$92

u He that delays to pay what is due, pays less than is due.

w He ceases to be a debtor that has a good exception or plea in his defence.

x He does not delay payment who is willing and urgent to try the .right.

y The creditors are not defrauded if a debtor does not improve his estate, but when he alienates a part of it.

z He is defrauded who is hindered from advantages that might have been made, as well as from present profit.

a In buying and selling the law of nations connives at some ning, and over-reaching in respect of the price

b No one is supposed to be deceived while he acts according to

law.

c The same thing cannot be demanded twice of the same person by virtue of the same obligation.

d In contracts the heir is answerable for the frauds of the deceased, where there is a covenant to bind him.

e No one can have a title by the fraud of another that acts for him.

u Minus solvit qui tardius solvit. Nam et tempore minus solvit. D. 50. 16. 12. 1. Plus est statim dare, minus est post tempus dare. I. 3.

20. 5.

w Desinit Debitor esse is qui nactus est exceptionem justam, nec ab æquitate naturali abhorentem. D. 50. 17. 66.

x Qui sine dolo malo ad Judicium provocat, non videtur moram facere. D. 50. 17. 63.

y Non fraudantur Creditores cum quid non acquiritur a Debitore, sel cum quid de bonis diminuitur. D. 50. 17. 134.

z Generalitur cum de Fraude disputatur non quid habeat Actor, sed quid per Adversarium habere non potuit, considerandum. D. 50. 17. 78. a In pretio emptionis et venditionis naturaliter licet contrahentibus se circumvenire. D. 4. 4. 16. 4.

b Non capitur qui Jus publicum sequitur. D. 50. 17. 116. 1.

c Bona fides non patitur ut bis idem exigatur. D. 50. 17. 57. Qucties concurrunt plures Actiones ejusdem rei nomine, una quis experiri debet. D. 50. 17. 43. 1.

d In contractibus quibus Doli prætatio vel bona fides inest, Hares in solidum tenetur. D. 50. 17. 152. In contractibus successoris ex dolo eorum quibus successerunt, non tantum in id quod pervenit, verum etiam in solidum tenentur. D. 50. 17.157. 2.

e Alterius circumventio alii non præbet actionem. D. 50. 17. 49.

f Fraud is not to be judged of by the event only, but also by the design.

g He who is persuaded that he has a right, may be guilty of a mistake, and not of deceit.

h He that promises to pay, must have so much time allowed for payment, as the distance of the place, or the nature of the thing promised does require.

i A madman cannot contract at all, no not with the consent of his guardian; but a minor above seven years of age may contract by himself, where it is to his own advantage; and in all cases with the consent of his guardian when he is above that age.

Thus far of obligations, covenants and contracts in general.

Tit. XX 1. De mutuo, p. 245. Loan. This is a nominate contract, stricti juris, unilateral. The remedy is by personal action: certi condictio. Dig. 12. 1.

Hence interest is not due unless by express stipulation, or agreement. Dig. 22. 1. 3 and 30. Dig. 16. 3. 261. It relates to perishable articles chiefly; res fungibiles; quarum una alterius vice fungitur, as wine for wine: grain for grain: money for money.

The borrower has the property in the thing lent: herein the mutuum differing from the commodatum. Mutuum as the civilians say quaintly, quia ex meo tuum fit. Herein, it is required, 1st, that the loaner should own the commodity with power of disposal: 2ly, in case of loss, it falls on the borrower.

§2. De indebito soluto, p. 245. This is agreeable to the general principle, In re obscura melius est favere repetitioni quam adventitio lucro. It is more expedient to favour the Plaintiff in re-demanding what ought not to have been received, than the accidental or adventitious gain of the defendant. See further on the subject of this section post Inst. 3. 28. 6 & 7.

f Fraudis interpretatio semper in Jure Civili non ex eventu duntaxat sed ex consilio quoque consideratur. D. 50. 17 79.

g Nemo videtur dolo exequi, qui ignorat causam cur non debeat petere. D. 50. 17. 177.1.

h Nihil peti potest ante id tempus quo per rerum naturam persolvi possit. D. 50. 17. 186.

i In negotiis contrahendis alia causa habita est Furiosorum, alia earum qui fari possunt, quamvis Actum rei non intelligerent. Nam Furiosus nullum negotium contrahere potest: Pupillus omnia Tutore aus thore agere potest. D. 50. 17. 5.

The condictio indebiti, approaches more nearly than any other form of action in the Roman law, to our action for money had and received and the leading principle of that action is stated in the present section viz. si apparet eum dare opportere; if the defendant ought as an honest man, to pay the money.

The law laid down in the present section, that money paid by MISTAKE whether of fact or law may be redemanded (repetita) if in justice it ought to be repaid, is acknowledged not only in Tomkins v. Barnet, 1 Saik. 22. Moses v. MFarlan, 2 Burr. 1012. Farmer v. Arundel, 2 Sir W Black. rep. 824. Bize v. Dickason, 1 Term Rep 286. Buller v. Harrison. Cowp. 565. Stevenson v. Mortimer. Cowp. 806, but in the later decisions also of the English law. Thus, in Townson v. Wilson, et al. 1 Camp. N P. Rep. 396, assumpsit lies against Parish officers by the putative father of a bastard child, to recover the surplus of money paid to them as an indemnification for expences, the child soon after dying. So, no action can be maintained upon a note given by such putative father, beyond the amount of damnification. Cole v. Gower, 6 East, 110. Wild v. Griffin, 5 Esp. Ca. 141 : agreeable to the rule of the Roman law, that condictio indebiti non datur ultra quam locupletior factus est qui accepit. Dale v Sollet, 3 Burr. 2133.

So in Buch v. Buck, 1 Campb, 547, the ground whereon the court nonsuited the plaintiff was the illegality of the transaction, and plaintiff and defendant being in pari delicto, there was no reason to contravene the rule melior est conditio possidentis: this conforms with Tomkins v. Bennet, cited 1 Viner, 269, see also Howson v. Hancock, 8 Term Rep.

575.

So in Rogers. Kelly, 2 Campb. 123, The same principle was contended for, viz. that money mistakenly paid may be recovered: but the nonsuit proceeded on the action being brought against the wrong person. The general principle is also laid down by Shippen in Levy v. B. of U States, 1 Binn. 27.

BUT WHERE both parties are under a common mistake, the one cannot recover of the other, if the person suing has derived any benefit whatever from the transaction. Taylor v. Hare, 1 new rep. (4 Bos. & Pul.) 260.

NOR CAN money paid with full knowledge at the time of all the circumstances of law and fact, be recovered back. Bilbie v. Lumley and others. 2 East, 4, 69. Cartwright v. Rowley, 2 Esp. Rep. 723. Knibs v. Hall, 1 Esp. rep. 84. Brown v. M Kinally, Ib. 279.

NOR CAN money be re demanded, if it be paid where the law would

not compel payment, but where natural equity would dictate it. Bize v.

Dickason, 1 Term Rep. 286. Astley v. Reynolds, Str. 915. Farmer v. Arundell, 2 sir W. Bl. rep. 824. Moses v. M'Farlan, 2 Burr. 1012

WHERE MONEY is paid by a person deceived, he may recover it. Hasser v. Wallis, 1 Salk. 28. 289. Thomas v. Whip, Bull N. P. 130. 35.

WHERE MONEY has been paid under judgement of a court of competent jurisdiction, it cannot be recovered. The great case of Moses and Macferlan, 2 Burr, 1005, in which Ld. Mansfield traced the liberal principles that ought to govern the action for money had and received, has not met with the perfect sanction of the profession. It was shaken in principle by Marriot v. Hampton, 7 Term Rep. 269. and Brown v. M Kinally, 1 sup. and Ch. J. Eyre strongly combats the form of action in Philips v. Hunter, 2 Hen. Black. 416. The old cases are discordant; see Barebone v. Brent; Mead v. Death and Pollard; and sir Rich. Newdigate v. Davy, cited by Viner, 1 Vin. ab. 268. 269. from Vern. 176. 1 Salk. 22. Lord Ray. 742. I fully concur with the principles of Lord Mansfield's decision in Moses v. Macfarlan. The court of conscience determined, that they were not competent to enter into a consideration of the agreement set up as a defence against the indorsements. The money therefore, was not recovered by Macfarlan against Moses by the judgment of "a court of competent jurisdiction:" else, I allow, it would be conclusive. If my suit depends upon considerations, which the court before whom I am brought, is prohibited from discussing, surely my case has not been determined by their passing upon evidence incomplete and imperfect, not from any fault or neglect in me, but incapacity in them. The form of action, in my opinion, sufficiently embraces the principle of the case. WHERE MONEY has been paid on a void authority it may be recovered. Lamine v. Dorrell, 2 Lord Raym. 1216. Sir Rich. Newdigate v. Davy, 1 Lord Ray. 742. Bull. N. P. 133, which was for money formerly recovered in the high court of commissioners temp. Jas. 2: Feltham v. Terry, Cowp. 419. Lot 207. where money was paid to an overseer on a conviction afterwards quashed. Jacob v. Allen, 1 Salk. 27. where the attorney of an administrator improperly appointed, was held liable to an Executor.

But see the following cases which are at first sight adverse to these last mentioned decisions. Pond v. Underwood, 2 Lord Ray. 1210. Sadler v. Evans, 4 Burr. 1986. Allen v. Dundas, 3 Term rep. 125. The question is, whether the person or the court who gave the authority, were competent to give it, at the time when it was given. If so, money received under such an authority is not recoverable again by the person paying it: otherwise it is.

MONEY PAID on a consideration that has failed, or on a contract not performed, may be recovered, per Ashurst in Stratton v. Rastall, 2 Term Rep. 369.

So in cases of contracts for the sale of houses and lands, where they are not compleated, or where the title is defective. The cases herein cited by Comyns (on contr. 2d Vol. p. 52. N. seq) I shall merely enumerate for the present, Burrough v. Skinner, 5 Bur. 2. 2639. Flurean v. Thornhill, 2 Bl. rep, 1078. Richards v. Barton, 1 Esp. N. P. rep. 268. Camfield v. Gilbert, 4 Esp. N. P. rep. 223. Chambers v. Griffiths, et al. 1 Esp N. P. Rep. 150. compared with Johnson v. Johnson, 3. Bos. and Pull. 162. Hunt v. Silk, 5 East 449, Farru v. Nightingal, 2 Esp. N P. Rep. 639. Elliot v. Edwards, 3 Bos. and Pull. 181 Alpass v. Watkins, 8 Term. Rep. 516. Bree v. Holbeach, Doug. 654. Cripps v. Reade, 6 Term Rep. 606. Robinson v. Anderton, Peake's N. P. Ca. 94. Gunnis et al. v. Erheart, 1 Hen. Bl. rep. 289. All these cases are cited in the same order by Comyns.

I forbear to notice here the question of damages in case of eviction, because although connected with this part of the subject, it may be more properly treated under the head of bargain and sale, or the action ex empto.

This ACTION lies in England for money paid on purchase of annuities, where title is not ready to be tendered on the day agreed on, See the cases in 2 Comyns Contr. 66.

Cases where this action has been brought to recover money receiv ed on contracts, rescinded or not performed, depend upon the actual rescinding or putting an end to the contract itself. If one of the parties is empowered to do this, or if both parties consent that it shall be done, then the action for money had and received may be brought: but if the contract still continue open, the remedy is an action for damages, wherein the contract must be stated and breaches assigned. Towers v. Barrett, 1 term. rep. 134. 1 Com. Dig. 134. citing 3 Lev. 364. Weston v. Downey, Doug 23. Power v. Wills, Cowp. 818, Payne v. Whale, 7 East. 274. Cooke v. Munstone, 4 Bos. and Pull. 351. Dutch v. Warren, Str. 406. 2 Burr. 1010. Holmes v. Hall, 6 Mod. 161 Hogan v. Shee, 2 Esp. rep 522. Giles v. Edwards, ↑ term. rep. 181. Dewbury v. Chapman, Comber, 341. Holts' rep. 35, Comyns under this head states the case of fees received by counsel for business not performed, which are not considered as recoverable in this action.

Notwithstanding a dictum in Marsh v. Kavenford, Cro. El. 59. and a case in 2 Leon. 111. fees to counsel are now considered as quid