ruptcy, or infancy, &c., he has no remedy to recover it back (m); although the demand arose out of an illegal transaction (n).

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 (o).

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

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 (g).

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 (").

The case of moneys received by a creditor from his debtor, in contemplation of bankruptcy, and by way of fraudulent prefer

(m) 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, 121,489. So by the French law: "La répétition n'est pas admise à l'égard des obligations naturelles qui

ont

eté volontairement acquittées." Code Civil, Bk. 3, Tit. 3, Art. 1235. (n) Id.; Dawson v. Remnant, 6 Esp. 25, 26, note; Brisbane v. Dacres, 5 Taunt. 143; ante, 492.

(0) Brown v. M'Kinally, 1 Esp. R. 279; Knibbs v. Holl, id., 84; Jeudwine v. Slade, 2 id., 572; Cartwright v. Rowley, id., 723; Lothian v. Hender

son, 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.

(p) Crockford v. Winter, 1 Camp. 124; Hasser v. Wallis, 1 Salk. 28. See an instance, Martin v. Morgan, 3 Moor, 635.

q) Abbotts v. Barry, 5 Moor, 98; Hill v. Perrott, 3 Taunt. 274. See on further as to fraud on the sale or warranty of goods, ante, 321, 323, 364, 365, 369; and Index, tit. rescinding

contract.

(r) Dupen v. Keeling, 4 C. & P. 102.

ence, and which are reclaimable by the debtor's assignees, may also be mentioned as falling within this division (a).

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 (y).

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 (2).

Thus this action lies to recover back the excess of interest taken

from the plaintiff on an usurious loan to him (a); 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. (b); or money paid by the plaintiff, a bankrupt, as an inducement to the defendant, his creditor, to sign his certificate (c); or money paid to a lottery-office keeper for insuring tickets, contrary to the statute 19 G. 3, c. 21 (d); 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 (e).

A fee paid by a publican in order to get his licence, but which fee was not legally claimable, is recoverable as having been paid by compulsion (ƒ). 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 (g); or

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

(y) Miles v. Dell, 3 Stark. R. 25, 26. (z) Ante, 475; Lowry v. Bourdieu, per Lord Mansfield, 2 Dougl. 472; Jones v. Barkley, id., 697, n. 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.

(a) Smith v. Bromley, 2 Dougl. 697, note a, b; Astley v. Reynolds, Stra. 915; Williams v. Hedley, 8 East, 383; Rep. tempore Talbot, 40, note; Loft, 345; Browning v. Morris, Cowp. 792.

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

200; Browning v. Morris, id., 792.

(d) 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; Thistlewood v. Cracroft, 1 M. & Sel. 502; Drummond v. Day, 1 Esp. R. 152.

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

(g) 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 K

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 (h).

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 (i). It seems to 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 (j). 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 (k), 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.

But 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 (1).

(h) Hills v. Street, 5 Bing. 57; 2 M. & Scot, 96, S. C.

(i) Ante, 467 to 471.

(j) Shaw v. Woodcock, 7 B. & C. 73. (k) 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.

(1) Lindon v. Hooper, Cowp. 414, cited in Hills v. Street, ubi supra. 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; Spragg 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. Blanchard, 6 T. R. 298. See further, ante, 479.

If a party had full knowledge of the facts, the mere threat of an action does not in general entitle him to treat the payment as made under compulsion (m).

12. To recover back money paid on an illegal contract.— If an illegal contract be executed or performed, and both parties are in pari delicto (n), no action lies to recover back money paid under it; but if the contract be executory, and the plaintiff dissent from or disavow the contract before its completion, he may, in disaffirmance thereof, recover back money paid under it to the other party, under a count for money had and received (o). As in the case of a premium, or sum of money, paid to or deposited with the other contracting party, on an illegal insurance, or wager, if the plaintiff, before the risk on the policy began, or his chance of winning the wager can be ascertained, or the wager can be decided, disaffirm and rescind the contract, he may maintain an action against the other party to the illegal contract, to recover back the amount he has paid, as money had and received to his use (p).

But the election to rescind must be taken and notified in due time. An assured, upon a policy effected in terms sufficiently large to comprehend an illegal adventure, and who intends thereby to cover an illegal adventure, cannot recover back the premium without some formal renunciation of the contract made known to the underwriter before the bringing of the action, although the adventure is never entered upon. Therefore, on a policy " on goods on board the Andaz (a Spanish ship), or any other ship or ships, at and from New Orleans and Pensacola to a port in the United Kingdom," Pensacola, at the time of effecting the policy, belonging

(m) See ante, 496, and post, 500. (n) When parties are not considered to be in pari delicto, see preceding division. By the French law in the case of money lost at play or betting (Code Civil, Bk. 3, tit. 12, ch. 1), the loser cannot recover what he has voluntarily paid, unless there have been on the part of the winner foul play, fraud, or cheating.

(0) Houson v. Hancock, 8 T. R. 575; Aubert v. Walsh, 3 Taunt. 277; Busk v. Walsh, 4 id., 290; Lowry v. Bourdieu, 2 Dougl. 470; Williams v. Hedley, 8 East, 380, note (a); Clarke v. Shee, Cowp. 200; Browning v. Morris,

id., 792; Tappenden v. Randall, 2 B. & P. 467; Hastelow v. Jackson, 8 B. & C. 224, per Bailey, J., and Littledale, J. Money fairly lost and paid at play not recoverable back, except in an action founded on the statute; Thistlewood v. Cracroft, 1 M. & Sel. 500. As to the remedy against a stakeholder in these cases, see ante, 486. Lacaussade v. White, 7 T. R. 535, is law.

(p) See id., Smith v. Bickmore, 4 Taunt. 477, 478. Premium paid on wagering policy not recoverable after the event; Paterson v. Powell, 2 Moor & Scot, 399; 9 Bing. 320, S. C.

to Spain, and New Orleans to America; which latter country was at war with this country, but Spain was neutral, and the assured intending by the policy to cover an importation of cotton wool from New Orleans to Liverpool; it was held, that supposing this to be a case in which the assured was at liberty to rescind the contract, yet as he had not given any notice to the underwriter of his intention to do so, he could not maintain an action to recover back the premium, although no cargo was loaded on board the ship named, or any other ship covered by the policy. Lord Ellenborough, C. J., observed, "I confess that I wish we had never departed from the plain and intelligible rule, that where the contract is founded upon a consideration clearly illegal, neither party should be allowed a locus standi, and to receive any assistance in a court of justice. This is a broad principle, which no one could well misapprehend, and we have got into some difficulty by receding from it. However, in the present case, giving the utmost latitude to the doctrine, that there ought to be a locus pœnitentiæ, and that the party ought not to be compelled against his will to adhere to the contract, I see nothing to lead me to the conclusion that this party withdrew from the contract: he manifested no such inten tion before the bringing of the action. It cannot be denied that he stood at least in pari delicto, perhaps in a higher degree than the defendant" (q).

13. Money unjustly recovered at law.-Money paid under a legal judgment obtained in a court of justice, is not recoverable back, although it be afterwards discovered that the money was not due, and the party (by finding a lost receipt, &c.) be in a situation to prove the fact (). And this action is not maintainable to recover money mistakenly paid into court, in an action, under the common rule (s): or to regain money levied under a fieri facias, which was only practically irregular, and has not been set aside (t). But the action lies to recover money paid under a void authority; as under the sentence of a court which has no jurisdiction whatever over or in respect of the subject matter (u).

It seems that if a party, with full knowledge of the facts, pay a

(q) Palyart v. Leckie, 6 M. & Sel.

290.

(r)Marriott v. Hampton, 7 T. R. 269; Kist v. Atkinson, 2 Camp. 63.

(s) Malcolm v. Fullarton, 2 T. R.

58.

(1) Habberton v. Wakefield, 4 Camp.

(u) Newdigate v. Davy, Ld. Raym. 742; Lindon v. Hooper, Cowp. 419; Thurston v. Mills, 16 East, 270.