and Bramwell, BB. Where a bill was given by one partner for the balance of an account, alleged to be due from the partnership to the defendant, and he afterwards found that this account included a separate debt due from his co-partner, and then paid the amount of the bill to the holder, under protest, to save the drawer's credit: it was held this was not a voluntary payment, and that the plaintiff might recover from the defendant the amount of the private debt. Kendal v. Wood, L. R., 6 Ex. 243, Ex. Ch.

Money paid with full knowledge of facts by a person who might have resisted payment cannot be recovered back. Thus where a discharged insolvent, being lawfully arrested by one of his creditors, pays the debt, he cannot get it back in this action; and semble, if he had given a security for it (which would itself have been void as against the statute), and paid the amount when due, he could not have recovered it back. Viner v. Hawkins, 9 Exch. 266; 23 L. J., Ex. 38. Where a mortgagee gave notice of the mortgage to a tenant and demanded the rent, and the tenant chose to pay it to his landlord, the mortgagor, on an indemnity which proved to be bad, it was held that he could not recover the rent back from his lessor after he had been obliged by distress to pay it over again to the mortgagee. Higgs v. Scott, 7 C. B. 63. The rule in equity is in general the same as at law. Rogers v. Ingham, 3 Ch. D. 351; and see Id. 356, 357. But in the case of a common mistake of both the payer and the payee, relief may sometimes be given; see Daniell v. Sinclair, 6 Ap. Ca. 181, P. C., cited post, p. 596. Not every mistake of fact will enable the party to recover money paid in ignorance. Thus, where A. conveyed to his bankers by way of security all his interest in a supposed devise to him, subject to a charge on it of a debt due from A. to B., and the bankers afterwards voluntarily paid to B. the debt at A.'s request, it was held that they could not recover back the money from B. upon discovering that the will had been revoked and the security was worthless. In this case the debt paid was really due to B., and the only mistake of the bankers was in supposing that they held a good security against A. for the advance. Aiken v. Short, 1 H. & N. 210; 25 L. J., Ex. 321. So where bankers cash a customer's cheque and afterwards discover that they have no assets of his, they cannot recover the money back from the person to whom they paid it. Chambers v. Miller, 13 C. B., N. S. 125; 32 L. J., C. P. 30; see also Pollard v. Bank of England, L. R., 6 Q. B. 623. See further the notes to Marriot v. Hampton, 2 Smith's Lead. Cas. 9th ed. 458 et seq.

Where money had been paid to the defendant by the plaintiffs on an insurance on a ship effected by the defendant as the agent of a foreign principal, and the defendant, when effecting the insurance, had suppressed a material fact which if known to the plaintiffs would have enabled them to resist the payment, and on discovering the fact the plaintiffs brought an action against the defendant to recover the money; it was held that the defendant having suppressed the fact with no intention to defraud, and having paid the money over to his principals, or settled it in account with them, before demand by the plaintiffs, was not liable to refund it. Holland v. Russell, 1 B. & S. 424; 30 L. J., Q. B. 308; 4 B. & S. 14; 32 L. J., Q. B. 297, Ex. Ch.; accord. Shand v. Grant, 15 C. B., N. S. 324. Where, however, the defendant has, as principal, so received the money to which he is not entitled, it is no answer that he has paid it over to another person for whom he was acting. Newall v. Tomlinson, L. R., 6 C. P. 405.

Where an article is sold, which turns out to be of less value than the price given for it, the extra price if there be no fraud cannot be recovered back. Per Le Blanc, J., Cox v. Prentice, 3 M. & S. 349. But if parties

agree to abide by the weighing of any article at any particular scales, and, in the weighing, an error not perceived at the time takes place from an accidental mis-reckoning of some weight, and the thing is reported of more weight than it really is, and the price is paid thereupon, money had and received is sustainable. Per Le Blanc, J., and Ld. Ellenborough, C.J., Ibid. In that case a bar of silver, having been assayed by a third person, was bought of the defendant by the plaintiff and paid for according to the assay, but it turned out that the assay was wrong, and the bar contained less silver; it was held that the plaintiff could recover what he had overpaid.

Though this action will not lie for the purpose of determining a right to an interest in land, Lindon v. Hooper, Cowp. 414, yet where the title is not in issue it will often lie to recover back payments made under misapprehension of title. Thus, a tenant who paid rent to his landlord and was afterwards ejected by a third person who recovered mesne profits from him for the period during which the tenant has paid his rent, may recover the rent so paid from his landlord in an action for money had and received, the landlord not having set up any title at the trial of the ejectment. Newsome v. Graham, 10 B. & C. 234; see Freem. 2nd ed. 479 (d). So where a tenant continues to pay rent to the defendant in ignorance of the failure of a life on which his lease depends, he may recover back the payments, there being no dispute about title. Barber v. Brown, 1 C. B., N. S. 121; 26 L. J., C. P. 41.

As to money had and received on rescinding a contract or on breach of warranty, see ante, pp. 320, 321, 469.

Money obtained by fraud, duress, &c.] Where money has been obtained by fraud, this action lies to recover it back; and money fraudulently obtained may be recovered, although the defendant may be entitled to it as legatee. Crockford v. Winter, 1 Camp. 124. After the death of a bankrupt tenant for life his assignees were allowed to recover as money had and received, the bygone rents from a person who had received them under the colour of a fraudulent assignment. Pearce v. Day, cited 2 Russ. & Myl. 124. If A. by means of a false pretence or a promise, or condition which he does not fulfil, induce B. to give him a cheque, and hand it over to C. in fraud of B., but C. takes it bona fide for value and obtains cash for it at B.'s bankers, B. cannot recover the money from C. Watson v. Russell, 3 B. & S. 34; 31 L. J., Q. B. 304; Ex. Ch., 5 B. & S. 968; 34 L. J., Q. B. 93. Where the defendant, being secretly married already, married the plaintiff and received the rents of her lands, they were held recoverable in this form of action. Hasser v. Wallis, 1 Salk. 28. Where A. is agent of B. to pay certain acceptances of B., and the defendant obtains payment from A. by falsely representing himself to be the holder of one of the acceptances, the action for money had and received will lie at the suit of A., or semble of B. also. Holt v. Ely, 1 E. & B. 795. In Govett v. Hopgood, Exeter Sp. Assizes, 1852, cor. Erle, J., the plaintiff, a lady imbecile from age and infirmity, recovered in this form of action a large sum which was alleged to have been a gift by her to the defendant's wife. The plaintiff, being herself called as a witness, showed her incapacity on her examination, and the judge left it to the jury to say whether she knew what she was about when she gave the money. Where the defendant fraudulently colluded with J. S., who was insolvent, to obtain wines from the plaintiff, the proceeds on the re-sale of which eventually came into the defendant's hands in satisfaction of a debt due to him from J. S.; the plaintiff was held entitled to recover in this action. Abbotts v. Barry, 2 B. & B. 369; 5 B. Moore, 98. The plaintiff can only rescind a

contract on the ground of fraud when he can disaffirm the contract and remit the defendant to his former state. Urquhart v. Macpherson, 3 Ap. Ca. 831, P. C., and see also cases cited infra.

The promoters of a company advertised a large capital in 120,000 shares the plaintiff took an allotment of 60 shares; notice was then published by the promoters that all the shares were allotted; whereupon the plaintiff paid a deposit on the shares and signed the subscription contract. He afterwards discovered that less than half the shares had been in fact allotted, and that the company had no funds. Held, that on this evidence of fraud he might recover back his deposit from one of the active promoters. Wontner v. Shairp, 4 C. B. 404. See also Jarrett v. Kennedy, 6 C. B. 319, cited ante, p. 580. If a fraudulent statement in a public advertisement can be traced to the secretary of a company, and purport to be by order of the directors, semb. an express authority to publish it may be presumed. Wontner v. Shairp, supra; and see Watson v. Charlemont, El. of, 12 Q. B. 856. But a party who seeks to repudiate shares on the ground of fraud must do so while he is in a condition to put both parties in statu quo. He cannot do so after the company has gone into liquidation; Stone v. City and County Bank, 3 C. P. D. 282, C. A.; nor after he has received dividends and has permitted the company to become incorporated under 19 & 20 Vict. c. 47. Clarke v. Dickson, E. B. & E. 148; 27 L. J., Q. B. 223; Cole v. Bishop, E. B. & E. 150, n.; Addie v. W. Bank of Scotland, L. R., 1 H. L. Sc. 145, 165. But he may sue for the fraud and so get damages; S. C., Clarke v. Dickson, 6 C. B., N. S. 453; 28 L. J., C. P. 225; see Action for deceit, post, p. 849; and where an allottee of shares has repudiated them on the ground of fraud by the company, and his name has been removed from the register, it seems that the sum paid on the shares is recoverable in this form of action. See Ship v. Crosskill, L. R., 10 Eq. 73; Askew's Case, L. R., 9 Ch. 664, 666.

There is an important difference between cases where a contract may be rescinded on account of fraud and those in which it may be rescinded on the ground that there is a difference in substance between the thing bargained for and that obtained; for “ it is enough to show that there was a fraudulent representation as to any part of that which induced the party to enter into the contract which he seeks to rescind; but where there has been an innocent misrepresentation or misapprehension, it does not authorize a rescission, unless it is such as to show that there is a complete difference in substance between what was supposed to be and what was taken, so as to constitute a failure of consideration." Kennedy v. Panama, &c. R. Mail Co., L. R., 2 Q. B. 580, 587, per cur. See further, cases cited sub-tit. Action for deceit, post, p. 848.

Where a man has been obliged involuntarily, and by wrongful duress, to pay money, it may be recovered in this action; as where he has paid an exorbitant sum to redeem his goods from pawn; Astley v. Reynolds, 2 Str. 915; or wrongful detention; Ashmole v. Wainwright, 2 Q. B. 837 ; Green v. Duckett, 11 Q. B. D. 275. See Kendal v. Wood, L. R., 6 Ex. 243, ante, p. 584. Plaintiff being indebted to the defendant and others, offered a composition of 58. in the pound, which some of the creditors accepted, but the defendant refused until the plaintiff had privately given him 50%., when he executed the deed. Some of the other creditors had refused to sign unless the defendant signed, and this he knew; held, that the plaintiff could recover the 507. Atkinson v. Denby, 7 H. & N. 934; 31 L. J., Ex. 362, Ex. Ch.; In re Lenzberg's Policy, 7 Ch. D. 650, and see post, p. 590. So where a party to a reference has been obliged to pay an unreasonable charge of the arbitrator in order to take up the award; per

cur. in Re Coombs, 4 Exch. 839. See Roberts v. Eberhardt, 3 C. B., N. S. 482; 28 L. J., C. P. 74, Ex. Ch. So the action lies where goods, not liable to seizure, are seized by a revenue officer, who extorts money to release them; Irving v. Wilson, 4 T. R. 485; or a public officer demands and exacts an excessive fee; as a parish clerk for a search in a register; Steele v. Williams, 8 Exch. 625; 22 L. J., Ex. 225; or a corporation officer extorts a fee for granting a licence; Morgan v. Palmer, 2 B. & C. 729; or a sheriff claims and receives a larger fee than he is entitled to; Dew v. Parsons, 2 B. & A. 562; or a toll-keeper exacts an illegal toll; Parsons v. Blandy, Wightw. 22; or a railway company, bound by their special act to charge rates equally to all, detains or refuses to carry the parcels of a particular person until he pays an unreasonable charge. Parker v. Gt. W. Ry. Co., 7 M. & Gr. 253; Edwards v. Id., 11 C. B. 588; 21 L. J., C. P. 72; Baxendale v. Id., 16 C. B., N. S. 137; 33 L. J., C. P. 197, Ex. Ch.; Sutton v. Id., 3 H. & C. 800; 35 L. J., Ex. 18; L. R., 4 H. L. 226; Baxendale v. L. & S. W. Ry. Co., L. R., 1 Ex. 137; Gidlow v. Lancashire & Yorkshire Ry. Co., L. R., 7 H. L. 517. And this, although part of the money was received by the defendants as agents of another company and for their use. Parker v. Bristol & Exeter Ry. Co., 6 Exch. 702. See further post, pp. 604, 605. So if a mortgagee with power of sale refuse to stop a sale unless the mortgagor pays expenses not duly chargeable upon him, which the mortgagor accordingly pays under protest. Close v. Phipps, 7 M. & Gr. 586. So where a mortgagee having agreed to assign his security on payment of principal, interest and costs, made a claim for costs to which he was not entitled, and on his refusal to execute the assignment on any other terms, the assignee, by direction of the mortgagor, paid the sum demanded under protest; held, that the mortgagor could recover the excess, as paid not under duress in the strict legal sense, but as paid involuntarily under undue pressure. Fraser v. Pendlebury, 31 L. J., C. P. 1. So if a sheriff obtain payment by a wrongful seizure under a fi. fa. by a threat of selling the goods, though not liable to the execution; Valpy v. Manley, 1 C. B. 594; or a solicitor illegally detain deeds till an undue claim is satisfied; Wakefield v. Newbon, 6 Q. B. 276; Turner v. Deane, 3 Exch. 836; even though he detain them as solicitor of the third person, who had no right to payment, and though he has paid over the money to his client; Oates v. Hudson, 6 Exch. 346; 20 L. J., Ex. 112;-in all such cases this action is maintainable. See also Gibbon v. Gibbon, 13 C. B. 205; 22 L. J., C. P. 131. And in these cases it makes no difference that the defendant, who has obtained the money as an agent, has handed it over to his principal. See Steele v. Williams, 8 Exch. 625, and cases cited Id. 629; Oates v. Hudson, supra. Aliter if the agent have received, without fraud, money paid under a mistake of facts, and has paid it over to his principal, or settled it in account with him. Holland v. Russell, 4 B. & S. 14; 32 L. J., Q. B. 297, ante, p. 584; Shand v. Grant, 15 C. B., N. S. 324.

Personal duress will, of course, avoid a payment made under its influence; and the wrongful detention of the plaintiff's goods or property for the purpose of obtaining money will, we have seen above, be ground for reclaiming the money paid under such circumstances; but this is not on the ground of duress, but because the payment is involuntary. Where there is a fair and bona fide agreement to pay for redelivery of the detained goods, and no undue advantage taken, the action will not lie; for generally mere duress of goods will not avoid a contract or agreement, so as to enable a party to recover back money paid under it. See Atlee v. Backhouse, 3 M. & W. 650; Skeate v. Beale, 11 Ad. & E. 983.

A party cannot try a title to land in an action for money paid, to release

goods taken as a distress by a claimant of the land. Lindon v. Hooper, Cowp. 414. And see the observations of the Court in Gingell v. Purkins, 4 Exch. 725, and cases cited ante, p. 585. Nor can the owner of cattle, rightfully distrained damage feasant, recover in this action an excessive demand for damage, though paid under protest. Gulliver v. Cosens, 1

C. B. 788. So it did not lie by a tenant against his landlord for the overplus after sale under a distress; for the proper remedy was an action for not leaving it in the hands of the sheriff or constable; Yates v. Eastwood, 6 Exch. 805; 20 L. J., Ex. 303; Evans v. Wright, 2 H. & N. 527; 27 L. J., Ex. 50; but it seems that the stat. 35 & 36 Vict. c. 92, s. 13, makes it the duty of the landlord to pay the overplus to the tenant, and this form of action is therefore now the appropriate remedy. Where an action is brought, and the defendant pays the demand "without prejudice," he nevertheless cannot afterwards recover the money so paid. Brown v. M'Kinally, 1 Esp. 279. So money recovered by regular legal process, though in fact not due, cannot be recovered back in this action; Marriot v. Hampton, 7 T. R. 269; Hamlet v. Richardson, 9 Bing. 644; even though recovered after judgment by a writ fraudulently issued to levy a sum already paid by the judgment debtor. De Medina v. Grove, 10 Q. B. 152. But where a certificated bankrupt, upon being arrested upon a ca. sa. for a debt provable under the commission, paid the money under a protest stating his bankruptcy and certificate, and warning the sheriff that he should apply to the Court to have the money returned, it was held that this was not such a payment under legal process, with knowledge of the facts, as precluded the bankrupt from recovering back the money. Payne v. Chapman, 4 Ad. & E. 364. And where defendant, knowing he had no real claim, arrested the plaintiff, a foreigner, on his arrival from abroad, for 10,000l., and, under the compulsion of a colourable legal process, extorted from him 5007., " as a payment in part of the writ," the Court held that this action was maintainable. De Cadaval, Dk. v. Collins, Id. 858.

Against officer de facto.] Though a title to land cannot, as we have seen, be tried in this form of action, a title to an office or appointment is often tried in it. Thus the person entitled may sue a usurper of an office for the fees wrongfully received, as in the case of the disputed title to a stewardship of an honour or a court baron; Howard v. Wood, 2 Lev. 245; Freem. 478, and cases collected ib. in 2nd ed.; or office of clerk of the papers in the King's Bench office; Woodward v. Aston, 1 Vent. 296; or office of clerk of the peace; Wildes v. Russell, L. R., 1 C. P. 722; or the office of registrar of an inferior court; Osgood v. Nelson, L. R., 5 H. L. 636; or a rightful against a tortious guardian in socage; obiter, per Holt, C. J., in Lamine v. Dorrell, 2 Ld. Raym. 1217; or the office of crier of a court; Green v. Hewett, 1 Peake, 182; or prothonotary; Campbell v. Hewlitt, 16 Q. B. 258. And in such actions it will be sufficient to show the fees received communibus annis. Montague v. Preston, 2 Vent. 170, 171; B. N. P. 76 (e); semb. Campbell v. Hewlitt, supra. But if there be no accustomed fees attached to the office, and the profits be only casual, as in the case of a sexton who receives only gratuities for showing a cathedral, no such action lies. Boyter v. Dodsworth, 6 T. R. 681. The action lies against a corporation which has taken, and wrongfully detained, fees belonging to an officer of it; Hall v. Swansea, Mayor, &c. of, 5 Q. B. 526; and thus the title to the office itself may be tried.

On waiver of tort.] We have seen that a taking or detention of goods from the plaintiff may be sometimes treated as a sale to the wrongdoer;