customer (g). Where the defendant, knowing a check to be post-dated, 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 (h).

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 after wards 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 (i).

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 (k).

In Harris v. Lloyd (1) it appeared that one Carter, a trader, on the 5th of June, 1838, assigned his effects in trust for the benefit of his creditors. On the same day, but before the execu tion of the assignment, a fi. fa. against Carter was delivered to the sheriff's agent in London, under which a sheriff's officer levied upon his goods on the 6th. The trustees under the assignment paid him the amount of the levy under protest, and he withdrew from possession. It afterwards appeared that Carter had committed an act of bankruptcy on the 2d of June; upon which a fiat issued on the 18th; and it was held that the trustees could not recover back from the sheriff the money so paid by them to the officer as having been paid under a mistake of facts; the money was not paid under a mistake of facts, but upon a speculation or bargain, the failure of which could not entitle the trustees to recover it back.

(g) Ante, 579, and 631, note (ƒ); Maltby v. Carstairs, 7 B. & C. 735; 1 Man. & Ryl. 511; Young v. Grote, 12 Moore, 484; 4 Bing. 253, S. C.

(h) Martin v. Morgan, 3 Moore, 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.

(i) Brydges v. Walford, 6 M. & Selw. 42; Notley v. Buck, 8 B. & C.

160; 2 Man. & Ryl. 68. See Crowder v. Long, id. 598; post.

(k) Ante, 605, 624, 630; and see Young v. Cole, 3 Bing. N. C. 730. Money mistakenly credited on account between paymaster and military officer, when not recoverable back; Skyring v. Greenwood, 4 B. & C. 281; 6 D. & R. 401, S. C.; Shaw v. Picton, id. 715; Shaw v. Dartnell, 6 B. & C. 65; 9 D. & R. 54, S. C.

(1) Harris v. Lloyd, 5 M. & W.432.

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, bankruptcy, or infancy, &c., he has no remedy to recover it back (n); although the demand arose out of an illegal transaction (o). So where a creditor refused to sign a composition deed without a bill of exchange was given him for the remainder of his debt, which the debtor gave him, and the former then signed the deed, and the bill was subsequently paid by the debtor to his creditor; it was held a voluntary payment, and could not be recovered back as money had and received (p).

1

If a party, with a full knowledge of the facts, voluntarily pay a demand unjustly made on him, and threatened or attempted to be enforced by legal proceedings, he cannot consider the money as paid by compulsion, and recover the same back again, although he protested at the time against his responsibility (q); unless there be fraud on the part of the person enforcing the unjust claim and a knowledge of its unjustness; in which case money obtained through such fraud may be recovered back (r).

And where a certificated bankrupt paid a sum of money to a sheriff under protest, to avoid being arrested on a ca. sa. for a debt proveable under the commission, he was held entitled to recover it back; the Court observing, that this was not the case of a party, with knowledge of the facts, paying money under legal process, as in Hamlet v. Richardson, for he plaintiff here paid it under a protest, by which he said in efect, that if the sheriff was not entitled to take it, it must be paid back (s).

10. Money obtained by fraud.-Money obtained by fraud is recoverable in an action for money had and received, although

(n) Bize v. Dickason, 1 T. R. 286; Farmer v. Arundel, 2 Bla. Rep. 825; 2 Burr. 1012; Bull. N. P. 132; Munt v. Stokes, 4 T. R. 561. Money paid by infant, ante, 149, 150. So by the French law:-" La répétition n'est pas admise à l'égard des obligations naturelles qui ont eté volontairement acquittées." Code Civil, Book 3, Tit. 3, Art. 1235.

(0) Id.; Dawson v. Remnant, 6 Esp. 25, 26, note; Brisbane v. Dacres, 5 Taunt. 143; ante, 623.

(p) Wilson v. Ray, 2 P. & Dav. 253; 3 Jurist, 384.

(q) Brown v. M'Kinally, 1 Esp. R.

279; Knibbs v. Hall, id. 84; Jeudwine v. Slade, 2 id. 572; Cartwright v. Rowley, id. 723; Lothian v. Henderson, 3 B. & P. 520; Brisbane v. Dacres, 5 Taunt. 147; Graham v. Tate, 1 M. & Sel. 610; Skyring v. Greenwood, 4 B. & C. 290; Milner v. Duncan, 6 id. 679, per Holroyd, J.; see further, post, 639.

(r) Duke de Cadaval v. Collins, 4 Ad. & E. 858; 6 Nev. & M. 324; Payne v. Chapman, 4 Ad. & E. 364, and post, 640.

(s) Payne v. Chapman, 4 Ad. & E. 364, and post, 640.

the fraud were committed, not by the defendant personally, but by his agent; and it is no answer to such action that he is really entitled to the money, if his right to it depend upon a question not of common law jurisdiction, and the plaintiff had the legal title as trustee, &c. (t).

Where the defendant had fraudulently colluded with J. S., who was in insolvent circumstances, to obtain goods from the plaintiff, and the proceeds of such goods eventually came to the defendant's hands in satisfaction of a debt due to him from J. S.; it was held that the plaintiff was entitled to recover them in an action for money had and received (u).

If an attorney, without any authority, bring an action in the name of A. (a nominal or imaginary plaintiff) against B., and the latter pay the costs of the writ to the attorney, he (B.) may sue the attorney as for money had and received, to recover back the amount (x).

The case of moneys received by a creditor from his debtor, in contemplation of bankruptcy, and by way of fraudulent preference, and which are reclaimable by the debtor's assignees, may also be mentioned as falling within this division (y).

It seems that if a party, after he has discovered a fraud practised on him, and which induced him to enter into a contract, voluntarily pay a sum of money under it, with knowledge of the facts, he cannot claim a return of the money (2).

11. Or by oppression or extortion.-Money obtained by oppression, and by taking advantage of the distresses of others, in violation of laws made for their protection, may be recovered in an action for money had and received, because in such case the parties are not in pari delicto (a).

(t) Crockford v. Winter, 1 Camp. 124; Hasser v. Wallis, 1 Salk. 28. See an instance, Martin v. Morgan, 3 Moore, 635. It is not necessary before bringing an action to recover back the amount of a bill paid under a misrepresentation of facts, to return such bill to the person to whom the amount has been paid; Pope v. Wray, 4 M. & W. 451.

(u) Abbotts v. Barry, 5 Moore, 98; Hill v. Perrott, 3 Taunt, 274. See further as to fraud on the sale or warranty of goods, ante, 406, 466, and Index, tit. Rescinding Contract.

(x) Dupen v. Keeling, 4 C. & P. 102; and see Robson v. Eaton, 1 T. R. 62; post, 640.

(y) See Eden, 2d ed. 25; Gibbins v. Phillips, 7 B. & C. 529.

(z) Miles v. Dell, 3 Stark. R. 25, 26; ante, 409; Campbell v. Fleming, 1 Ad. & E. 40; 3 N. & M. 834.

(a) Ante, 602; Lowry v. Bourdieu, per Lord Mansfield, 2 Dougl. 472; Jones v. Barkley, id. 697, note. Money fairly lost and paid at play not recoverable back in an action not founded on the statute; Thistlewood v. Cracroft, 1 M. & Sel. 500.

Thus this action lies to recover back the excess of interest taken from the plaintiff on an usurious loan to him (b); or money paid by A. (the plaintiff) to B., in order to compromise a qui tam action of usury brought by B. against A., on the ground of an usurious transaction between the latter and one E. (c); or money paid by the plaintiff, a bankrupt, as an inducement to the defendant, his creditor, to sign his certificate (d); or money paid to a lottery-office keeper for insuring tickets, contrary to the statute 19 Geo. 3, c. 21 (e); or money privately paid to an outstanding creditor to induce him to concur with other creditors in a composition agreement made by an embarrassed debtor (f); or the proceeds of a policy of insurance handed by the debtor to his creditor under such circumstances (g).

A fee paid by a publican in order to get his license, but which fee was not legally claimable, is recoverable as having been paid by compulsion (h). An action for money had and received is also maintainable against a lessee of turnpike tolls, who improperly exacts from the plaintiff more toll than ought to be taken (i); or against a broker who demands and receives illegal and excessive charges on a distress for rent, although the tenant had applied for and obtained time to enable him to prevent a sale (k).

We have before noticed some instances in which money paid by a plaintiff in satisfaction of a debt due from the defendant to a third person, may be viewed as a compulsory payment, enabling him to sue the defendant as for money paid for his use upon an implied request and promise by the defendant (1). It seems to

(b) Smith v. Bromley, 2 Doug. 697, notes a, b; Astley v. Reynolds, Stra. 915; Williams v. Hedley, 8 East, 383; Rep. tempore Talbot, 40, note; Lofft, 345; Browning v. Morris, Cowp. 792. In Fitzroy v. Gwillim, 1 T. R. 153, it was held, that before a party can sue for recovery of goods deposited by him as a security for an usurious loan of money, he must tender all the money really advanced.

(c) Williams v. Hedley, 8 East, 378. (d) Lowry v. Bourdieu, 2 Dougl. 472; Smith v. Bromley, id. 697, n. (3); Bul. N. P. 133; Clarke v. Shee, Cowp. 200; Browning v. Morris, id.

792.

(e) Jaques v. Withy, 1 H. Bla. 65 ; 2 Bla. R. 1073; Clarke v. Shee, Cowp. 197; Browning v. Morris, id. 790; Clayton v. Dilly, 4 Taunt. 165; This

tlewood v. Cracroft, 1 M. & Sel. 502; Drummond v. Day, 1 Esp. R. 152.

(f) Smith v. Cuff, 6 M. & Sel. 160; see further, post, as to this. It is also observable, that in the above instance the creditor is guilty of a fraud on the other creditors by receiving the money.

(g) Alsager v. Spalding, 4 Bing. N. C. 407; 6 Scott, 204.

(h) Morgan v. Palmer, 2 B. & C. 729; 4 D. & R. 283, S. C.

(i) 1 Wightw. 22; Lewis v. Hammond, 2 B. & Al. 206; Waterhouse v. Keen, 4 B. & C. 200; 6 D. & R. 257, S. C. As to venue and notice of action in such case, see id.

(k) Hills v. Street, 5 Bing. 37; 2 M. & P. 96, S. C.

(1) Ante, 594 to 600.

be a general rule that a payment of money by the owner of goods, in order to redeem them from the hands of a person who wrongfully withholds them and demands such money, may be treated as a compulsory payment; so that the amount is recoverable as having been obtained by oppressive means (m). The owner of goods may have so urgent an occasion for them, that the ordinary remedy by action may afford very imperfect redress. Thus in Astley v. Reynolds (n), where the plaintiff had pawned plate with the defendant, and the latter would not part with the goods unless the plaintiff paid him illegal interest, it was held that the excess paid to redeem the goods might be recovered back upon a 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. The instance already mentioned of a payment to a distraining broker of an extortionate charge for expenses, falls within the same principle. So money paid under protest to the attorney of a third person, in order to regain possession of deeds and papers, after breaking off a negotiation for a mortgage, may be recovered back in this form of action (o). But if a person makes a binding agreement to pay a certain sum of money for the redemption of his goods which are withheld from him, and receives them back, such agreement cannot be avoided on the ground that there was a duress of his goods (p).

An action for money had and received does not lie to recover back money paid for the release of cattle taken damage feasant, although the distress were wrongful; upon the ground that the law has provided a specific and more convenient remedy or form of action, in which the question can be better raised on the record, viz. replevin or trespass (q).

(m) Shaw v. Woodcock, 7 B. & C. 73; 9 Dowl. & R. 889.

(n) 2 Stra. 915; 2 Barn. B. R. 40. Semble, money had and received lies to recover back an extortionate charge made by the steward of a manor for attending at a trial with court rolls which the plaintiff was bound to produce; v. Pigott, cited by Lord Kenyon in Cartwright v. Rowley, 2 Esp. R. 723.

(0) Pratt v. Vizard, 5 B. & Ad. 508; and see Hollis v. Claridge, 4 Taunt. 807.

(p) Per Parke, B., Atlee v. Backvise, 3 M. & W. 650; ante, 207, 612.

(g) Lindon v. Hooper, Cowp. 414, cited in Hills v. Street, 5 Bing.37. When this form of action lies, see Cowne v. Garment, 1 Scott, 275; # Bing. N.C. 318. Semble, it lies to recover the amount of a tax which a landlord should in distraining have allowed his tenant, and which the latter pays to redeem his goods; Graham v. Tate, 1 M. & Sel. 609; Sprugg v. Hammond, 2 B. & B. 59. Trover lies if, in order to recover back goods wrongfully distrained for rent, the owner pay the sum distrained for; Shipwick v. Blanch ard, 6 T. R. 298. See further, ante,

607.