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Сн. 9.

Art. 7.

1 Ld. Raym.

742,
Newgate v.
Davey.-
Imp. M. P.

173.

2 Show. 21.

-2 Mod. 260, 263.

12 Mod. Rex v. Elter.

Cowp. 204, Campbell v.

Hall.

2 Stra. 915, Astley v.

Reynolds.

2. So monies paid by the order of a court, having no power, may be recovered back; as by the high commission court after the revolution; so if received under an order of sessions afterwards reversed; so if received by one, pretending to a title to fees &c. and who has no title to them; so where one pays a forged bill, note, or bond, for the authority is void. But in 3 T. R.127, 129, &c. in Allin v. Dundas, the court and bar argued on the ground that a payment on a forged bill &c. was valid, because the payer ought to examine the contract; and see Price v. Neal, post.

3. If an innocent person receive money on a forged note, not knowing the forgery, it is no crime in him, but he shall answer for the money only; but receiving money on a forged note, knowing the forgery is a publication of it; per Holt.

4. So where duties were paid on sugars, at Grenada, not by law payable, the plt. recovered them back from the collector; they had been left in his hands in order to try the king's right to them. In this action there was tried the validity of some of the most essential prerogatives of the crown.

ART. 7. Monies obtained by extortion, imposition, embezzling, &c. 1. As where the plt. pawned plate, and the paw1 Esp. 4, 5.-- nee demanded £10 as asury, which the plt. paid to get his Said to have goods back, and this he recovered; this was not paid by mistake or deceit, but by compulsion, a kind of force the law will not suffer one man to subject another to.

been overul

ed by Ld.

Kenyon, see

4 Johns. R.

245.-1 Esp.

84.

§2. If a custom-house officer seize goods as forfeited, not seizable, and take money of the owner to release them, which 4 T. R. 485, he pays, because demanded, and to get his goods, this he may 487, Irving v. Wilson & al. recover back; it is paid by coercion, not as a bribe, or voluntarily. If it had been paid as a bribe, both parties had been 405-2 Pow. in pari delicto; and if voluntarily, the rule “ non fit injuria volenti," had applied.

-5 T. R.

on Con. 155

&c.

1 Esp. 5.Dougl. 696,

Smith v. Bromley.2 T. R. 763, 766.-See 4

Johns. R.

245.

Cro. Jam.

§3. So where a creditor of a bankrupt demanded £40, for signing his certificate, and his sister paid it, she was allowed, in this form of action, to recover back the money, as having been oppressively extorted from her, though she had her election to pay it or not under all the circumstances of the case.

4. So where the plt. Smith, the bailiff, arrested one Stan2 Burr. 924 to ton on Redshaw's writ, and one Stotesbury promised Smith, 930, Smith v. if he he would accept him and one Rippon, as bail for StanStotesburyton, he Stotesbury would pay Smith, the officer, six and a half 103, Bridge v. guineas, when Stanton should pay fifteen guineas to StotesbuCage.-Sir ry; this was held to be oppressive, and that the officer could 165, Badow not recover it, and that if he had received the money he must have paid it back, for it is oppression in the officer to take money or a promise from the party or his friend, for doing

Wm. Jones

v. Salter.

Cro. El. 123,
Barkley v.
Kempton.

what it is the officer's duty to do, as to let to bail &c.; this was decided on a writ of error, Smith had recovered below. It is the sound and settled policy of the law, to hold all officers to do their duty for their legal rewards; and if they could be once allowed to make bargains for something more, and to recover, there would be no end to the extortions of some offi

cers.

CH. 9.

Art. 8.

807, Steven

5. So where a nurse carried away the intestate's money at Bul. N. P. his death, it was held his administrator might recover it from her. 6, Thomas.. 130.-1 Esp. § 6. So if a custom-house officer take exorbitant fees from Whipe. the master of a vessel, the owner may recover back the excess Cow. 805, in this action; for in æquo et bono it ought to be rescinded, and son v. Mortiqui facit per alium facit per se. But an officer shall have his mer.—Salk. legal fees for serving an erroneous writ. The master must have 332, East v. been considered as paying in the course of his business, and so the owner's act.

Plummer.

ART. 8. For monies paid on judgments reversed, erroneous, Bul. N. P. 131.-Cowp. void, &c. 1. Monies levied on a conviction afterwards re- 419. versed, may be recovered back. Here the ground on which paid wholly fails.

ses v. Mac

1

farlan

5 Co. 91,

2. So where the plt. had matter of discharge, but from 2 Burr. 1005, the nature of the court could not there plead it, and therefore to 1012, Moon judgment in the court paid it, this he recovered back in this action, in another court. See 1 Ld. Raym. 742. 3. If goods be sold on scire facias, and the judgment re- W. Bl. 219. versed, the goods shall not be restored to the debtor, but the Hoe's case.→ value of the money for which they sold may be recovered; Cro. El. 278, for if on the reversal the goods should be restored, there would in the case of Eyre v. be no buyers, and of course no execution. 2. The officer is Woodfine.compellable to levy the debt of the goods; the same of a term. 8 Co. 192. 4. In the case of Goodyere v. Ince, it was held, if the Cro. Jam. sheriff sell A's term on execution to a stranger, and judg- 216.-Cro. ment is reversed, A shall be restored only to the money, for Goodyere v the stranger has the term by act of the law; but if the offi- Ince. cer deliver the term itself to the creditor on elegit, and the judgment is reversed, the debtor shall be restored to the term itself, and not have the money it sold for &c.; one reason may be when the officer sells by order of law, the buyer can have no warranty, but when the thing itself is set off to the plt. he may restore it, or if he sell it to a third person, the plt. may warrant it; but an officer cannot deliver goods to the creditor on execution, or is he to warrant them.

El. 604,

a. 12.-7 T:

5. If the plt. pay money to the deft. on legal process, af- See Ch. 75, terwards found not to have been due, the plt. cannot recover R. 269, Marit back in this action for money had and received; the debt- riot v. Hampor's promise to pay the judgment is void, but a third person's Com. D. 176. is good. -Cowp, 129.

ton, and 1

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Сн. 9.
Art. 10.

ute.

6. The plt's. clerk embezzled his notes and money &c., and paid to the deft., for insuring lottery tickets against a statAs these notes and monies were paid for an illegal conCowp. 197, sideration, and their identity could be traced, the plt. recovClark v. Shee ered in this action for money had and received, and though the clerk was particeps criminis, yet the plt. was not.

& al.-1 Ld. Raym. 742. Dougl. 137, Longchamp v. Kenny

2 Mod. 263.

5 T. R. 197,

Broadley & al. v. Clarke. -Imp. M. P.

173.

5 T. R.

ART 9. For the proceeds of one's property another gets by wrong and sells. 1. It is now settled law, that if one gets wrong and sells. my property by wrong and sells it, I may recover the proceeds of him. I may waive the tort and sue for the property. As where A delivered to B a masquerade ticket to sell, and C took it from B, and B paid the value to A, the owner. Held, that B might sue C for the money he had received for it, and C not producing the ticket, the court will presume he had turned it into money; and same principle, 2 Ld. Raym. 1216, Lamine v. Dorrill.

2. So if a trader commits a secret act of bankruptcy, and then pays money to a carrier, the trader's assignees may recover it back. So this action lies against the stake-holder, by the winner on a wager, where that is not against law, as by winning he becomes legally entitled to the money. To this action for money had and received, the condictio indebiti of the civil law bears a strong resemblance.

ART. 10. For monies paid on contracts illegal and void in 600.-1 Mass law. § 1. The general rule is that monies paid on such contracts may be recovered back, except in two cases.

R. 65.

1 Salk. 22.Cowp. 343.

4 T. R. 561, Munt & al. ex'rs. v. Stokes & al. -5 T. R. 405.

1. Where the plt. is not entitled to the money in equity and good conscience. 2. Where the plt. is particeps criminis, and in pari delicto. In the case of a bribe, both are equally guilty; and 2 Caines' R. 147, Belding v. Pitkin.

§ 2. In Jan. 1785, M'Intosh, at Calcutta, borrowed of the defts. British subjects, at respondentia, £2166, 13s. 4d. at 10 per cent., on a contract void by 7 Geo. 1 and 21 Geo. 3; December 21, 1485, he died and left the plts. his executors, who October 1786, on request paid the defts £2004 3s. 4d. in discharge of the bond; and finding they had paid monies on a contract void by statute, now sued to recover them back. Judgment for the defts. For as they bonâ fide lent the money, they ought in equity and good conscience to retain it. shall 557. They received the monies, when paid, on a contract not malum in se, a crime against the law of nature, but malum prohibitum. If one sue to enforce an illegal contract, he must, 1st, draw justice from a pure fountain, and have clean hands 2d, potior est conditio possidentis. Yet, however, it was held that the defts. could not have compelled payment of this bond.

4 Bl. Com. 7,8.-Mar

See Ch. 11 a. 2, s. 8.

;

CH. 9.

Bl. 65.

3. The plt. paid £64 17s. 6d. premium to the deft., the office keeper, for insuring lottery tickets, and recovered of Art. 11. them that sum; the insurance being void by statute. Here Blackstone J. said the contract was not criminal, but merely void, 2 W. Bl. 1073, as to the plt., for as it was said the act makes the insurance 1075, Jaques criminal only in the office keeper insuring, and not in the in- Cowp. 197, v. Golightly. sured; and according to the case of Browning v. Morris, if 790.-1 H. the office keeper had paid the loss, he could not have recovCowp. 790 ered back the money. And 792, Ld. Mansfield said that the to 793, party paying usury may recover back the excess of interest; Browning v. and so if a bankrupt pay money to get his certificate, he may deft. agrees recover it back, for though he is a party to the illegal act, yet he is not in pari delicto: in the first case the statute punishes only the lender on usury, and in the second the creditor the bankrupt.

of

Morris; the

to pay the plt. his costs

if he would not oppose the deft's.

discharge un

der the insol

void;

§ 4. Lord Mansfield in Dougl. 679, (cited,) made this distinction, "If the act be in itself immoral, or a violation of the vent act, is general laws of public policy, then the party paying shall not illegal and have this action, for where both parties are equally criminal 2Johns. R. against such general laws, the rule is potior est conditio defen- 286, Waite v. dentis. But there are other laws which are calculated for the Harper. protection of the subject against oppression, extortion, and deceit; if such laws are violated, and the deft. takes advan- Robinson. tage of the plt's. situation, then the plt. shall recover.

Bland v.

& Pul. 3.

5. If A receive money to the use of B, on an illegal con- Tennant v. tract between B and C, A shall not be allowed to set up the Elliot, 1 Bos. illegality of the contract, as a defence against B; and Farmer v. Russell, 296.

§ 6. So if I get A to insure my ship, and she is not sea- Mashall 557. worthy, I may recover back the premium, when no fraud is imputable to me; for the policy never attaches, the risk never begins; and some cases go so far as to say I may recover back the premium, even though I knew she was not sea-worthy when I received it. These cases go on the ground, that the underwriter never runs any risk in such a case, and so there is no consideration for his retaining the premium. But some doubt, and with some reason, if going so far does not afford very considerable temptations to practise fraud, because the assured has the temptation to throw the risk of a bad ship upon the underwriter, thinking he will not come to the knowledge she is not seaworthy, as the chance is always very considerable he will not, though in fact she be so.

ART. 11. For monies mispaid to an agent, not paid over, Cow. 565, &c. 1. One question arises in many of these cases, what Buller v. is a paying over? It has been held that merely passing monies Harrison.

1 Com. D. 177.-Stra. 480.-1 Camp. N. P. R. 396, Townson v. Wilson; for money over-received against parish officers.-4 Bos. & P. 260, Taylor v. Hare.

Сн. 9. Art. 11.

4 T. R. 553,

Greenway u.
Hurd;
Whitebread
v. Brooks-
banks.-
Lofft 529.

+ Burr. 1984,
Sadler v.
Evans.

4 Burr. 2133, Dale v. Sallett.

1 T. R. 285,

Bige v. Dick

v. Gelston.

pay over to

in account &c., is not a paying over; as where the plt. paid on a policy to the deft., as agent for the insured £2100, thinking the loss fair, deft. on the payment passed it to the credit of his principals against £3000 they owed him; the plt. demanded the money as for a foul loss. There was no change of the agent's situation after notice of the loss: he had not accepted any fresh bills, nor advanced any new monies, nor given any new credit to his principals. Judgment for the plt. But held, that had the agent paid it over to the principals before called on, the action must have been against them. Where the agent acts fairly, it is very plain the action ought to be brought against the principal, especially when he holds the

money.

§ 2. In July 1785, the plt. paid monies to Hurd, a collector of excise, on a statute which had been repealed, who, before the action was brought, had paid it over to the superior officer. Judgment for the deft., and the plt. must have recourse to the superior officer. See ch. 56, a. 3, s. 3.

3. In this case the plt. paid quit rents to the deft., as the agent of Lady Windsor; the deft. had his receipt for the monies received to the use of Lady Windsor. Her right to the rents was denied by the plt., and he brought this action to try their rights. Judgment for the deft.; for the action should have been brought against Lady Windsor. As the money was paid to her known agent, whether he had paid it over or not, it was improper to try the right in an action against him, and when it was known he acted for her, and the court doubted as to the case of Jacob v. Allen. See 1 D. & E. 62.-1 Ld. Raym. 742.

4. If I recover monies for my principal, my services therein are a charge upon them, and may be deducted, and is not in the nature of a cross demand or mutual debt.

5. The plt. was a broker or agent, with a commission del credere, that is, he was absolutely liable to his principal, in the son & al. assignees.first instance. The bankrupt underwrote policies largely for 9 Johns. R. the plt. for his foreign correspondents, on which the losses were 201, Ripley £661. These the plt. paid to his correspondents in consequence Notice to the of his del credere. The bankrupt owed the plt. this £661, agent not to and charged him with the premiums. At the time of the his principal bankruptcy the plt. owed the bankrupt £1356. This he paid to the assignees, not knowing he was entitled to hold the £661 due to him as a set-off. Afterwards finding his mistake, he and received, sued for and recovered this £661, which he had a right to is not neces- have retained &c. This case goes on the principle, that one ignosary, where rant of his right, may neglect to make his claim when he may do it, and yet afterwards assert it. And was not this ignopulsion, and rance of his legal right?

money wrongfully

demanded

the payment is by com

not made ex

pressly to the principal's use.

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