delay and inconvenience to the holders of the bill (z). But if one party, Mistake. under a mistake, induce another to act on the same mistake, so that negligence is as imputable to the one as to the other, the latter is, on the general principle, entitled to recover (a). If A., being indebted to B., pay the amount to an attorney, who sues in B.'s name, but without any authority from B., the latter may still recover against A., but A. may recover against the attorney, although he was imposed on by a counterfeited warrant of attorney (b). When money had been paid on account, and a dispute afterwards occurring, a balance was struck omitting to notice the sums paid, and the plaintiff paid the whole balance, he was permitted to recover as for money paid under a mistake of fact, in the hurry of business (c). But money paid under a knowledge of all the facts, or where the party Mistake in possesses full means of knowledge, cannot be recovered on the ground that law. the plaintiff mistook the law (d). having been discovered for a week) was sufficient for the decision of the cause; intimating, however, that he did not mean to dissent from the larger ground on which the case had been put by the two former Judges. See also Hall v. Fuller, 5 B. &C. 750; infra, tit. NEGLIGENCE. (z) See the cases last cited. Wilkinson v. Johnson, 3 B. & C. 428; and see Smith v. Chester, 1 T. R. 654. (a) A. paid to B. a navy bill, purporting to be of the value of 1,800 l., but which was in reality worth 8007. only, a figure having been forged, and it was held that B. was entitled to recover the difference from A. who was ignorant of the fraud. Jones v. Ryde, 5 Taunt. 488; 1 Marsh. 157, So in Bruce v. Bruce, 5 Taunt. 495. So where the plaintiff in London, at the request of the defendant, the holder of a bill purporting to have been indorsed by H. at M. and dishonoured, paid the amount the same day for the honour of H. (whose name was forged), but gave notice to the defendant in time to enable him to give notice of the dishonour of the bill to the previous parties by that day's post. Wilkinson v. Johnson, 3 B. & C. 428. And although the plaintiff in the above case had struck out the names of the indorsers subsequent to that of H., it was held that this having been done by mistake, did not alter the rights of the parties, but was capable of explanation by evidence. Ib. So where the plaintiffs discounted for the defendants a bill of exchange, which the latter did not indorse, and the signatures of the drawer and acceptor, the latter of whom kept an account with the defendants, were forged. Fuller v. Smith, R. & M. 49. (b) Robson v. Eaton, 1 T. R. 62. (c) Lucas v. Worswich, 1 Mo. & R. 293. Where an estate is sold, which turns out to be of less value than the price given for it, the difference cannot, in the absence of fraud, be recovered. Cox v. Prentice, 3 M. & S. 349, per Le Blanc, J. But if the parties agree to abide by the weigh ing of any article at particular scales, and in the weighing an error not noticed at the time takes place, from misreckoning a weight, in consequence of which the article is taken to be of greater than its real value, and the price is paid, money had and received is sustainable. Per Ld. Ellenborough, lb. (d) Bilbie v. Lumley, 2 East, 469. Lowry v. Bourdieu, Dougl. 467. Chatfield v. Paxton, cited 2 East, 470. Davies v. Watson, 2 N. & M. 709; and see The East India Company v. Tritton, 3 B. & C. 280; and infra, 88, note (m). Ld. Ellenborough, in the case of Bilbie v. Lumley, observed that in the case of Chatfield v. Paxton, 2 East, 471, note (a), it was so doubtful on what the case turned, that it was not reported, Ashurst, J. had in that case intimated that if money was paid without full knowledge of the facts, and under, what he termed, a blind suspicion of the case, and was found to have been paid unjustly, it might be recovered. Ld. Kenyon observed that the plaintiff had not paid the money under a fair knowledge, and that he had done so under a protest; but Grose and Lawrence, Js. seem to have doubted the sufficiency of these grounds; and Lord Ellenborough, in Bilbie v. Lumley, seems to intimate that the principle of decision in that case was not sufficiently clear to make it a precedent. It makes no difference that the party paid the money under a protest, declaring his intention to bring an action to recover it. Brown v. M'Kinnally, 1 Esp. C. 279; see also S. P. Cartwright v. Rowley, 2 Esp. C. 723. Upon the same principle, the giving a bill of exchange or promissory note for the amount of a debt, precludes the debtor from afterwards disputing the amount. Nash v. Turner, 1 Esp. C. 217. Solomon v. Turner, 1 Starkie's C. 51. The same reasons also apply where the amount has been allowed in account. Skyring v. Greenwood, 4 B. & C. 281. So if the vendor waive a contract for the sale of goods, he cannot Mistake in law. Money received by an agent. Where the captain of a king's ship brought home in her public treasure, upon the public service, and also treasure of individuals for his own emolument, and received freight for both, and paid over one-third of it (according to the usual practice) to the admiral, and having afterwards discovered that the law would not have compelled him to pay the third, brought an action against the executrix of the admiral to recover it back; it was held, that he could not recover back the private freight, because the whole of that transaction was illegal; nor the public freight, because he had paid it under a full knowledge of the facts, although under ignorance of the law, and because it was not against conscience for the executrix to retain it (e). Where money has been paid by mistake, which the law would not have compelled the plaintiff to pay, but which in equity and conscience he ought to have paid, he cannot recover it (ƒ). As where he pays a debt otherwise barred by the Statute of Limitations, or a debt contracted during his infancy (g). A plaintiff who has paid the whole of an attorney's bill cannot after taxation recover the sum deducted from the bill (h). Where a tenant omitted to deduct the property-tax out of his rent, it was held to be a voluntary payment, which he could not recover back (i). In case of the payment of money to a known agent, the general rule is that the action ought to be brought against the principal (k); and mere evidence of the receipt of money by the defendant as the agent of another is insufficient to support the action (7); and an agent, who having received money pays it over without notice to the contrary, is not liable, for it would be unjust that he should suffer from the mistake of another (m); and the afterwards insist on the contract because (e) Sir C. Brisbane v. Dacres, 5 Taunt. (f) 1 T. R. 286. (g) Bize v. Dickinson, 1 T. R. 286. held that the tenant was entitled to recover it back from the party to whom it had been paid, as money had and received, he not having set up any title at the trial of the ejectment. Newsome v. Graham, 10 B. & C. 234. See 1 Freeman, 479, note (d), 2d edit. After the death of a bankrupt tenant for life, his assignees were allowed to recover as money had and received the by-gone rents, from one who had received them under a fraudulent assignment. Brown v. Day, cited 3 Russ. & Myl. 124. 481. (k) B. N. P. 133. Sadler v. Evans, 4 Burr. 1094. Smith v. Bromley, Doug. 696, n. Horsfall v. Handley, 2 Moore, 5; 9 Taunt. 136. The action does not lie against an excise officer who has received duties after the repeal of the Act, but who has paid over the amount to his superior. Greenway v. Hurd, 4 T. R. 553. Whitbread v. Brookesbank, Cowp. 69. And see Campbell v. Hall, Cowp. 204; there the duties remained in the hands of the officer for the purpose of trying the question So where a churchwarden has paid over burial fees to the treasurer of the trustees of a chapel. Horsfall v. Handley, 8 Taunt. 136. (1) As where the agent signs a receipt for his principals; e. g. "for S. & W.," W. R. Edden v. Read, 3 Camp. 399; and see Stephens v. Badcock,3 B. & Ad. 354. (m) B., a banker, being the agent of A., who indorses a bill of exchange to him, receives the amount from the acceptor and It is pay party who made the mistake has his remedy against the principal. Where an agent receives money for his principal under a claim of right, as for tithe, the right of the principal cannot be tried in an action against the agent, if he can show the least colour of right in the principal; as for instance, his having been some time in possession (r). Where money is deposited with an agent of the party, his authority is in general revocable; and after countermand, the principal is entitled to recover it. Thus the authority of a stakeholder may be revoked before the decision has taken place (s), and the stake recovered. pays it over to A. The acceptor cannot recover from B., although it turn out that the bill was indorsed to A., under a supposed authority, viz. a warrant of attorney, which did not warrant the transfer. East India Company v. Tritton, 3 B. & C. 250. Note, that the acceptors had made all such inquiries as they deemed to be necessary, and that the defendant was not privy to the facts. Semble, that an indorser does not warrant the genuineness of previous indorsements. If A. give a letter of attorney to B. to receive money from C, and bring an action against C., C. cannot, except in mitigation of damages, show that he has paid money to B. since the action brought, for the bringing the action is a revocation of the authority. B. N. P. 153. Ca. K. B. 408. So if A. receive quit-rents for W., and after notice to A. not to pay the money over to W., because it is not due, he afterwards pays it over, the action lies. Sadler v. Evans, B. N. P. 133. (n) Sadler v. Evans, B. N. P. 133. (0) As where a gaoler illegally receives rent from a prisoner for a room in the prison. Miller v. Aris, B. R. Midd. Sitt. after M. 41 G. 3, cor. Lord Kenyon. So where a sum of money has been paid by the putative father to a parish officer, for the purpose of indemnifying the parish against a bastard child. Townson v. Wilson, 1 Camp. 396. Watkins v. Hewlett, 1 B. & B. 1. Clark v. Johnson, 3 Bing. 424. Stainforth v. Staggs, 1 Camp. 398, n. & 564. King v. Martin, cited 2 Camp. C. 268. S. P. ruled by Hullock, B. Lane. Spring Ass. 1826. So if money be paid to a bailiff, who exceeds his authority, under terror of process, see 1 Taunt. 359. (p) Snowden v. Davis, 1 Taunt. 359; where money was paid by the plaintiff to a bailiff, who exceeded his authority, in order to redeem his goods, and not that it might be paid over to any one in particular. (q) If things at the time of the notice remain unaltered as between the agent and his principal, if no advance has been made, bills accepted or new credit given by the agent, in consequence of the payment, he is still liable, although the money has been passed in account, or a rest made. Buller v. Harrison, Cowp. 566. Cox v. Prentice, 3 M. & S. 344. And although he has paid it over, yet if the defendant has induced the plaintiff to suppose that the money had not in fact been paid over before notice, he cannot avail himself of such payment. Edwards v. Hodding, 5 Taunt. 515. Secus, if the situation of the agent has been altered. The agents of the plaintiff in England were directed by him to pay, through the defendants, money to be placed to his credit in India, which was done, and an entry made in the defendant's books to the credit of their correspondents, to whom they sent advice to account for it to the plaintiff: before the letter of advice reached their correspondents, the latter failed, having drawn on the defendants, between the date of such letter and the failure, bills, which the defendant had accepted to an amount exceeding the amount paid in by the plaintiff. It was held, that the defendants having only acted as directed, and the situation in which they stood towards their correspondents being altered, the plaintiff could not maintain assumpsit against them for the money so paid in. M'Arthy v. Colvin, 1 Perr. & Dav. 429. (r) Staplefield v. Yewd, Tr. 27 G. 2, cor. Lee, C. J., B. N. P. 153; Cas. K. B. 409. (s) Although, as it seems, the wager be legal, for the situation of the stakeholder does not differ from that of an arbitrator, whose authority is countermandable. See Eltham v. Kingsman, 1 B. & A. 683, et vid. infra, 95. Aliter, where a legal wager has been determined against the plaintiff. Brandon v. Hibbert, 4 Camp. 37. Bland v. Collett, Ibid. 157. Money received by an agent. Failure of considera tion. Where the drawer of a bill paid the amount to an indorser, to take it up when due, but the bill not having been presented in due time, the drawer directed the indorser not to pay the amount, and offered to indemnify him; and notwithstanding this, the indorser afterwards paid the bill, it was held that he paid it in his own wrong, and that the drawer might recover the amount (t). A trustee, such as the provisional assignee of a bankrupt, is not liable for money received by an agent appointed with due care, who has failed (u). Under this count the plaintiff may also show that he has paid money to the defendant upon a consideration which has failed. As, for a bill of exchange upon a banker who breaks before it can be tendered to him (x). Or for goods which have not been delivered (y); or money paid as a deposit on the purchase of an estate, where the vendor cannot make out a title (z). So he may recover the money paid as a consideration for an annuity, where the deeds for securing it have been set aside for informality (a). Or where one of the several securities fails (b). Or where one, having purchased a lease from the defendant as the supposed representative of the lessee, is ousted by the real administrator (c). But where a personal representative assigned a mortgage-deed, which turned out to be a forgery, for a valuable consideration, but without any knowledge of the forgery, it was held that the purchaser was not entitled to recover the price (d). A. pays B. an annuity for the use of an invention, for which B. has obtained a patent, and it afterwards turns out that the patent was void, the invention having been in public use before. A, cannot recover the amount so paid (e); for he has had the use of it. (t) Whitfield v. Savage, 2 B. & P. 277. (x) B. N. P. 131. See also Jones v. But where A. & Co., bankers, paid the amount of a forged acceptance to an innocent holder for value, it was held that they could not recover the amount. Smith v. Mercer, 1 Marshall, 453; supra, 86. (y) Str. 407; B. N. P. 131. (2) 8 T. R. 516; 3 B. & P. 181. See VENDOR AND VENDEE. (a) Shore v. Webb, 1 T. R. 732. In such case the deeds should be produced, and their execution proved, and the setting them aside proved by the production of the rule of court. See Hicks v. Hicks, 3 East, 16. (b) Scurfield v. Gowland, 6 East, 241. The defendant is entitled to deduct for payments made by him in respect of the annuity. Hicks v. Hicks, 3 East, 16; and see Davis v. Bryan, 6 B. & C. 651. (c) Cripps v. Reed, 6 T. R. 606. In such case the assignment should be produced and proved, and the ouster should be proved by evidence of the judgment in ejectment; and the writ of possession, and the revocation of the letters of administra tion, should be proved. Lord Kenyon observed that he did not wish to disturb the rule caveat emptor, adopted in Bree v. Holbeach, Doug. 654, and other cases; that where a regular conveyance was made, other covenants ought not to be added; and that, in general, a seller covenants for his own acts and those of his ancestors only; in which respect, the case of a mortgagor differed from it, as he covenants that at all events he has a good title; but that here the whole passed by parol, under a misapprehension by both parties that the defendant was the legal administrator of the lessee. In the case of Bree v. Holbeach, no action could have been maintained. Where a defendant in possession of premises which he formerly held under a tenant for life, who was dead, sold his interest, under a representation that it was a good lease for seven years, and was afterwards ejected, Lawrence, J. held, on the authority of Cripps v. Reed, that the price might be recovered. Matthews v. Hol lings, Salop Summ. Ass. 1801; Woodfall's Landlord and Tenant, 2d. edit. 35. (d) Doug. 655. (e) Taylor v. Hare, 1 N. R. 260. Note, that the Judges in this case laid considerable stress on the consideration that the parties acted under a mistake; but so they did in the case of Cripps v. Reed; the true distinction seems to be, that in Taylor v. Hare the plaintiff did in fact derive benefit from the patent; and Heath, J. said, “ We So where an article, which the vendee has an opportunity of examining, is sold without fraud, the vendee cannot afterwards recover the price, upon discovering that the article was internally defective at the time of sale (ƒ). A putative father giving a note for a fixed sum to the parish officers, who receive the amount, may recover back such part as remains unexpended on the death of the child, as money had and received to his use (g). A plaintiff who has paid money on a consideration not performed, may either affirm the agreement by a special action for non-performance, or disaffirm it by reason of the fraud, and bring an action for money had and received (h). Where money has been paid by the plaintiff to the defendant, upon a Rescinded contract which is afterwards rescinded, either in consequence of the nature contract. of the contract, or by consent (i), or by the act of the defendant, then, since the consideration fails, the plaintiff is entitled to recover the money. As, where the plaintiff paid ten guineas to the defendant for a chaise, on condition that it should be returned in case the plaintiff's wife did not approve of it, paying 3s. 6d. per day. In the mean time the plaintiff's wife disapproving of it, the chaise was sent back to the defendant after three days, and left on his premises without his consent, and the 38. 6d. per day was tendered, which the defendant refused to receive; and it was held that the plaintiff was entitled to recover the ten guineas (k). And in Giles v. Edwards (1), where the defendant by his neglect prevented the plaintiff from carrying a special agreement between them, for the sale of cord-wood to the plaintiff, into execution, it was held that the plaintiff might recover the sum which he had paid under the contract, as money had and received to his use. So, it was held in Dutch v. Warren (m), where the defendant cannot take an account here of the profits; it might as well be said, that if a man lease land, and the lessee pay rent, and be afterwards evicted, he shall recover back the rent, though he has taken the fruits of the land. The defendant sold his patentright, such as it was, and there was no express or implied warranty that the patent should stand, and there was no fraud." (f) Bluett v. Osborne, 1 Starkie's C. 384. But where the plaintiff, a stockbroker, sold for the defendant four Guatemala bonds, and paid him the amount, and after the bonds had been two days in the hands of the purchaser they were found not to be marketable, and the plaintiff took them back and reimbursed the purchaser, it was held that he was entitled to recover for the amount paid by him to the defendant. Young v. Cole, 3 Bing. N. C. 724. (g) Watkins v. Hewlitt, 1 B. & B. 1. See Townson v. Wilson, 1 Camp. 396. Clarke v. Johnson, 3 Bing. 444. S. P. cor. Hullock, B. Lanc. Sp. Ass. 1826. In the case of Chappel v. Poles, 2 M. & W. 867, the money was held to be recoverable although the defendants (the overseers who had received the money) had paid it over to their successors. It seems that the whole sum was to be considered as money had and received to the plaintiff's use, the contract being illegal and void, (h) B. N. P. 132. (i) The plaintiff agreed to let to the defendant land on building leases, and to advance him - l., to be repaid by a certain day, and the defendant engaged to build houses thereon, and to convey them as a security: after some of the houses had been built, and part only of the money agreed to be lent had been advanced, the plaintiff requested the defendant not to proceed further with the buildings, which was assented to, and the agreement rescinded by mutual consent; held, that the day for repayment being passed, the plaintiff might recover the money advanced on the common counts, and was not bound to declare on the special agreement. James v. Cotton, 7 Bing. 266, and 5 M. & P. 26; and see Oxendale v. Wetherell, 9 B. & C. 386. (k) Towers v. Barrett, 1 T. R. 133. Sale of an article by A. to B., with liberty to return it in a month, B. allowing 101, out of the price paid, and in case B. kept the article beyond the month he was to pay 101. more to A.; B. returning the article within the month is entitled to recover the price, deducting the 101. Hurst v. Orbell, 8 Ad. & Ell. 107. (1) 7 T. R. 181. (m) Cited 2 Burr. 1010. Subscriptions advanced under a scheme for establishing a tontine to directors, who abandon the |