being by bill in equity; but this objection will no longer prevail. See J. Act, 1873, s. 24 (1), cited ante, p. 298.

Failure, or want of consideration.] Where money has been paid on a consideration which has wholly failed, it may be recovered in this action by the party who has paid it. Thus, if an annuity be defective, and the deeds are set aside, the consideration money may be thus recovered. Shove v. Webb, 1 T. R. 732. So if one of several securities for the annuity fails. Scurfield v. Gowland, 6 East, 241. So if an annuity be purchased at a time when the annuitant is in fact dead, but neither buyer nor seller knows of this at the time, the buyer may recover back his money. Strickland v. Turner, 7 Exch. 208; 22 L. J., Ex. 115. But where an annuity for A.'s life was regularly paid up to the time of A.'s death, but no memorial of the grant of the annuity was enrolled, it was held that although the contract was void, A.'s executor could not, on that ground, recover back the consideration money as money had and received. Davis v. Bryan, 6 B. & C. 651. Where the annuity is set aside, and the grantee brings an action to recover the consideration money, the defendant may, on a plea of set-off, deduct the payments made by him within six years in respect of the annuity. Hicks v. Hicks, 3 East, 12. So there may be a total failure of part only of the consideration, as where the plaintiff has paid for a parcel of goods of 150 tons at 188. per cwt., and on delivery, it is found to be of 133 tons only, in such case the plaintiff may recover the difference of value. Devaux v. Conolly, 8 C. B. 640. But where the contract is entire and the consideration has only partially failed, the action is not maintainable. As where the plaintiff bought 25 sacks of flour and used 2 sacks of it, although he had objected that it was not equal to sample, it was held he could not rescind the contract and recover the price paid. Harnor v. Groves, 15 C. B. 667; 24 L. J., C. P. 53. So where the thing sold is not severable, and the buyer has enjoyed any part of the consideration for which he paid, he cannot rescind and recover the price. Thus where B. paid A. an annuity for licence to use a patent, which after some years was found to be bad, it was held B. could not recover what he had paid. Taylor v. Hare, 1 N. R. 260, followed in Lawes v. Purser, ante, p. 546. So where a premium was paid to the defendant's testator to instruct an apprentice for six years, and the testator died at the end of one year, it was held that no part of the premium was recoverable from the executor. Whincup v. Hughes, L. R., 6 C. P. 78; vide ante, p. 498. A broker at A.'s request bought railway scrip for him; before the day of account the company converted the scrip into shares, and made a call; held, that A. was bound to accept the shares and pay the call, and could not repudiate the contract and recover back the price. M'Ewen v. Woods, 17 Q. B. 13. As to the recovery of freight, paid under a divisible contract for carriage, the goods having been lost, see Greeves v. W. India, &c. S. Ship Co., cited post, p. 606.

If A. sell to B. a bill as a foreign bill of exchange, which turns out to be an English bill and unavailable for want of a stamp, B. may recover the price in this action, both being ignorant of the defect; but if it had really been a foreign bill, with some latent defect which made it worthless, B. could not have recovered, unless there was a warranty or fraud. Gomperts v. Bartlett, 2 E. & B. 849; 23 L. J., Q. B. 65. So if A. sell to B. a bar of brass as gold, B. may recover the price, though A. was ignorant of the fact. Per Ld. Campbell, C. J., Id. 854. So where the plaintiff bought of defendant a bill, purporting to be an acceptance of A., but which was in fact forged, he was held entitled to recover back the money paid, although there was one genuine though worthless indorsement.

Gurney v. Womersley, 4 E. & B. 133; 24 L. J., Q. B. 46. Where plaintiff, a stockbroker, sold for defendant foreign bonds, which proved to be defective for want of a foreign stamp, and the bonds were afterwards returned on that account by the purchaser, whereupon plaintiff took them back and reimbursed the purchaser, it was held that money had and received was maintainable against the defendant for the amount of purchasemoney paid over to him by the plaintiff. Young v. Cole, 3 Ñ. C. 724. The defendant, a broker, received 8007. from the plaintiffs to purchase a certain number of bales of cotton, and he made a contract in his own name for a larger number, it was held that as the defendant had not made a contract upon which the plaintiffs could sue, they could recover the money back. Bostock v. Jardine, 34 L. J., Ex. 142, misreported in 3 H. & C. 700; see L. R., 7 C. P. 101, per Mellor, J. Where A. has conveyed land on sale to B., and B. is evicted by C. owing to a defect in A.'s title, B.'s only remedy against A. is on A.'s covenants. Clare v. Lamb, L. R., 10 C. P. 334. As to action after conveyance, for damages on the original contract of sale, vide ante, p. 320.

Where shares in a company have been applied for and allotted, but the allottee has subsequently repudiated the shares, and his name has been removed from the register, it seems that the action lies. Stewart v. Austin, L. R., 3 Eq. 299. See also Ship v. Crosskill, L. R., 10 Eq. 73; Alison's case, L. R., 9 Ch. 1, 26. Where a scheme for establishing a tontine was put forth, stating that the money subscribed was to be laid out at interest; and after some subscriptions had been paid to the directors in whom the management of the concern was vested, but before any part of the money was laid out at interest, the directors resolved to abandon the project, it was held that each subscriber might, in this action, recover the whole of the money advanced by him without any deduction for expenses. Nockels v. Crosby, 3 B. & C. 814. So the money paid for the purchase of shares in a joint-stock company may, under similar circumstances, be recovered from the person of whom the shares were bought. Kempson v. Saunders, 4 Bing. 5. So a deposit on shares in a projected company, subsequently abandoned, may be recovered from one of the acting committee. Walstab v. Spottiswoode, 15 M. & W. 501. But the action must be against a party, or one of the parties, who received the money or sanctioned the application of it. Payment to the bankers named in a letter of allotment "to the credit of the company," of which the defendant is an active managing director, is a payment to him. Moore v. Garwood, 4 Exch. 681. It is not enough to show that the defendant was a provisional committee-man and chairman of the managing committee, if he never in fact concurred in their acts, though he may have been present at a meeting of them, from whose proceedings, however, he dissented. Burnside v. Dayrell, 3 Exch. 224. But on a failure of the project, a deposit applied to expenses actually incurred, with the plaintiffs' authority, cannot be recovered. Willey v. Parratt, Id. 211. It is otherwise if paid without his authority. Moore v. Garwood, 4 Exch. 681, 690. Where payment of the deposit by the plaintiff was made "subject to the provisions of the subscriber's agreement," and no such agreement was then in existence; but one was subsequently made, which improperly authorized payment of expenses out of the deposits, and which was not signed by the plaintiff, the plaintiff may recover back the deposit in full, on proof of failure of the projected company; for he neither assented, nor could be required to assent, to such an agreement. Ashpitel v. Sercombe, 5 Exch. 147. Inability to establish the company after a reasonable lapse of time, is evidence of an abandonment of the scheme. Chaplin v. Clarke, 4 Exch. 403. It is no answer to the action that the plaintiff signed the parliamentary and subscription contracts, if his signature were obtained by suppressing the fact that the scheme had

been abandoned. Jarrett v. Kennedy, 6 C. B. 319; vide post, p. 586. Where the deposit was paid to the credit of certain persons in trust for the company, it cannot be recovered from other, though active, members of the company. Watson v. Charlemont, El. of, 12 Q. B. 856. Where all, or substantially all, of the shares in a cost-book mine are not subscribed for, and the directors are obliged to relinquish the mine for want of funds, they are liable to refund to allottees who have not authorized the working or other expenditure; and the deposits are recoverable from the directors, though they were, in fact, paid to their bankers, who were authorized to receive them, and though entered to the credit of some of the directors only. Johnson v. Goslett, 3 C. B., N. S. 569; 27 L. J., C. P. 122, Ex. Ch. See Blackmore v. N. Australasian Co., L. R., 5 P. C. 24. The defendant sold, and the plaintiff bought, shares in a banking company through brokers on the Stock Exchange in the usual way (vide ante, pp. 549 et seq.); the defendant executed a transfer, but the requisite consent by the company to the transfer not having been given, and the company having stopped payment, and ultimately become bankrupt, the plaintiff directed his broker not to pay for the shares or accept the transfer; in obedience, however, to the decision of the Stock Exchange, the broker paid the money to the defendant's broker, who handed it over to the defendant. The plaintiff afterwards paid the money to his broker, under a threat of legal proceedings, and then sued the defendant for money had and received; it was held that the action did not lie, as there was no proof of a total failure of consideration. Remfry v. Butler, E. B. & E. 887, Ex. Ch.; Stray v. Russell, 1 E. & E. 888; 29 L. J., Q. B. 115, Ex. Ch. Money paid by the plaintiff, as the price of a grant of a patent right which he knew did not exist, cannot be recovered back, as the plaintiff obtained that for which he paid the price. Begbie v. Phosphate Sewage Co., L. R., 10 Q. B. 491; 1 Q. B. D. 679, C. A.

Where a fixed sum has been paid to the parish by the putative father of a bastard in discharge of further liability, and the child dies, the unexpended residue may be recovered in this action. Watkins v. Hewlett, 1 B. & B. 1. And in Chappell v. Poles, 2 M. & W. 867, the balance was held recoverable, though the defendants (the overseers who had received the money) had handed over the money to their successors, the child having died during the defendants' year of office; and semble, the whole sum paid was money had and received to the plaintiff's use from the time it was so paid; such contract being illegal and void. Ibid.

If A. pay B., a gratuitous bailee, money to be employed to a particular purpose, which B. neglects to do, A. may recover it back in this form of action; but semble, it will be otherwise, if B. have lost it by gross negligence; for this is the subject of a special action for such negligence. Parry v. Roberts, 3 Ad. & E. 118. Where the plaintiff abandons the purpose for which money was deposited with the defendant; Baird v. Robertson, 1 M. & Gr. 981; or countermands a direction to the defendant to pay over the money, before the defendant has paid it over or entered into a binding contract to do so; Taylor v. Lendey, 9 East, 49; Fletcher v. Marshall, 15 M. & W. 755; he may sue for money had and received. But where money has been paid to an agent to apply in a particular manner, the principal cannot sue the agent in this form of action, for neglecting his instructions, before he has countermanded the agent's authority; Ehrensperger v. Anderson, 3 Exch. 148; unless there has been a total refusal on the part of the agent to perform his part of the contract. Id. 158. If A. give a letter of credit to B. to apply the proceeds to a specific purpose, and B. is persuaded by C., who is cognizant of the facts, to lend the money to him, and he fails to repay it, A. may sue C. in this form of action. Litt v. Martindale, 18 C. B. 314.

Conduct money received with a subpoena may be recovered back by the party who paid it, where the attendance of the witness has been countermanded, and he has incurred no expense. Martin v. Andrews, 7 E. & B. 1; 26 L. J., Q. B. 39.

In cases of forgery.] Where a party paying money upon a forged instrument, has not been guilty of any want of that caution which, in consequence of the character which he fills, he is bound to exercise, and has not by his conduct affected the rights of any other parties to the instrument, he may in general recover back the money as money paid under a mistake. Thus a person who discounts a forged navy bill, may recover back the money as money had and received to his use. Jones v. Ryde, 5 Taunt. 488; 1 Marsh. 157. So in the case of forged bank-notes; per Gibbs, C. J., S. C.; and of Bank of England notes, the numbers of which had been altered, and payment was in consequence refused. Leeds Bank v. Walker, 11 Q. B. D. 84; vide ante, p. 385. So where a banker by mistake paid a bill for the honour of a customer whose name was forged, but, discovering the mistake, gave notice thereof the same morning to the holder in time to enable him to give notice of non-payment to the indorsers, it was held that the money was recoverable from the holder. Wilkinson v. Johnson, 3 B. & C. 428; and see Gompertz v. Bartlett, and cases cited ante, p. 579. 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 plaintiffs) were forged, it was ruled that the defendants were liable to refund the money. Fuller v. Smith, Ry. & M. 49.

But where the party paying the money ought to have ascertained, or is bound to know, that the handwriting is forged; or where, by his delay in discovering his mistake, he has deprived the holder of the means of resorting to other parties on the bill, he will not be allowed to recover. Thus, where two bills were drawn upon the plaintiff, one of which he accepted, and both of which he paid, and it appeared that the handwriting of the drawer was forged, it was held that it was incumbent upon the plaintiff to be satisfied that the bill drawn upon him was in the drawer's hand before he accepted or paid it, and that he could not recover the amount from the payee. Price v. Neale, 3 Burr. 1354; 1 W. Bl. 390. So where a banker paid a bill to a bona fide holder, which purported to be accepted payable at his house by one of his customers, and the forgery of the acceptor's name was not discovered until the end of a week, it was held that the money could not be recovered from the holder; Smith v. Mercer, 6 Taunt. 76; and the banker in such a case cannot recover, though he give notice of the forgery on the day after he has paid it; for the holder is entitled to know whether it is to be dishonoured on the very day it becomes due. Cocks v. Masterman, 9 B. & C. 902. Where a cheque, drawn by a customer upon his banker, for a sum of money, described in the body of the cheque in words and figures, was afterwards altered by the holder, who substituted a large sum for that mentioned in the cheque, in such a manner that no person in the ordinary course of business could observe it, and the banker paid to the holder this larger sum, it was held that the banker could not charge his customer for anything beyond the original sum. Hall v. Fuller, 5 B. & C. 750. But where the customer drew a cheque for 501., and left a space on the line before the fifty, and also a space between the £ and the 50, so that the person to whom it was delivered was enabled to insert three hundred and before the fifty, and the figure 3 between the £ and the 50, it was held that the forgery and payment were from the customer's negligence, and he must bear the loss. Young v. Grote, 4 Bing. 253; Halifax Union v. Wheelwright, L. R., 10 Ex.

183. See, however, Baxendale v. Bennett, 3 Q. B. D. 525, 533, 534, per Brett, L. J. And if the mistaken payment by the banker be not the direct and immediate consequence of the customer's negligence, the banker cannot charge him with the amount. Vagliano v. Bank of England, 22 Q. B. D. 103; 23 Id. 243, C. A. See further, ante, p. 77. The executor of A. recovered from the maker of a note, purporting to be payable to A. and B., of whom A. survived B. It afterwards appeared that A.'s name had been added by forgery, and B.'s executor thereupon sued A.'s executor for money received to plaintiff's use; held, that he could not recover, for it was not money paid on a note to which, if genuine, the plaintiff would have been entitled. Vaughan v. Matthews, 13 Q. B. 187. As to the liability of a banker for the amount paid or received in respect of a cheque payable to order, the indorsement of which has been forged, vide ante, pp. 395, 396.

As to the recovery of money obtained under a forged power of attorney, see Stone v. Marsh, 6 B. & Č. 551; and Marsh v. Keating, 1 N. C. 198, cited post, p. 589.

Money paid under ignorance or mistake of facts or of law.] Money paid with a knowledge of all the facts, but under a mistake of the law, cannot in general be recovered back, there being nothing against conscience in the other retaining it. Bilbie v. Lumley, 2 East, 469; Brisbane v. Dacres, 5 Taunt. 143; Barber v. Pott, 4 H. & N. 759; 28 L. J., Ex. 381; Rogers v. Ingham, 3 Ch. D. 351. Thus, where the plaintiff has suffered the defendant to sell some of his property under an impression that it had passed to the defendant by deed of assignment, which was, in fact, inoperative, he cannot recover the price as money received to his use. Platt v. Bromage, 24 L. J., Ex. 63. But money paid under a mistake of facts, and which the party receiving it has no claim in conscience to retain, is recoverable as money paid without consideration. Bize v. Dickason, 1 T. R. 285; Milnes v. Duncan, 6 B. & C. 671. And money so paid in ignorance may be recovered back, although the defendant cannot be put in statu quo. Standish v. Ross, 3 Exch. 527. Where money was paid on account, and a dispute afterwards occurred between the parties, and a balance was struck omitting to notice the sums paid, and the plaintiff paid the whole balance, he was permitted to recover the sum paid on account, as money paid under a mistake in the hurry of business. Lucas v. Worswick, 1 M. & Rob. 293. And a payment, made in bonâ fide forgetfulness of a fact formerly known to the plaintiff, may be recovered back. Kelly v. Solari, 9 M. & W. 54. And it is not enough to disentitle the plaintiff that he might have learnt the real fact upon inquiry, unless he has voluntarily waived all inquiry into the truth. S. C. Thus where, on the dissolution of a partnership, the plaintiff paid the defendant a sum for a share therein, on the footing of an investigation of the partnership accounts which he had made, and on further investigation he found that the profits were less than he had first estimated, so that a smaller sum than he had paid was payable to the defendant under the agreement for sale; held that the plaintiff could recover from the defendant the sum paid in excess. Townsend v. Crowdy, 8 C. B., N. S. 477; 29 L. J., C. P. 300. The action will lie, although the position of the defendant has been altered since the payment was made, unless there is some mutual relation between the parties creating a duty on the plaintiff, breach of which disentitles him to recover. Durrant v. Ecclesiastical Commissioners, 6 Q. B.

D. 234.

It has been said that, before commencing the action on the ground of mistake, it is necessary to give the defendant notice of the mistake, and to demand the money. Freeman v. Jeffries, L. R., 4 Ex. 189, per Martin