future maintenance of a bastard child, when born, if the child die before any expense is incurred; or a sum of money paid contrary to the statute, to parish officers for supporting such child, where expenses equal to the amount have not been incurred (p).

If a party enter at a horse race a disqualified horse, knowing it to be so, he cannot, at least after the race, recover back his stake from the clerk of the course, as money had and received to his use, upon the ground that the horse never could have won the race (9).

A. was indebted to B. in a sum of 8687., for which he was arrested. C., who was clerk to B.'s attorney, directed him to be discharged on paying 7007. only; B. threatened to complain to C.'s employers; to prevent which C. advanced 100l.; B. agreed that it should be re-paid whenever the balance of 1687. should be recovered from A. After the death of B. and C. the balance was recovered; it was held that the representatives of C. might recover the 1007. from the representatives of B., on a count for money had and received to their use, and that there was no necessity to declare specially (r).

9thly, Money paid by mistake :—The count for money had and received is also maintainable for the recovery of money paid under a mistake, on the part of the payer, of a material fact.

With respect to payments made by mistake, this difference exists, namely, that if the plaintiff were merely ignorant of the law, or legal effect of all the circumstances under which he paid the money, and had a full knowledge of the facts, (or such reasonable means of ascertaining them, that he must be supposed to have been acquainted with them, or to have been guilty of laches in not acquiring the information), he cannot recover back the money so paid; but if he were mistaken as to a material fact, and were not possessed of such means of information, he is entitled to a return of money paid by him under, or in consequence of, such misapprehension (s).

(p) Ante, 228, 229.

(q) Wellar v. Deakins, 2 C. & P. 618. (r) Platts v. Lean, 3 C. & P. 561.

(s) Lowry v. Bourdieu, Dougl. 471, per Buller, J.; Bize v. Dickason, 1 T. R. 286, 287, per Mansfield, C. J.; Bilbie v. Lumley, 2 East, 470, 471, per Lord Ellenborough, C. J.; Stevens v. Lynch, 12 East, 39, per Curiam; Brisbane v.

Dacres, 5 Taunt. 143; Gomery v. Bond, 3 M. & Sel. 378; The East India Company v. Tritton, 3 B. & C. 290, per Holroyd, J.; 5 D. & R. 214, S. C.; Wilkinson v. Johnston, 3 B. & C. 434, per Abbott, C. J.; 5 D. & R. 403, S. C.; Milnes v. Duncan, 6 B. & C. 671 & 677,678. Sir W. D. Evans, in his edition of Pothier (2 vol. 369 to 407), denies

Bilbie v. Lumley (t), is a leading case upon this subject. It was an action by an underwriter, upon a policy on a ship, to recover back money he had paid the defendant, as for a loss by capture. A material fact had been concealed from the underwriter, and such concealment would have afforded him a defence; but after he had been apprised of the concealment, he paid the money; not being at the time aware of the legal effect thereof. It was held he could not recover back the amount.

Brisbane v. Dacres (u) is to the same effect. The captain of a king's ship brought home in her public treasure upon the public service, and treasure of individuals for his own emolument; he received freight for both, and paid over one third of it, according to a usage heretofore established in the navy, to the admiral under whose command he sailed. Discovering that the law does not compel captains to pay to admirals one-third of the freight, the captain brought an action for money had and received, to recover it back from the admiral's executrix; it was held by the Court, (Chambre Justice dissenting,) 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 with full knowledge of the facts, although in ignorance of the law, and because it was not against conscience for the executrix to retain it.

So if a tenant voluntarily pay the land tax, and afterwards for a long period pay his rent in full, without claiming any deduction on account of the payments he has made, as he might have done, he cannot afterwards recover back the monies so paid from his landlord (r).

Milnes v. Duncan (y), was the case of a payment of money under an ignorance of facts. A bill of exchange was drawn in Ireland, upon the stamp required by law, which was less in

the soundness of this distinction, (which is clearly established in the English law,) and contends that money paid under a mere mistake of law without any moral duty to pay it, ought to be recoverable back. He argues that the legal ignorance of one man under no moral obligation, and not intending a gratuitous donation, ought not to be to another a title of adventitious acquisition. Some of the writers on civil law, and M. Duesseau, a celebrated French lawyer, support this opinion. Pothier admits the distinction. By the

French law (Code Civil,Tit. 4, Livre 3,
Article 1376): " celui qui reçoit par
erreur ou sciemment, ce qui ne lui est
pas du, s'oblige à le restituer à celui
qui l'a indument reçu. Lorsqu'une
personne qui, par erreur, se croyait
débitrice, a requitté un dette, elle a le
droit de répétition contre le créancier.”
(1) 2 East, 469.
(u) 5 Taunt. 143.

(x) Denbyv. Moore, 1 B. & Ald. 123; Spragg v. Hammond, 2 B. & B. 59; Ante, 270, note (n).

(y) 6 B. & C. 671; 9 D. & R. 731.

amount than the stamp required for such a bill drawn in England ; but there was nothing on the face of the bill to shew that it had been drawn in Ireland. The holder in England neglected to present it for payment, and held it a month after it was due. The acceptor having become bankrupt, the holder applied for payment to the indorser, who had transferred it to him. The latter refused to pay it, alleging that the holder had made it his own by his laches. The holder then threatened to sue him, alleging that the bill was void, on the ground that it was drawn on an improper stamp. The indorser inspected the bill, and finding that the stamp was not that required for a bill of the same amount drawn in England, but ignorant of the fact that it had been drawn in Ireland, paid the amount to the holder. It was held, that this was money paid in ignorance of the fact; and there being no laches imputable to the party who paid the money, that he might recover it back in an action for money had and received. Bayley, J., said, “If a party pay money under a mistake of the law, he cannot recover it back. But if he pay money under a mistake of the real facts, and no laches is imputable to him, (in respect of his omitting to avail himself of the means of knowledge within his power,) he may recover back such money. In this case the question is, whether there was, on the part of the plaintiff, at the time when he made the payment, ignorance of the true facts, or any negligence imputable to him, in not availing himself of the means of knowledge within his power."

The plaintiff, the father of a bastard child, upon whom an order of filiation had been made, paid several sums in pursuance of the order to the defendant, as overseer of the poor. The child had been placed in the Foundling Hospital, and was there supported during the period for which the payments were made. The plaintiff was ignorant of these facts, and was refused information respecting the child. It was held by Sir James Mansfield, C. J., that he was entitled to recover back these moneys, as having been paid by mistake, and under a concealment of circumstances (z).

A person who, without knowledge of the forgery, discounts a forged navy bill, bank note, bill of exchange, or promissory note, for another, may recover back the money, as paid by mistake,

(z) Hodgson v. Williams, 6 Esp. R. 29.

although the defendant were not aware of the forgery when he transferred the instrument, and his indorsement was not taken. In such case there is a failure of the consideration (a). And where the plaintiffs, who were bill brokers, discounted for the defendant 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 plaintiffs, were forged; it was held, that the defendant was liable to refund the money, and that the fact of his having paid over the amount to the indorsee, for whom he was broker, did not exonerate him (b). And if a banker mistakenly take up and pay a dishonoured bill, for the honour of a customer, whose name is forged, (such bill having been presented to him as bearing the genuine indorsement of such customer,) and the banker discover and give notice of the forgery to the holder on the day the payment was made, so as to enable him to give notice of non-payment to the prior parties on that day, it seems the money is recoverable back by the banker from the holder, to whom it was paid by him (e). But bankers who pay a forged acceptance of a customer, made payable at their house, to a bonâ fide holder, and who do not discover and give notice of the forgery until it is too late for the holder to give notice of non-payment, cannot recover back the amount from him (d). And where a bill, purporting to have been accepted by D., was presented for payment to his bankers on the day when it became due, and the latter, believing it to be the general acceptance of A., paid the amount; but on the following day, having discovered that the acceptance was a forgery, they gave notice of that fact to the party to whom they had paid the bill, and required him to return the money; it was held, that the holder of the bill is entitled to know on the day when it becomes due, whether it is honoured or dishonoured; and. that no notice of the forgery having been given on the day the bill became due, the parties who had paid the money were not entitled to recover (e).

If the drawee of a bill accept and pay it under a mistaken

(a) Jones v. Ryde, 1 Marsh. 157; 5 Taunt. 488, S. C.; cited in Cocks v. Masterman, 9 B. & C. 905.

(b) Fuller v. Smith, R. & M. 49. (e) Wilkinson v. Johnston, 3 B. & C. 428; 5 D. & R. 403, S. C.; cited in Cocks v. Masterman, 9 B. & C. 908,

per Bailey, J.; 4 Man. & Ryl. 679.

(d) Smith v. Mercer, 6 Taunt. 76; Wilkinson v. Johnston, 3 B. & C. 435, 437.

(e) Cocks v. Masterman. Qu. Why an early communication on the following day should not suffice?

notion that the bill is drawn by his creditor, he cannot recover the amount from a bona fide holder, on its appearing that the drawer's name was a forgery (ƒ).

In general, bankers who pay a forged check, which purports to be the check of a customer, must sustain the loss (g); and we have seen that if a banker pay a check, improperly altered by a third person as to the amount, he has no claim against the customer who drew it, beyond the original sum, unless the forgery were caused or facilitated by any negligence on the part of the customer (h). Where the defendant, knowing a check to be postdated, and that the drawers were insolvent, presented it for payment to the plaintiffs, who were bankers, and who, without knowledge of these facts, paid the amount, although they had no funds of the drawers in their hands at the time, but expected some in the course of the day, it was held that they were entitled to recover it back as money had and received to their use (i).

If a sheriff, executing a fieri facias, sell the goods, and pay over the proceeds to the plaintiff, in ignorance of an act of bankruptcy committed by the defendant in the action, and is afterwards bound to pay the amount to the assignees, he may recover it from the plaintiff in the original suit as money paid in ignorance of facts (k).

The instances in which an agent may recover back from his principal, money for which the former has prematurely and mistakenly given the latter credit, have been already mentioned (7).

If a party voluntarily pay money, which the law would not have compelled him to discharge, but which in justice he ought to pay, as a debt barred by the Statute of Limitations, bank

(f) Price v. Neal, 3 Burr. 1354; 1 Bla. R. 390, S. C.; Barber v. Gingell, 3 Esp. 60; Wilkinson v. Johnston, 3 B. & C. 434, per Abbott, C. J.; 5 D. & R. 403, S. C.

(g) Hall v. Fuller, 5 B. & C. 750; 8 D. & R. 464, S. C.; Young v. Grote, 12 Moor, 489, 491; 4 Bing. 253, S. C. (h) Ante, 470; Maltby v. Carstairs, 7 B. & C. 735; 1 Man. & Ryl. 511; Young v. Grote, 12 Moore, 484; 4 Bing. 253, S. C.

(i) Martin v. Morgan, 3 Moor, 635; Gow, 123, S. C. In this case the parties did not stand on fair and equal

terms. The defendant concealed material facts, and was guilty of a species of fraud.

(k) Brydges v. Walford, 6 M. & Selw. 42; Notley v. Buck, 8 B. & C. 160; 2 Man. & R. 68. See Crowder v. Long, id. 598, post, 502.

(1) Ante,477,478. Money mistakenly credited on account between paymaster and military officer, when not recoverable back; Skyring v. Greenwood, 4 B. & C. 281; 6 D. and R. 401, S. C.; Shaw v. Picton, id., 715; Shaw v. Dartnell, 6 id., 65; 9 D. & R. 54, S. C.