CH. III. s. 3. Money paid though relief is never given in the case of a simple money demand against another (n). And in bankruptcy, the ordinary rule as between litigant parties and Received). that money paid under a mistake of law cannot be recovered does not apply to a payment made under such a mistake to a trustee in bankruptcy (o); even though the trustee has distributed the money in dividends, the Court will order him to repay it out of other moneys coming to his hands and applicable to the payment of dividends to the creditors (p); and a trustee in liquidation will have a similar order made upon him (q). In bankruptcy. In winding The same exception applies in the winding-up of a company (7) ; up company. and it appears to be generally considered that when an officer of a Court has in his hands a sum of money which has been paid to him erroneously under a mistake of law, the ordinary rule as between adverse litigants does not apply, and he will be ordered to repay it (s). Generally. Money obtained by fraud. (h) Action for Money obtained by Fraud. There are also cases in which money obtained by fraud is recoverable in an action for money had and received (t), although the fraud was committed, not by the defendant personally but by his partner (u), or agent (x). Thus, if the defendant has obtained payment of money from a third person, by means of a false or forged representation of authority from the plaintiff; the latter may adopt the agency and sue the defendant in this action, provided he be not shown to have actually committed a felony (y). So if a party obtains money from an agent by fraud, either the principal or agent may recover it from him (z). And where the defendant induced the plaintiff's agent to hand over a sum of money to him, under pretence that he wished the agent to lend him the sum in question, but, in reality, in order that he, the defendant, might appropriate it in paying a debt due to him from the plaintiff; and Cotton, L.J., in James, Ex parte, ubi sup. (t) See Bonzi v. Stewart (1842), 4 M. & G. 295; Edmeads v. Newman (1823), 1 B. & C. 418; Billing v. Ries (1891), Car. & M. 26. (u) See Marsh v. Keating (1834), 1 Bing. N. C. 198, H. L. (2) Per Lord Ellenborough, C.J., Crockford v. Winter (1807), 1 Camp. 124, 127. (y) Per Cur., Vaughan v. Matthews (1849), 13 Q. B. 187, 189. (z) Holt v. Ely (1853), 1 E. & B. 795. CH. III. s. 3. he did so appropriate it; it was held that the principal might recover this sum, in an action for money had and received (a). So, if a solicitor, without authority, bring an action against B., in the name of A., a nominal or imaginary plaintiff, and B. pay the costs of the writ to the solicitor, he, B., may sue the solicitor to nominal recover back the amount (b). So, where a sale by auction is advertised, or stated by the auctioneer to be "without reserve," the employment by the vendor of a puffer to bid for him renders the sale void, and entitles the purchaser to recover his deposit from the auctioneer, in an action for money had and received (c). Solicitor suing for plaintiff. Puffer at auction with out reserve. And so where a bank obtained from a person who they knew Bankruptcy. had committed an act of bankruptcy money by a corrupt bargain for stifling a prosecution against him, his trustee in bankruptcy recovered back the money so paid (d); and money paid by the debtor to his solicitor for opposing the bankruptcy petition cannot on the client being adjudicated a bankrupt be recovered by the trustee in bankruptcy from the solicitor (e). In all these cases, if the plaintiff brings his action for money Waiver of had and received, he thereby waives the tort (ƒ). On the other hand, if a party be induced to purchase an article by the fraudulent misrepresentations of the seller respecting it; and, after discovering the fraud, he continues to deal with the article as his own, he cannot recover from the seller the price paid to him for it (g). So, if the purchaser cannot place the seller in statu quo-e.g., where he is unable to return the article in the same plight in which he received it-he cannot recover what he paid for it, in this action (h). So, if a party, after he has discovered a fraud practised on him, and which induced him to enter into a contract, voluntarily pays a sum of money under it, with knowledge of the facts, he cannot claim a return of the money so paid (i). And it would seem that, in such a case, the right to repudiate the (a) Litt v. Martindale (1856), 18 C. B. 314. (b) Dupen v. Keeling (1829), 4 C. & P. 102. See further as to the remedies against a solicitor who acts without authority, Bayley v. Buckland (1847), 1 Exch. 1. (c) Thornett v. Haines (1846), 15 M. & W. 367; Green v. Baverstock (1863), 14 C. B., N. S. 204. (d) Ex parte Wolverhampton Banking Co., In re Campbell (1884), 14 Q. B. D. 32, distinguishing Ex parte Caldecott, In re Mapleback (1876), 4 Ch. D. 150, C. A. (e) Ex parte Payne, In re Sinclair (1885), 15 Q. B. D. 616. But money received by an undischarged bankrupt, and paid away by him to a third (f) Smith v. Baker (1873), L. R., 8 C. (g) Campbell v. Fleming (1834), 1 A. & E. 40. (h) Clarke v. Dickson (1858), E., B. & E. 148. (i) Miles v. Dell (1821), 3 Stark. 23. tort. Fraud acquiesced CH. III. S. 3. Implied Contracts (Money Had and Received). Money obtained by oppression or extortion. Fees. Morgan v. Palmer. Wrongful detainer of goods. contract would not be revived, by the subsequent discovery of another incident in the same fraud (j). (i) Action for Money obtained by Extortion. Money obtained by oppression, and by taking advantage of the weak and necessitous, in violation of laws made for their protection, may be recovered in an action for money had and received (k). Thus, a fee illegally claimed from and paid by a publican for his licence, may be recovered in this action, as having been paid by compulsion (1), as also fees charged by a parish clerk-contrary to the Births and Deaths Registration Act, 1836, 6 & 7 Will. 4, c. 86, s. 35-for extracts taken from a register book of burials and baptisms (m); fines and fee unduly exacted by a steward for admittance to a copyhold (n); and an action for money had and received is maintainable by a broker on a distress for rent, paid by the tenant in order to prevent a sale, -even although the tenant may have applied for and obtained time (o). So, if a party pay to an arbitrator, in order to be permitted to take up an award, a sum of money larger than is reasonably due to such arbitrator in respect of fees, &c.; he may recover the excess in this action (p). It is likewise an undoubted proposition, that if goods be wrongfully taken or detained, and a sum of money be paid, merely for the purpose of obtaining possession thereof, especially if it be paid under protest, such money can be recovered back, not on the ground of duress, but simply because the payment thereof was not voluntary (q). Thus, in Astley v. Reynolds (r), where the plaintiff had pawned plate with the defendant, and the latter would not part with it unless the plaintiff paid him illegal interest: it was held that the excess paid to redeem the goods might be recovered back upon the count for money had and received, although the plaintiff might have had trover for his goods, on tendering the sum legally due to the plaintiff. (j) Campbell v. Fleming (1834), 1 A. (k) Per Lord Mansfield, C.J., Lowry v. (m) Steele v. Williams (1853), 8 Exch. (n) Traherne v. Gardner (1856), 5 E. & B. 913. (0) Hills v. Street (1828), 5 Bing. 37. (p) Re Coombes (1850), 4 Exch. 839, 841, 843; Fernley v. Branson (1851), 20 L. J., Q. B. 178. (2) Per Parke, B., Atlee v. Backhouse (1838), 3 M. & W. 633, 650; and see Oates v. Hudson (1851), 6 Ch. 346; Shaw v. Woodcock (1827), 7 B. & C. 73; Green v. Duckett (1883), 11 Q. B. D. 275. (r) Astley v. Reynolds (1732), 2 Str. 915. CH. III. s. 3. (Money Had and Received). Recovery of money ob tained by extortion So where money was paid, under protest, by a mortgagor in order to obtain possession of his title deeds, which were withheld by the attorney of the mortgagee on an unfounded claim of lien; it was held that it might be recovered back as money had and received (s). And so, where the attorney of a mortgagee, who had a power of sale, refused to stop the sale, or deliver up the title deeds of the mortgaged property, except on payment by the contd. mortgagor of certain expenses with which he was not properly of title deeds. chargeable: it was held that the administratrix of the mortgagor, who had paid the excess under protest, could recover it, although the right of the plaintiff to stop the sale was only equitable (t). Excessive charges by a carrier for the carriage of goods may be recovered in this action (u), although the plaintiff may not price for have tendered the sum legally due for carriage (x). Excessive carriage of goods. levy by So, if goods are seized under an excessive levy, and the owner Excessive thereof pay money to the sheriff to redeem them, he may recover it from the latter in this action (y). And where the sheriff had seized certain goods, which were claimed by the assignees of a bankrupt as belonging to, and which did in fact belong to the bankrupt's estate; and, in order to prevent the sheriff from proceeding to a sale, which he threatened to do, the assignees paid the sum claimed under the writ: it was held that they were entitled to recover such sum, as money which had been paid by compulsion (2). (j) Action for Money paid on Illegal Contract. money paid on illegal con an executory An illegal contract may be rescinded whilst it remains executory To recover by either party,-who may recover from the other, in an action for money had and received, any money which he may have paid to him under the contract (a). But the election to rescind must be notified in due time. And where the assured-upon a policy effected in terms sufficiently large to cover an illegal adventure, and whereby he intended to cover an illegal adventure-before any inception of the adventure, brought an action against the underwriter, to recover back the (s) Wakefield v. Newbon (1844), 6 Q. B. 276; and see Smith v. Sleap (1844), 12 M. & W. 585; Pratt v. Vizard (1833), 5 B. & Ad. 808. (t) Close v. Phipps (1844), 7 M. & G. 586; and see Frazer v. Pendlebury (1861), 31 L. J., C. P. 1. (u) Great Western Railway Company v. Sutton (1869), L. R., 4 H. L. 226. (x) Parker v. Bristol and Exeter Railway Company (1851), 6 Exch. 702. (y) Scarfe v. Hallifax (1840), 7 M. & W. 288, 290. (2) Valpy v. Manley (1845), 1 C. B. 594. (a) Aubert v. Walsh (1810), 3 Taunt. 277; 12 R. R. 651; per Mansfield, C.J., Busk v. Walsh (1812), 4 id. 290, 292; 13 R. R. 589; Tappenden v. Randall (1801), 2 B. & P. 467; 5 R. R. 662; per Bayley, and Littledale, JJ., Hastelow v. Jackson (1828), 8 B. & C. 221, 224, 226; Taylor v. Bowers (1876), 1 Q. B. D. 291, C. A. tract. Due notice of the election to rescind the contract must be given. CH. III. s. 3. (Money Had and Received). Money paid on illegal contract-contd. Rule where contract is executed. Partial execution. Contract to Herman v. Money unjustly recovered at law; premium; it was held that even assuming that the plaintiff had a right, under the circumstances, to rescind the contracthe could not succeed in this action, because he had not, before bringing the action, given formal notice to the underwriter of his renunciation of the contract (b). But where an illegal contract has been executed, and both parties are in pari delicto, no action lies to recover back money paid under it. Thus, if money be paid under an agreement, the object of which is to compromise an offence of a public nature; the party by whom it was paid cannot maintain this action to recover it back, even although the proceedings against him should prove to be defective and void (c). And so, money paid to the defendant by the plaintiff and others, as subscriptions for a prize which was to abide the event of an illegal game, cannot be recovered in this action by the winner (d); nor can the assured recover in this action money paid as premiums on a policy of insurance which, at common law or by statute, is illegal or void (e). Even if the illegal contract has been only partially carried into effect, the money paid under it cannot be recovered (ƒ). A contract to indemnify bail is illegal, whether entered into by the prisoner bailed, or by another person (g), and it is executed as soon as money is paid thereunder, so that if a defendant in a criminal case deposit money with his bail upon the terms that the money is to be retained for the period for which bail is required and then returned to him, such defendant cannot recover the money either before or after such period (h). And it would seem that the statement of an account, in which the money due by the terms of the illegal contract is allowed, is, for the purposes of this rule, equivalent to payment thereof (i). (k) Action for Money paid under void Judgment. This action lies to recover money paid under a void authority, e.g., under the sentence of a Court which had no jurisdiction (b) Palyart v. Leckie (1817), 6 M. & S. 290; 18- R. R. 381. (c) Goodall v. Lowndes (1844), 6 Q. B. 464; Ex parte Caldecott, In re Mapleback (1876), 4 Ch. D. 150; Ex parte Wolverhampton and Staffordshire Banking Co., In re Campbell (1844), 14 Q. B. D. 32; and cf. Williams v. Bayley (1866), L. R., 1 H. L. 200. (d) Allport v. Nutt (1845), 1 C. B. 974; and see Gaming Act, 1845, s. 18; Ch. XXI., sect. 5 (6), post. (e) Andrée v. Fletcher (1789), 3 T. R. 266; Vandyck v. Hewitt (1800), 1 East, 96. (f) Kearley v. Thomson (1890), 24 Q. B. D. 742, C. A. (g) Consolidated Exploration and Finance Co. v. Musgrave, [1900] 1 Ch. 37, per North, J. (h) Herman v. Jeuchner (1885), 15 Q. B. D. 561, C. A., overruling Stephen. J., Wilson v. Strugnell (1881), 7 Q. B. D. 548, on the point of when a contract to indemnify bail is executed. (i) Owens v. Denton (1835), 1 Cr., M. & R. 711. |