«' court that the conilition was entire and not divisible; that as [M'rformanec hiM-ame impoMsilde hy opc-ration of law, tlu- assured was mtirely relieved from the ohli;.;iit ion of hrin>,'iny suit within the twelve months; that the nelion could, tlierefore, he maintained within the statute of limitations. See WambauKh. ('ases on Insurance (1002) fl.'il, note, for an exhaustive ritation of ndjudirated cattes. — Kr>. CllAI'. J I.J CUTTER V. POWELL. 633 men are shipped by the run from Jamaica to England, a gross sura is usually given. The usual length of a voyage from Jamaica to Liver- pool is about eight weeks. This was argued last term by J. Ileywood for the plaintiff : but the court desired the case to stand over, that inquiries might be made relative to the usage in the commercial world on these kinds of agree- ments. It now appeared that there was no fixed settled usage one way or the other; but several instances were mentioned as having hap- pened within these two years, in some of which tlie merchants had paid the whole wages under circumstances similar to the present, and in others a proportionable part. The case was now again argued by Lord Kenyon, C. J. I should be extremely sorry that in the de- cision of this case we should determine against what has been the re- ceived opinion in the mercantile world on contracts of this kind, be- cause it is of great importance that the laws by which the contracts of so numerous and so useful a body of men as the sailors are supposed to be guided should not be overturned. Whether these kind of notes are much in use among the seamen, we are not sufficiently informed ; and the instances now stated to us from Liverpool are too recent to form anything like usage. But it seems to me at present that the de- cision of this case may proceed on the particular words of this con- tract and the precise facts here stated, without touching marine con- tracts in general. That where the parties have come to an express contract none can be implied has prevailed so long as to be reduced to an axiom in the law. Here the defendant expressly promised to pay the intestate thirty guineas, provided he proceeded, continued, and did his duty as second mate in the ship from Jamaica to Liverpool ; and the accompanying circumstances disclosed in the case are that the common rate of wages is four pounds per month, when the party is paid in proportion to the time he serves; and that this voyage is gen- erally performed in two montlis. Therefore, if there had been no con- tract between these parties, all that the intestate could have recovered on a quantum meruit for tlie voyage would have been eight pounds; whereas here the defendant contracted to pay thirty guineas ]irovided the mate continued to do his duty as mate during the whole voyage, in wliich case the latter would have received nearly four times as much as if he were paid for the number of months he served. He stipulated to receive the larger sum if the whole duty were performed, and noth- ing unless the whole of that duty were jierformed : it was a kind of in- surance. On this ])articular contract my opinion is formed at present; at the same time I must say that if we were assured that these notes are in universal use, and that the commercial world have received and acted upon them in a dilTerent sense, I should give up my own opinion. AsiTiruRST. J. We cannot collect that there is any custom prevail- ing among merchants on these contracts: and therefore we have noth- ing: to <,niide us but the terms of the contract itself. This is a written 634 CUTTER V. I'OWKLL. [BOOK 11. contract, and it speaks for itsolf. And as it is entire, and as the de- fendant's promise depends on a condition prt'ccdent to he performed by tlie other party, the condition must he performed before the other part)' is entitled to receive anything under it. It has been argued, however, that the phiintil! may now recover on a qiuuitum incruil ; but she has no riglit to (h'sert the agreement ; for wlierever there is an e.\j)ress contract, the parties must be guided by it; and one party can- not relinquish or aljide by it as it may suit his advantage. Here the in- testate was by the terms of his contract to perform a given duty before lie could call upon the defendant to j)ay him anything; it was a condi- tion precedent, without performing which the defendant is not liable. And that seems to me to conclude the question; the intestate did not perform the contract on his part ; he was not indeed to blame for not doing it; but still as this was a condition precedent, and as he did not perform it, his representative is not i-ntitled to recover. Grose, J. In this case the plaintiff must either recover on the par- ticular stipulation between the parties, or on some general known rule of law, the latter of which has not been much relied upon. I have looked into the laws of Oleron, and I have seen a late case on this sub- ject in the Court of Common Pleas, Chandler v. Greaves, Hil. 32 Geo. 3 C. B. I have also inquired into the practice of the merchants in the city, and have been informed that these contracts are not con- sidered as divisilde, and tiiat the seaman must perform the voyage, otherwise! he is not entitled to his wages; though 1 must add that the result of my inquiries has not been perfectly satisfactory, and there- fore I do not rely upon it. The laws of Oleron are extremely favorable to the seamen; so much so that if a sailor, who has agreed for a voy- age, be taken ill and put on shore ])efore the voyage is conijileted, he is nevertheless entitled to his whole wages after deducting what has been laid out for him. In the case of Chandler v. Greaves, where the jury gave a verdict for the whole wages to the jilaintilf. who was put on shore on account of a broken leg, the court refused to LMJint a new trial, though I do not know the precise grounds on uhidi tin- court proceeded. However in this case the agreement is coiichisive; Ihi' de- fendant only engaged to pay the intestate on condition of his contin- uing to do his duty on board (luring the whole voyage; and the latter was to be entitled either to thirty guineas or to nothing, for such was the contract between the parties. And when we recollect linw large a price was to l)e given in th«' event of the mate continuing on boaronsible on an implied promise arisinj: from the circumstances, to the extent of the value received by him. Thus the rules of pleading in regard to special contracts are preserved, and no injustice is done. The following authorities support this position, and the more particular views we have taken of the subject. 1 Chitt. PI. 325; 1 Saund. 320, n. 4; Cook r. Jennings. 7 T. R. 377; 636 PARKEH i. MACOMBER. [BOOK II. TAKKEK V. MACOMBER. Supreme Court of Rhode Island, 1892. [17 Rhode Island, 674.] Defendant's petition for a new trial. Providence, April 11, 1892. Douglas, J. This is an action of assumpsit brought to recover compensation for board, maintenance, care, and nursing for 390 weeks, from April 1, 1881, to October 1, 1888, at $5 per week, $1,950. The declaration contains the common counts in indebitatus assumpsit for goods sold and delivered, work and labor, money had and received, and for interest. The jury returned a verdict for the plaintiff and assessed his dam- ages at $1,072.50, being at the rate of $2.75 per week for 390 weeks. It appeared that the services rendered were induced by a parol agree- ment between the parties by which the plaintiff agreed that he and his wife should live in the house of the defendant, and care for and main- tain her during her natural life, and the defendant agreed in consider- ation of these services that she would charge no rent for the house, would pay $8 per month board, and would give the house and lease- hold interest in the lot to the plaintiff at defendant's death. She did not pay the board as agreed, but did pay some milk bills for the plain- tiff on account. Plaintiff's wife died February 13, 1888, and from that time he fur- ni.shed housekeepers. In August, 1888, defendant notified plaintiff to leave the hous^e, and he removed Octoi)cr 1. Evidence was introduced, against the objection of defendant, of the value of the services rendered. LitlliT V. Ilolliind, 3 T. R. riOO; Sliipton v. Cnsson, 5 B. & C. 382; Oxondale r. Wr-thcn-II, >.) H. & V. :m]; Sinclair r. Mnwlps. id. <)2 ; C'ooko r. Munstonc. 1 N. K. 3.')1; PaniK'tor r. Hurn-ll. 3 ('. & W !44; Hull. N. P. 13!); Osjiood v. Gronin^', 2 ('ani|)l). A(W>; Lucas r. (Jodwiii. 3 I{in;,di. \. (\ "37; Sinnrd r. PattorHon, 3 I'.Iiickf. 3r»3, and note; Linnin^xdalo r. Livinjiston, 10 Johns. 3(i ; Conhy r. InytTsol, 4 Hlackf. 4ft3."— Loniax r. Hnilcy (1845) 7 Hlackf. r.!)!l. (S()3. Ah to the apportionment of oontracts, hpo note to Cuthbort v. Kuhn (1837) 31 Am. Doc. r)13, r>17 ft srq.; and nn to performance of entire contract as a condition pnvedcnt to recovery, Hce note to Catlin v. Tohias (1803) 84 Am. Dec. 183. 188. On nieaHure of recovj-ry in such cases, see Ilillyard v. Crahtree's .Adin's (18.')4) II Tex. 2ti4. S. C. 02 Am. Dec. 475 and note; Clark v. (Jilhert ( 18(i0) 32 Ilarh. 570 (holding that if Hcrvices are worthless, there can be no re- covery ) . For nn elaborate note to the principal cti'^o, collecting the Enplish author- ities on the Hubject, sec 2 Sm. I>ead. Cas. (Itth Am. ed.) 1212 rt srq. — En. CHAP. II.] P.VHKKK r. M.VCO.MMHH. 637 The (U'l'i'iidant now prav.-^ for a new trial on the ground that the services were performed under an entire contract, which was not com- pleted by the plaintiff because of the death of his wife, whose personal attendance formed an essential part of the consideration of it, and be- cause the evidence objected to was inadmissible under the declaration. The plaintiff contends that after the death of his wife the same ser- vices were rendered by the housekeepers whom he engaged, and that ho was prevented from completing the contract by the defendant, who ejected him from the house, and not by his wife's death. The questions which are raised by the petition are, whether the plaintiff can recover what his services are reasonably worth, notwith- standing the making of the contract, and, if so, whether this declara- tion is sufficient without a count in quantum meruit to admit evidence of the value of the services, and to sustain a judgment therefor. We cannot doubt that, when this action was brought, the agree- ment had been annulled, if it ever had had any validity. If the leasehold interest were for a term exceeding one year, the agreement amounted to an attempt to convey an interest in real estate I)y parol, and was void under the statute of frauds. In such case, as the defendant refused to continue the arrangement, whether justifiably or not, the plaintiff is entitled to recover the value of his services already rendered. Lockwood v. Barnes, 3 Hill. X. Y. 128; King v. Welcome, 5 Gra}', 41. While it seems to be assumed that the lease was for a long term, and the probabilities of the situation lead us to the same supposition, un- fortunately there is no evidence reported which enables us to find the fact, and we cannot presume that the agreement was void without proof. We must therefore consider the agreement as originally binding, and determine the right of the parties upon that view of the case. If the plaintiff was prevented from continuing his contract by the arbitrary act of the defendant, he may disregard it and recover the value of the services he has rendered in partial performance of it. Greene & Brown v. Haley, 5 R. I. 2C^0. If the death of the plaintiff's wife was a substantial failure of thi^ consideration, then the de- fendant was justified in rescinding the contract, as the full perform- ance of it on the part of the plaintiff had become impossible. We tiiink such was the case. The personal services and attentions of the wife to the defendant, who was the plaintiff's aunt, were unth Amer. ed. 1238, in the note to Cutter r. Powell, say: "The death of either party puts an end to a contract for jxTsonal services unless it is otherwise agreed." I'resident Tucker, of the Virginia Court of .Appeals, referring to the same ease, says: "That case can only l)C sustainc*!, I think, on the ground principally relied on of extra wages. But notwithstanding these and other cases which rigorously deny comf)ensation Jinless there is entire performance, there can be no doubt that when the subj«'ct is divisible, when the failure as to part can be fairly and accurately compensated by an apportionment of the CHAP. II.] PARKER V. MACOMBER. 639 consideration, tlie law permits, as justice certainly requires, that it should be done." Bream v. Marsh, 4 Leigh, 21, 29. In Haynes, Spencer & Co. v. Sec. Baptist Church of St. Louis, 13 Mo. Aj){). 53(J, 539, it is said by tlie court: "If money is to be paid when the work is done, non-performance of the work is a good de- fence; and where there has been a partial performance only, and not a performance of what is substantial in the contract, as a general rule plaintiff cannot recover. The rule always applies when the non-per- formance is voluntary on the plaintiff's part. But when the non-per- formance is caused by the defendant, or by the act of God, the rule is not always applied, and in this country Cutter v. Powell has not been followed, but, in contracts for service, sickness and death have been held to excuse the non-performance of an entire contract." See, also, Carpenter v. Gay, 12 R. I. 306; Farrow v. Wilson, L. R. 4, C. P. 744. Wolfe i'. Howes, 20 N. Y. 197, is clearly analogous to the case at bar. The plaintiff's declaration contained the common counts only for work, labor, and services rendered by his testate, as a skilled work- man, to the defendant. A contract was set up in defence by which the testator had agreed to work a year at $40 per month, $10 of which was to be paid monthly. Before the end of the year he became unable to work from sickness, and so continued till his death. It was hold by the referee that, by reason of this sickness and death of the workman, he was discharged from the further performance of his contract, and his executor was entitled to recover a reasonable compensation for his services preceding the sickness. The Supreme Court atlirmod the de- cision, and the Court of Appeals, after a careful examination of the authorities, held that the contract contemplated the personal services of the workman, and that full performance, being prevented by sick- ness or death, was not a condition precedent to the right to recover, and laid down the general proposition that one who. under a contract requiring his personal services, and providing for partial payment during the employment and the remainder at the end of the term, per- forms services valuable to the em]iloyer, but before the expiration of the stipulated peri-rd is disabled l)y sickness from completing his con- tract, is entitled to recover as upon a qiunitiim meruit for such services as he rendered. Ai.i.Kx. J., p. 200, in considering the case of Cutter v. Powell, saj'S it "is distinguishable in this, that, by the peculiar wording of the con- tract, it was converted into a wagering agreement, by which the party, in consideration of an unusually high rate of wages, undertook to in- sure his own life, and to render at all hazards his personal services during the voyage, before the completion of which he died." See, also, to the same general effect. Fuller r. Brown, 11 ^letc. 440; Seaver v. :Morse. 20 Vt. 620: Fenton v. Clark, 11 Vt. 557, 5 Lawyers' Eep. annotated 707, note; Clark v. Gilbert, 26 X. Y. 279: Coe v. 640 PARKER V. -AfACOMBER. [BOOK II. Smith, 4 Ind. 79; Hubbard r. Bolden, 27 Vt. G45 ; Patrick v. Putnam, 27 Vt. 7o!»; Lakt-nian /'. I'ollard, 43 Me. 4(i3 ; Kyan v. Dayton, 25 Conn. 188; Green et al v. Gilbert, 21 Wise. 401; Dane's Abridg. cap. 9, art. 22, 5<|^ 17, 18. The question remains whetlier the plaintiff's declaration is sulheient without the count in (juanluni meruit. We think it is suflicient. A count in <]ua>ihim meruit as well as one in indebitatus assumpsit for work, labor, skill, care, and diligence, etc., claims a certain sum as due. In either case the plaintiff may re- cover le.-^s, and the judgment is for so much of his stated claim as is found to be justly merited. The counts in quantum meruit and in (juantum valehat are therefore unnecessary in any case. 1 Chitty on Pleading, 352, 353. The petition for a new trial must be denied and dismissed.^ 'An art of fJod •rt'iicrally cxcusts (lie jiorfoniiance of a contract, Haldwin r. Ins. Co. (1858) 3 Bosw. 530: IVo|)lc r. Tul)l).s (18(58) 37 N. Y. 58(5; New Haven & Northampton Co. v. Quintard (IHCJi) U Abb. Pr. N. S. 128; Hare. Contracts, 037 et seq. : Pape. Contracts, § 13()2 and ca.se9 cited. Otherwise if the act could have been foreseen, Worth v. Edmunds (1868) 52 Barb. 40. Accordinf,'ly death may terminate a contract, Babcock v. Goodrich (1879) 3 How. Pr. N. S. 52, 54, and a contract so dctcriniiu'd may be apportioned. George r. Elliott (180(>) 2 Hen. & M. 5; Townsciid v. Hill (18.)7) 18 Tex. 422. Where the contract is apporlionable, a recovery should be permitted for the part performed. Coe. r. Sniitli ( 1H53) 4 hid. 70, S. C. 58 .\m. Dec. (il8 and note; Stubbs r. Holywell Ry. Co. (18(i7 ) I.. 11. - V.\. :ill ; Seymour r. Ca^'^rer (1878) 13 Hun. 2i»; Lacy r. (ietmaii ( IS'IO) ll!( N. ^. 10!l; Landa r. Shook ( IS!l5) 87 Tex. (i()8. S«t, also, the existence in the nei;,'hi)orhood of an epidemic, contaf^ious dis- ease likely to produce death, or circumstances likely to result in serious bodily harm. I^kcman v. Pollard (1857) 43 .Me. 4(i3 ; Walsh r. Kishcr (18!M)) !U2 Wis. 172. .And consfiare the followiiij; cases: Dewey r. I'nion School Distri<-t (1880) 43 .Mich. 480; (Jean. Cniy (ls!»|) lit In. I. .\|.|.. 428; Stewart V. Lorinj; (18(i2) 5 Allen, 3()) ].. K. 1 (,) B. I). 410, unless it should have Imth foreseen, .lennin);s r. Lyons (187(5) 30 Wis. 553 (where a woman was confined within four months after (he making' of a contract for a year's wrviee) ; Re.x v. Hales Owen (1718) 1 .Str. 00; and a recovery is permitted for services perff>rmed befure sickness, Hubbard r. B4'lden (1855) 27 Vt. (145; Ktthy r. North (18,55) 10 Barb. 341; Hyan r. Dayton ( I8.5fl) 25 Conn. 188; Toden r. Farwell (18(57 I 08 Mass. 137; Harrinjrton t'. Iron Works Co. (1875) no Mass. 82; .McClelhin v. Harris (1805) 7 S. Dak. 447; and see notes to Wolfe r. Howes (1850) 75 Am. Dec. 388, and Clark r. (lilbert (18(53) 84 Am. Dec. 180; Cuckson v. Slrmes (1850) 1 E. A- E. 248; Boast r. Firth (18(58) L. K. 4 <■ P. 1. But wlure, l>v the terms «)f the contract, notice of the disability CHAP- II.] JONES AND JONES C. J UDD. 641 JONES AXl) JOXES v. JUDD. Court of Appeals of Xew York, 1850. [4 Comstock, 412.] James Jones and Edward Jones sued Judd in the Common Pleas of Cattaraugus county, for the price of work and labor. The defend- ant contracted with the State to complete certain sections of the Genesee Valley Canal. On the 14th of September, 1840, he entered into a sub-contract with the plaintiffs for a part of the same work, by which he agreed to pay them seven cents per yard for excavating and eight cents for embankment, monthly, according to the measure- ment of the engineers, except ten per cent, which was not to be paid until the final estimate. The work on the canal, including that on which the plaintiffs were engaged, was stopped by the canal com- missioners on the 21st day of June, 1841, before they had completed their job, and they never finished it. On the 29th of ]\Iarch, 1842, the legislature passed the act "to preserve the credit of the State," which put an end to the original contract between the defendant and the State, and before the commencement of this suit that contract had expired by its own limitation. The defendant paid the plaintiffs for all the work performed by them except the ten per cent, reserved, which amounted to $85.30, which sum the plaintiffs claimed to recover. The defendant moved for a nonsuit on the ground, among others, that without a waiver of full performance of the contract, or without some act of his to prevent the performance, the plaintiffs could not recover. The motion was overruled. The defendant then proved that the work actually done by the plaintiffs under the contract was worth only five cents for embankment and seven cents for excavation. He offered also to prove what the cost of the work not done would be, and that the excavation and embankment not done would be more difficult and expensive than the portion completed. This evidence was objected to and excluded. The referees before whom the trial was had reported in the plaintiffs' favor for the sum claimed. The Common Pleas confirmed their report, and rendered judgment there- on, which was affirmed by the Supreme Court, on error brought. The defendant appealed to this court. Gardineh, J. The plaintitTs were stopped in the prosecittion of the work, in fulfilment of their contract, by the authority of the State officers. Before this injunction was removed, the law of March 20, ^vas to <;o jrivon, and i^iich notice was jiot piveri, a recovery was denied. Xoon r. Salisbury Mills (1802) 3 Allen, 34<\ but see Fuller r. Bro\ni (1S46) 11 Met. 440.— Ed. 643 JONES AXD JONES V. JUDD. [BOOK II, 1842, for preserving the credit of the State, was passed, which put an end to the original contract, and the agreement between the plain- tiffs and defendant which grew out of it. 3 Mass. 331; Doughty v. Neal, 1 Saund. R. 21G, note b, 5th Ed.; 10 Johns. 28. As the plaintifTs were prevented, bv the authority of the State, from completing their contraet, they are entitled to recover for the work performed, at the contract price. The ten per cent, was a part of the price stipulated. It was reserved to secure the fulfilment of the contract, and to 1)C paid upon a final estimate. The performance of the required condition became impossible by the act of the law, and of course the plaintiffs were entitled to recover without showing a compliance with the agreement in this particular. Comyn on Cont. 50; 10 Johns. 36. Upon the question of damages; T think the offered evidence was properly rejected. If the contract had been performed by the plain- tiff, he might have recovered upon the special agreement, or upon the common counts, and in either case he would be entitled to the price fi.xed by the agreement. Phil. Evid. 100, 2d Ed.; Dubois v. Del. & H. Canal Co., 4 Wend. 280, and cases cited. If the perform- ance had been arrested by the act or omission of the defendants, the plaintiff would have had his election, to treat the contract as rescinded, and recover on a qiKuitum meruit the value of his labor, or he might sue upon the agreement, and recover for the work completed accord- ing to the contract, and for the loss in profits or otherwise which he had sustained by the interruption. Linningdale v. Livingston, K) Johns. 36; 9 B. & C. 145; Masterton v. The :Mayor of Brooklyn, 7 Hill, <)9, 75. In this case the performance was forbidden l)y the State. Neither party was in default. All the work, for which a recovery is sought, was done under the contract, which fixed a precise sum to be paid for each yard of earth removed, without regard to the ditliculty or expense of the excavation. If the plaintiffs had commenced with the more expensive part of the work, they could not, under the circumstances, have claimed to have been allowed for the ])rofits to arise from that portion which they were prevented from completing. Such an allowance is ])redicated upon a breach of the contract by the defendant. 7 Hill. TK 7.5. The defendants, in the language of Judge Bkaimisi.kv. "are not by their wrongful act to deprive the plaintiff of the advantage secured by the contraet." Here, there was no breach of the agreement by either jiarty. The i)laintiiT- could not recover profits, ami the defendant cannot, conse<|uently, recoup them in this action. Blanehard v. Ely, 21 Wend. .'MC.. Again: the plaintiffs asstinvd the risk of all aeeidents which might enhance the expense of the work, while the contract was subsisting (Boyle V. Canal Co., 22 Pick. 384; Sherman r. Mayor of New York, 1 Comst. 321), and are entitled, eon«ec|uently, to the advantages, if any, resulting from them. The .suspension of the work by State CHAP. II.] MENETONE V. ATHAWES. 643 authority was an accident unexpected by either party. It was one which, under the offer, we are bound to assume, was of benefit to the plaintiffs. But the defendant cannot recjuire an abatement from the agreed price, for what has been done, unless he could demand it in case a flood had partially excavated or embanked the section of the canal to be completed by the plaintiffs. The judgment must be affirmed. Jewett, Hurlbut, and Pratt, J.T., concurred. Bronson, C. J., RuGGLEs, HARRIS, and Taylor, JJ., were for reversal, on the ground that the evidence offered upon the question of damages was improperly excluded. Judgment affirmed.^ MENETONE V. ATHAWES. King's Bench, 1764. [3 Burrow, 1592.] This was an action by a shipwright for work and labor done and materials provided, in repairing the defendant's ship. And the ques- tion was, "Whether the plaintiff was entitled to recover, under the following circumstances." The ship, being damaged, was obliged to put back, in order to be repaired in dock ; and was to have gone out of the dock on a Sunday ; in the interim, viz., on the day before, and when only three hours' work was wanting to complete the repair, a fire happened at an adjacent brew-house, and Avas communicated to the dock; and the ship was burnt. 'Accord: :Melville r. De Wolf (185.5) 4 B. e^- E. 844; Cross v. Hyne (1868) 18 L. T. N. S. 474; Heine v. Meyer (1871) 61 N. Y. 171 (expressly following the principal case). As to the effect of a subsequent statute that chancres the nature of an obligation which at the time of making was either lawful or unlawful, see Dyer, 27, p. 178; Brewster r. Kitchell (1098) 1 Salk. 198, S. C. 1 Ld. Raym. 317; Comb. 424. 4G6; Holt, 175, 609; 12 Mod. KKi: Brown r. Mayor (1861) 9 C. B. N. S. 726; Baily r. Dc Crispigny (1869) L. R. 4 Q. B. 180; Brick Presby- terian Church V. New York (1826) 5 Cow. 538. The effect on a contract, of an act of the home government, is shown by the cases of Wiggins r. Ingleton, and Chandler r. Meade (1705) reported in 2 Ld. Raymond. 1211 as follows: "In an action brought for mariner's wages for a voyage from Carolina to London, it appeared that the plaintiff served three or four months, and, before the ship came to London, which was the de- livering port, he was impressed into the Queen's service; and afterwards the ship arrived at the deliverinj: port. And ruled by Holt, on evidence at Guild- ball, that the plaintiff should recover pro tanto as he served, the ship coming G44 MENETONE t'. ATIIAWES. [BOOK II. X. B. It was the shipwright's own dock, and the owner of the ship had ai^^reed to pay him £5 for the use of it. This ease was argued on Tuesday, the 13th of this month, hy Mr. Murphy, for the plaintiff; and Mr. Ditnniiuj, for the defendant. For the plaintiff, it was insistetl that lie was not answerable for this event, whieh happened without his negleet or default; unless there had been some special undertaking. Indeed, a tenant is bound to provide the landlord as good a house, in case of its being burnt, if he covenants to deliver up the house to him again, in as good repair as it was then: upon such a special undertaking an action would lie, but not otherwise. Doctor and ►Student, dialogue 2, chap. 4. In the case of wagoners and common carriers, they are bound to answer for the goods against all events but acts of God and of the enemies of the king. Coggs v. Bernard, 2 Ld. Haym. 900 ; Amies v. Stephens, 1 Str. 128. And a gaoler is excusable from escapes in those cases. 1 llo. Abr. 808, pi. 5, 6. And in like manner, where it is the act of God, the person who has the custody of another man's prop- erty is excused. The plaintiff here was a general bailee only, therefore not charge- able. 1 Inst. 89. He was only obliged to keep it as he would keep his own. The case of Coggs v. Bernard in 2 Ld. Kaym. 900, overrules South- cote's ease in 4 Co. 84. Even a pawn remains the jiroperty of the original owner. Sir John irarto|)p V. Iloare. 2 Str. UST. Tlu- plaintilf was considered as a mere bailee, for safe custody only. In insurances made by merchants, it is usual to insert docks. The men were on board of this ship (though that makes no difference). The plaintiff therefore was not answerable for this loss of the ship, pafc to tlic dclivcrin;.' port. .Aftorwnrds in iiiiotlior cinisc, tlic sittiiii:-* nftiT tliis tpriii at Ciiildliall, l)ot\v('pn ('haiidlcr and .Meade, in sucii an action, it apjx'an'tl that the plaintilF was liirr-d l>y the (h-fendant at Carolina to serve mi hoard tho Jane xhiop, whereof the defendant wan master, from Carolina to lOn-xhind, at i'.i per month; tliat he served two months, then the ship was took hv a French privateer and ransomed ; an«l jnst as she eanie olT of Plymouth, the plaintilT was impre-4«ed. Ae., and then the ship enme safe into the river Thames, wlierc she disf)os4-r| of her ear^'o; and by Hoi.T, the plaintifT can have no wapes, the nhip having heen took hy the enemy and ransomed. Mr. Raymond insisted that in Miieh eases he should reeover i>ro rata, and that the usape amonp merehants was so; which lloi.T sairl if-he could prove, it would do; hut wanting proof of it, tlie fdaintitT was non'. CHAP. II.] MENETOXE V. ATIIAWES. 645 And if the plaintiff be not liable for the loss of the ship, he is entitled to be paid for his work and materials. The materials must be con- sidered as having been delivered. The merchant always pays £5 for the hire of a dock, and so he agreed to do in ihis case. And these materials were delivered on board his ship in this dock. When tithes are set out, they are thereby vested in the parson, and he may maintain trespass for any injury done to them. The defendant might have sold this ship while it was in the dock, and these materials would have been part of it. The fixing them to the ship was a delivery of them. The adjunct must go with the subject. Dr. Cowell in treating of the various modes of acquiring property, is of this opinion. Mr. Dunning, contra, for the defendant. The question is, "Whether the plaintiff is entitled to be paid by the defendant for that work and labor from which the defendant neither did nor could reap any advantage." The plaintiff was obliged to redeliver the ship safe, having under- taken to repair it. The defendant has had no benefit from the plaintiff's labor or materials; neither was the plaintiff's undertaking completely per- formed. Carriers and hoy-men cannot be entitled to be paid for carrying things that perish before they are delivered ; nor Jewellers, for setting a jewel that is destroyed before it is set. So a tailor, where the cloth is destroyed before the suit is finished. So of any unfinished, incom- plete undertaking. As there is no express agreement to support this action, the court will not imply any.' Mr. Murplnj in reply. As to the defendant's not having had the benefit of the repair. There is no reason why the shipwright should not be paid for his work and labor and materials. "Digest," title de negotiis gesiifi. Tlie defendant might have insured his ship. Nothing can be due to a carrier or hoy-man till the delivery of the goods at the destined place. Rut these materials were delivered, and the work and labor actually done. Suppose a horse, sent to a farrier's to be cured, is burnt in the stable ])efore the cure is completely effected ; shall not the farrier be paid for wliat he has already done? A pawnbroker, if the pawn is destroyed by the act of God. shall recover the money lent. Lord Mansfield. This is a desperate case for the defendant (though compassionate). T do\il)t it is very ditluult for him to main- tain bis point. Besides it is stated, "That he paid £5 for the use of the dock." Mr. Justice Wilmot. So that it is like a horse that a farrier was curing being burnt in the owner's own stable. G4G IIAYXES r. SECOND BAPTIST CHURCH. [BOOK II. Mr. Attorney-General being rotainod to argue it for the defendant, The court offered to hear a second argument from him, if he thought he could maintain his case, but seemed to think it would be a very dirtlcult matter to do it. Mr. Attorney-General appeared to entertain very little hope of success : however, he desired a day or two to consider of it. But Mr. Recorder now moving "That the postea might be delivered to the plaintiff," — The Attorney-General did not oppose it. And a Rule was made accordingly, That the postea be delivered to the plaintiff.^ HAYXES, SPEXCER & COMPAXY, APPELLAXTS v. SEC- OXD BAPTIST CHURCH OF ST. LOUIS, RESPOXDEXT. St, Louis Couut of Appeals of Missouri, 1882. [12 Missouri Appeal Reports, 536.^] Bakewell, J., delivered the opinion of the court. This is an action by an incorporated company, to recover of defend- ant, which is a corporation, tlie value of certain pews and other wood- work of a church edifice, and labor and materials furnished l)y plain- tiff to defendant. The cause was tried by the court, a jury being waived, and the finding and judgment were for the defendant. There are record admissions and testimony tending to sjiow the fol- lowing state of facts: Defendant was erecting a house of worship in St. Louis. It let out the work to different contractors, having separate contracts with the mason, carpenter, and other mechanics. The gen- eral din-ction of the work was under the control of an architect and superintendent employed by defendant. Defendant kept the building insured, increasing the insurance from time to time as the building progressed, insuring far enough ahead to cover any work after it was 'Hut if full iM-rfornianco or acroptanro l>c nn Pxpro'As condition precedont to payniont, tlio Kn^'lith courts deny ii rc-covory wIhtp tlif sulijoct ninttor is do'*troy«-gate sum, and no |)ayment was to be made until the house was comjdeted, and the j)art built was destroyed by fire before the compIetii>n of \ho whole, the eontrflctor might recover for work and materials (JDiie jind furnished by him, especially where the owner of the land treated Ihe house as his own by procuring insurance and receiving tbe insurance-money. In IllinoiH, while it is held (Schwartz v. Saunders, 40 111. 18), that, where one undertakes unle vis major. It is not pretended that the house was struck l)y lightning; and, in stipulating that this wood-work should be completed, it must have been under- stood by plaintiff, as it must also have been understood by defendant, that this was upon the implied condition that the building should stand until the expiration of the time accorded to plaintHf within which he was to complete his work. Where the o\\-ner of the prop- erty retains possession and contracts for work to be done upon it while in his custody, there is, we think, an implied ol)ligation resting upon him to have it in readiness for the work to be performed u]ion it, and the plaintiff was not bound to provide in the contract for the default of the other party in the matter of this obligation. So far as regards an impossibility arising from the act of God, neither party need pro- 65'J YOUNG V. CITY OF ClIICOPEE. [BOOK II. vide against that in his contract; but from an impossibility arising from human agency, ami an accidental fire nuiking it impossible to finish the buikling in time to receive the wood-work, it would seem that the owner and occupier of the building, rather than one having access to it as one of many contractors employed in its repair or con- struction, should provide.* The instructions need not be set out or commented upon. We think that the court erred in giving a declaration of law to the effect that, upon the pleadings and evidence, plaintiff is not entitled to recover. Other instructions were given whieh cannot be reconciled with the views expressed in this opinion. Our attention is called to the statutory provision that no "suit shall be maintained against any tenant or other person in whose house or apartment fire shall accidentally take place; nor shall any recompense be made by any such person for any damages occasioned thereby." Kev. Stats., sect. GG7. This section was not intended to have any applica- tion to a case such as that before us. Plaintiff does not seek to recover for damages done to him by the fire, but seeks to recover the value of his work, labor, and materials furnished to defendants, notwith- standing their destruction. The judgment is reversed and remanded. All the judges concur. In Young v. City of Chicopee ( 15)04) 18(i Mass. 518, II.vMMoxn. J., delivered the opinion of the court as follows: This is an action to recover for work and materials furnished midfr a wi-itteii contract, providing for the repair of a wooden bridgt' forming a j)art of the highway across the Connecticut Kiver. While the work was in progress the bridge was totally destroyed by fire without the fault of .either party, so that the contract could not be performed. The specifications recpiired that the timber and other wood-work of the carriage way, wherever decayed, should be replaced by sound nui- terial securely fastened, so that the way should be in a "complete and substantial condition." As full compen.sation both for work and materials the j)laintifr was (o receive a certain suiu per thousand feet for the luiid)er used "on measurements made after laying and certified by both engineers," or, in other words, the amount of the plaintiff's compensation wa.s measured by the number of feet of ni>w material wrought into the bridge. 'I'liat the pulilic travel miglil not be inter- 'See, Cook r. McCal.o (IKSI) .-,:{ \Vi>*. '2.^)0; Cli'siry r. S«hi.-r (IHTC) 120 MiiHM. 210; KnwHon r. Cliiik ( ISJ-O 711 111. (If)*! ; Haysrll r. Stfrlinj: Coal Co. (18JM)) 40 W. Vn. loH. And ho n jiro rata recovery lias luM-n |n'niii(ti'(l wliore 111*' contract wuh not performed ciwinj; to the inipossihility of detect in;; latent . II.J YOUNG V. CITY OF CIlICOl'EE. 653 fered with more than was reasonably necessary, the contract provided that no work should he begun until material for at least one half of the repairs contemplated should be '"upon the job." With this con- dition the plaintilf complied, tiie lumber, which at the time of the fire had not been used, being distributed "all along the bridge" and npon the river banks. Some of this lumber was destroyed by the fire. At the trial the defendant did not dispute its liability to pay for the work done upon and materials wrought into the structure at the time of the fire; (Angus v. Scully, 176 Mass. 357, and cases there cited;) and the only question before us is whether it was liable for the damage to the lumber which was distributed as above stated and had not been used. It is to be noted that there had been no delivery of this lumber to the defendant. It was brought "upon the job" and kept there as the lumber of the plaintiff. The title to it was in him and not in the de- fendant. Xor did the defendant have any care or control over it. Xo part of it belonged to the defendant until wrought into the bridge. The plaintiff could have exchanged it for other lumber. If at any time during the progress of the work Ijofore the fire the plaintiff had refused to proceed, the defendant against his consent could not law- fully have used it. Indeed had it not been destroyed it would have remained the property of the plaintiff after the fire. Xor is the situa- tion changed, so far as respects the question before us, by the fact that the lumber was brought there in compliance with the condition relat- ing to the commencement of the work. This condition manifestly was inserted to insure the rapid progress of the work, and it has no mate- rial bearing upon the rights of the parties in relation to the lumber. It is also to be borne in mind in this connection that the compensa- tion for the whole job was to be determined by the amount of lumber wrought into the bridge. The contract was entire. By the destruction of the l^ridge each party was excused from further performance and the ])laintiff could recover for partial performance. The principle upon which the plain- tiff can do this is sometimes said to rest upon the doctrine that there is an implied contract upon the owner of the structure upon which the work is to be done that it shall continue to exist, and therefore, if it is destroyed, even without his fault, still he must be regarded as in default and so liable to pay for what has been done. Xiblo v. Binsse, 1 Keyes, 476. Whelan v. Ansonia Clock Co. 97 X. Y. 293. In Butter- field V. Byron, 153 Mass. 517, 523, it was said by Ivxowltox. J. that there was "an implied assumpsit for what has properly been done by either [of the parties], the law dealing with it as done at the request of the other, and creating a liability to pay for it its value." In what- ever way the principle may be stated, it would seem that the liability of the owner in a case like this should be measured by the amount of the contract work done which, at the time of the destruction of the 654 BUTTERFIELD V. BTROX. [bOOK II. structure, had become so far identified with it as that but for the de- struction it would have enured to hira as contemplated by the con- tract. In the present case the defendant, in accordance with this doctrine, should be held liable for the labor and materials actually wrought intt) the bridge. To that extent it insured the plaintiiL But it did not insure the plaintiff against the loss of lumber owned by him at the time of the fire, which had not then come into such relations with the bridge as, but for the fire, to enure to the benefit of the defendant as contemplated by the contract. The cases of Haynes v. Second Ba])tist Church, ys Mo. 2S5, and Kawson v. Clark, TO 111. tioG, cited by the plaintiff, seem to us to be distinguishable from this case. The exceptions therefore must be sustained and the verdict set aside. In accordance with the terms of the statement contained in the bill of exceptions; judgment should be entered for the plaintiff in the sum of $584 damages, and it is So ordered. BUTTERFIELD r. BYROX. Supreme Judici.a.l Court of Massachusetts, 1891. [153 Massachusetts, 517.] CoNTR(VCT brought in the name of the plaintiff for the benefit of certain insurance companies, for breach of a building contract entered into l)etwecn the ])laintiff and the defendant. At the trial in the Sujicrior Court, before Bakkkij, J., there was evidence tending to show the following facts:' A builder and a landowner entered into a contract, by whicli the former was to "make, erect, build, and finish" a hotel upon the land, and the latter was to do the grading, excavating, stonework, brickwork, painting, and plumbing, and pay a certain sum as follows: each month seventy-five per cent, of the value of the work of the preceding month, the balance in thirty days after comjiletion. The building was destroyed by lightning shortly befon» completion. At the trial, the plaintiff contended tiiat he was entitled to recover in his action (1) the whole of the sum of $r),!)14.n8 |$5,()52.30 for advances made to the defendant, and $!,*-?(; 1.78 for work done and materials by the plaintiff in laying the foundation], (2) $.'i8 for certain shingles and window weights that had been .saved from the fire and carried a>vay l)y the defendant, and (3) the amount for- feited un in the control and at the sole risk of the defendant, or was the plaintiff to have a like interest, as the builder of a part of it? Was the defendant's undertaking to go on and build and deliver such a house as the contract called for, even if he should be obliged again and again to begin anew on account of the repeated destruction of a partly completed building by inevitable accident, or did his contract relate to one building only, so that it would be at an end if the building, when nearly completed, should perish without his fault? It is to be noticed that his agreement was not to build a house, furnishing all the labor and materials there- 656 BUTTERFIELD V. BYRON. [bOOK II. for. His contract was of a very different kind. The specifications are incorporated into it, and it apj)ear.>s that it was an agreement to contribute certain hibor and materials towards the erection of a house on land of the plaintiff, towards the erection of which the plaintiff himself was to contribute other labor and materials, which contribu- tions would together make a completed house. The grading, ex- cavating, stone-work, brick-work, painting, and ])luml)ing were to be done by the plaintiff. Immediately before the fire, when the house was nearly completed, the defendant's contract, so far as it remained unperformed, was to finish a house on the plaintiff's land, which had been constructed from materials and by labor furnished in part by the plaintiff and in part by himself. He was no more responsible that the house should con- tinue in existence than the plaintiff was. Looking at the situation of the parties at that time, it was like a contract to make repairs on the house of another. His undertaking and duty to go on and finish the work was upon an implied condition that the house, the product of their joint contributions, should remain in existence. The destruc- tion of it by fire discharged him from his contract. The fact that the house was not in existence when the contract was made is immaterial. Howell v. Coupland, 1 Q. B. D. 258. It seems very clear that, after the building was burned, and just before the day fixed for the comj)letion of the contract, the defendant could not have comjielled the ])laintiff to do the grading, excavating, stone-work, brick-work, jiainting, and plumbing for another house of the same kind. The j)laintiff might have answered, "T do not desire to build another house which cannot be comjileted until long after the date at which I wished to use my house. My contract related to one house. Since that has been destroyed without my fault, T am under no further obligation." If the plaintiff could successfully have made this answer to a demand by the defendant that he should do his part towards the erection of a second building, then certainly the defendant can prevail on a similar answer in the present suit. In oth(>r words, looking at the contract from the plaintiff's position, it s(>ems manifest that he did not agree to furnish the work and materials required of him by the specifications for more than one house, and if that was destroyed by inevitable accident, just before its completion, he was not bound to build another, or to do anything further under his contract.* If the plaintiff was not obliged to make his contribution of work and materials towards the building of a second house, neither was the defendant. The agreement of each to complete the perform- ance of the contract after a building, the prod\iet of their joint con- tributions, had been partly erected, was on an inij)lied condition that 'lint MOf. Clinpmiin r. BoUz Co. (1000) 48 W. Va. 1. See, also, Wois v. Devlin (1887) 07 Tex. 507.— Ed. CHAP. II.] BUTTERFIELD V. BYRON, 657 the building- .should continue in existence. Neither can recover any- thing of the other under the contract, for neither has performed the contract so that its stipulations can be availed of. The case of Cook v. McCabc, 53 Wis. 250, was very similar in its facts to the one at 'bar, and identical with it in principle. There the court, in an elaborate opinion, after a full consideration of the authorities, held that the contractor could recover of the owner a pro rata share of the contract price for the work performed and the materials fur- nished before the fire. Clark v. Franklin, 7 Leigh, 1, is of similar purport. What are the rights of the parties in regard to what has been done in part performance of a contract in wdiich there is an implied con- dition that the subject to which the contract relates shall continue in existence, and where the contemplated work cannot be completed by reason of the destruction of the property without fault of either of the parties, is in dispute upon the authorities. The decisions in England differ from those of Massachusetts, and of most of the other States of this country. There the general rule, stated broadly, seems to be that the loss must remain where it first falls, and that neither of the parties can recover of the other for anything done under the contract. In England, on authority, and upon original grounds not very satisfactory to the judges of recent times, it is held that freight advanced for the transportation of goods subsequently lost by the perils of the sea cannot be recovered back. Allison v. Bristol Ins. Co., 1 App. Cas. 209, 226 ; Byrne v. Schiller, L. R. 6 Ex. 319. In the United States and in Continental Europe the rule is different. Griggs v. Austin, 3 Pick. 20, 22; Brown v. Harris, 2 Gray, 359. In England it is held that one who has partly performed a contract on property of another which is destroyed without the fault of either party, can recover nothing ; and on the other hand, that one who has advanced payments on account of labor and materials fur- nished under such circumstances cannot recover back the money. Appleby v. Myers, L. R. 2 C. P. 651 ; Anglo-Egyptian Navigation Co. V. Rennie, L. R. 10 C. P. 271.^ One who has advanced money for the instruction of his son in a trade cannot recover it back if he who received it dies without giving the instruction. Whincup v. Hughes, L. R. 6 C P. 78. But whem one dies and leaves unperformed a contract which is entire, his administrator may recover anv instal- ments which were due on it before his death. Stubbs v. Holywell Railway, L. R. 2 Ex. 311. In this country, where one is to make repairs on a house of another ^See also, Brumby r. Smith (1841) 3 Ala. 12.3: Clark r. Collier (1893) 100 Cal. 256; Siegel v. Eaton & Prince Co. (1897) 165 111. 550; Huvett Mfg. Co. V. Chicago Edison Co. (1897) 107 111. '233: Fairbanks v. Richardson Drug Co. (1890) 42 Mo. App. 262; Pike Electric Co. r. Richardson Drug Co. (1890) 42 Mo. App. 272; Murphy v. Forget (1901) 1 Rap. Jud. Quebec, 19 C. S. 135.— Ed. 658 BUTTERFIELD V. BYRON. [BOOK II. under a special contract, or is to furnish a part of the work and materials used in the erection of a house, and liis contract becomes impossible of performance on account of the destruction of the house, the rule is uniform, so far as the authorities have come to our atten- tion, that he may recover for what he has done or furnished. In Clear}- r. Sohier, 120 Mass. 210, the plaintiff made a contract to lath and plaster a certain buildinji for forty cents per square yard. The building was destroyed by a fire which was an unavoidable casualty. The plaintiff had lathed the building and put on the first coat of plaster, and would have put on the second coat, according to his contract, if the building had not been burned. He sued on an implied assumpsit for work done and materials found. It was agreed that, if he was entitled to recover anything, the judgment should be for the price charged. It was held that he could recover. See also Lord r. Wheeler, 1 Gray, 282; Wells v. Calnan, 107 Mass. 514, 517. In Cook I". ^IcCabe, uhi supra, the plaintiff recovered pro rata under his contract; that is, as we understand, he recovered on an implied assumpsit at the contract rate. In Hollis v. Chapman, Sfi Texas, 1, and in Clark v. Franklin. 7 Leigh, 1, the recovery was a proportional part of the contract price. To the same effect arc Scliwartz v. Saunders, 4G 111. 18; Kawson v. Clark, 70 111. 65G ; and Clark v. Busse, 82 111. 515. The same principle is applied to different facts in Jones v. Judd. 4 Comst. 411, and in Hargrave v. Conroy, 4 C. E. Green, 281. If the owner in such a case has paid in advance, he may recover back his money, or so much of it as was an overpayment. The principle seems to be, that when, under an implied condition of the contract, the parties are to be excused from performance if a certain event happens, and by reason of the haj)])eiiing of the event it becomes impossible to do tliat which was contenij)lated by tiu' eon- tract, there is an implied assumpsit fur what has properly been done by either of them, the law dealing with it as done at the request of the other, and creating a liability to pay for its value, to be determined by the price stipulated in the contract, or in some other way if the contract price cannot be made applicable.^ Where there is a i)ilateral contract for an entire consideration moving each party, and the con- tract eannot Ik> |)erfornied, it may be held that the eonsideration on each side is the j)erfi)riii;mce of the contract by the other, and that '.Vcc-ord: .\npiH v. Scully ( 1 •.•(«») \~(\ .Musm. :]r>7 ; llaynes r. Sccoiul ]{upli»t Churih (lH8ft) 88 Mo. 285 (compare KairlmnkH v. RicnnrdMon DniR Co. (1890) 4-2 .Mo. App. 202; Pike Klcitric Co. r. UichanlHon I)ruK Co. (IHUO) 42 Mo. App. 272); N'ihlo r. ItinHHo (1804) 1 Koyrs. 470; Wlidiin r. .\nHonin Clock Co. (18H4) 1(7 N. V. 2!i:J; Dolan r. Ho^erH (1«!»(J) 141t N. V. 4H App. Oiv. (\. V.) 12 (an pxcdlpnt cane alliniu'd upon the opinion nt Lamk.n. .F., I.fiow, ir,2 N. V. 010); Wcis v. Devlin (1HS7) 07 Tex. 507. Sec al«o, IJontley r. State (1880) 73 \Vi^. 410— Kd. CHAP. II.] BUTTERFIELD V. BYRON. Go9 a failure completely to perform it is a failure of the entire considera- tion, leaving each party, if there has been no breach or fault on either side, to his implied assumpsit for what he has done. The only question that remains in the present case is one of pleading. The defendant is entitled to be compensated at the contract price for all he did before the fire. The plaintiff is to be allowed for all his payments. If the payments are to be treated merely as advance- ments on account of a single entire consideration, namely, the com- pletion of the whole work, the work not having been completed, they may be su(nl for in this action, and the defendant's only remedy available in this suit is by a declaration in set-off. If, on the other hand, each instalment due was a separate consideration for the pay- ment made at the time, then as to those instalments and the pay- ments of them the contract is completely executed, and the plain- tiff can recover nothing, and the implied assumpsit in favor of the defendant can be only for the part which remains unpaid. We are of opinion that the consideration which the defendant was to receive was an entire sum for the performance of the contract, and that the payments made were merely advances on account of it, and that, on his failure to perform the contract, there was a failure of consideration which gave the plaintiff a right to sue for money had and received, and that the like failure of consideration on the other side gave the defendant a right to sue on an implied assumpsit for work done and materials found. The $38 due from the defendant to the plaintiff cannot be recov- ered in this action. The report and the pleadings show that the suit was brought under an assignment for the benefit of the insurers, to recover damages for a breach of the contract for the erection of the building, and not to recover the value of the shingles or weights carried away from the ruins. According to the terms of the report, the ruling being wrong, such order may be made as this court shall direct. A majority of the court are of opinion that the verdict should be set aside, and the defend- ant be given leave to file a decla^tion in set-off, if he is so advised, on such terms as the Superior Court deems reasonable. Verdict set aside. 660 Mussox r. fales. [book ii. (&) The Contract is Illegal. (1) The Facts upon uhich the lUcijality Depends arc Unknown to one Party, MUSSOX v. FALES. Supreme Judicial Court of Massachusetts, 1820. [IG Massachusetts. 332.] Assumpsit to recover the amount of sundry disbursements and ex- penses on the brig Julian, of which the defendants were owners. Trial on the general issue before the Cliiof Justice. The plaintiffs were merchants in the island of Bermudas, within the dominions, and subjects of the king, of Great Britain. The de- fendants were citizens of the United States. The brig Julian was pro- vided with papers, to give to her the appearance of Spanish property, and was under the care of Eustace Maloni/. who profes.>^ed himself a Spanish subject. The vessel having left the United States in June, 1813, in her return from Porto Rico to the United States arrived at Berniudas on the 25th of December following; at which time war ex- isted between these states and Great Britain. The brig needed repairs, having been much injured by winds and weather. Capt. Malony ap])lied to the plaintiffs to assist him; and, without disclosing the real character of the vessel, or that any persons were concerned with him in the voyage, procured the plaintiffs to pay and advance to him the several sums, charged in the account of disburse- ments and repairs. After she was refitted and ready for sea, she was seized by the marshal of the vic(^-admiralty court, libelled and con- demned as enemy's property. The plaintiffs, at the re(|uest of .Va- lony, aided him in defending against the libel, and paid the several l)ills charged in their account, touching the proceedings in the vice- admiralty court. .\n appeal was clainie(l by the pkiintifTs at the recpiest of }falonj/, and they gave Ijonds to j)rosecute the apjieal. They caused the aj)peal to be prosecuted in England; where the decree of the court of vice-ad- miralty was afTirmed ; and they had paid, or were liable to pay, the sums chargefl liy t' em, as expenses of prosecuting the appeal. It appeared in evidence, that the defendants knew of the pendency of the appeal, and did not disapprove of the same. No express prom- ise was shewn. The verdict was for the plaintiffs: and if, in the opinion of the court, they were entitled to recover, auditors were to be appointed by the court, and the verdict was to be conformed to their report as to the amount of damages; and judgment accordingly: otherwise the plaintifTs were to become nonsuit. Thatcher and Webster, for the defendanta, contended that all vol- CHAP. II.] MUS.SOX V. FALES. 661 untary trading or even intercourse between the citizens of two nations at war was wholly unlawful, and no contract arising thereon could ever be enforced. Indeed parties so situated are wholly incapable of contracting. No civil relation exists between them. Certain species of contracts, which arise from the state of war itself, are alone ex- cepted ; as capitulations, cartels, exchange of prisoners, ransoms, &c. Holman v. Johnson, Cowp. 343; 3 B & P. 35; 8 Cranch. 155; 7 Taunt. 489; 15 Johns. 57; 3 Merivale, 469; Edw. Adm. Kep. 327; Doug'. 650; A^attel B. 2, c. 5; 7 St. Trials, 493; 13 Ves. jun. 71. W. Sullivan and Mason for the plaintiffs. Parker, C. J., delivered the opinion of the court. This case is dif- ferent, in some of its aspects, from all which have been cited, and from any which we have been able to find. It seems to be the settled law, that all trading between the sub- jects of nations at war is unlawful ; and that all contracts growing out of such trading, or out of any voluntary intercourse with a publick enemy, are void. Such trading and intercourse are considered crim- inal in both parties; and no action can be maintained, the basis of which is an unlawful act of the party bringing the action. But the case before us is of a different complexion. The plaintiffs must be taken to have been ignorant of the national character of the vessel they were supplying, and to have dealt upon the faith that they were trading with a neutral, in the due and regular course of busi- ness ; and this even after the vessel was seized. For supposing them to believe she was hona fide a Spanish vessel, it was not unlawfid, but on the contrary laudable for them to endeavour to procure her re- lease. It is the common duty of factors and agents in a foreign country, to labour in the defence of property committed to their care, when charged with a violation of the laws of their country: and it is only when they are assisting to evade those laws, knowing of an in- tent to evade them in their principals, that they become amenable as unfaithful subjects. In the cases which commonly occur, of trading or making contracts with the enemy, the parties are generallv in pari delicto; and neither can maintain an action against the other. When a case arises, which shews the offence to be all on one side, it would seem not only contrary to justice, but to the very doctrine upon which the general policy is founded, to allow the criminal debtor to go free, to the loss of the innocent and ignorant creditor: for this would be to punish the innocent for the benefit of the guiltv. If in time of war, an enemy should come into this country in disguise, and, claiming to be an American citizen, should obtain property upon credit; shall he, when sued, assent his own character, and successfully resist the suit upon the ground that he had traded with the enemy? — If this be the law of nations, or of war, it would seem that all moral principle was to give way before the stern and relentless genius of war. CG2 MussoN r. fales. [book ii. But we apprehend it is not so. There must be an analogy between the princij)les, which regulate contracts arising in a state of war, and those which are made in a time of peace. When a man would avoid his contract, as contrary to the provisions of municipal law, it must appear that the party prosecuting was in fault, as well as himself. Thus in the case of usury, and of gaming, both parties are equally in fault; and either may successfully resist the other, in a court of jus- tice. But no instance can be produced from the books, where a man has been permitted to avow his own breach of law, in order to avoid his contract; where there has been a valualile consideration paid by the other party, who is entirely free from any criminal intent: unless such contract be rendered utterly void by statute. Indeed it is diffi- cult to conceive of a case, arising under the municipal law, in which the unlawfulness, if any exist, is not mutual. But the case before us has such an aspect, one party alone being guilty. The defendants' vessel went into an enemy's port in the guise of a friend; whether forced in or not makes no difference. The de- fendants' agent, pretending to be the sul)ject of a neutral power, so- licited assistance from the plaintiffs. How could these latter have committed an offence, in affording it? If prosecuted by their own government, they could have defended themselves, by shewing their ignorance of the fact. What would constitute a defence in such prose- cution, ought to be sufficient to repel the di'fendants' answer to their demand. It is said however tliat, being enemies, thoy are incapable of con- tracting; that they never stood in the relation of debtor and creditor. But this in petitio prinripii Goods sold, and services performed, are the foundation of contracts. A contract nuiy be avoided, if unlaw- ful. But it i.s not unlawful if the party claiming be in no fault: and he cannot be in fault, if he be ignorant of the facts which constitute the unhiwfulness. From this reasoning it follows that the ])laintiirs are entitled to judgment on the verdict rendered in their favour: and auditors must be appointed, who are to report the sum, for which judgment is to be rendered.' •Accord: Oom r. Bruce (1810) 12 p:nst, 22ry; Bnrckbnldcr v. Rootpm's Ad- miniHtrators (1870) (55 IVnn. St. 400; Rloxsonic r. Williinns (1824) 3 B. 4 C. 2.T2; Hentig v. Stmiiff.rtli (IHKi) f) M. & S. 122.— Ku. CHAP. II.] TAPPEXDEX V. RANDALL. 663 (2) The Facts upon which the Illegality Depends are Enovm to Both Parties. TAPPENDEN v. RANDALL. Common Pleas, 1801. [2 Bosanquet and Puller, 467.] This cause came on to be tried before Lord Alvanley, Ch. J., at the second Sittings in this Term, when a verdict was found for the Plaintiffs, damages £216, costs £10, subject to the opinion of the Court on the following case. The declaration stated, that the Defendant, before the bankruptcy of Bray, was indebted to Bray in £300, for money lent, and £300 for money paid, and that he was indebted to the Plaintiffs after the bankruptcy in £300 as well for money before Bray became a bank- rupt received to Bray's use, as for money after the bankruptcy received to the use of the assignees, and upon an account stated with the Plaintiffs as assignees. Bray duly became a bankrupt, and the commission was issued against him, under which the Plaintiffs were declared his assignees. On the 12th of November, 1800, previous to any act of bankruptcy, in consideration of £210 then paid by Bray to the Defendant the Defendant entered into a bond in the penal sum of £999 with a condition as follows : "Whereas the said William Randall h'ath, in con- sideration of two hundred and ten pounds to him paid by the said John Bray, at the time of the sealing and delivery of the above written bond or obligation, contracted and agreed to pay unto the said John Bray or his assigns, on the first day of May in every year, one annuity or clear yearly sum of one hundred and five pounds until he the said Williafn Eandall. his heirs, executors, or administrators can prove by evidence, or otherwise, to abide by the report of three eminent hop merchants who shall make it appear to the satisfaction of the said John Bray, his executors, administrators, and assigns, that the revenue received by Government l)y reason of the duties now assessed by parliament upon hops grown in Great Britain, shall in the present or any one year hereafter, amount to a full and clear revenue or sum of (wo hundred thousand pounds, such duties to be taken according to those at present imposed by parliament, and not to be affected by any subsequent alteration whatever; and for securing the due payment of- the said annuity of one hundred and five pounds until such event, the said William Randall hath entered into the above written bond or obligation : Xow, therefore, the condition of the above written bond or obligation is such, that if the said 664 TAPPENDEX r. RANDALL. [BOOK II. WiUiam Randall, his heirs, executors, administrators, or assigns, shall and do from the date of the above bond well and truly pay, or cause to be paid unto the said John Bray, or his assigns, one annuity or clear yearly sura of one hundred and five pounds of lawful money of Great Britain, on the first day of Mai/ in each and every year, without any deduction or abatement whatsoever, until the said WiUiam Randall, his heirs, executors, or administrators shall prove by evidence, or otherwise abide by the report of three eminent hop merchants, who shall make it appear to the satisfaction of the said John Bray or his assigns, that the revenue received by Government by reason of the duties now assessed by Parliament upon hops, shall, in the present or any one year hereafter, amount to a full and clear revenue or sum of two hundred thousand pounds, such duties to be. taken according to those at the present time imposed by Parliament, and not to be affected by any subsequent alteration therein, and shall and do make the first payment of the said annuity of one hundred and five pounds on the first day of May in the year of our Lord 1802, then and in such case or cases the above written bond or obligation shall be void and of none effect, otherwise it shall be and remain in full force and virtue. "William Randall (Seal). "Sealed and delivered (l)cing first legally stamped, and several obliterations and interlineations being made) in presence of "John Broad. "Wm. Mann. "Received at the time of the sealing and delivery of the within written bond or obliga- tion of and from the within named John Bray the sum of two hundred and ten pounds (being 1- £210. the consideration paid for the annuity within secured) by me. Signed in the presence of John Broad, Wm. Mann. "Wm. Randall" Before the bringing of this action the Plaintiffs applied to the Defendant, stating that they considered the Ijond to be illegal, and demanding the return of the £210 and interest, which was refused. If the Court should be of opinion, that the Plaintiffs were entitled to recover back the said sum of £210 with interest thereon, then the verdict to stand. If the Court should be of opinion, that the I^laintiffs were entitled to recover back the .said snm of £210 but were not entitled to interest thereon, then the verdict to be entered for £210 damages and lOs. eosts. If the (^ourt should be of opinion, that the Plaintiffs were entitled to recover nothing, a nonsuit to be entered. CHAP. II.] TAPPEXDKX I'. ItANDALL. 665 Heath, J. I am of the same opinion. It seems to me, that the distinction adopted by Mr. Justice Buller between contracts execu- tory and executed, if taken with those modifications which he would necessarily have applied to it, is a sound distinction.^ Undoubtedly, there may be cases where the contract may be of a nature too grossly immoral for the Court to enter into any discussion of it ; as where one man has paid money by way of hire to another to murder a third person. But wliere notliing of that kind occurs, I think there ought to be a locus pcenitentup, and that a party should not be com- pelled against his will to adhere to the contract. RooKE, J. This is an action brought by assignees to recover back money paid by way of consideration for a bond which clearly could not be put in force, and I think this action may well be supported. There is nothing criminal in the contract which was entered into between these parties ; nor has that contract been executed ; nor indeed, is this a case where money which has been paid over by a stakeholder is sought to be recovered. I therefore see no reason to prevent the present Plaintiffs from recovering : and I wish it to be understood, that I fully accede to the doctrine laid down by Mr. Justice Buller respecting contracts executory and executed. If, in this case, any money had been paid upon the bond. I should have felt great diificulty respecting the right of the Plaintiffs to recover.- Postea to the Plaintiffs.' ^"There is a sound distinction between contracts executed and executory, and if an action is brought to rescind a contract, you must do it while the con- tract continues executory, and then it can only be done in tlie terms of re- storing the other party to his original situation." Per Biller, J., in Lo\\Ty v. Bourdieu (1780) Douglass, 468, p. 471.— Ed. "Opinions of Alvanley, C. J., and Chambre, J., omitted. 'Accord: Aubert v. Walsh (1810) 3 Taunton, 277; Bank v. Wallace (1881) 61 N. H. 24 {semble) ; McCutcheon v. 'Slerz Capsule Co. (1896) 71 Fed. 787; Spring Co. v. Knowlton (1880) 10.3 U. S. 40: Wright v. Stewart (1904) 130 Fed. 905. "The law encourages a repudiation of an illegal contract and allows a locus penitenti

-;nlity. Mediaris v. Ornnhcrry (Tox. 1!)0.-)) 84 S. \V. 1070; Harrison r. Thatcher ( 1872) 44 Ga, 038. However, [eiiuity will {.'rant a roeonvoyance] if (1) tlie pantor nsks it in the interest of his eredilors. ('ar)l r. Emory (1888) 148 Mass. 32; [Taylor v. Rowers (1870) 12 H. Div. 201] ; or if (2) he conveyed under duress. Adderson's Adin'r's r. Meredith (1885) 82 Ky. 505; Austin v. Winston (Vn. 1800) 1 II. & M. 32. 3 Am. Dec. 583; Bump, Fraudulent Conveyances. lM cd. 442." 5 Col. I.nw. Hev. 473.— Ki>. 'This case, under the name of Kverett v. Williams, was originally reported in European Magazine for May, 1787, vol. 1, 300. — Ed. CHAP. II.] WEBR V. FULCIIIUE. 667 bill referred for scandal and impertinence. 29th November, report of the bill as scandalous and impertinent confirmed; and order to attach White and Wreathcock, the solicitors. 6th December. The solicitors brought into court and fined £50 each ; and ordered that Jonathan Collins, Esq., the counsel who signed the bill, should pay the costs. The plaintiff was executed at Tyburn in 1730, the defendant at Maid- stone in 1735. Wreathcock, the solicitor, was convicted of robbing Dr. Lancaster in 1735, but reprieved and transported.^ WEBB V. FULCHIRE. Supreme Court of North Carolina, 1843. [3 Iredell's Law, 485.] This was an action of assumpsit, brought by the plaintiff to recover the sum of forty dollars. The jury found a verdict for the plaintiff, subject to the opinion of the court on the following facts. The defendant had three acorn cups and a white ball, which he placed under one of the cups in the presence of the plaintiff. The defendant proposed to bet the plaintiff twenty dollars, that he could not tell which one of the three cups the ball was under. The plaintiff bet him that he could, and thereupon staked twenty dollars. The plaintiff pointed to the cup, and bet that the ball was under that one. The defendant raised the cup and the ball was not there. The money staked was then paid over to the defendant as being won by him. In the same way the defendant won twenty dollars more, which' was in like manner paid over to him. The court was of opinion that the plaintiff could not maintain this action, and set aside the verdict and entered a nonsuit. From this judgment the plaintiff appealed. RuFFiN, C. J. It is not denied that the law gives no action to a party to an illegal contract, either to enforce it directly, or to recover 'In Ridler v. Moore (1707) Clifford's Southwark Election Cases, 371, Kenyon, C. J., is reported to have said: "He had heard of a bill filed in the Court of Chancery, to obtain an account of the profits of a partnership trade carried on at Bounslow, but when it appeared that the trade was taking the purses of those who travelled over the heath, the Court would not endure It." In a still earlier case, (before Lord JI.\nsfield) Faikney v. Reynons (1767) 4 Burr. 20G9, 2071, the principal case was cited as an authority by counsel. The case was long regarded as a jest or hoax of some equity draftsman, but a careful examination of the original records by Sir Frederick Pollock lias established its jjenuineness. As Sir Frederick exclaims: "Truth is stranger than fiction!" See 9 Law Quarterly Review. 105, 197-109.— Ed. 668 WEBB V. FULCHIRE. [BOOK II. back money paid on it after its execution. Nor is it doubted, that money, fairly lost at play at a forbidden game and paid, cannot be recovered back in an action for money had and received. But it is perfectly certain, that money, won by cheating at any kind of game, whether allowed or forbidden, and paid by the loser without a knowl- edge of the fraud, may be recovered. A wager won by such undue means is not won in the view of the law, and, therefore, the money is paid without consideration and by mistake, and may be recovered back. That, we think, was plainly this case. The bet was, that the plaintiff could not tell, which of the three cups covered the ball. Well, the case states that the defendant put the ball under a particular one of the cups, and, then, that the plaintiff selected that cup, as the one under which the ball was. Thus we must understand the ease, because it states as a fact, that the defendant "placed the ball under one of the cyps," and that the plaintiff "pointed to the cup," that is, the one under which he had seen the ball put, as being that which still covered it. We are not told how this matter was managed, nor do we pretend to know the secret. But it is indubitable, that the ball was, by deceit, not put under the cup, as the defendant had made the plaintiff believe, and under which belief he had drawn him into the w'ager; or that, after it was so placed, it was privily and artfully removed either before or at the time the cup was raised. If the former be the truth of the case, there was a false practice and gross deception upon the very point, that induced the laying of the wager, namely, that the ball was actually put under the cup. For, clearly, the words and acts of the defendant amount to a representation, that such was the fact; and indeed the case states it as the fact. Hence, and because we cannot suppose the vision of the plaintiff to have been so illuded, we rather presume the truth to be, that the ball was actually placed where the defendant pretended to place it, that is to say, under the particular cup which the plaintiff designated as cover- ing it. Then the case states that the defendant raised that cup, and the ball was not there: a physical impossibility, unless it had been removed by some contrivance and sleight of hand by the defendant. Unquestionably it was affected by some such means; for presently we find the defendant in possession of the ball, ready for a repetition of the bet and the same artifice. Such a transaction cannot for a moment be regarded as a wager, depending on a future and uncertain event ; but it was only a pretended wager, to be determined by a contingency in shew only, but in fact by a trick in jugglery by one of the parties, practiced upon the unknowing and unsuspecting sim- ])Iieity and credulity of the other. Surely, the artless fool, who seems to have been alike bereft of his senses and his money, is not to be deemed a partaker in the same crime, in pari delicto, with the juggling knave, wlu) gulled anrl fleeeed him. The whole was a down- right and undeniable cheat; and the plaintiff parted with his money CHAP. 11.] BROWXIXG V. MORRIS. 669 under the mistaken belief, that it had been fairly won from him, and, therefore, may recover it back.^ The judgment of nonsuit is reversed, and judgment for the plain- tiff according to the verdict.^ Per Curiam. Judgment below reversed and judgment for the plaintiff. BROWNING V. MOEEIS. King's Bench, 1778. [Cowper, 790.] Upon shewing cause why the verdict found in this case, for the plaintiff, should not be vacated, and a non-suit entered in its stead; Lord Mansfield reported in substance as follows : " This was an ac- tion for money had and received. The plaintiff and defendant were both lottery-office-keepers; and during the drawing of the lottery, en- tered into an agreement mutually to insure the number of a ticket with each other, upon condition, that he whose number should be drawn on the day next following the agreement, should receive from the other an undrawn ticket, or the value of it at the market price. The defendant's number being drawn, he chose the price of an un- drawn ticket which came to £14 3s.; and received that sum from the plaintiff. The next day, each insured another number upon the same terms. And so the contract was continued from day to day. It after- wards happened, that the plaintiff's number was drawn; when the de- fendant, instead of complying with the terms of the agreement as the plaintiff had done, refused to give the plaintiff either an undrawn ticket or the value of it. Xeither of them had any tickets in their possession, the consequence of which is, that the contract was illegal, and against the statute. The question is. Whether the plaintiff is en- 'So when the defendant substituted a false ticket which he pretended to draw from an illegal lottery, a recovery of the prize paid over was allowed. Catts V. Phelan (U844) 2 How. U. S. 376; or when a gambling concern made false statements as to its solvency. In re E. J. Arnold & Co. (1904) 133 Fed. 189.— Ed. ^Contra: Babcoek v. Thompson (182fi) 3 Pick. 446. A recovery has been allowed when the defendant was in a position to use undue influence; as a father, Osborne v. Williams (1811) 18 Vesey, 379, or on attorney, Ford v. Harrington (1857) 16 N. Y. 285; Schoener v. Lissauer (1887) 107 N. Y. Ill; or when the defendant has exercised duress, as in Hinsdill v. White ( 1861 ) 34 Vt. 558, when the defendant for his promise not to prosecute, extorted money from a mother, whose son he falsely accused of theft; but on the subject generally, see section on Duress, ante, 154 et seq. — Ed. 670 BROWNING C. MORRIS. [BOOK II. titled, in disaflfir^nance of the contract, to recover back the sum which he has paid upon this illegal transaction? Lord Mansfield, on this day delivered his opinion as follows: The rule is, in pari delicto, potior est conditio defendentis: And there are several other maxims of the same kind. Where the contract is exe- cuted, and the money paid in pari delicto, this rule, as Mr. Dunning contended, certainly holds: And the party who has paid it, cannot recover it. For instance, in bribery, if a man pays a sum of money by way of a bribe, he can never recover it in an action; because both plaintiff and defendant are eqnalh/ rrimi)ial. But where contracts or transactions are prohibited by positive statutes, for the sake' of pro- tecting one set of men from another set of men ; the one, from their situation and condition, being liable to be oppressed or imposed upon by the other; ///r/r^ the parties are not in pari delicto: and in further- ance of these statutes, the person injured, after the transaction is fin- ished and completed, may bring his action and defeat the contract. For instance, by -the statute of usury, taking more than 5 per cent, is declared illegal, and the contract void ; but these statutes were made, to protect needy and necessitous persons from the oppression of usurers and monied men, who are eager to take advantage of the dis- tress of others; whilst they, on the other hand, from the pressure of their distress, are ready to come into any terms, and, with their eyes open, not only break the law, but complete their ruin. Therefore the party injured may bring an action for the excess of interest. Another instance that occurs to me is the clause in the stat. 5 Geo. 2. c. 24, sect. 17, to prevent bad practices upon bankrupts, who have not ob- tained their certificate; and, who for the sake of obtaining it, will come into any terms, and cause their friends to come into any terms, which a hard creditor may chuse to impose. The statute prohibits "taking any money or security from the bankrupt himself, or any per- son in his behalf, as the consideration for sif/ninr/ his certificate." Suppose a creditor refuses, unless the bankrupt consents to give him a sum of money. The bankrupt gets the money from a friend or rela- tion, and the creditor, in conscfpience, signs the certificate. The l)ank- rupt renews his trade, and receives every advantage he can derive from having obtained his certificate. He may notwithstanding bring his ac- tion and recover the money back. And this, though h6 has acted con- trary to law made for his own benefit. Vide Smith v. Bromley, Dougl. Rep. 070 n. This brings the present case witliin tlie determination of Jaques I'. Golightly, in C. B. For in that case, the Chief .Iiisiiee said, "the statute is made to protect the ignorant and deluded imiliitude, who in hopes of gain and prizes, and not conversant in ealeuhitions, are drawn in l)y the olliee-keepers." And it is very material, that the statute itself, by the distinction it makes, has marked tlie criminal: For the penalties are all on one side; upon the office-keeper. The man who makes the contract, is liable to no penalty. So in usury, CHAP. II.] BROWNING V. MORRIS. 671 there is no penalty upon the party who is imposed upon. It is true, that in these cases, the court will not assist the party who makes the illegal contract to recover any money he may win of the office-keeper; but he shall have this action for all the money which the office-keeper has got from him.^ After Lord Mansfield had proceeded thus far, it occurred that the plaintiff was himself a lottery-office-keeper, and brought his ac- tion, not for money paid by him to the defendant for insuring; but for money paid by him to the defendant in consequence of his having in- sured the defendant's tickets. So that the plaintiff was not only in pari delicto, but also stood in the light and under the description of that species of insurer, from whom the statute meant to protect the unwary. And the court were finally of this opinion (allowing the determina- tion of the Common Pleas to be right) and accordingly, a nonsuit was entered. 'Accord: Jaques v. Golightly (1776) 2 W. Blackstone, 1073; Jaques v. Withy (1788) 1 H. Blackstone, 65; Barclay v. Pearson, L. R. [1893] 2 Ch. 154; Gray v. Roberts (1820) 2. A. K. Marshall, 208 ; Mount v. Waite (1811) 7 Johns. 434. Upon the same principle, a recovery of a usurious rate of interest has been allowed; see p. 156. A recovery was allowed in Williams v. Hedley ( 1807) 8 East, 378, when the plaintiff had paid money to compromise a qui tarn action for usury, "for the prohibition of 18 Eliz. C. 5 attaches only on the in- former or plaintiff or other jDerson suing out process in the penal action, mak- ing composition contrary to the statute," or when a statute prohibits an at- torney from charging above a certain amount for his services. Smart v. White (1882) 73 Maine, 332; Ladd v. Bartog (1886) 64 X. H. 613. Likewise, in a similar case, a recovery was allowed upon the contract itself by Chief Judge Parker in Irwin v. Curie (1902) 171 N. Y. 409; Selden, J., in Tracy v. Tal- mage (1856) 14 N. Y. 162, 181, said: "There are two classes of cases. . . . The first consists in a series of cases in which a distinction has been taken between those illegal contracts when both parties are equally culpable, and those in which, although both have participated in the illegal act, the guilt rests chiefly upon one. The maxim ex dolo malo non oritur actio is qualified by another, viz., in pari delicto melior est conditio defcndentis. Unless, therefore, the parties are in pari delicto, as well as particeps criminis, the courts, although the contract be illegal, will afford relief, when equity requires it, to the more innocent party. ... If malum in se the courts will in no case interfere to relieve either party from any of its consequences. But when the contract neither involves moral turpitude nor violates any general principle of public policy, and money or property has been advanced under it, relief will be granted to the party making the advance. 1, when he is not in pari delicto: or, 2, in some cases when he elects to disaffirm the contract while it remains ex- ecutory." — Ed. 672 WHITE r. THE euanklix bank. [book ii. • *- WHITE V. THE FRANKLIN BANK. Supreme Judicial Court of Massachusetts, 1839. [22 Pickering, 181.] Wilde, J., delivered the opinion of the Court. The first ground of the defence is, that the action was prematurely commenced. The entry in the book given to the plaintiff by the cashier of the bank, is undoubtedly good evidence of a promise to pay the amount of the de- posit on the 10th day of August; and if this was a valid and legal promise, this action cannot be maintained. But it is very clear, that this promise or agreement that the deposit should remain in the bank for the time limited, is void by virtue of the Revised Stat. c. 36, § 57, which provides that no bank shall make or issue any note, bill, check, draft, acceptance, certificate or contract, in any form whatever, for the payment of money, at any future day certain, or with interest, excepting for money that may be borrowed of the Commonwealth, with other exceptions not material in the present case. The agreement that the deposit should remain until the 10th day of August amounts in law, by the obvious construction and meaning of it, to a promise to pay on that day. This therefore was an illegal contract and a direct contravention of the statute. Such a promise is void ; and no court will lend its aid to enforce it. This is a well set- tled principle of law. It was fully discussed and considered in the case of Wheeler v. Russell, 17 Mass. R. 281; and the late Chief Jus- tice, in delivering the opinion of the Court, remarked, "tliat no prin- ciple of law is better settled, than that no action will lie upon a con- tract made in violation of a statute, or of a principle of the common law." The same principle is laid down in Springfield Bank v. Mer- rick, 14 Mass. R. 322, and in Russell v. Do Grand, 15 :\Iass. R. 39. In Belding v. Pitkin, 2 Calnes's R. 149, Tiiomi-sox, ,)., said "it is a first principle, and not to he touched, that a contract, in order to be binding, must be lawful." The same principle is fully established by the English authorities. In Shiffner v. Gordon, 12 East, 304, Lord ELLExnoKOUGii laid it down as a settled rule, "that where a contract which is illegal, remains to be executed, the court will not assist either party, in an action to recover for the'^on-execution of it." It is therefore very clear, we think, that no action can be main- tained on the defendants' express promise, and that if the plaintiff be entitled to recover in any form of action, it musfbe founded on an implied promise. The second objection, and thai main- tained on it. One party cannot, therefore, declare it rescinded at his will, without cause, and proceed as upon an implird assumpsit against the other part^ to it, while he stands ready to fulfil it according to its terms. Abbott v. Inskip, 29 Ohio St. 59; Erben v. Loril- CHAP. II.] .A DU-KING MANUFACTURING CO. V. LA DU. 695 lard, 19 N. Y. 299, 304; Britain v. Eossiter, 11 Q. B. Div. 123; Van Valkenburg v. Croffut, 15 Hun, 147, 152; Whiting v. Sullivan, 7 Mass. 107. The objection suggested to the adoption of the rule is that urged very pointedly in King v. Welcome, supra, viz., that it enables the defendant practically to enforce or avail himself of the express con- tract, in violation of the spirit, if not the letter, of the statute, to defeat plaintiff's action upon implied contract. But, as before sug- gested, where is the distinction in principle between Galvin v. Prentice and Abbott v. Draper, supra, the doctrine of the latter case (in relation to parol land contracts) being universally recognized? Collier v. Coates, supra; Browne, St. Frauds, §122a. We do not deem it necessary in this case to determine between the rule laid down in King v. Welcome and Galvin v. Prentice, or whether the rule would have been different if defendant had left plaintiff's service without cause. It is found that defendant left plaintiff's ser- vice for good cause, on account of sickness. In such case the servant is entitled to his pro rata wages, or the value of his services, not exceeding the compensation fixed by the agreement under which the service was rendered. Clark v. Gilbert, 26 N. Y. 279 ; 84 Am. Dec. 189; 2 Chit. Cont. 851; Wolfe v. Howes, 20 N. Y. 197, 203; 75 Am. Dec. 388; Clark v. Terry, 25 Conn. 395; Eyan v. Day- ion, id. 188; 65 Am. Dec. 56o"; Philbrook v. Belknap, 6 Yt. 383; Seymour v. Cagger, 13 Hun, 32; Fuller v. Brown, 11 Met. 440. In Clark v. Terry, the earlier case of Comes v. Lamson, supra, was explained and greatly limited, and the court say : "In respect to the question whether wages have been earned which ought to be paid, and if so to what extent or amount, and when the payment ought to be made, it appears to us that all the circumstances under which they are claimed to have been earned, including the contract under which the service was performed, although it may be one that can- not be enforced by any action directly upon it, may and ought to be considered." This rule we think applicable in the case at bar. There are some exceptions to it, but they are not important to be here considered. The principle upon which a recovery is permitted in such cases is that the employer shall do what his duty or justice requires, and this cannot be fully discovered upon any other theory than above sug- gested. The referee ruled correctly that in this case the defendant's compensation must be limited 1)y the contract; and. as no profits were found to have been yet realized, it did not appear that he was entitled to any counterclaim against the money of plaintiff in his hands. Plaintiff is therefore entitled to judgment for the amount claimed, and the defendant is remitted to his remedy by action for any proportion of the earnings or profits of the 696 KOCH V. WILLIAMS. [BOOK II. company he may eventually be found entitled to. Clark v. Gil- bert, supra. Order affirmed.^ Koch V. Williams (1892), 82 Wis. 186. The plaintiffs and defend- ants mutually agreed that the plaintiffs, architects, should draw plans for and superintend the erection of buildings for the defendants, and the defendants should give as compensation therefor certain real estate. The work was finished to the satisfaction of defendants, but the plaintiffs refused to accept the real estate bargained for, and sued for the reasonable value of their services. Orton, J., speaking for the court, said : The contract the parties made was oral, and that, by our statute * * * jg absolutely void and a nullity. First, then, we are compelled to hold this contract void. In de- fense of this action the defendants set up and seek to enforce this oral contract for the sale of the lot as payment for the services of the plaintiffs. The English statute 29 Car. II., and the statutes of many of our states copied from it, do not make the contract void, but only voidable. The authorities cited by the learned counsel of the ap- pellants are under that statute. Under a statute like ours, the author- ities uniformly hold that such a contract is void, and that nothing will take it out of the statute except such part performance on the part of the purchaser, by entering into the possession of the premises, as would render him a trespasser if the agreement is held void, and even in such a case the relief can be souglit only in a court of equity. In Cameron v. Austin, 65 Wis. 652, this principle is applied, where the plaintiff, who had sued, as here, for his services that were to be 'Accord: Crawford v. Parsons (1846) 18 N. H. 293. Where a plaintiff received for a time an agreed amount for services on a contract, void by the statute, and then was discharged before the time stipu- lated by the void contract, a recovery on quantum meruit for a greater sum than received was denied. Cohen v. Stein (1884) 61 Wis. 508; and see, Deyo V. Ferris (188G) 22 111. Ap. 154. Of course a recovery should be permitted if the defendant prevents the plaintiff from completing the contract. Frazer v. Howe (1883) 106 111. 563; Littell V. Jones (1892) .')6 Ark. 139: Reed v. AlcConnell (1892) 133 N. Y. 425; or if the part performance has been accepted. Baker Bros. & Co. v. Lauter- bach (1HH7) M Md. 64; Ray v. Young (18.55) 13 Tex. 550 (a recovery per- mitted against the estate of one accepting) ; Aiken v. Noglc (1891) 47 Kan. 96; Oray r. Hill (1826) Ryan & Moody, 420; Savage v. Canning (1867) 1 Iri.sh, C. L. 434. And see as to the rule in cquily in such cases, Buckingham v. Ludlum (1883) 37 N. J. Eq. 137. Although a contract is void under the statute, it may be shown to rebut the presumption of a mere gratuity between near relatives. Kcttry v. Thumma (1894) 36 N. E. 919.— Ed. CHAP. 11.] KOCH V. WILLIAMS. 697 paid for by a conveyance of land, had gone into possession and made improvements on the land, to defeat the action. Without such part performance by the purchaser, the contract was held void. In the late case of Popp v. Swanke, 68 Wis. 364, the oral contract was to sell and convey a tract of land in payment for lumber. The action was for specific performance of the contract by the defendant, upon full performance by the plaintiff by the delivery of the lumber. The de- fendant and his wife executed a deed to the plaintiff, and left it in the hands of a third person in escrow, to be delivered to the plaintiff on the delivery of the lumber, and, after receiving the lumber, the defendant refused to permit such third person to deliver the deed. This was going a great way towards a full performance by both par- ties, and yet this court held that the contract was void by our statute and could not be enforced, and that nothing less than possession by the purchaser could take the contract out of the statute. Chief Justice Cole very clearly distinguished our statute from the English statute, citing and following the able opinion of Chief Justice Dixon in Brandeis v. Neustadtl, 13 Wis. 142, and the other cases in this court. See, also. Smith v. Finch, 8 Wis. 245; Blanchard v. McDougal, 6 Wis. 167; Madigan v. Walsh, 22 Wis. 501; Thomas v. Sowards, 25 Wis. 631; Campbell v. Thomas, 42 Wis. 439. Second. The plaintiffs, having rendered valuable services to the defendants under this void contract, are entitled to recover what such services were reasonably worth. This, at first blush, might appear to be a hardship on the defendants, who never agreed to pay for such services in money, and have offered to pay according to the oral con- tract by a conveyance of the lot. But it is inevitable, from hold- ing the contract void. The statute must be complied with as long as it is in force. It is no hardship to put such a contract in writing, and if parties suffer by not complying with the statute it is a pen- alty due to their own negligence, and they have no reason to com- plain. As said by the late Justice Taylor, in Salb. v. Campbell, 65 Wis. 405 : "The statute making the parol contract absolutely void, it furnishes no ground of action in favor of the plaintiff, nor can it be used by the defendants as a basis upon which to found a de- fense. The parties stand in the same relation to each other as though no express contract existed between them, . . . and the plaintiff may recover upon a quantum meruit for the work done upon an im- plied promise of the defendants to pay what the services are reason- ably worth" In Cohen v. Stein. 61* Wis. 508, Chief Justice Cole said: "Under the decisions of this court there can be no doubt as to the correctness of the proposition that, where a person renders ser- vices under a contract which is void, he can recover upon a quantum meruit the value of such services." See, also, Brandeis i'. Neustadtl, 13 Wis. 142: Thomas r. Sowards, 25 Wis. 631; X. W. U. Packet Co. 698 DAY V. XEW YORK CEXTRAL E. R. CO. [BOOK IL V. Shaw, 37 Wis. 655; Clark v. Davidson, 53 Wis. 317; Thomas v. Hatch, 53 Wis. 29G. The finding of the court as to the services of the plaintiffs and value thereof appears to be sustained by the testimony. The other exceptions of the appellants are not material to the merits of the case. By the Court. The judgment of the circuit court is affirmed. DAY, RESPOXDEXT v. THE NEW YOEK CENTRAL RAIL- ROAD COMPANY, APPELLANT. Commission of Appeals of New York, 1873. [51 New York, 583.] Appeal from judgment of the General Term of the Supreme Court in the eighth judicial district, affirming a judgment in favor of the plaintiff, 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 convey to the defendant about an acre and two-thirds of an acre of land, together with the right of ingress and egress, to and from the land so to be conveyed, to the plaintiff's land, and to build and keep in repair cattle yards and pens for live stock, sufficient to accommodate the shipping or transporting such stock to and from the cars to the plaintiff's land, adjoining the land so to be convcA^ed, free from any expense to the defendant ; and that the defendant should temjiorarily deliver to the plaintiff, from that time forward, for temporarily keep- ing 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 tlie tempo- rary feeding and keeping suoli 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 agreement, were constructed by the plaintiff; that the defend- ant disregarded the agreement entered into on its part, and refused to allow the live stock transported on its road to be delivered temj)orarily to the plaintiff for feeding and keeping, and refused to allow the plaintiff the enjoyment of the profits he would have 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 premises, for work and labor, care and diligence, and for materials furnished, and for construction of cattle yards, etc., for the defendant. CHAP. II.] DAY V. NEW YORK CENTRAL R. R. CO. 699 The answer was a general denial. The first cause of action only was contained in the original com- plaint, and the action was tried on that issue in Xovember, 1858, and a verdict rendered for the plaintiff for $-lr,384:. On appeal to the General Term, a new trial was ordered, on the ground that the agree- ment on the part of the appellant, being verbal only, was void by the statute of frauds, for the reason that it was not to be performed within one year, and also that it created a negative easement on the lands of the plaintiff. 5 Johns. 85. The plaintiff then amended his complaint, adding thereto the second count, and a second trial was afterward had, and a verdict recovered by the plaintiff in 1867 for $2,500. On a second appeal to the Gen- eral Term, a new trial was ordered on the ground that the damages should have been confined to the value of the land conveyed by the plaintiff. 2 Hill, 439. On the third and last trial, damages were recovered only for the actual value of the land conveyed by plaintiff to the defendant, with the interest. Earl, C. The point was not taken by the defendant at any stage of the trial, that the plaintiff had not given sufficient proof tending to establish the parol agreement claimed by him, to wit : That in con- sideration of the conveyance of the land to the defendant, it was to give to the plaintiff at his yards and pens the business of tempo- rarily keeping and feeding all the stock which should be transported upon its road eastward from Xiagara Eiver. 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 plaintiff'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 business the plaintiff made profits to the amount of about $6,000. And yet he brings this action to recover the entire value of the land conveyed by him on the ground of a total failure of the consideration of his conveyance. A mere statement of the case- shows that the action must be without foundation. If one pays money, or renders service, or delivers property 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 implied assumpsit to pay, provided he can show that he has been ready and willing to perform the agreement, and the other party has repudi- ated or refused to perform it. Gillet v. Maynard, 5 Johns. 85; 700 DAY V. XEW YORK CENTRAL R. R. CO. [BOOK II. King V. Brown, 2 Hill, 439 ; Cook v. Doggett, 2 Allen, 439 ; Erben v. Lorillard, 19 N. Y. 299; Richards v. Allen, 17 Me. 296. While the law in such case will not sustain an action based upon the agreement, it still recognizes its existence and treats it as morally binding, and for that reason will not give relief against a party not in default, nor in favor of a party who is in default in his perform- ance of the agreement. A party who has received anything under such an agreement, and then has refused to perform it, ought in justice to pay for what he has received, and hence the law for the purpose of doing justice to the other party will 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 consideration 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? 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. But what shall be done when lie lias received part of the consideration ? He should not be left without any remedy for tlie balance honestly due him, but upon the same principles of justice and equity the law sliould iin])ly a promise to pay the balance. Here the plaintiff was to receive for liis land one dollar and the stock business at his yards. 'I'lic our dollar may be regarded as merely nominal, and the other imi>t lie held to be the substantial considera- tion. The plaiiitilT e\|)e( led to get the vabie of his land in the profits which he should make ont of the business which the defendant should give him. This business the defendant gave to the plaintiff for one year, at least, just as it agreed to, and out of it the plaintiff appears to have made profits much greater than the value of the land eonveyed. These profits were the very consideration contemplated hy the parties for the eonveyanee of the land, and to the extent that the ])laintiff has had the business and profits, be has had the very consideration he contracted for. Suppose the defendant had agreed to pay plaintifl' $100 and also to give him the stock business, could the plaintiff in this action after receiving the $100 recover the whole value of the land, entirely ignoring the money payment? Suppose, instead of CHAP. II.] DAY V. NEW YORK CENTliAL R. R. CO. 701 giving the defendant land, the plaintiff had paid it money for the same consideration, could he, nnder the circumstances of this case, recover back all the money paid in an action for money had and received? Clearly not. The very basis upon which the action rests forbids it. As said by Lord Mansfield, in Moses v. Macferlan, 2 Burr. 1005, "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." 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 Longchamp v. Kinny, 1 Dougl. 137, 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 con- science 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 consideration which he had paid, when he had already received a part of the benefit and consideration which he had contracted for. Within the principles laid down in the cases cited he would be permitted to recover the balance only of the money paid by him after deducting the value of so much of the consideration as he had received, and if it could be shown in such case by the defendant that plaintiff had actually received from the defendant upon the agreement more than he had paid, there would be no basis of law or equity for the action to stand on. The same principles of justice and equity should be applied to this case. The plaintiff's equities can be no greater that he paid in land than in money. The agreement 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 defendant before the commencement of the action. They were part of the consideration received by him for his conveyance, and he has the same right to hold them as if so much money had been paid to him bv the defendant. His claim is against the defendant for the 702 DOWLING V. MC KENNEY. [BOOK II. balance, if any, of the value of the land. These views are fully sup- ported by well-recognized principles of law. I find no authority in conflict with them, and the case of Eichards v. Allen, 17 Maine, 296, is the only authority which has come to my notice directly in point. In that case there was a verbal contract between the plaintiff and defendant for the purchase and sale of a farm, and the plaintiff had delivered to the defendant upon the contract a quantity of brick and a yoke of oxen. After the plaintiff had been in possession of the farm for about twenty years the defendant conveyed it to another person and refused to convey to the plaintiff. He then sued the defendant in assumpsit for the value of the brick and oxen, and it was held that he could recover, but that lie must allow for the use of the land. The court says: "But the plaintiff's claim must be limited to what is just and equitable under all the circumstances. He had made some payments, but he had enjoyed the farm for eighteen or twenty years. The jury should have been permitted to take this into consideration even without an account in offset, as it was necessarily connected with the plaintiff's claim, and was of a character to affect and qualify it."' My conclusion, therefore, is that the judgment should be reversed and new trial granted, costs to abide event. All concur except Johnson, C, not sitting. Judgment reversed.^ DOWLING V. McKENNEY. Supreme Judicial Court of Massachusetts, 1878. [124 Massachusetts Reports, 478.] Contract. T^e declaration contained three counts. The first was to recover $200, on an account annexed, for "furnishing materials for, and labor and work in making, a monument." The second was as follows: "And the plaintiff says that he made an agreement with the defendant to furnisli materials and construct for her a monument for the sum of two hundred dollars ; that he furnished materials and made said monument for the defendant, and tendered the .same to the de- fendant ; and that she owes him therefor the sum of two hundred dol- lars." The third was on an account annexed, and contained the fol- lowing items: "To ten days' labor on monument, $50. To three days' services in preparing land and foundation for same, $15." An- swer, a general denial. At the trial in the Superior Court, before Dewey, J., the plaintiff 'See as to measure of recovery Purkcr v. Taintcr (1877) 123 Mass. 185. — Ed. CHAP. II. J DOWLING V. MC KENNEY. 703 testified that he was a manufacturer of monuments and grave-stones, keeping on hand stock and partly finished monuments, to be finished to order; that the defendant came to his shop and said she would like to get a monument; that he showed her several monuments partially manufactured, among them the one in question, the price of which he told her was $250, when finished with base, cap, and plinth, and polished; that she said she had some land, and he said perhaps they might trade with the piece of land ; that if he could get a piece of land at a reasonable price he might trade with her ; that if she would sell the land at the same price for which she had sold another piece, he would trade with her for the monument; that they went on the land and looked at the lots, for one of which she asked $4:35 ; that he told her he would throw oif $50 on the monument, calling it $200 complete, if she would throw $35 off on the lot, and would give her $100 in cash, and $100 later, and the monument completed with the inscription, for the lot of land; and that to this proposition she agreed, and the lot was selected and agreed on. There was also evidence that subsequently the plaintiff purchased a plinth, and one of his workmen worked three or four days, fitting and polishing the monument, putting on the cap and mouldings, and one-third of the inscription, which the defendant had given him to be put on the monument, at the time of the original contract, was put on, taking three days' work; that the defendant then notified the plain- tiff that she would not take the monument, as she had been advised it was too large, and refused thereafter to take it ; that subsequently the plaintiff completed the monument and inscription, and offered to de- liver it to her, and pay her $100 cash and give her his note for $100, secured by mortgage on the land, and demanded a deed of the land; that she refused to accept the monument, money, and note, and re- fused to deliver him a deed of the land. Upon this evidence, the plaintiff contended that he had the right to recover the sum of $200 for furnishing materials and completing the monument, and that, if he could not recover for the materials or the monument, he had a right to recover for his labor in completing the monument. The defendant contended that the Gen. Sts. c. 105, § 1, cl. 4, and § 5, were a bar to the action. The Judge, by consent of parties, before verdict, reported the case for the determination of this court. If, on this evidence, the action could not be maintained, judgment was to be entered for the defendant; otherwise, the case to stand for trial. ExDicoTT, J. It appears from the report that the defendant orally agreed to convey to the plaintiff' a lot of land valued at $400, and to take, in exchange or payment therefor, a monument, estimated to be of the value of $200, when completed, and the balance in money. After the monument was finished, the plaintiff tendered it to the defendant, together with the balance in monev, according to the con- 704 iKJW LIXG I'. MC KENNEY. [BOOK II. tract. The defendant refused to accept the monument or money, or to give the deed. Whether this was a sale or an exchange of property is immaterial. Assuming that it was an exchange of the land for the monument, with a balance in money to be paid by the plaintiff,' it is to be governed by the same rules as apply to a sale when the whole consideration is to be paid in money. Anon., 3 Salk. 157; Commonwealth v. Clark, 14 Gray, 367, 372; Howard v. Harris, 8 Allen, 297. The contract was therefore within the prohibition of the statute of frauds. Gen. Sts. c. 105, § 1. cl. 4. The oral promise on the part of the defend- ant was not to pay money for the monument, but to convey a lot of land. If the promise had been to pay in money for the monument, when completed, it might have come within the rule, that an agree- ment to construct or build an article to be paid for when finished need not be proved by a memorandum in writing, as in Mixer v. Howarth, 21 Pick. 205. But that view of the case cannot be sustained on the evidence as reported; it does not appear to have been the intention of the parties to make any contract, except that which included the conveyance of the land, which was the sole consideration moving from the defendant. That contract was not in writing, and cannot be enforced, in whole or in part. The plaintiff cannot separate that portion which relates to the building of the monument from the whole, and recover upon it as a distinct undertaking. This would be to make a new contract between the parties; for it was no part of the agreement, as stated, to pay $200 in money for the monument, but to allow that sum as a portion of the consideration for the con- veyance of the land. The plaintiff therefore cannot recover, either upon his first or second count, for the value of the monument. But the plaintiff contends that he may, under his third count, re- cover for his labor in completing the monument. It is true, that when a person pays money, or renders service, or makes a conveyance, under an agreement within the prohibition of the statute of frauds, and the other party refuses to perforin it, an action will lie to re- cover the money so paid, or the value of the services rendered or the property conveyed ; but it is on the ground that a party who lias received a benefit, under an agreement which he has repudiated, shall be held to pay, upon an implied assumpsit, for that which he has received. Dix v. Marcy, lUi Mass. 410, and cases cited. In the case at bar, the defendant received no IxMiofit from the labor perfornK'd in completing the monument, nlllinnnli llic plaiiiliU' may have suf- fered a loss i)ecause he is unai)le to enforce his contract, and no re- covery can be had for the labor on the monument, as charged in the account annexed to Die Ihird coniil. But this rule docs not npplv to tln' ilrm i'ov si'rvicfs iicrfoniKMl by the piaintifT in prei)iirin,L^ the bind ;iiid fnundation. If this re- fers to the lot of the defendant where the nioiuiiiient was to stand, CHAP. II.] KELLY V. THOMPSON. 705 and the work was done upon it, we cannot say as matter of law that it was not of benefit to the defendant. That is a question of fact to be determined, and by the terms of the report the entry must be Case to stand for trial} In Kelly v. Thompson (1902) 181 Mass. 122, Loring, J., said: The defendant now contends "the rule of law to be that where two parties have made an agreement which is invalid by reason of the statute of frauds and one party has paid money or other valuable con- sideration relying upon said invalid agreement, that if this agree- ment is repudiated by the party who has received the money, that the party paying the money can recover the sum in an action of as- sumpsit for money' had and received," and cites Thompson v. Gould, 20 Pick. 134; Cook v. Doggett, 2 Allen, 439; Williams v. Bemis, 108 Mass. 91 ; White v. Wieland, 109 Mass. 291; Dix v. Marcy, 116 Mass. 416; Root V. Burt, 118 Mass. 521; Parker v. Tainter, 123 Mass. 185; Holbrook v. Clapp, 165 Mass. 563; Miller v. Roberts, 169 Mass. 134. But the rule established by the cases cited by the defendants is not accurately stated by him, and does not support his contention in this case. That rule is that if a plaintiff has paid money, conveyed property, or rendered services under an oral agreement within the statute of frauds, which agreement the defendant wholly refuses to perform, he can recover the money paid, or the value of the property conveyed, or of the services rendered ; in that case there is a total failure of con- sideration and the plaintiff can recover the value of any benefit in- uring to the defendant as a result of the transaction. To the cases cited by the defendant may be added Basford v. Pearson, 9 Allen, 387; Pulbrook v. Lawes, 1 Q. B. D. 284; Riley v. Williams, 123 Mass. 506; Dowling v. McKenney, 124 Mass. 478; O'Grady v. O'Grady, 162 Mass. 290; and see Kneil v. Egleston, 140 Mass. 202, 204; and Holbrook v. Clapp, 165 Mass. 563, 564, 565. And further, where the plaintiff has performed his agreement in whole, but the de- fendant has performed his agreement in part only, and a benefit inures to the defendant as a result of the transaction, the plaintiff can recover on an implied promise to the extent of that benefit. Williams v. Bemis, 108 Mass. 91; White v. Wieland, 109 Mass. 291; Dix V. Marcy, 116 Mass. 416; Miller v. Roberts, 169 Mass. 134. The ground of recovery in that case is that the defendant has got the plaintiff's property without having fully paid for it, or that the nVhere an uncle of the plaintiff orally promised the latter, an emancipated infant, $1000 if he would return and work for his father during his own mi- nority, and the work was performed. Held, no recovery against the uncle's estate, as the contract was void under the statute, and the defendant received no benefit. Bristol v. Sutton (1897) 115 Mich. 365.— Ed. TOG COLLIER V. COATES. [bOOK IK plaintiff has paid the tlefondant in advance without receiving a (juid pro quo. A recovery is had on the same principles as that given to a contractor who has erected a building on the defendant's land for which he cannot recover under the contract between him and the owner of the land, and which was recently discussed at length in Gillis V. Cobe, 177 Mass. 584, (2) The Plaintiff is in Default. COLLIER V. COATES. Supreme Court of New York, 1854. [17 Barlour, 471.] This was an appeal from a judgment of the Steuben County Court. The action was commenced before a justice of the peace, to recover back the sum of $65 which had been paid by the plaintiff upon a parol contract for the sale of a farm by the defendant to the plaintiff. The complaint was for money lent, and money paid. The defendant denied the allegations in the complaint, and stated that if he had received any money from the plaintiff it was upon the condition that the defendant would enter into a written agreement with the ])laintiff, at a future day, which the defendant alleged he was, and at all times had been, ready to do, and he further averred that he had suffered great damage and expense by reason of the plaintiff not performing his agreement. A parol agreement between the parties, for the sale of the defendant's farm to the plaintiff, was proved, and the price was agreed upon. The plaintiff paid to the defendant $65 upon the contract, and was tO' pay, within a week or ten days, enough more to make $200 ; and then a written contract was to be executed by the ))arties. Subse- quently the plaintiff came back and told the defendant he could not make out the $200, and therefore could not take the farm, and he sent word to the defendant, by his son, that ho, the defendant, might have the $65 the plaintiff had paid him for his damages, or he might pay back some part of it if he could afford to. The jury found a verdict in favor of the plaintiff for $65, and the justice rendered judgment for that sum, with costs. On appeal the County Court allirmed the judgment. Hy the Court. — Johnson, J. 1 regard the rule as well settled, in this country, at least, that where a person has ])aid money upon a parol contract for the purchase <>f hinds, whieli is void hy tlie statute of frauds, be cannot maintain an action to recover hack the money so paid, so long as the other party to whom the money has been paid is willing to perform on his part. CHAP. II.] COLLIER V. COATES. 707 The doctrine has been twice distinctly declared in our own court, where the question was directly before it. Abbott v. Draper, 4 Denio, 51; Dowdle v. Camp, 13 Johns. 451. The same question has been decided in the same way repeatedly in several of the courts of our sister States, where the point was directly involved. Coughlin v. Knowles, 7 Met. 57; Thompson i;. Gould, 20 Pick. 132, 142; Duncan v. Baird, 8 Dana, 101; Lane v. Shackford, 5 N. H. 133; Shaw v. Shaw, 6 Vt. 75 ; Eichards v. Allen, 5 Shep. 296 ; Sims v. Hutchins, 8 S. & M. 328 ; Beaman v. Buck, 9 S. & M. 257 ; McGowen v. West, 7 Miss. 569 ; Khodes' Adm'r v. Stow, 7 Al. 346 ; Dougherty v. Goggin, 1 J. J. Marsh. 374; 2 J. J. Marsh. 563. In several of the cases above cited, the facts are almost identical with those of the case at bar. All the cases agree that if the party receiving the money refuses to perform the agreement, such as it is, on his part, the action lies. I doubt whether any well-considered case can be found in the courts of this country, where the rule above laid down has been denied or even doubted. Eice v. Peet, 15 Johns. 503, is cited as holding a contrary doctrine, but it does not. That case turned upon the insanity of the plaintilT at the time of making the trade and turning out the note, which fact the court considered as established by the verdict of the jury. The court do indeed say that the plaintiff might have recovered upon the ground that the contract for the exchange of farms, on which the money was received, being by parol, was void. But the decision was evidently not placed upon that ground. And besides, although the defendant in that case alleged in his plea that the plaintiff had failed in performing his agreement, no evidence seems to have been given upon the subject, and there is nothing in the case to show who w^as, in fact, in fault in not carrying out the agreement to exchange farms. The decision upon the point pre- sented by the finding of the jury does not impugn the principle con- tended for, and at most can only be regarded as a dictum the other way. But it is contended by the learned and ingenious counsel for the plaintiff that neither Dowdle v. Camp nor Abbott v. Draper are authorities against the plaintiff's right to recover, because in each of those cases the plaintiff was in possession of the premises purchased, and might have enforced a specific performance of the agreement in a court of equity. In that respect, it is true, the two cases above cited differ from the case here, although several of the other cases cited do not. But I am unable to perceive how that circumstance affects the prin- ciple upon which the plaintiff claims the right to recover. The founda- tion of his claim is that the money was paid without consideration. That is, that having been paid upon a promise made by the defendant which the law would not compel him to perform, nor mulct him in damages for refusing to perform, and which was, in short, void by statute, it was paid without any consideration whatever which the law notices or regards. But this condition of the parties is not in the 708 COLLIER V. COAXES. [bOOK II. least altered by the purchaser's going into possession, so far as the validity and force of the agreement is concerned. It is still void by the statute of frauds, notwithstanding tlie possession. Nothing is better settled than this, that part performance of a parol contract void by statute does not take it out of the statute, or give it any validity in law as a contract. To whatever extent either or both of the parties may have gone in the performance of such a contract, it still remains of no legal or binding force in law, in every stage up to its full and final perform- ance and execution by both. If it is conceded that possession by the plaintiff, in addition to the payment, w^ould have operated to defeat the recovery of the money paid, the whole ground of controversy is surrendered. It could make no difference as regards the right of action, so far as the question of consideration is concerned, whether the defendant had in fact performed in part or whether he was willing and offered to perform. Besides, when the other party is willing and offers to perform, the question as to whether the plaintiff could compel him to do so in case of his refusal, does not arise. It is clear enough that in case of a refusal the action lies, and the refusal is the ground upon which the action for the recovery is based. Certainly a willingness or an offer to perform must be regarded as placing the defendant in as favorable a situation as part performance, as regards the action at law. Courts of equity, in decreeing the specific performance of such con- tracts, do not proceed upon the ground that the contract has any force or validity in law, but only that it is binding in conscience, and its performance specifically is decreed, expressly to prevent fraud, and for the very reason that in law it is of no force. What courts of equity might do, or refuse to do, can have no bearing upon the legal effect of such a contract. The last act or payment by either party, or both, short of full performance, is as much without consideration in law as the first. If the rules of equity are to l)e permitted to affect the legal right of recovery, the defendant may safely invoke them in his behalf in the present case. But they are not; and in deter- mining the question here, in the action at law, they may as well be laid entirely out of view. It is by no means a universal rule that money paid, without a consideration good in law, may be recovered back. There are several exceptions to it. And I take this to be one which is well esta))lished by numorous adjudications. Tho contract here upon which the money was paid, although it was so far void that the law would lend no aid in enforcing it, was not contrary to law. It was noithfr immoral nor illegnl. It was one which the parties had a right to maki' and carry out. 'I'here was no fraud or mistake of facts. The money was voluntarily paid by the plaintiff, upon a promise made by the defendant, whicli the former knew at the time he could not oblige the latter to perform, but which promise. CHAP. II.] COLLIER V. COATES. 709 nevertheless, he agreed to accept as a sufficient consideration for the money parted with. The money was not received by the defendant as a loan, but as a payment. It was not received to the plaintiff's use. And as long as the defendant is willing to do what he agreed to do, in consideration of the payment, the law will not presume any promise to repay it, but will leave the parties to stand where they voluntarily placed themselves by their arrangement, until the defendant refuses to carry it out. Cases of great hardship are suggested as a reason for the adoption of the rule contended for by the plaintiff's counsel. One of which is, that otherwise the purchaser under such a contract might go on making payments until the last; and although satisfied his bargain is not an advantageous one, yet bound to make his pay- ments or lose what he has paid, while the other party all this time is at perfect liberty to repudiate the arrangement, and may do so at the last moment, to the serious injury of the purchaser. And it is asked if it is right to give one party such an advantage over the other ? It would be easy to suggest cases of hardship on the other side, if the right to recover in any case were to be controlled by any such con- siderations. Take the case at bar, for an example. The evidence shows that when the plaintiff entered into the arrangement with the defend- ant and made the payment, the latter was engaged in putting in a crop of wheat; that the plaintiff requested the defendant to suspend operations, as he would want to put the land to some other use, and that the defendant did suspend, and waited, expecting the plaintiff to fulfil his engagement, until it was too late to put in his crop ; in consequence of which he was injured to the amount of over $100. But suppose the whole purchase price had been paid, and the defend- ant, in the confident expectation of the plaintiff's acceptance of the title, had gone and purchased another farm with the money, and involved himself in liabilities which would be utterly ruinous should the other party be allowed to repudiate and recover back the money. It may be asked, would it be right to allow him to do so? It is sufficiently obvious, however, that neither the plaintiff's right to recover back the money, nor the defendant's right to retain it, can rest in, or derive any aid from, such considerations as these. The principle which governs is more fixed and stable. It is clear that, by the rules of equity, the plaintiff could not recover until he had first made the defendant whole for the damage he had occasioned by the breach of his engagement, or offered to do so. And the law will not, I think, aid the party thus in the wrong, by presuming a promise of repayment, in his favor, until the other party shall refuse to go on and carry out the agreement upon which the money was paid. The rule which I suppose to be established seems to me to be one founded in reason and good sense, which ought to be upheld. And I regard it as being too well settled upon authority to be departed from, except upon the most cogent reasons, and from the clearest convictions of its 710 ABBOTT V. IXSKIP. [bOOK II. unsoundness. I am of opinion, therefore, that the judgment of the County Court and that of the justice should be reversed. ABBOTT V. INSKIP. Supreme Court of Ohio, 1875. [29 Ohio State, 59.] Motion for leave to file a petition in error to the District Court of Brown County. The plaintiff, an infant, sued the defendant to recover the value of work and labor performed by the plaintiff for the defendant between February, 1871, and February, 1875. The defendant in his answer set up that the work and labor sued for were rendered under a verbal contract entered into between the defendant and the plaintiff's mother in the year 186-1. That at the date of the contract the plaintiff was only nine 3'ears old, and was in the custody and under the control of his mother, who was entitled to his earnings and labor during infancy. By the terms of the contract the plaintiff was to live with and serve the defendant until he arrived at twenty-one years of age, in consideration of which defendant was to provide him with food, clothing, medicine, and education, etc., and, upon arriving at age, was to give him a horse, saddle, bridle, etc. That the defendant had performed, and was willing to perform all the conditions on his part, but the plaintiff without cause had left his home and service before arriving at age. A demurrer to the answer was overruled, and plaintiff replied. On the trial in the court of common pleas verdict and judgment were rendered for the defendant. This judgment was affirmed by the district court. ^IcIlvaixe, J. There is no question made as to the right of the plaintiff's mother to have bound him by a written contract duly ex- ecuted. The contention of the plaintiff in error is: 1. That the agreement set up in the answer was void under the statute of frauds. 2. That the plaintiff in error was not bound by it under the statute concerning apprentices and servants. It is true that the agreonii-iit coiild not have l)een performed within a year from the making tluM-eof, and, therefore, under the statute of frauds, it could not have been enforced by action. It miglit, how- ever, have been performed by the parties, and, when ])erforniei]. the parties would have Ix'en bound by it ; or, if the plaintiff had piM-formcd, the defendant would have been bound to perform it on his ]>art. CHAP. II.] GALVIN V. PRENTICE. 711 The plaintiff in his action below relied on an implied promise, on the part of the defendant, that he would pay the plaintiff the reason- able value of his services. The express promise contained in the agreement, under which the plaintiff' assumed to render the service, excludes the presumption of the implied promise relied on. The default of the defendant, or his refusal to go on with a contract which falls within the statute of frauds, is an essential condition of the right to recover for services rendered under it. It is only in cases where the defendant, by reason of his own breach of such con- tract, is estopped from setting it up as a defense that an action for the value of the work done under it can be maintained. That the contract was not executed in conformity to the statute con- cerning apprentices and servants is not a good reply to such con- tract. Such want of conformity no doubt discharged the plaintiff from the duty of remaining with the defendant. But, upon his voluntary withdrawal from the service, it gave him no right of action to recover for services rendered under the contract for the reasons above stated. Motion overruled. Galvin v. Prentice (1871), 45 N. Y. 162. The plaintiff, by an oral contract, undertook to work for defendant for three j-ears at specified wages, part of which was to be retained until the end of the term, with the understanding that if the plaintiff voluntarily left before that time this sum was to be forfeited. He worked about two years and then stopped. The evidence was conflicting as to whether or not he was discharged. In an action brought for the amount retained, the lower court, asserting that it was immaterial who was in default under the contract, directed a verdict for the plaintiff, for the reasonable value of the services. Eapallo, J. That part of the charge of the Judge, in which he instructed the jury, that the contract, although void, might be con- sidered prima facie evidence of the value of the services, was, under the circumstances of this case, erroneous; and the exception thereto was well taken. The contract price of the services was fixed with reference to a con- tinuous service of three years. It appeared, upon the plaintiff's own showing, that' the contract was that he should work for three years, and be paid the portion of his wages now in question, only in case he served three years, or was discharged for want of work. The plaintiff claimed tliat he had been discharged, but the evidence on that point was conflicting, and the judge charged the jury that the discharge had nothing to do with the case. It cannot be assumed, therefore, that the fact of discharge was established. It appeared that the plaintiff was to learn the business in which 712 (i.VLVlN r. PRENTICE. [iJOOK II. he was employed. It cannot be supposed that his work was of the same vahie during the prior part of the term of liis empkjyment, as it would be during the latter part, when his proficiency must naturally have increased. The price agreed upon for the three years was not, therefore, competent evidence of the value of the sei'viees during the first and second years, and the contract, being void by tlie statute, could not be so far enforced as to determine the rate of compensation. The exception to the ruling on that point is fatal to the judgment. But it must not be inferred that we agree to the proposition, that if there had been a correct ruling on the question of damages, the plaintiff would have been entitled to recover without proving that he was discharged, or that the defendant was in default. Where payments are made, or services rendered upon a contract void by the statute of frauds, and the party receiving the services or payments refuses to go on and complete the performance of the con- tract, the other party may recover back the amount of such payments or the value of the services, in an action upon an implied assumpsit. But to entitle him to maintain such action he must show that the defendant is in default. King v. Brown, 2 Hill, 487. The rule is very clearly stated in Lockwood v. Barnes, 3 Hill, 128, as follows: "A party who refuses to go on with an agreement void by the statute of frauds, after having derived a benefit from a part performance, must pay for what he has received." So in Dowdle v. Camp, 12 Johns. 451; Abbott v. Draper, 4 Denio, 51, 53; and Collier v. Coatcs, 17 Barb. 471, it was held that money paid on a parol contract for the purchase of lands, which is void by the statute of frauds, cannot be recovered ])aok unless the vendor refuses to perform; and to the same effect arc numerous decisions of the courts of our sister States, referred to in Collier v. Coates. The default of the defendant or his refusal to go on with the contract is recognized as an essential condition of the right to recover for services rendered or money paid, under any description of contract void by the statute of frauds. Erben v. Lorillard, 1!) N. Y. 302 and 304; Burlingame /'. Burlingame, 7 Cow. 92; Kidder v. Hunt. 1 Pick. 328; Thompson v. (iould, 20 Pick. 134, 142. When the contract is entire, and one party is willing to complete the performance, and is not in default, no promise can be implied on his part to comi)ensate the othei- party for a part performance. Tlie express [)romise appearing ujjom the plaintitr's own showing, ;d though it cannot be enforced bv reason of the statute, excludes any implied promise. W'hiliiey r. Sullivan, 7 Mass. 100; Jennings v. ("amp, 13 Johns. fKi. h\r press inn facif rrssnrc fnrittini. ^lerrill v. Knnne, I Taunt. ;{2!> ; Allen v. Ford, 10 I'iek. 217. The effeet of the statute is to prevent either party from (>nforeing j)erformance of the verbal contract against tlie otlier. but not to make a difTercnt contract between them. CHAP. II.] DUTCH V. WARREN. 713 An implied promise to pay for part performance can arise only when the party sought to be charged has had the benefit of the part per- formance, and has himself refused to proceed, or otherwise prevented or waived full performance. Munro v. Butt, 8 Ell. & Bl. 738 ; Smith v. Brady, 17 N. Y. 173; 13 Johns. 94; 8 Cow. 63; or where, after the making of the contract, full performance has been rendered impossible, by death or otherwise, without fault of the contracting party. Wolfe v. Howes, 20 N. Y. 197. The judgment should be reversed, and a new trial ordered, with costs to abide the event. Peckham and Folger, JJ.. concurred; Grover, J., concurred in the result on the ground of error in the charge; C. J. did not vote; Allen, J., dissented.^ (2) THE default is WILFUL AND INEXCUSABLE. (a) The Defendant is in Default. DUTCH V. WARREN. Michaelmas, at Guildhall, Common Pleas, 1721. [1 Strange, 406.-] Case for money had and received to the plaintiff's use. The case was, the plaintiff paid money on a promise to transfer stock at a future day, which not being done the plaintiff brought this action. At the trial the doubt was, whether the plaintiff had brought a proper action, because at the time this money was paid the plaintiff never ■ intended to have it again ; and the promise to transfer the stock was a sufficient consideration for his parting with the money. The Chief Justice [King] directed the court should be moved ; and they were all of opinion, that the action was well brought ; not for the whole money paid, but the damages in not transferring the stock at that time, which was a loss to the plaintiff, and an advantage to the defendant, who was receiver of the difference money to the "use of the plaintiff.'^ *See, Kriger v. Leppel (1889) 42 Minn. 6, where the agreement was for services for a specified time at a specified gross sum, to be paid when the ser- vices were all rendered, and the party coninioncpd to render services, but quit without cause: Held, no recovery. — Ed. -This case is more fully reported by Lord Mansfield in Moses v. Macfarlan <1760) 2 Burr. 1005, printed ante, p. 4, 7.— Ed. 'The earlier cases were contra: Brigs' case (1623) Palm. 364; Dewbery v. 714 ANONYMOUS. [BOOK II. ANONYMOUS. Michaelmas, at Guildhall, 1721. [1 Strange, 407.] A MAN paid money on a contract for the old stock of a company, and the party gave him so many shares in the additional stock. Upon this the other brings his action for the money, as so much money had and received to his use. And the Chief Justice [King] held, it well lay. because the thing contracted for was not delivered: he said it would have been otherwise, if the thing contracted for had been delivered, though to a less value.^ Chapman (1695) Holt, 35; Anonymous (1696) Comb. 447. See also Holmes v. Hall (1704) Holt, 36, and same case more fully reported in 6 Mod. 161. It will not escape the student's notice that the principal case misstates the nature and measure of recovery in such cases. The following passage from Nash V. Towne (1866) 5 Wall. 689, 701-02, is as accurate as it is concise: "Where the seller of goods received the purchase-money at the agreed price, and subsequently refused to deliver the goods, and it appeared at the trial that he had converted the same to his own use, it was held at a very early period that an action for money had and received would lie to recover back the money, and it has never been heard in a court of justice since that decision that there was any doubt of its correctness. Anonymous, 1 Strange, 407 ; 2 Greenleaf on Evidence, 124. "Assumpsit for money had and received is an equitable action to recover back money which the defendant in justice ought not to retain, and it may be said that it lies in most, if not in all, cases where the defendant has money of the plaintiff which, ex aequo et bono, he ought to refund. Counts for money had and received may be joined with special counts; and where, as in this case, the special counts are for damages for the non-delivery of goods, it is perfectly competent for the plaintiff, if the price was paid in money or money's worth, to prove the allegations of the special counts and introduce evidence to sup- port the common counts; and if it appears that the defendant refused to de- liver the goods, and that he has converted the same to his own use, the plain- tiff, at his election, may have damage for the non-delivery of the goods, or he may have judgment for the price paid and lawful interest. Evidence in this case was clear not only that the plaintiffs paid the price in money, but that the defendants refused to deliver the (lour, and converted the same to their own use, by selling and delivering it lo other persons. Allen v. Ford, 19 Pickering, 217; Jones V. Hoar. 5 id. 285." — Ki). 'See two adiiiirabh- articles l)y Samuel Williston on the Rejjudiation of Contracts (14 Harv. L. Rev. 317-331; 421-441), upon the te.vt and notes to which the present section is largely based. At page 318, note 1, Mr. Williston says: '"The earliest cases allowing an iict ion for restitution against a defendant guilty of breach of contract, and who might have iieen sued on the contract for damages, are Dutch v. Warren, I Str. 406, and Anonymous, 1 Str. 407, decided CHAP. II.] TOWERS V. BARRETT. 715 TOWERS V. BARRETT. King's Bench, 1786. [1 Term Reports, 133.] Action for money had and received, and for money paid, laid out, and expended. On the trial of this cause before Lord Mansfield, at the sittings at Westminster after last Michaelmas term, it appeared that this suit was instituted by the plaintiff to recover ten guineas, which he had paid to the defendant for a one-horse chaise and harness, on con- dition to be returned in case the plaintiff's wife should not approve of it, paying 3s. 6d. per diem for the hire of it. This contract was made by the defendant's servant, but his master did not object to it at the time. The plaintiff's wife not approving of the chaise, it was sent back at the expiration of three days, and left on the defend- ant's premises, without any consent on his part to receive it ; the hire of 3s. 6d. per diem was tendered at the same time, which the defendant refused, as well as \o return the money .^ Lord Mansfield, C. J. I am a great friend to the action for money had and received; it is a very beneficial action, and founded on prin- ciples of eternal justice. In support of that action, I said in the case of Weston v. Downes, that I would guard against all inconveniences which might arise from it, particularly a surprise on the defendant; as where the demand arises on a special contract, it should be put on the record. But I have gone farther than that ; for if the parties come to trial on another ground, though there happen to be a general count for money had and received, I never suffer the defendant to be surprised by it, unless he has had notice from the plaintiff that he means to rely on that as well as the other ground. But consistently with that guard, I do not think that the action can be too much encouraged. Here there is no pretence of a surprise on the defendant ; Jiere was no other question to be tried. The defendant knew the whole of the matter in dispute as well as the plaintiff. On what ground can it be said that this is not money paid in 1721 ; but in the first of these decisions, though the action was in form for restitution, the plaintiffs' damages were restricted to the value of what he ought to have received by the contract. No general recognition of a right to restitution as a remedy for brcacli of contract existed prior to decisions of Lord Mansfield and Lord Kenyon at the end of the eigliteenth century." — Ed. 'The arguments of the counsel are omitted. They relied principally upon Power v. Wells (1778) Cowp. 818; Weston v. Downes (1778) 1 Dougl. 23; Moses v. Macferlan (17(50) 2 Burr. 1005, aiite p. 4.— Ed. 716 TOWERS V. BARRETT. [BOOK II. to the plaintifT's use? The defendant has got his chaise again, and, notwithstanding that, he keeps the money. The case was well put by Mr. J. Asii hurst in Weston v. Downes, and I think this is exactly like that. I was of opinion at the trial that this action would lie; and I still continue of that opinion. WiLLES, J. The only difficulty is to distinguish this case from, that of Weston v. Downes; and I think it differs from that on two grounds. That was an absolute, this a conditional agreement. And another more material difference is, that this agreement was at an end ; the contract was no longer open. Tn the case of Weston v. Downes, Mr. J. Buller said, "This action will not lie, as the defendant has not precluded himself from entering into the nature of the contract, by taking back the last pair of horses." But, in the present case, the defendant has precluded himself by taking back the chaise. I think the verdict is right. AsiiiiURST, J. This action is maintainable; for it is different from the cases of Weston v. Downes and Power v. Wells. The latter was merely a case of warranty. In these actions the party cannot desert the warranty and resort to the general court, because the warranty it- self is one of the facts to be tried. As to that of Weston v. Downes: on the first contract there was an agreement to take back the horses, provided they were returned witliin a month : that would have been like tlie present case, if they had been returned within that time; but there was an end of the first contract, for the plaintiff took a second, and then a third pair of horses: that was a new contract, not made on the terms of the first, and that is distinguishable from the present case. But hiying that determination out of the question, tliis is like the common cases where either party puts an end to a conditional agree- ment. Here the condition was to return the chaise if not approved of; therefore, the moment it was returned the contract was at an end, and the defendant held the money against conscience and with- out consideration. Buller, J. On the very principle in Weston v. Downes and Power V. Wells, whieh determined that the action for money had and received would not lie in those cases, it is clear that this action will lie. It is admitted that if the defend;) nt luid actually accepted the chaise the action would lie; but it has been contended that he did not n^eeive it. '^Dien let ns see whether there be not something erpiiva- lent to an acceptance? I think tliere is, from the terms of the con- tract. There was nothing more to be done by the defendant; for he left it in the power of the plaintiff to put an end to the contract. Hero it was not in his option to refuse the cliaise when it was offered to him ; he was bound to receive it, and tiierefore it is the same as if he had accepted it. CHAP. II.] TOWERS V. BARRETT. 717 The distinction between those cases where the contract is open, and where it is not so, is this: if the contract be rescinded, either, as in this case, by the original terms of the contract, where no act remains to be done by the defendant himself, or by a subsequent assent by the defendant, the plaintiff is entitled to recover back his whole money ; and then an action for money had and received will lie.^ But if the contract be open, the plaintiff's demand is not for the whole sum, l)ut for damages arising out of that contract. "-^ '"In order to constitute a title to recover for money had and received, the contract on the one side must not only not be performed or neglected to be performed, but there must have been something equivalent to saying, 'I rescind this contract' — a total refusal to perform it, or something equivalent to that which would enable the plaintiff on his side to say, 'If you rescind the con- tract on your part, I will rescind it on mine.' That principle is laid down and very well enforced in a variety of cases which were cited, and which will be found in Smith's Leading Cases, vol. 2, in the note to the case of Cutter V. Powell," per Parke, B., in Ehrensperger v. Anderson (1848) 3 Ex. 148. This case seems to represent the English law on the subject of repudia- tion, and is cited in Keener on Quasi-Contracts, 304, as a correct exposi- tion of the law. Freeth v. Burr (1874) L. R. 9 C. P. 208, 214; Mersey Steel and Iron Co. v. Naylor (1884) 9 App. Cas. 434, 438. See also Fay v. Oliver (1848) 20 Vt. 118, 122. "In some American cases, also, it has been said that mere breach of contract does not justify rescission, unless an intention is manifested to be no longer bound by the contract, or unless the wrongdoer has prevented performance by the other party. Wright v. Haskell, 45 Me. 489 (see, also, Dixon v. Fridette, 81 Me. 122) ; Blackburn v. Reilly, 47 N. J. L. 290; Trotter v. Heckscher, 40 N. J. Eq. 612; Graves v. White, 87 N. Y. 463; Hubbell v. Pacific Mut. Ins. Co. 100 N. Y. 41, 47 (Comp. Bogardus v. N. Y. Life Ins. Co. 101 N. Y. 328) ; Suber V. Pullen, 1 S. C. 273." Williston, 1. c. 324. But see in regard to New York, Welsh V. Gossler (1882) 89 N. Y. 540; Hill v. Blake (1884) 97 N. Y. 216; Mansfield v. N. Y. Central E,. R. Co. (1886) 102 N. Y. 205. "This doctrine, though perhaps it is that of the English law to-day, must be regarded as erroneous in principle and unfortunate in practice. It seems to be based in large part on the notion that, in order to justify such a rescission of the contract, mutual assent of the parties must be established — and offer by the party in default accepted by the other party. In almost any case thia can be established only by resorting to the baldest fiction. ... In truth rescission is imposed in invitum by the law at the option of the injured party, and it should be, and in general is, allowed not only for repudiation or total inability, but also for any breach of contract of so material and substantial nature as should constitute a defence to an action brought by the party in de- fault for a refusal to proceed with the contract." Williston, 1. e. 323-325, and note 2, in which numerous authorities are cited. — Ei). -In Goodman v. Pocock (1850) 15 Q. B. 576, the plaintiff, a clerk, dismissed in the middle of a quarter, brought an action for a wrongful dismissal, the declaration containing a special count for such dismissal. The jury were directed not to take into account the services actually rendered during the 718 TOWERS V. BARRETT. [bOOK II. In a late case before me on a warranty of a pair of horses to Dr. Compton that they were five years old, when in fact they turned out to be only four, and they were not returned within a certain time, I held that if the plaintiff would rescind the contract entirely he must do it within a reasonable time, and that as he had not rescinded the contract he could only recover damages; and then the question was, what was the difference of the value of horses of four or five years old? So that the difference in cases of this kind is this : where the plaintiff is entitled to recover his whole money, he must show that the contract is at an end ; but if it continue open, he can only recover damages, and then he must state the special contract and the breach of it. Rule discharged.^ broken quarter, as they were not recoverable except tinder an indebitatus count; and they fjave damages accordingly. The plaintiff then brought a second action to recover under an indebitatus count for his services during the broken quarter. In denying a recovery, Coleridge, J., said: "In a case like this the servant may either treat the contract as rescinded and bring indebitatus as- sumpsit, or he may sue on the contract; but he cannot do both; and, if he has two counts, he must take the verdict on one only. Here the plaintiff elected to sue on the contract; and he cannot now sue in this form." For the various inconsistencies in the nature of the recovery where the contract has been rescinded or repudiated, see Williston, 1. c. 329-30 (where the cases are collected) ; Keener's Treatise on Quasi-Contracts, 306. For the Roman and the modern civil law remedy in such cases, see Williston on Dependency of Mutual Promises, 13 Harv. L. R. 84, 85, 94-95. — Ed. *"If a party to a contract has paid money and the other party has wholly failed to perform on his part, restitution may be had in England (Towers v. Barrett, 1 T. R. 133; Giles v. Edwards, 7 T. R. 181; Farrer v. Nightingal, 2 Esp. 639; Widdle v. Lyman, Peake, A. C. 30; Greville v. Da Costa, Peake, A. C. 113; Squire v. Tod, 1 Camp. 293; Wilde v. Fort, 4 Taunt. 334; Bartlett v. Tuchin, 6 Taunt. 259; Gosbell v. Arche'r, 4 N. & M. 485. So in the colonies, Wrayton v. Naylor, 24 S. C. Canada, 295; Wolff v. Pickering, 12 S. C. Cape of Good Hope, 429, 432), and in this country (Nash v. Towne, 5 Wall. G89; Lyon V. Annable, 4 Conn. 350; Thresher v. Stonington Bank, 68 Conn. 201 ; Barr V. Logan, 5 Harr. (Del.) 52; Payne v. Pomeroy, 21 D. C. 243; Trinkle v. Reeves, 25 111. 214; German, etc. Assoc, v. Droge, 14 Ind. Abb. 691; Wilhelm V. Fimple, 31 la. 131; Doherty v. Dolan, 65 Me. 87; Ballon v. Billings, 136 Mass. 307; Dakota, etc. Co. r. Price, 22 Neb. 96; Weaver r. Bentley, 1 Caines, 47; Cockroft v. MuIIcr, 71 N. Y. 367; Glenn v. Rossler, 88 Hun, 74: Wilkin- son V. Ferreo, 24 Pa. 190) ; Williston. 1. c. 318-319. In Western v. Sharp ( 1853) 14 B. Mon. 177, the court suggests a distinction (as to a recovery on a quantum meruit for services performed on a contract, the defendant defaulting) iK'tween sealed and unsealed instruments, saying: "The general rule lias been, that where there is a special agreement, the action must be founded u)>on it, and that there can be no recovry upon a quantum meruit, r)r implied agreement, unless, by some default on the part of the plain- CHAP. II.] CHESAPEAKE AND OHIO CANAL CO. V. KNAPP, 719 THE CHESAPEAKE & OHIO CANAL COMPANY, PLAIN- TIFFS IN EKROR V. KNAPP AND OTHERS. Supreme Court of the United States, 1835. [9 Peters, 541.] In error to the Circuit Court of the United States for the county of Washington, in the District of Columbia. This was an action of assumpsit, instituted originally in the County Court of Montgomery county, in the state of Maryland ; and by agree- ment of the parties transferred, with all the pleadings, depositions, and other proceedings therein, to the Circuit Court of the United States for the county of Washington, in the District of Columbia.^ Mr. Justice M'Lean delivered the opinion of the Court. This case is brought before this Court, by writ of error to the Cir- cuit Court for the District of Columbia. The defendants here, who were plaintiffs in the Circuit Court, commenced an action of assumpsit to recover a large sum alleged to be due, for the construction of certain locks, &c., from the Chesapeake and Ohio Canal Company ; and filed their declaration, containing nine general counts of indebitatus assumpsit, for work done and materials found, money laid out and expended, on account stated, &c. ; and the defendants, pleaded the general issue. On the trial, several excep- tions were taken to the ruling of the Court, by the plaintiffs; and one exception was taken by the defendants, which presents the points for decision on the present writ of error. The following is the instruction referred to. "In the further trial of this cause, and after the evidence and instructions stated in the tiff, he is precluded from recovering on the special agreement, when, if he could not recover upon a quantum meruit, he would be without remedy, whatever might be the extent of the labor done by him for the other party, or of the benefit derived from it. In such case, however, the recovery for work done under the contract would be limited to the contract price. "The rule, as above stated, requires that when the action can be maintained on the special agreement it should be founded upon it; and this rule is still more imperative and more important where, as in the present case, the special agreement is in writing, signed by the parties, and having the character and dignity of a sealed instrument. Such an agreement merges the verbal contract of which it takes the place, and it admits of no implied contract covering the same subject, unless when, according to the r\iles of law, there is no remedy upon the written agreement, when in order that there may be a remedy such contract is implied as justice and reason dictates." But this distinction was not taken in American T.ifc Ins Co. v. j\Ic.\den (1885) 109 Pa. St. 399. And the better doctrine is tliat no such distinction exists in the nature of things. See Ballou v. Billings (1884) 136 Mass. 307, per Holmes, J. And see Williston, 1. e. 328; Keener's Quasi-Contracts, 308.— Ed. 720 CHESAPEAKE AND OHIO CANAL CO. V KNAPP. [BOOK II. preceding bills of exceptions had been given, and after evidence offered by the plaintiffs, of the payment of moneys to the labourers for the time during the detention, occasioned by the want of cement on locks 5 and 6, the plaintiffs, by their counsel, prayed the Court to instruct the jury, that if the jury believe, from the said evidence, that the defendants had, on the 2d of September, 1829, and from that time till the 20th day of January, 1830, contracted with the plaintiffs to furnish them with cement necessary, &c., in due time, &c., and that the plaintiffs, expecting that sufficient supplies of cement to go on with the work would be furnished by the defendants, as de- fendants had so engaged to do, hired a large number of hands, and brought them to the locks; and when the defendants had so failed to furnish the cement, kept the same hands idle, waiting for cement, on the defendants' desire that they should do so in order to be ready to go on with the work ; and paid them their wages while so waiting : then the plaintiffs are entitled, under the count for money laid out and expended, contained in the declaration, to recover the money so paid to said hands, during such periods. But that the plaintiffs are not entitled to recover for wages paid to their workmen, on account of a deficiency of cement, after the said 20th day of January, 1830, unless the jury shall be satisfied by the said evidence, that the said resolution of the board of directors, of the 20th of January, 1830, was rescinded by the said board, and a new contract entered into there- after by the defendants, to furnish cement to the plaintiffs, and the subsequent failure on their part so to furnish it, and an agreement also to pay for the wages of the plaintiffs' workmen while so wait- ing," &c. The resolution referred to in the bill of exceptions, is in the words following : "Resolution of the Board of Directors of the Canal Company in meeting, January 20th, 1830. Resolved, that although this board has stipulated to supply the contractors with water lime, yet the board will not be held responsible for any damages arising from the want of that article." But the ground on which some reliance seems to be placed for the reversal of this judgment, and which, in the view of the Court, is one of the principal points [)resenti'd by the record, is, that the jury were instructed to find for the plaintiffs l)elow, on proof of a special con- tract, and under a declaration containing only general counts. By the instruction of the Court, if the jury found, from the ev'- dencf, that the eontrfict had been made liy the defendants, as stated, and that the money had been paid to the liands dc^tained for want of cement, the plaintiffs were entitled to a verdict on the count for money laid out and expended. There can be no doubt, that wlicre tlic special contract remain-^ open, the plaintiff's remedy is on the contract; and he must set it CHAP. II.] CHESAPEAKE AXD OHIO CANAL CO. V. KNAPP. 721 forth specially in his declaration. But if the contract has been put an end to, the action for money had and received, lies to recover any payment that has been made under it. The case of Towers v. Barrett, 1 Term Kep. 133, illustrates very clearly and fully this doctrine. In that case, the plaintiff recovered, on a count for money had and re- ceived, ten guineas paid to the defendant for a one horse chaise and harness, which were to be returned on condition the plaintiff's wife should not approve of the purchase, paying three shillings and six pence per diem for the hire, should they be returned : and as the plain- tiff's wife did not approve of the purchase, they were returned, and the hire was tendered at the same time. "But if the contract remain open, the plaintiff's demand for damages arises out of it, and then he must state the special contract, and the breach of it." It is a well settled principle, where a special contract has been per- formed, that a plaintiff may recover on the general counts. This prin- ciple is laid down by this Court, in the case of the Bank of Columbia V. Patterson's Administrators, 7 Cranch, 299, 2 Cond. Rep. 501. In that case, the Court say: "we take it to be incontrovertibly settled, that indebitatus assumpsit will lie to recover the stipulated price due on a special contract not under seal, where the contract has been exe- cuted ; and that it is not, in such case, necessary to declare upon the special agreement." It would be difficult to find a case more analogous in principle to the one under consideration, than the above. The same questions, as to the right of the plaintiff to recover on the general counts, where the special agreement was performed ; and, also, as to the powers of a corporation to bind itself, through the instrumentality of agents; were raised and decided in that case, as are made in this one. And it would seem, where this Court had decided the point in controversy, and which decision had never afterwards been controverted, that the question is not open for argument. But whether this doctrine be considered as established by the adjudications of this Court, or the sanction of other Courts, it is equally clear that no principle involved in the action of assumpsit, can be maintained by a greater force of authority. In 1 Bacon's Ab. 380, it is laid down, that "wherever the considera- tion on the part of the plaintiff is executed, and the thing to l)e done on the defendant's part, is mere payment of a sum of money due im- mediately; or where money is paid on a contract which is rescinded, so that the defendant has no right to retain it; this constitutes a debt for which the plaintiff may declare in the general count; on an in- debitatus assumpsit. Anciently, the count in such cases was special, stating the consideration as executory, the promise, the plaintiff's per- formance, and the defendant's breach ; but the indebitatus has grown, by degrees, into use." "So also if goods are sold and actually delivered to the defendant, 723 CHESAPEAKE AXD OHIO CANAL CO. V. KXAPP. [BOOK II. the price, if due in money, may be recovered on this count; and this though the price is settled by third parties." 1 Bos. and Pull. 397; 12 East, 1. "Where the plaintilT let to the defendant land rent free, on condition that the plaintiff should have a moiety of the crops; and while the crop of the second year was on the ground, it was appraised for both parties and taken by defendant : it was held that the plaintiff might recover his moiety of the value in indebitatus assumpsit, for crops, &c., sold : for by the appraisement, the special agreement was executed, and a price fixed at which the defendant bought the plain- tiff's moiety." The same principle is found in Helps and another v. Winterbottom, 2 B. and A. 431; Brooke v. White, 1 New Rep. 330; Robson v. God- frey, Holt, 236; Heron v. Gronger, 5 Esp. 2(59; Ingram v. Shirl(\y, 1 Stark. 185; Forsyth v. Jervis, 1 Stark. 437; Harrison v. Allen, 9 Moore, 28 ; Bailey v. Gouldsmith, Peake, 56 ; Gandall v. Pontigny, 1 Stark. 198; Farrar v. Nightingale, 2 Esp. 639; Riggs v. Lindsay, 7 Cranch, 500, 2 Cond. Rep. 585; James et al. v. Cotton, 7 Bing. 266; Administrators of Foster v. Foster, 2 Binn. 4; Lkyes v. Summcrel, 2 Browne, 227. As, by the instruction of the Court, the jury must have found the contract executed by the plaintiffs below, before they rendered a ver- dict in their favour ; we think the question has been settled by the ad- judged cases above cited; and that on this point there is no error in the instruction of the Court. But it is insisted, that, in their instruction, the Court lay down certain facts, as proved, which should have been left to the jury. If this objection shall be sustained, by giving a fair construction to the language of the Court, the judgment must be reversed ; for the facts should be left with tlie jury, whose peculiar province it is to weigh the evidence, and say what effect it shall have.^ This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Colunil)ia, holden in and for the county of Washington, and was argued l)y counsel ; on consideration whereof, it is ordered and adjudged by this Court, that the judgment of the said Circuit Court' in this cause be, and the same is hereby, afTirmed, with costs and damages at the rate of six per centum per annum. - 'The l)alance of the oi)iiiif)n of tlio ccmit (Iciiliiif; with this question is omit- ted.— Ed. 'See note on the princiiial raso in .'{ Rose's Notes on U. S. Reports, .'j2.'5, 526, in which the varioua authorities, Federal and State, arc collected. — Ed. CHAP. II.] MINER V. BRADLEY. 733 MINEE V. BKADLEY. Supreme Judicial Court of Massachusetts, 1839. [22 Pickering, 457.] Morton, J., drew up the opinion of the Court. This action, in which the plaintiff declares for money had and received and money paid, was brought to recover back the price paid for a quantity of hay. The cause was tried in the Court of Common Pleas. The facts upon which the plaintiff claimed to recover were as follows : The de- fendant, among other things, put up at auction a certain cow and 400 pounds of hay, which was then in a bay with other hay. The plain- tiff bid off the cow and the hay for $17, which he paid at the time. He then received the cow, and afterwards demanded the hay, which was refused by the defendant, who had used it. The defendant ob- jected to the plaintiff's recovery, on the ground that this was an entire contract; that the plaintiff could not recover back the price paid, or any portion of it, without rescinding the whole contract, and that this could not be done without returning the cow. But the court over- ruled the objection, and instructed the jury, that upon the fore- going facts, if proved, the plaintiff was entitled to recover a sum equal to the value of the hay. Upon the above statement, there can be no doubt, that in a proper form of action, the plaintiff might recover for the injury sustained by him, by the defendant's refusal to deliver the hay. But whether this action can be maintained, is the question now distinctly presented for our determination. It is to be regretted, that the plaintiff's claim must be decided upon mere matters of form, without regard to its merits. But still, with all the laxity in pleading which the liberality of the legislature and the courts has introduced into modern prac- tice, some regard must be had to establish usages and forms. We cannot break down the well known distinctions between different modes of declaring, without endangering the principles of justice upon which they are founded. Had the plaintiff declared upon his contract for the purchase of the cow and the hay, he might have tried his case upon its merits. But having adopted a different form of ac- tion, he must rely upon different principles for its support. The general rules of law upon which this case mainly depends, are well settled and familiar. This action is adapted to the repetition of all money paid by mistake or misapprehension of facts, or upon a contract for the purchase of property, either real or personal, where the consideration fails. If nothing passes, the purchaser may rescind the contract and recover back the money paid, and is not obliged to resort to any covenant or warranty, either express or implied. \Mier- ever a contract is rescinded according to the original terms of it, the 734 MIXER v. BRADLEY. [BOOK II. purchaser may well recover the price as money had and received to his use. Towers r. Barrett, 1 T. R. 133. So where a contract is de- feated by the negligence or misconduct of one party, the other may have his election either to rescind the contract and recover back the purchase money, or to enforce it, and recover damages for its breach. Giles I'. Edwards, 7 T. R. 181. But if a party would rescind a con- tract, he must do it in toto. He cannot disclaim it in part and enforce it in part. So, also, the party rescinding must place the other party in statu quo. If this cannot be done, the contract cannot be rescinded. Hence if the contract be in any part executed, it cannot be discarded. 1 Dane's Abr. 177, 187 ; -t Dane's Abr. 471 ; Hunt v. Silk, 5 East, 449 ; Kimball v. Cunningham, 4 Mass. R. 502 ; Conner v. Henderson, 15 Mass. R. 319. To apply these principles, which the plaintiff himself does not con- trovert, to the case at bar. When tlie defendant refused to deliver the hay, it was such a violation of the contract on his part, as would have justified the plaintiff in rescinding it. And, had he done so, he would have been entitled to a return of the money which he had paid. This, however, he could only do by restoring the defendant to the situation he was in before the contract, viz., by retui-ning the cow. But if he chose to retain her, his only remedy would be upon the special contract for damages for the conversion of the hay. This would liave been peculiarly adapted to his case, and would have done exact justice between the parties. The damage which the plaintiff sustained by the defendant's breach of his contract might be more or less than the value of the hay or the price which might be supposed to be paid for it ; and he would recover according to the injury suffered by him. Again, as the cow and the hay were bought together for one gross sum, there are no means of ascertaining how much was intended for one, and how much for the other. Indeed it is not probable that the parties fixed any definite price to the articles separately. If so, it might not have been the same; and as there was no intorchange of opinions, there could not be that agreement of two minds which con- stitutes a contract. There being, therefore, no price agreed upon and paid for the hay, none could be recovered back. The value of the liav, whicli wouhl be dilTcrcntly estimated by different individuals, certainly couhl not be dccincd the measure of the price. In this action only the exact amount of tin' money paid can be recovered back. The plaintiff argues, that this contract may be severed, either with or with- out the consent of the jiarties, so that it may be enforced as to part and rejected as to another part. Here is nothing tending to sliow any agreement to divide tlie contrMct. :is it applies to the two subjects. So far from it, that the defeiKbint di'uies that the hay ever was included in the contract. There may be cases, where a legal eoniract of sale covering sev- eral articles may be severed, so that the purchaser may hold souu' of CHAP. II.] MINER Vi BRADLEY. 735 the articles purchased, and, not receiving others, may recover back the price paid for them. Where a number of articles are bought at the same time, and a separate price agreed upon for each, although they are all included in one instrument of conveyance, yet the contract, for sufficient cause, may be rescinded as to part, and the price paid re- covered back, and may be enforced as to the residue. But this can- not properly be said to be an exception to the rule ; because in effect, there is a separate contract for each separate article. This subject is well explained, and the law well stated, in Johnson v. Johnson, 3 Bos. & Pul. 162. In that case the plaintiff purchased two parcels of real estate, the one for £700, the other for £300, and took one con-i veyance of both. But the title to the latter was invalid, and he brought his action to recover back the consideration paid for it, and prevailed. Lord Alvanley, in giving the judgment of the court, said, "My difficulty has been how far the agreement is to be consid- ered as one contract, for the purchase of both sets of premises, and how far the party can recover so much as he has paid by way of con- sideration for the part of which the title has failed, and retain the other part of the bargain." "If the question were, how far the part of which the title has failed, formed an essential ingredient of the bargain, the grossest injustice would ensue if a party were suffered 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 the various circumstances connected with it." "In this case, however, no such question arises : for it appears to me, although both pieces of ground were bargained for at the same time, we must consider the bargain as consisting of two distinct contracts; and that the one part was sold for £300, and the other for £700." Had the plaintiff bid off the cow at one price and the hay at an- other, although he had taken one bill of sale for both, it would have come within the principles of the above case. But such was not the fact. And it seems to us very clear, that the contract was entire; that it was incapable of severance; that it could not be enforced in part and rescinded in part ; and that it could not be rescinded without placing the parties in statu quo. We think some confusion has been thrown over this contract by likening it to a promissory note, which may be enforced in part, though the consideration fail as to the residue. This subject was fully discussed in Parish v. Stone, 14 Pick. 198. The principles there laid down, Avhich we recognize as sound, do not. in anv degree, clash with the doctrine above stated. The cases are dissimilar. The object of the one was to determine, whether a contract defective in part might be enforced as far as it was valid, and how far it was to be 726 CLARK V. MANCHESTER. [BOOK II. deemed valid; of the other, to determine in what cases and to what extent a contract may be rescinded and the consideration recovered back. On the whole, we are of opinion that the instructions of the learned judge of the Court of Common Pleas were incorrect, and that a new trial must be granted. The case is remitted for that purpose.^ CLAEK V. MANCHESTER. Supreme Judicial Court of New Hampshire, 1872. [51 New Hampshire, 594.] Assumpsit, by Geo. W. Clark against Manchester, upon the common counts, and a quantum meruit for work and labor. The plaintiff's claim was to recover for services as a laborer on the city farm, from April 13, 1870, to October 23 of the same year, by the employment of Joseph Cross, the defendants' agent. The evidence tended to show an employment for a year for $300, or $25 per month. It appeared that the plaintiff had drawn his pay monthly, at the rate of $25 per month, from tlie city treasury, excepting $23.08 due on the last month, which has been ready for him there ever since he left the defendants' employ, but which he declined to receive because he has claimed that he was entitled to more. The plaintiff left the defendants' employ October 23, 1870 ; and it was a question in dispute whether he left voluntarily, or was discharged without sufficient cause. The court instructed the jury that if they found the hiring to be for a year from April l'3, whether the terms of the contract were $25 per month or $300 per year, and that the plaintiff was discharged Oct. 23, without sufficient cause, he 'See 50 Am. Dec. 674, note; 74 id. CGI, note for elaborate citation of authori- ties. — Ed. "If a contract has been partly pcrforniod by the party in default, .the other party, at least if he has received any benefit from such part performance, can- not ordinarily rescind the contract according to the Enjjlish law. Even though he return what he has rpcoivcd. it is said the parties cannot be restored to their original position, because lie has had the temporary enjoyment of tlie property. In the leading case of Hunt r. Silk (5 East. 440), the ])liiiiitifr. who sought to recover money be had paid under an agreement for a lease, because of the defendant's failure to make repairs as agreed, bad had possession of the premises a few days. This was held fatal. . . . Hunt v. Silk has been consistently followed. Beed v. Blandford, 2 Y. & J. 278; Street & Blay, 2 B. A Ad. 456, 404; Blackburn v. Smith, 2 Ex. 783. See, also, Ileilbult r. Hickson, L. R. 7 C. P. 438, 451. fSuddoth v. Bryan (1888) 30 Mo. App. 37. 43.] It is in accordance with this rule Hint a buyer is not allowed to re- scind a contract for breacli of warranty. Street r. Blay, 2 15. A Ad. 450; CHAP. II.] CLARK V. MANCHESTER. 727 would bo entitled to recover so much as his services were reasonably worth during the whole period he worked, deducting what he had received, and also deducting the $23.08, in case they were of opinion that it was the understanding that the plaintiff should go to the city treasury and there draw his pay. To this instruction the defendants excepted, on the ground that all claims were settled and discharged by payment and acceptance of pay by the plaintiff, at the rate of $35 per month, up to about October 1 ; that in no event could the plaintiff be entitled to recover on a quantum meruit for more than the last month's work. The verdict was for the plaintiff for $109.33, which includes the $23.08, the jury being of opinion that it was not part of the contract that the plaintiff should draw his pay at the city treasury. The case was reserved. Sargent, J. The jury have found, upon the instructions given them, that the contract was to work for a year for $300, or at the rate of $25 per month for the whole year, and that the plaintiff received his $25 per month up to October, and was turned away, without sufficient cause, at that time. In other words, the city broke or rescinded its contract with the plaintiff at the end of about six months, and after the plaintiff had worked through the very best of the season. He had worked during those months when he could have earned $30 or $35 per month, whereas for the balance of the year he might not be able to earn more than $15 or $20 per month. If he had continued the year out, and had gone every month and received his $25, that would have completed the contract on both sides, and that sum, by the month for the whole year, would have been pay- ment in full for his services ; yet, when the defendants rescind the con- tract in the midst of the term, without sufficient cause, they cannot claim that the payments which have been made, though at the rate per month stipulated for the whole time, shall be received in full for the Gompertz v. Denton, 1 C. & M. 207; Poulton & Lattimore, 9 B. & C. 259; Parsons v. Sexton,- 4 C. B. 899; Dawson v. Collis, 10 C. B. 523, though there is the additional reason in the case of a warranty that it is said to be a collateral contract. In the United States the law is more liberal. It is uni- versally agreed that rescission is not allowable unless the party seeking to rescind can and does first restore or offer to restore anytliing ho has received under the contract [citing ^liner v. Bradley, 22 Pick. 4.57, and numerous other cases], but the construction of this rule is far less severe than in England. . . . Thus in many of the States, rescission is allowed for breach of warranty [citing numerous authorities pro and eon]. The most satisfactory disposition of many cases where the plaintiff cannot, without any fault on his part, return all he has received, would be to allow the plaintiff to recover subject to a deduc- tion for what he has received and cannot return, and some authorities seem to support such solution of the problem. See Keener. Quasi-Contracts, .30.5; Wil- son V. Burks, 71 Ga. 862; Todd v. Leach. 100 Ga. 227: Brewster r. Wooster, 131 N. Y. 473; Mason v. Lawing, 10 Lea. 204." \YiUston, 1. c. 32C-328.— Ed. 728 CLARK V. MANCHESTER. [BOOK II. services renrlcred, if those services were worth much more for that time than the average for the year. The contract is to be construed as a whole. It is not $25 per month for a single month, or for each separate month, or for any number of months less than the year. The contract being entire, the defendants cannot break one part of it and still insist upon the performance of the other part. When the defendants rescinded the contract, they put it out of their power to enforce it upon the other party, but the other party may consider it as rescinded and claim pay just as though it had never existed, which will be just what he is chiiming here, namely, to recover what his services were worth for the time he labored. The error of the defendants' counsel in their brief is in assuming that here was payment made by the defendants and received by the plaintiff in full for the services of each month. The defendants cannot hold the plaintiff to the agreed price per month only in connection with the other part of the contract, viz., that the employment should continue at the same rate for the whole year. Where one party to a special contract, which is executory, refuses to execute any substantial part of his agreement, the other party may rescind, if he do so- unequivocally and in reasonable time. Webb v. Stone, 24 N. H. 288 ; Allen V. Webb. 24 N. H. 278 ; Weeks v. Robie, 42 X. H. 316, and cases cited ; Danforth v. Dewey, 3 N. N. 79 ; Judge of Probate v. Stone, 44 X. H. 593. This contract was executory, in that it was to be continued for a year; and when the defendants broke it in this respect, they cannot hold the plaintiff bound by the other provisions of it. The plaintiff had the right to rescind the whole contract, and sue in indehitatns assumpsit to receive back a consideration paid, or on a quantum meruit to recover what his services were worth. This is the same form of action as in Britton v. Turner, 6 N. H. 481. Judgment on the vcrdirl} Tn Posncr v. Seder (lOO.'J) 184 Mass. :j:n, it was held tliat a person em- ployed for one year to be paid in a eertain sum eaeh week under a contyraet requiring him to work overtime without extra pay not more than two hours in fine day nor more than two niontlis in the entire year, eannot. if wronj^fully discharged Ix-fore the end of the year, sue on a quantum meruit for the over- time work ah»ne, altliough he can sue on such a count for the value of all his services, crediting the amount received as part payment. 'Id (piote (lie court at page 334: ■'Upon quantum meruit the quest irm is what are his whole services fairly worth, and is there anything fairly due him? Manifestly, under a contract like this, that may he an entirely different sum from the market value of the ser- vices during the extra hours. The case of Clark v. Mancliester, r>] N. H. r»;)4, is a good illustrati;]i not perliaps the trend of authority in this country. Among the many authorities in accord, see the following: Stark V. Parker (1824) 2 Pick. 207; The Alexander (1894) 912, 914; Peck V. Burr (1851) 10 N. Y. 297; Smith v. Brady (1858) 17 N. Y. 173 (especially the elaborate and careful opinion of Comstock, J., pp. 179-190) ; Wolfe v. Howes (1859) 20 N. Y. 197, 220; Tipton v. Feitner (1859) 20 N. Y. 423; Cunningham v. Jones (1859) 20 N. Y. 480; Patterson v. Kelly (1891) 14 X. Y. Supp. 118. The principle underlying these and like decisions is admirably stated in the following passage from Tipton v. Feitner, supra: "There is another class aris- ing out of contracts for services, where the party emi)loyed agreed to serve for a fixed period, or to execute a particular work, and was to be paid by the week, or month, or by some rule adjusted by reference to the separate parcels of the work j)crformcd, in which it has been uniformly held — except in one case, where the defatilt was occasioned by the death of the party employed — that the whole of the service must be performed in order to warrant a recovery for any part: McMillan v. Vanderlip, 12 Johns. 105; Cunningham v. Morrell 10 id. 203 ; Jennings v. Camp, 13 Johns. 94 ; Reab t'. Moor 19 id. 337 ; Lantry n. Parks, 8 Cow. 03; Morell v. Burns, 4 Denio, 121; Wolfe v. Howes. 20 N. Y. 197." For further citation of authorities in the various jurisdictions, see Keener's Qurtsi-f Contracts, 21.'), n. 2. For cases contra, see note to Britten v. Turner (1834) N. H. 481, post, 753, 701.— Ki). CHAP. II.] BRITTON V. TURNER. T53 plaintiff was dismissed by the defendants, for having advised and assisted their apprentice to quit their service and go to America, and for that, the defendants had brought an action against the plaintiff, .and recovered 40s. damages. It was contended for the defendants, that it must be taken on this evidence, that the plaintiff had been hired for a year, and having been rightfully discharged from their service for misconduct during the year, was not entitled to recover wages pro rata, and Spain v. Arnott was cited. The Lord Chief Ji^'stice was of opinion that there was nothing to repel the ordinary presumption, that the servant was hired for a year; and that being so, the whole wages were forfeited before the term expired, by his misconduct, whereby the defendants were preventd from having his services for the whole year. He therefore directed a nonsuit, reserving liberty to move to enter a verdict for the plaintiff. Law in this term moved to enter a verdict. There was no proof that the plaintiff was hired for an entire year. The evidence as to that was only that he was to have wages at the rate of £80 per year. Be- sides, here the defendants had already recovered against the plaintiff for his misconduct in enticing the apprentice from their service. [Parke, J. The prima facie presumption was, that the plaintiff was hired for a year ; and there was nothing to rebut that presumption : and having violated his duty before the year expired, so as to prevent the defendants from having his services for the whole year, he cannot xecover wages pro rata.^ The court^ refused the rule. BRITTON V. TURNER. Superior Court of Judicature of New Hampshire, 1834. [6 New Hampshire, 481.^] Assumpsit for work and labor performed by the plaintiff, in the service of the defendant, from March 9, 1831, to December 27, 1831. The declaration contained the common counts, and among them a count in quantum meruit for the labor, averring it to be worth $100. At the trial in the C. C. Pleas, the plaintiff proved the performance of the labor as set forth in the declaration. The defence was that it was performed under a special contract, — that the plaintiff agreed to work one year, from some time in March, ^Denman, C. J.; Parke, Tainton, and Patterson, JJ. And see, Sinclair v. Bowles (1829) 9 B. & C. 92. The principal case repre- sents the English law on this difficult question, and is also in accord with the weight of American authority. See note to the preceding case. — En. ^Likewise reported in 26 Am. Dee. 713, and see note thereto, 722. — Ed. 75-i BRITTON V. TURNER. [BOOK II. 1831, to March, 1833, and that the defendant was to pay him for said year's labor the sum of $120 ; and the defendant offered evidence tending to show that such was the contract under which the work was done. Evidence was also offered to show that the plaintiff left the defend- ant's service without his consent, and it was contended by the defend- ant that the plaintiff had no good cause for not continuing in his employment. •There was no evidence offered of any damage arising from the plaintiff's departure, farther than was to be inferred from his non- fulfilment of the entire contract. The court instructed the jury, that if they were satisfied from the evidence that the labor was performed, under a contract to labor a year, for the sum of $120, and if they were satisfied that the plaintiff labored only the time specified in the declaration, and then left the defendant's service, against his consent and without any good cause, yet the plaintiff was entitled to recover, under his quantum meruit count, as much as the labor he performed was reasonably worth ; and under this direction the jury gave a verdict for the plaintiff for the sum of $95. The defendant excepted to the instructions thus given to the jury. Parker, J., delivered the opinion of the court. It may be assumed, that the labor performed by the plain|;iff, and for which he seeks to recover a compensation in this action, was commenced under a special contract to labor for the defendant the term of one year, for the sum of $120, and that the plaintiff has labored but a portion of that time, and has voluntarily failed to com- plete the entire contract. It is clear, then, that he is not entitled to recover upon the con- tract itself, because the service, which was to entitle him to the sum agreed upon, has never been performed. But the question arises, can the plaintiff under these circumstances recover a reasonable sum for the service he has actually performed, under the count in quantum meruit? Upon this, and questions of a similar nature, the decisions to be found in the books are not easily reconciled. It has been held, upon contracts of this kind for labor to be per- formed at a specified price, tliat the party who voluntarily fails to fulfil the contract by performing the whole labor contracted for, is not entitled to recover anything for the labor actually performed, however much he may have done towards the performance ; and this has been considered the settled rule of law upon this subject. Stark V. Parker, 2 Pick. 267; Faxon v. Mansfield, 2 Mass. 147; McMillen v. Vandcrlip. 12 Johns. 105; Jennings v. Camp, 13 Johns. !H; Heab v. Moor, ID Johns. 337; Lantry v. Parks, 8 Cow. 63; Sin- clair V. Bowles, 9 B. & C. 92; Spain v. Arnott, 2 Stark. N. P. 256. CHAP. II.] BRITTON V. TURNER. 755 That such rule in its operation may be very unequal, not to say unjust, is apparent. A party who contracts to perform certain specified labor, and who breaks his contract in the first instancd, without any attempt to per- form ft, can only be made liable to pay the damages which the other party has sustained by reason of such non-performance, which in many instances may be trifling; whereas a party who in good faith has entered upon the performance of his contract, and nearly com- pleted it, and then abandoned the further performance — although the other party has had the full benefit of all that has been done, and has perhaps sustained no actual damage — is in fact subjected to a loss of all which has been performed, in the nature of damages for the non-fulfilment of the remainder, upon the technical rule, that the contract must be fully performed in order to a recovery of any part of the compensation. By the operation of this rule, then, the party who attempts perform- ance may be placed in a much worse situation than he who wholly disregards his contract, and the other party may receive much more, by the breach of the contract, than the injury which he has sustained by such breach, and more than he could be entitled to were he seeking to recover damages by an action. The case before us presents an illustration. Had the plaintifE in this case never entered upon the performance of his contract, the damage could not probably have been greater than some small expense and trouble incurred in procuring another to do the labor which he had contracted to perform. But having entered upon the perform- ance, and labored nine and a half months, the value of which labor to the defendant as found by the jury is $95, if the defendant can succeed in this defence he in fact receives nearly five-sixths of the value of a whole year's labor, by reason of the breach of contract by the plaintiff, a sum not only utterly disproportionate to any probable, not to say possible, damage which could have resulted from the neglect of the plaintiff to continue the remaining two and a half months, but altogether beyond any damage which could have been recovered by the defendant, had the plaintiff done nothing towards the fulfil- ment of his contract. Another illustration is furnished in Lantry v. Parks, 8 Cow. 83. There the defendant hired the plaintiff for a year, at $10 per month. The plaintiff worked ten and a half months, and then left, saying he would work no more for him. This was on Saturday ; on Monday the plaintiff returned, and offered to resume his work, but the defend- ant said he would employ him no longer. The court held that the refusal of the plaintiff on Saturday was a violation of his contract, and that he could recover nothing for the labor performed. There are other cases, however, in which principles have been adopted leading to a different result. 756 BRITTON V. TURNER. [bOOK II. It is said, that where a party contracts to perform certain work, and to furnish materials, as, for instance, to build a house, and the work is done, but with some variations from the mode prescribed by the contract, yet if the other party has the benefit of the labor and materials he should be bound to pay so much as they are reason- ably worth. 2 Stark. Ev. 97, 98 ; Hayward v. Leonard, 7 Pick. 181 ; Smith V. First Congregational Meeting House in Lowell, 8 Pick. 178 ; Jewell V. Schroeppel, -4 Cow. 564; Hayden v. Madison, 7 Green. 78; Bull. N". P. 139; 4 Bos. & Pul. 355;" 10 Johns. 36; 13 Johns. 97; 7 East, 479. A different doctrine seems to have been holden in Ellis v. Hamlen, 3 Taunt. 53, and it is apparent, in such cases, that if the house has not been built in the manner specified in the contract, the work has not been done. The party has no more performed what he contracted to perform, than he who has contracted to labor for a certain period, and failed to complete the time. It is in truth virtually conceded in such cases that the work has not been done, for if it had been, the party performing it would be entitled to recover upon the contract itself, which it is held he cannot do. Those cases are not to be distinguished, in principle, from the present, unless it be in the circumstance that where the party has contracted to furnish materials, and do certain labor, as to build a house in a specified manner, if it is not done according to the con- tract, the party for whom it is built may refuse to receive it, — elect to take no benefit from what has been performed ; and therefore if he does receive, he shall be bound to pay the value ; whereas in a con- tract for labor, merely, from day to day, the party is continually receiving the benefit of the contract under an expectation that it will be fulfilled, and cannot, upon the breach of it, have an election to refuse to receive what has been done, and thus discharge himself from payment. But we think this difference in the nature of the contracts does not Justify the application of a different rule in relation to them. The party who contracts for labor merely, for a certain period, does so with full knowledge that he must, from the nature of the case, be accepting part performance from day to day, if the other party commences the performance, and with knowledge also that the other may eventually fail of completing the entire term. If under such circumstances he actually receives a benefit from the labor performed, over and above the damage occasioned by the failure to complete, there is as much reason why he should pay the reasonable worth of what has thus been done for his benefit, as there is when he enters and occupies the house which has been built for him, but not according to the stipulations of the contract, and which he per- haps enters, not because he is satisfied with what has been done, but CHAP. II.j BEITTON V. TURNER. 757 because circumstances compel him to accept it such as it is, that he should pay for the value of the house. Where goods are sold upon a special contract as to their nature, quality, and price, and have been used before their inferiority has been discovered, or other circumstances have occurred which have rendered it impracticable or inconvenient for the vendee to rescind the contract in toto. it seems to have been the practice formerly to allow the vendor to recover the stipulated price, and the vendee recovered by a cross action damages for the breach of the contract. "But according to the later and more convenient practice, the vendee in such case is allowed, in an action for the price, to give evidence of the inferiority of the goods, in reduction of damages, and the plaintiff who has broken his contract is not entitled to recover more than the value of the benefits which the defendant has actually derived from the goods; and where the latter has derived no benefit, the plaintiff cannot recover at all." 2 Stark. Ev. 640, 642; Okell v. Smith, 1 Stark. N. P. 107. So where a person contracts for the purchase of a quantity of merchandise, at a certain price, and receives a delivery of part only, and he keeps that part, without any offer of a return, it has been held that he must pay the value of it. Shipton v. Casson, 5 B. & C. ; Baker v. Sutton, Com. Dig. Action F ; 1 Camp. 55, note. A different opinion seems to have been entertained (Waddington v. Oliver, 5 B. & P. 61), and a different decision was had. Walker v. Dixon, 2 Stark. N". P. 281. There is a close analogy between all these classes of cases, in which such diverse decisions have been made. If the party who has contracted to receive merchandise, takes a part and uses it, in expectation that the whole will be delivered, which is never done, there seems to be no greater reason that he should pay for what he has received, than there is that the party who has received labor in part, under similar circumstances, should pay the value of what has been done for his benefit. It is said that in those cases where the plaintiff has been permitted to recover there was an acceptance of what had been done. The answer is. that where the contract is to labor from day to day, for a certain period, the party for whom the labor is done in truth stipulates to receive it from day to day, as it is performed, and although the other may not eventually do all he has contracted to do, there has been, necessarily, an acceptance of what has been done in pursuance of the contract, and the party must have understood when he made the contract that there was to be such acceptance. If then the party stipulates in the outset to receive part perform- ance from time to time, with a knowledge that the whole may not be completed, we see no reason why he should not equally be holden to pay for the amount of value received, as where he afterwards takes 758 BRITTON V. TURNER. [BOOK II, the benefit of what has been done, with a knowledge that the whole which was contracted for has not been performed. In neither case has the contract been performed. In neither can an action be sustained on the original contract. In both the party has assented to receive what is done. The only difference is, that in the one case the assent is prior, with a knowledge that all may not be performed, in the other it is subsequent, with a knowledge that the whole has not been accomplished. We have no hesitation in holding that the same rule should be applied to both classes of cases, especially as the operation of the rule will be to make the party who has failed to fulfil his contract, liable to such amount of damages as the other party has sustained, instead of subjecting him to an entire loss for a partial failure, and thus making the amount received in many cases wholly disproportion- ate to the injury. 1 Saund. 320, c. ; 2 Stark. Ev. 643. It is as "hard upon the plaintiff to preclude him from recovering at all, because he has failed as to part of his entire undertaking," where his contract is to labor for a certain period, as it can be in any other description of contract, provided the defendant has received a benefit and value from the labor actually performed. We hold then, that where a party undertakes to pay upon a special contract for the performance of labor, or the furnishing of materials, he is not to be charged upon such special agreement until the money is earned according to the terms of it, and where the parties have made an express contract the law will not imply and raise a contract different from that which the parties have entered into, except upon some farther transaction between the parties. In case of a failure to perform such special contract, by the default of the party contracting to do the service, if the money is not due by the terms of the special agreement he is not entitled to recover for his labor, or for the materials furnished, unless the other party receives what has been done, or furnished, and upon the whole case derives a benefit from it. Taft v. Montague, 14 Mass. 282 ; 2 Stark. Ev. 644. But if, where a contract is made of such a character, a party actu- ally receives labor, or materials, and thereby derives a benefit and advantage, over and above the damage which has resulted from the breach of the contract by the other party, the labor actually done, and the value received furnish a new consideration, and the law thereupon raises a promise to pay to the extent of the reasonable worth of such excess. This may be considered as making a new case, one not within the original agreement, and the party is entitled to "recover on his new case, for the work done, not as agreed, but yet accepted by the defendant." 1 Dane's Abr. 224. If on such failure to perform tlie whole, the nature of the contract be such that the employer can reject what has been done, and refuse CHAP. II.] BRITTOX V. TURNER. 759 to receive any benefit from the part performance, he is entitled so to do, and in such case is not liable to be charged, unless he has before assented to and accepted of what has been done, however much the other party may have done towards the performance. He has in such case received nothing, and having contracted to receive nothing but the entire matter contracted for, he is not bound to pay, because his express promise was only to pay on receiving the whole, and having actually received nothing the law cannot and ought not to raise an implied promise to pay. But where the party receives value, — takes and uses the materials, or has advantage from the labor, he is liable to pay the reasonable worth of what he has received. Farnsworth v. Garrard, 1 Camp. 38. And the rule is the same whether it was received and accepted by the assent of the party prior to the breach, under a contract by which, from its nature, he was to receive labor from time to time until the completion of the whole contract; or whether it was received and accepted by an assent subsequent to the performance of all which was in fact done. If he received it under such circumstances as precluded him from rejecting it afterwards, that does not alter the case, — it has still been received by his assent. In fact we think the technical reasoning, that the performance of the whole labor is a condition precedent, and the right to recover an3^thing dependent upon it; that the contract being entire there can be no apportionment; and that there being an express contract no other can be implied, even upon the subsequent performance of service. — is not properly applicable to this species of contract, where a beneficial service has been actually performed ; for we have abundant reason to believe, that the general understanding of the community is that the hired laborer shall be entitled to compensation for the service actually performed, though he do not continue the entire term contracted for, and such contracts must be presumed to be made with reference to that understanding, unless an express stipulation shows the contrary. Where a beneficial service has been performed and received, there- fore, under contracts of this kind, the mutual agreements cannot be considered as going to the whole of the consideration, so as to make them mutual conditions, the one precedent to the other, without a specific proviso to that effect. Boone v. Eyre, 1 H. Bl. 273, n. ; Campbell v. Jones, 6 D. & E. 570; Ritchie v. Atkinson, 10 East, 295; Burn V. Miller," 4 Taunt. 745. It is easy, if parties so choose, to provide by an express agreement that nothing shall l)e earned, if the laborer leaves his employer without having performed the whole service contemplated, and then there can be no pretence for a recovery if he voluntarily deserts the service before the expiration of the time. The amount, however, for which the employer ought to be charged, where the laborer abandons his contract, is only the reasonable worth. 760 BRITTON V. TURNER. [BOOK II. or the amount of advantage he receives upon the whole transaction. Wadleigh v. Sutton, 6 IST. H. 15. And, in estimating the value of the labor, the contract price for the service cannot be exceeded. 7 Green. 78; Dubois v. Delaware & Hudson Canal Company, 4 Wend. 285; Koon V. Greenman, 7 Wend. 131. If a person makes a contract fairly he is entitled to have it fully performed, and if this is not done he is entitled to damages. He may maintain a suit to recover the amount of damages sustained by the non-performance. The benefit and advantage which the party takes by the labor^ therefore, is the amount of value which he receives, if any, after deducting the amount of damage; and if he elects to put this in defence he is entitled so to do, and the implied promise which the law will raise in such case, is to pay such amount of the stipulated price for the whole labor as remains, after deducting what it would cost to procure a completion of the residue of the service, and also any damage which has been sustained by reason of the non-fulfilment of the contract. If in such case it be found that the damages are equal to, or greater than the amount of the labor performed, so that the employer, having a right to the full performance of the contract, has not upon the whole case received a beneficial service, the plaintiff cannot recover. Tliis rule, by binding the employer to pay the value of the service he actually receives, and the laborer to answer in damages where he does not complete the entire contract, will leave no temptation to the former to drive the laborer from his service, near the close of his term, by ill treatment, in order to escape from payment; nor to the latter to desert his service before the stipulated time, without a sufficient reason ; and it will in most instances settle the whole contro- versy in one action, and prevent a multiplicity of suits and cross actions. There may be instances, however, where the damage occasioned is much greater than the value of the labor performed, and if the party elects to permit himself to be charged for the value of the labor, without interposing the damages in defence, he is entitled to do so, and may have an action to recover his damages for the non-perform- ance, whatever they may be. Crowninshield v. Robinson, 1 Mason. And he may commence such action at any time after the contract is broken, notwithstanding no suit has been instituted against him; but if he elects to have the damages considered in the action against him, he must be understood as conceding that they are not to be extended beyond the amount of what he has received, and he cannot afterwards sustain an action for farther damages. Applying the principles thus laid down to this case, the plaintiff is entitled to judgment on the verdict. The defendant sets up a mere breach of the contract in defence CHAP. II.] BRITTON V. TURNER. 761 of the action, but this cannot avail him. He does not appear to have offered evidence to show that he was damnified by such breach, or to have asked that a deduction should be made upon that account The direction to the jury was therefore correct, that the plamtitt was entitled to recover as much as the labor performed was reason- ably worth, and the jury appear to have allowed a pro rate com- pensation, for the time which the plaintiff labored in the defendant s service As the defendant has not claimed or had any adjustment of dam- ao-es for the breach of the contract, in this action, if he has actually sustained damage he is still entitled to a suit to recover the amount. Whether it is not necessary, in cases of this kind, that notice should be given to the employer that the contract is abandoned, with an offer of adjustment and demand of payment; and whether the laborer must not wait until the time when the money would have been due accord- ing to the contract, before commencing an action (5 B._ & ^j f^^ questions not necessary to be settled in this case, no objections ot that nature having been taken here. Judgment on the verdicts ^"Whatever might be the views of the court as at present organized, in a case like that of Britten v. Turner, and however much, even, some may think it is to be regretted that the rule of law there laid down was allowed to obtain, still, considering that it has remained as the law of the State for nearly twenty years, and has never been overruled, and that while it has the strong feature of its direct tendency to the wilful and careless violation of express contracts fairly entered into, to lead to its condemnation and disapproval, it has also some features of advantage and strong justice to recommend it \\e on the whole, are not inclined to disturb the doctrines of that case, but to adopt and apply them." Woods, C. J., in Davis v. Barrington, 30 N. H. 517, 529. And spe the valuable note on the doctrine of the principal case as a note to Hay^vard v. Leonard (1828) 7 Pick. 181, as reported in 19 Am. Dec. 268, "^ "xhe" following jurisdictions seem to have adopted the doctrine of the principal case: Pixler .. Nichols (1859) 8 la. 106; Wheat ley .. fiscal 1854) 5 Ind. 142 (infant's services) ; Duncan .. Baker (1878) 21 Kas. 991 ; Sheldon V. Leahy (1896) 111 Mich. 29; Parcell v. McComber (1886) 95 N. 0. 98; Carroll v. Welch (1861) 26 Tex. 147. The weight of authoritv is clearly against Britton v. Turner, sup,a, but the reason of the thing and the trend of legal development are clearly in favor of it In Gorman v. Bellamy (1880) 82 N. C. 496, 500, the court said: The inclination of the courts is to relax the stringent rules of ^^e common law which allows no recovery upon a special unperformed contract itself, nor for the value of the work done because the special excludes an ^^JP^f^""^^^;;^ to pay. In such case if the party has derived any benefit from the labor done it would be unjust to allow him to retain that without paying anything^ The law, therefore, implies a promise,' say the court, 'to pay such remuneration as the henerfit conferred is really worth.' " ^ ^ a fv,. fniinw And in McClay v. Hedges (1864) 18 la. 66, 68, Dillon, J., used the follow- 762 BRITTOX V. TURNER. [BOOK II. ing just and weighty language: "This question was settled in this State by the case of Pixler v. Nichols, 8 la. 106, which distinctly recognized and ex- pressly followed the case of Britton v. Turner, 6 N. H. 481. That celebrated case has been criticised, doubted and denied' to be law. It is frequently said to be good equity, but bad law. Yet its principles have been gradually winning their way into professional and judicial favor. It is bottomed on justice, and is right upon principle, however it may be upon the technical and more illiberal rules of the common law, as found in the old cases." — Ed. SYLLABUS INDEX Acceptor or drawee is bound to know signature of the maker and money paid under mistake as to it, cannot be recovered, Price v. Neal, 483-487, and note, 486-487. Actio personalis cum persona moritur, 85-106. Action does, however, survive if estate of deceased has received a posi- tive benefit as distinguished from a mere saving, 85-106. The action should survive in this latter class of cases, but authority is opposed to reason in this instance, but see 104-106. In cases of fiduciary nature no enrichment seems necessary, and the action survives, note, 92-93. Action of account has given way to debt, and both have been largely super- seded by iudebitatus assmnpsit. For nature of account, see notes to Asher v. Wallis, 131-132; 108, note, for reference to history of action. of ease as concurrent with the indehitatus count, in actions concerning innkeepers and common carriers, 26, and notes, 28-29. For the action in general, 541. of debt in quasi-contract is concurrent with indehitatus, 108; but in case of domestic or State judgments debt is still the appropriate action because based upon the record, 20, note ; in case of foreign judgment, either debt or assumpsit lies in England and United States ; in Canada only assump- sit, 22, note. But see Richards v. Bickley, 51-56. for money had and received, only lies when defendant has received money or its equivalent, 107, 111, 114; is equitable in its nature, 4, 34, note, 37, 546 ; is really a bill in equity in common law court, 546. for goods sold and delivered requires goods to have been sold and converted into money by strict rules of pleading. 112; the better, and it is believed, the more general rule to-day is satisfied by the receipt of any object of value, 111-114; nor is it necessary, to sustain the counts in modern law, to prove a sale; the goods may remain unsold or unused, that is, uneonsumed in the tort-feasor's possession, 114-121. for money paid by the plaintiff to defendant's use, as in case of indemnity of surety, 251, et scq.; in case of salvage, 239, et seq. for money received by defendant to plaintiff's use, 417. survival of. in cases of tort, is conditioned upon the fact that defendant's estate has received a positive benefit, not a mere saving, at the plaintiff's expense, 85-107; although in equity, fiduciary relation, without any benefit is sufficient, note to Hambly r. Trott, 92-93. Admiralty — duty to contribute in general average is quasi-contractual, 238-250 ;. the obligation to pay salvage is quasi-contractual and is one of the few instances of negotiorum gestio (unauthorized agency) in our law, 41, note. 764 SYLLABUS INDEX Agency — plaintiff may waive tort thereby ratifying the transaction and recover in quasi-contract on principle of agency, 107, 131 and note, 131- 133, 570. If agent has paid over the proceeds to his principal, then action lies against principal, not agent, 570, unless the agent knew the circum- stances at or before paying, 570; agents acting as principals but in reality for undisclosed principals, are responsible as principals, not agents, and cannot invoke the law of agency to shield them against recovery, 575, (unauthorized) 1-4-18, 37-41 and note, 40-41. See negotiorum gestio and salvage. Agent — If agent would be prejudiced in his legal rights, by recovery against him, then recovery should be limited to principal, unless agent paid with knowledge, 570; otherwise in case of agent acting for an undisclosed. principal, 575. Ames, James Barr, nature, extent and classification of quasi-contracts, 18. Amount — ^Mistake as to existence of a debt permits recovery when no amount is due, 515; or if greater amount has been paid through mistake, not as compromise, the excess so paid is recoverable, 515, 518. Apprenticeship — If contract has not been begun, then the whole amount paid for contract may be recovered. If contract has been partly per- formed and is inseparable, recovery is not permitted of any of the sums paid, Gll-61.3, and note. waiver of tort and value of services of apprentice recovered from tort- feasor or his estate, 134-137. See MS, note. Arrest of person in quasi-contract, 68-75. Assumpsit, concurrent with account, case and debt 28, note; 108, note; the favorite action in quasi-contract, 4, 34, 274-275. does -not lie for tortious, and adverse use and occupation of realty, 98 and note, 98-99. Attachment of goods in quasi-contract is favored, although theoretically it should not be, 04-68. of person in quasi-contract is not favored as in derogation of personal liberty; if permitted by statute, is construed strictly, 68-75. Austin, John, nature of quasi-contract, 16. Average (general) in quasi-contract, 238-250. Bankers — held to knowledge of signatures of their customers, 505, Bankruptcy discharge obtained by duress, 159-16G. Benefit — conferred at reqiiest and not gratuitously, gives rise to action for reasonable value of benefit where there has been mistake as to amount of compensation, 348-351. conferred in expectation of legacy is recoverable if plaintiff really intended to charge for the same and not to perform the services ^'ratnitoiisly, 336 and note, 337. confencd by members of one or same family closely watched, but allowed for on fiunntum nicruit, if there seems to be intent, express or implied, at time of rendering services to charge for same, 339, 343 and note. conferred by plaintiff upon defendant who fraudulently accepted the services which plaintiff believed himself or herself bound to perform, should be recoverable on a quantum meruit, 336-348, and note SYLLABUS IXDEX 765 although the contrary view prevails quite generally, 337, 339, 340-341 and note, 341. conferred by mistake upon personal property of another, held not recoverable, 333-336. conferred upon another's property but really in the interest of the plaintiff, not recoverable, 303-306. conferred without request, wrongly held not recoverable in Boston Ice Co. V. Potter, 300-302. This may be good law, but bad quasi-contract. conferred by plaintiff in saving defendant's property from destruc- tion from fire, not recoverable, 295. ■ conferred by performance of obligation for which defendant is legally or morally liable by ties of natural justice, should give plaintiff action for recovery of value of such performance, 290-204, 291, note. conferred at request but not in creation or performance of a contract, 336-351. intentionally conferred upon defendant, 280-3Uo. received by defendant, 280-351. unintentionally conferred upon defendant, that is plaintiff really meant to benefit himself, not defendant, 307-330. Betterment acts permit recovery for improvements placed upon property of defendant in reasonable belief that the property really belongs to the plaintiff", 323-328. Bills and notes — in as far as the law of quasi-contract is involved — will be found principally in the section beginning with Price v. Xeal, 483-515, 522-529 and the various footnotes to the pages here indicate. Bracton on quasi-contract, 4. Business — money extorted to protect — may be recovered, 182-184 and note. Carrier delivering goods to wrong party may, on payment to party entitled, recover such payment to party wrongfully or mistakenly receiving and retaining the goods in question, 227. liable for money extorted to procure delivery of goods, 177-182 and note. liability of — in quasi-contract, 28 and note. may recover, keep of horse which owner refuses to receive, 233, but see note 237-238. Change of position as a bar to I'ccovery in Continental law, notes, 581, 582. of position no bar to recovery in English law, 575-581. of position due to laches held to bar recovery, 572. of position by either party as affecting recovery, 568-581. Civil law, that is Roman law, as a source of English law of quasi-contract, 1, 4, 9, 12, 13, 10, 17, 18. Bright v. Boyd, 314-320, 321, note. Collateral fact — mistake as to — is immaterial, and therefore neither bars nor permits recovery, 524-541. Common carriers' liability is quasi-contractual, 28 and note. Compounding a felony prevents recovery of money paid therefor, 106-169 and note. Compromise — is favored in law and will bar recovery for mistake unless mis- take is one of material and basic fact, or if produced by fraud or unfair dealing, 399, note, 304-405; 515, 518. 766 SYLLABUS INDEX of a doubtful point of law unless tainted with a fraud or unfair dealing, not subject to recovery, 399-404. Compulsion of legal process, 189-227. permits recovery of money paid thereunder, 154-227. Condictio indebiti — the action for money had and received in Roman law — 2, 4-16 passim, 159, 365-366, notes; 568-569; 591. Continental and Spanish- American law principally referred to, 18, note; 39-40, notes; Bright v. Boyd, 314-321, note; 365-366, notes; 581-582, notes; 718, note. Contract — avoided permits suit in quasi-contract without performing terms of contract broken, 122-125; contra, 121-122. And see under heading Reeission and repudiation of contract. versus quasi-contract, 1, 13, 16, 17, 18, 42-84. Contribution in average is quasi-contractual, 238-250. in suretyship is equitable and therefore quasi-contractual in its nature, 254-267. in tort and between joint tort-feasors, 268-279. Counterclaim in quasi-contract, 62-64, 118. Death excuses performance as well as damages for non-performance, and recovery may be had for reasonable value of services already performed, 636-640 and note, 640. But contra 632-636. Default due to impossibility of performance, 603-659. is wilful and inexcusable, 713-762. of defendant is wilful and inexcusable, 713-735. of plaintiff is wilful and inexcusable, 735-762. Demand unnecessary before suit if defendant knew of mistake at time of pay- ment or before suit brought, 565-566. before suit held necessary if payment is innocently made, innocently accepted and innocently retained, 564. as a prerequisite to bringing suit is held by Supreme Court of U. S. not to be necessary, and statute of limitations runs from moment of pay- ment, not from demand made, and interest runs from same time, Leather Manufacturers' Bank r. Merchants' Bank, 560-564. various and varying views as to necessity thereof, 560-568. Discharge in bankruptcy obtained by duress may be set aside and money extorted therefor recovered, 159-166. Drawee is bound to know signature of the drawer, and a fortiori, the maker is bound to know his own signature, 506-515. is not bound to know the signature of payee, 486, note. Duress, legal or equitable, permits recovery, 154-189. exercised in obtaining discharge in bankruptcy vitiates the transac- tion and permits recovery of money paid to obtain discharge, 159-166. Duty as a source of quasi-contract, 20-33. Election of remedies, 137-153, especially notes, 148-151, 153-155. Enrichment at plaintiff's expense, as source of quasi-contract, 18, 33-37, 280- 351. SYLLABUS IXDEX 767 Evans (Sir William D.), Essay on action for money had and received, 13. (Sir William D.) on source of Lord Mansfield's law, 9. Foreign law, mistake of, is mistake of fact, 384-393 and 391, note. as distinguished from the common law of England and United States, see heading: Continental and Spanish- American law. Forgery — circumstances under which recovery allowed, 488-505. Frauds, statute of, and its effect upon enforceability of contracts, 686-713. Freight — cannot be recovered if goods are not landed at point of destination unless defendant consents to receive the goods at intermediate point. In such a case, freight pro rata is recoverable, 621-626. Lord Mansfield held freight to be recoverable on capture pro rata itineris, Luke v. Lyde, 616- 620. paid in advance may be recovered if performance becomes impossible, 603-609. The English law is, however, contra, 609-610, note. Funeral expenses are recoverable where not paid officiously and in a meddling way, 292, note, 294-295. General average in quasi-contract, 238-250. Goods sold and delivered, see Action. Illegality of contract accompanied by fraud and duress, 667. of contract as affected by statutory prohibition, 669-681. of contract does not prevent recovery by innocent party to whom the illegality was unknown, or for whose benefit tne illegality was created, 156, 660, 669. of contract, where facts are known to both parties, who thus stand in pari delicto, ordinarily prevents recovery by either, 663 et seq. of contract in the law of agency, 681-685. of contract in partnership transactions. Highwayman's case, 666. Impossibility of performance by act of law excuses performance and damages for breach, and permits recovery on quantum meruit, 641-643 and note. of performance is a good defence to an action for recovery of money, if the contract is Inseparable and partly performed, 611-613; if, how- ever, the contract is wholly unperformed, so that failure of consideration is total, recovery is permitted even in English law, 615. of performance excuses plaintiff and he may recover the reasonable value of his services on a qnantum meruit, 621, 627; but if complete per- formance be a condition precedent to any payment, recovery is refused in England, Cutter v. Powell, 632. Recovery should, however, be permitted in such cases according to the value of the services actually performed and received by defendant as in Parker v. Macomber, 636-640 and note. - of performance produced by destruction of the subject matter ex- cuses plaintiff's performance and permits recovery on a quantum m.eruit, 643, 646, 652-654. If complete performance be a condition precedent to payment, the English law refuses recovery, 646, note. Improvements placed upon defendant's property in the reasonable belief that the property belonged in law to the plaintiff, not recoverable at law in the absence of statute (termed Betterment Acts, which see), 307-312, 321- 322 ; but recovery of value of such improvements was always allowed on a bill in equity in which the maker of the improvements in question was 768 SYLLABUS INDEX defendant, note 312. In some jurisdictions the plaintiff is allowed affirma- tive relief as plaintiff in equity, 313-322. By so-called "Betterment Acts," recovery is now usually allowed at law, 323-328. Indemnity in suretyship is quasi-contractual in its origin and nature, 250 et seq. Infant's liability for necessaries is quasi-contractual, not contractual, 438, note, and infant retaining benefit should be liable therefor like any adult, sane or insane, as quasi-contract rests upon duty of restitution not upon agreement of parties, 437. Innkeeper's liability is quasi-contractual, 26, note 26-27. Insane person's liability is quasi-contractual not contractual as all elements essential to formation of a contract are absent. Sceva v. True, 75-80. The same is true in a lesser degree of the liability of infants and married women unless modified by statute. Institutes of Justinian, 1. Insurance of goods not on board or where risk has not attached may be recovered, 407-412 and note. of life of person, where default is made in payment of premises, 627-631. Interest paid by mistake cannot be recovered with the intention of the parties was to pay interest; but the instrument failed to provide for its payment, as it is not dishonest or unconscientious for the defendant to retain the money so paid, 551. upon a judgment is quasi-contractual, 33, note. Involuntary payments, the result of duress may be recoverd with or without protest, 170-189, 217, note. Judgment in the civil law, 26, note. is a quasi-contract, not a contract in the strict sense of the term, 19-25, 49-56, 64-68; if judgment arises upon a tort, then it is clearly not a contract, 22-25; if upon a contract, then judgment partakes so far of the nature of a contract as to fall within the Federal protection of contracts against State impairment (Constn. U. S. Art. 1. sec. 10) notes, 25-26. subsequently reversed gives right of action for money paid thereunder, 206, note. Justinian — Institutes of, 1. Laches held a bar to recovery on change of position, 572. Legal process, compulsion of, 189-227. Limitations (statute of) in quasi-contract, 42-5G; in cases of demand. 560-564. Locus poenitentiae in illegal contracts, Tappenden v. Randall, 6(53, note, 665- 666. Maine, Sir Henry Sumner, quasi-contiiut in Roman and common law, 17. Mansfield, Lord, as creator of English law of quasi-contract, 4-12, note, 13. Measure of recovery in cases of wilful default of defendant is in some juris- dictions the contract price; or a sum not exceeding the contract price; in others, the real value of the services, 726-735 and notes. of recovery in quasi-contract, 127-130. SYLLABUS INDEX 769 Mistake — as to law or fact, 352-406. as to creation of a contract, 407-438. of law ordinarily is not relieved against in courts of law or equity, since the decision in Bilbie v. Lumley, 1802, 352-406. by officers of court are relieved against on the two-fold ground that courts should show good example and should correct their own mistakes as well as mistakes of their officers, 396-399 and note. and the relief granted therefor in courts of equity, notes 406-409. of foreign law considered a mistake of fact and therefore relievable in appropriate cases, 384-393. of law, not relieved against in Georgia and S. Carolina, but ignorance of law affords ground for relief, 368-376, note, 376. of law as well as fact relieved against in Connecticut, 376-382, and Ken- tucky, 382, note. of law in a doubtful point in a compromise will not, in absence of fraud, vitiate the compromise, 399-404. of a government official, 393-395 and note 395-396. as to existence of debt permits recovery, 515; or if greater amount has been paid through mistake, excess is recoverable, 518, 522. — — of fact, considerations affecting a recovery therefor, 541-591. ■ as to a collateral fact is immaterial, and therfore affords no ground for recovery, 524-541. as to the subject matter of a contract, 439-541. as to existence or identity of contract, 439-460. If not existent, and the object is bought as existent, the money so paid is recoverable, 450-452. If real estate with house thereon is purchased and house is destroyed with- out fault of either party, law places loss on vendor, while equity places the loss on the purchaser, 453-457, and note 457-458. as to validity, amount of claim, or as to collateral fact, 483-541. niay be as to title of vendor, 460-482. Money extorted to protect business may be recovered, 182-184. had and received only lies where defendant has received money or its equivalent, 107, 111, 114; is equitable in its nature, 4, 34, note, 37, 546; is really a bill in equity in a common law court, 546. paid as a premium when no goods are on board may be recovered, 407 ; so where goods are on board, but risk failed to attach, 410-412, note. received by unauthorized agent is recoverable from the principal provided such principal has had benefit thereof, 415-422, 425-427; contra, 413, 423. Mortgage of future acquired property, while invalid at law, is valid in equity, so that future acquired property passing on foreclosure to the mortgagee may not be recovered in quasi-contract, 549 and note 550-551. Moses V. Macferlan as source of quasi-contract, 4. V. Macferlan and its relation to Roman law, 9. Negative enrichment — that is a mere saving does not support a recovery against estate of deceased tort-feasor, note, 99 (last paragraph). Negligence no bar to recovery, 582-591. Negotiorum gestio, as source of quasi-contract in Roman and common law, 1-4, 16, 18, 37-41 and note, 40-41. In admiralty law, 41, note. Official duty as a source of quasi-contract, 18, 29-31. T70 SYLLABUS IXDEX Partnership money received on specialty of one partner, who was neither authorized nor ratified to bind firm l)y instrument under seal, should be recovered if partnership actually received and retained benefit of the transaction, 414. RecoveA' would seem to be wrongly and inequitably to be denied in such cases, 413. Patent right is taken at risk of- the purchaser, and failure of patent is, in absence of fraud or other evidence of fair dealint;, no pound for recovery at law. In quasi-contract recovery might well be permitted, 428-432. Payment under protest. 217, note. in discharge of an obligation, 227-279. made by stranger, without antecedent request or subsequent ratification by del)tor, should nevertheless render debtor liable for the hcnolit actually accruing to liim by .•^uch payment, 280. of an obligation of third pariy gives right of recovery, 228. Position — change of by eitlier party as affecting recovery, 5G8-581. Positive enrichment is required in order to ta.\ estate of deceased, 85-100; a negative eniichment, that is, a mere saving, does not suffice according to weight of authority, 99, note; but reason is clearly in its favor, and authority is not lacking for its support, 104;106. Present in contemplation of marriage, held recoverable, 283. as such is mere gift and not recoverable, 283. Process — compulsion of, 189-227. Property — money extorted for protection to, or for possession thereof, may be recovered, 170-189. Protest its importance or necessity, 217, note. Purchase for value is a good defence to an action for recovery of money, 591- 002. Purchaser for value — defence of, 591-G02. Quasi-C'ontract — its origin and history, 1-18; its sources in English law, 18; its extent and nature, Chap. III., 9-41 ; as all'ected by Statute of Limita- tions, 42-50; as afTected by set-ofT and counterclaim, attachment and arrest, 50-75; wherein it differs from pure contract, 75-84; wlierein it differs from a tort, 85-lOG. Recission and repudiation of contract. 717-71!». notes; 725-727. notes; 729-732 and notes, 732-734. In these references tlie necessary elements and the measure of damages are considered. Recognizance as source of (|uasi-(ontraet, 20. note. Record as a sourer' af f|ua--i-coiilrii(l, IS. i;>-25. Recovery for mistake of fact, considerations afVecting, 541-591. lies for mislake of fact only when defendant has received money or its equivali'iit whidi rx frf/iin rt houo, he may not retain, 541-500. Remedies election of, 137-153, especially notes 14S-151 ; 153-155. Repudiation of conlracl, see heading: Recission and repudiation of eontrnet. Roman Law as soiirre of English law of quasi-contract, 1, 1, 9, 12, 13, 10, 17, 187. Hright r. lioyd, 313. Salvage is quasi-contractual, 10, 41, note. SYLLABUS INDEX 771 Scotch law will be found referred to under headings: Condictio indebiti and continental law. Sealed instruments and measure of recovery for breach thereof, 718-719, note; Wellston Coal Co. v. Franklin Paper Co., 729-732, and note to the case. Services performed without request should, if beneficial, be paid for, 286-290. performed against request do not give rise to cause of action, 285. Set-off' in quasi-contract, 56-62. Sickness of plaintiff, or presence of epidemic or contagious disease, excuses" performance, and recovery may be' had for the reasonable value of the services already performed, 636-640 and note. Smith, Adam, nature of quasi-contract, 12. Statute as source of quasi-contract, 18, 32-33, 56-62. of Limitations in quasi-contract, 42-56; 560-568. of Limitations begins to run from time of payment, not from demand, 560- 564; but this is questioned and limited to cases in which defendant acted tortiously or dishonestly, 564-568. Statute of Frauds and the three theories concerning recovery or non-recovery, 687, note. ■ of Frauds where defendant is in default, 080-706. of Frauds — where plaintiff' is in default, 706-713. Statutory duty as source of quasi-contract, 18,32-33, 56-62. Suretyship — right of contribution in — is quasi-contractual, 250 et seg. ■ right of indemnity in — is quasi-contractual, 255 et seq. Survivorship of actions depends upon the fact whether estate of defendant has been positively benefited by the tort, 85-106. A mere saving is not re- garded in law as a positive benefit so as to permit action against the estate, but there is a tendency this way, 104-100. Of course a recovery sliould be permitted on theory. In equity where there has been a fiduciary relation, survivorship obtains irrespective of benefit, note, 92-93. Tax — payment of illegal — and right of recovery, 204-227. Tenants in common cannot sue one another in assumpsit at common law; their remedy is (in absence of statute) by a bill in equity, 296-299, note. Tort, wherein it diff"ers from quasi-contract, 85-106. and waiver of tort action, 107-137; defendant or defendant's estate must have received a positive benefit either in money or its equivalent. feasors — right to contribution among, 268-279. Contribution suggested, 268; denied, 269; permitted, 269-279. Undisclosed principal — payment to — does not free agent in law of quasi- contract, 575. Unjust .enrichment as a source of quasi-contract, 18, 33-37; Bk. 11. Chap. I. Sec iii. 280-351. Unsealed instrument and the measure of recovery for breach thereof, 718-719, notes; Wellston Coal Co. r. Franklin Paper Co., 729-732 and note to the case. Usury — recovery for usurious payment, 154-158 and note. 772 SYLLABUS INDEX Voluntary payment — what is and what is not, 204-227, especially note 212- 215, 217, note Waiver of tort action, 106-137; but survivorship is only permitted where de- fendant or defendant's estate has received a positive benefit in money or its equivalent. Warranty is implied in modern law in sale of chattels, 467-471; in sale of realty, warranty must be express to permit recovery for failure of title, 471-480; but if property in question be non-existent, recovery is permitted, 480-482, and note 482-484. vendor by modern law warrants title to goods sold in usual course, 467- 471; but one dealing with a pawnbroker takes (in absence of statute to the contrary) subject to all infirmities of title, 462-467. Wife held not liable for goods furnished her after death of husband, and in ignorance thereof, in absence of a special contract, 434-437. should be permitted to recover services as housekeeper where she sus- tained relations of wife and acted in good faith, although tort-feasor had a previous wife living at the time, 344 and note 348. taking advantage of coverture to repudiate contract should return con- sideration received. 433; and the same as to infant, 437-438 and note. Wilful and inexcusable default of plaintiflF is no bar to recovery, but the measure of recovery in such case should be the value of plaintiff's services as against defendant's damages for non-performance, Britton v. Turner, 753-762. and inexcusable default of plaintiff prevents recovery by weight of authority, 736-746. default of defendant gives plaintiff a right to recovery, but plaintiff must return any object of value received under the contract broken, Miner v. Bradley, 723, 726, note. default permits recovery in some jurisdictions according to contract price; in others and according to better reasons, recovery is based upon the value of the services rendered, irrespective of the contract price, 726-735. default in performance of a contract permits plaintiff to recover reasonable value of services against a defendant in default, or plaintiff may sue on contract for damages if he prefers, 713-735. default of plaintiff does not present recovery according to English law for goods received and retained by defendant after the plaintiff's breach, 735-737; otherwise in contracts for personal services, 752-753. default of plaintiff held to bar his recovery, if performance for stated time or the completion of certain amount of work be a condition precedent to any payment, 740-753. — — default of plaintiff does not prevent recoverj' if plaintiff believed that he was performing the contract, and his services are of value to defendant, 746, and note, 747-748. 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