the opinion of PARKE, B., in the case last cited; see, also, holding a similar doctrine, Lucas v. Worswick, 1 Mood. & R. 293, and comments upon this case in 2 Smith's Lead. Cas., p. 243; also Wheadon v. Olds, 20 Wend. 175.

§ 8. Receiving with knowledge of title. When a person receives money from an agent to satisfy an obligation against him, knowing that it belongs to his principal, he is liable to the principal therefor in an action for money had and received (Rusk v. Newell, 25 Ill. 226; Skinner v. Merchants' Bank, 4 Allen, 290; Muttycall Seal v. Dent, 8 Mo. P. C. 319; Litt v. Martindale, 18 C. B. 314); but not where the principal had the benefit of the property for which the money was paid. Bank of Charleston v. Bank of the State, 13 Rich. (S. C.) 291.

Where an agent, pursuant to the instructions of his principal, delivers to a common carrier moneys of the principal, consigned to and to be transported to him, the consignor, from the time of the delivery, ceases to have any title to or interest therein, and cannot maintain an action against the carrier therefor. Thompson v. Fargo, 63 N. Y. (18 Sick.) 479; affirming S. C., 2 Hun, 379; 4 Sup. Ct. N. Y. (T. & C.) 665; 48 How. 93. And the fact that the moneys were the fruits of a fraud perpetrated by the principal through the instrumen. tality of the agent, although the latter was innocent of the fraud, gives him no title to the moneys which will authorize him to maintain the action. Id.

§ 9. Receiving fees of office. An action for money had and received may be maintained by one entitled to the fees of an office against one to whom they have been paid without authority from him. Hall v. Swansea, 5 Q. B. 526; Boyter v. Dodsworth, 6 T. R. 681. Thus, where two persons claimed an office and they submitted the question of their respective rights thereto to arbitrators, who decided that the defendant should perform the duties and give a certain moiety of the fees to the plaintiff, it was held that the plaintiff might maintain an action for money had and received against him therefor. Rowland v. Hall, 1 Scott, 539; 1 Hodges, 111. See, also, to the same effect, Glascock v. Lyons, 20 Ind. 1; Platt v. Stout, 14 Abb. Pr. (N. Y.) 178.

§ 10. Payments made under mistake, generally. It is well settled that money paid under a mistake of facts may be recovered back, unless the mistake results from the inexcusable neglect of the party paying it, provided there was no legal or moral obligation on his part to pay it. Manchester v. Burns, 45 N. H. 482; Holbrook v. Allen, 4 Fla. 87; Young v. Stahelin, 34 N. Y. (7 Tiff.) 258; Northrop v. Graves, 19 Conn. 548. Thus, in a case previously cited

(Lucas v. Worswick, 1 Moo. & Rob. 293), where the defendant had a claim against the plaintiffs which was disputed, the defendant claiming a much larger amount than the plaintiffs conceded to be due, and afterward the defendant received from them a small part of the demand, and subsequently meeting one of the plaintiffs and without mentioning the fact of such partial payment, told him that he had concluded to waive the dispute, and take the sum admitted by them to be due, which, in forgetfulness of the fact of the partial payment, that had previously been made to him, was paid without deduction of such amount, it was held that if the plaintiffs made the payment without any intention of waiving the deduction of the amount previously paid, the fact that they had forgotten it did not preclude them from recovering it back. But where the mistake under which the payment is made is one into which the person receiving it is not bound to inquire, and the person paying it has been guilty of inexcusable negligence (see Duncan v. Berlin, 5 Robt. [N. Y.] 457); it cannot be recovered back, if the person to whom it was paid will be in any measure prejudiced or lose any rights thereby (Duncan v. Berlin, 11 Abb. Pr. [N. S. N. Y.] 116; S. C., 46 N. Y. [1 Sick.] 685; Mayer v. Mayor, 63 N. Y. [18 Sick.] 455); or, if the payor was under any moral obligation to pay the money (Sientes v. Odier, 17 La. Ann. 153; New York v. Erben, 10 Bosw. [N. Y.] 189); or if the payment was made from motives of policy. Elting v. Scott, 2 Johns. 157. See sections 11 and 12 for a further consideration of the question.

§ 11. Mistake of facts. As has been previously stated, money paid under a mistake of facts may be recovered back in an action as for money had and received. Osgood v. Jones, 23 Me. 312; Baltimore, etc., R. R. Co. v. Faunce, 6 Gill (Md.), 68; Bank of Commerce v. Union Bank, 3 N. Y. (3 Comst.) 230; Logan v. Sumter, 28 Ga. 242; Millett v. Holt, 60 Me. 169; Vernon v. West School Dist., 38 Conn. 112; Lawrence v. American National Bank, 54 N. Y. (9 Sick.) 432; Duncan v. Berlin, 46 N. Y. (1 Sick.) 685; Kingston Bank v. Eltinge, 40 N. Y. (1 Hand) 391; Dickins v. Jones, 6 Yerg. (Tenn.) 483; West v. Houston, 4 Harr. (Del.) 170; Henderson v. Planters' Bank, 11 Rich. L. (S. C.) 44; Garland v. Salem Bank, 9 Mass. 408. But there must have been a mistake. "If the money was intentionally paid without reference to the truth or falsehood of the fact, the plaintiff meaning to waive all inquiry into it, and that the person receiving the money shall have it, at all events, whether the fact be true or false, the latter is entitled to retain it" (PARKE, B., in Kelly v. Solari, 9 M. & W. 54); and the burden of establishing the mistake is upon the payor (Mutual Life Ins. Co. v. Wager, 27 Barb. 344;

Taylor v. Beavers, 4 E. D. S. [N. Y.] 215); and it must also appear that the plaintiff was not under either a legal or a moral obligation to pay the money, and that, as against the plaintiff, it would be inequitable for him to retain it (Edgar v. Shields, 1 Grant's Cas. [Penn.] 361; Foster v. Kirby, 31 Mo. 496; Jamison v. Ludlow, 3 La. Ann. 492); and if it turns out in point of fact that the payee has released any security, or done any act in consequence of such payment, whereby he would lose any right, or be essentially prejudiced if compelled to refund it, it cannot be recovered back upon the principle that, as between two innocent persons, that one must lose who has committed the error. Hern v. Nichols, 1 Salk. 289; McDougall v. Cooper, 31 N. Y. (4 Tiff.) 498; Wheadon v. Olds, 20 Wend. 174. Thus, where a person by mistake and without any obligation to do so, pays the debt of another, he may recover it back, provided the person to whom it was paid will be left in statu quo as to the real debtor. That is, unless he has given up some security or released some right as against the real debtor in consequence of such payment. The mere fact that he may not be able to collect the amount of the real debtor does not affect the question, unless he has released some security or lost some right in consequence of the payment, he is liable to refund the money. Tybout v. Thompson, 2 Browne (Penn.), 27; Wheadon v. Olds, 20 Wend. 174; McDougall v. Cooper, 31 N. Y. (4 Tiff.) 498.

The rule was well expressed in Guildv. Baldridge, 2 Swan (Tenn.), 295, in which it was said that, "where money is paid to another under the influence of a mistake, that is, on the supposition that a specific fact is true, which would entitle the other to the money, but which fact is untrue, and the money would not have been paid if the fact had been known to the payor, an action will lie to recover it back. But if the money had, under a false impression that he owed money to A, been, by arrangement, paid to B, a creditor of A, who received it in good faith, an action would not lie against B, to recover back the money, because he may, in consequence of such payment, have lost or waived his remedy against A." But, where one pays another by mistake more than is due him (Young v. Stahelin, 34 N. Y. [7 Tiff.] 258; Lawrence v. American National Bank, 54 N. Y. [9 Sick.] 432); or pays money under a supposition that it is owing to the person to whom it is paid, when in fact there is nothing due (Appleton Bank v. MeGilvray, 4 Gray, 518); or under an assurance from the person to whom it is paid that he has a legal claim against him, when in fact he has no such claim; as when money is paid under an insurance policy under an assurance from the payee that the loss was the result of accident and honest, when in fact it resulted from design, and was fraudulent

(Elting v. Scott, 2 Johns. 157; Sawyer v. Dodge Co. Mut. Ins. Co., 37 Wis. 503; McConnel v. Del. Ins. Co., 18 Ill. 228); so where money is paid for an insurance which by mistake never covered the risk (Illinois, etc., Ins. Co. v. Fix, 53 Ill. 151; 5 Am. Rep. 38); or when by mistake too much interest is paid upon a debt (Tinslar v. May, 8 Wend. 561); or a party neglects to deduct a previous payment (Lawrence v. American Natl. Bk., 54 N. Y. [2 Sick.] 432; Kelly v. Solari, 9 M. & W. 54); or pays the full amount of a claim in ignorance of the fact that payments have been made thereon by others (Young v. Stahelin, 34 N. Y. 258; Walker v. Mock, 39 Ala. 568); or where it was paid to the wrong person under the supposition that he was entitled to receive it (Norton v. Marden, 15 Me. 45; Bank of Louisiana v. Ballard, 8 Miss. 371); and indeed in all cases where money is paid under a mistake of facts, or a misapprehension of the state of the contract, and there was neither a legal nor a moral obligation on his part to pay it, it may be recovered back. Mowatt v. Wright, 1 Wend. 355; Dickens v. Jones, 6 Yerg. (Tenn.) 483; Rosboro v. Peck, 48 Barb. 92; Mitchell v. Walker, 8 Ired. (N. C.) 243; Pearson v. Lord, 6 Mass. 84; New York v. Erben, 10 Bosw. (N. Y.) 189; Manchester v. Burns, 45 N. H. 482; Beadenbaugh v. Cooper, 13 Rich. (S. C.) 42.

Thus, where a town paid certain sums for the aid of the family of a volunteer, in ignorance of the fact that he had been discharged, it was held entitled to recover the amount of the volunteer, it appearing that he knew that such aid was being furnished and gave the plaintiff no notice of his discharge. Manchester v. Burns, 45 N. H. 482. But if the money had been paid under an erroneous impression that the town was legally liable to pay it, and without any mistake of the facts, it could not have been recovered back (Livermore v. Peru, 55 Me. 469); nor if there had been any obligation on the part of the town to aid in the support of such family, upon the ground that they were paupers. The fact that the mistake might have been ascertained by proper diligence does not prevent a recovery; for, where a person sold goods under an agreement that from the price agreed upon the duties should be deducted, and in making out their statement they by mistake deducted $894.25 as duties, when in fact they only amounted to $699.40, it was held that the difference ($194.85) might be recovered as for money had and received, and that the fact that the mistake resulted from their carelessness, under the circumstances, did not preclude a recovery. Renard v. Fiedler, 3 Duer (N. Y.), 318. See, also, Waite v. Leggett, 8 Cow. 195, where it was held that excessive interest, paid by reason of a note being wrongly dated, might be recovered back even though the payor had the means of ascertaining what the true date was. So

it has been held that money paid for spurious stock may be recovered back, although inquiry made at the office of the company would have revealed its worthlessness. Ketchum v. Bank of Commerce, 19 N. Y. (5 Smith) 499.

So, where in the execution of a bill of sale, an error was made in the computation, by which the vendor paid $400 more than by the terms of the agreement upon which the bill was predicated, he was bound to pay, it was held that he was entitled to recover back that amount from the vendor. Rosboro v. Peck, 48 Barb. 92. So, where an administrator pays money to a person claiming to be a creditor of his intestate in ignorance of the fact that it has been already paid, and on final settlement is credited with the payment, an administrator de bonis non may recover the amount of the party to whom it was paid. Walker v. Mock, 39 Ala. 568. But in order to recover it back, it must have been paid under the supposition that it was due and owing to the defendant. That is, there must have been a supposition in the mind of the payor that there was some legal consideration therefor. Sientes v. Odier, 17 La. Ann. 153. And it must have been paid to him as principal, or if paid to him as the agent of another, an action will not lie against him, unless brought before he has paid it over to his principal. Butler v. Livermore, 52 Barb. 570.

In case the money has been paid over to the principal, the action must be brought against him, and in all cases, in order to uphold a recovery, a privity of contract must exist between the plaintiff and defendant. That is, there must be such a relation between them that the law will imply a promise to repay the money to the plaintiff. Bloomer v. Denman, 12 Ill. 240; Dewey v. Board of Supervisors, 62 N. Y. (17 Sick.) 294; Hathaway v. Town of Cincinnatus, 62 N. Y. (17 Sick) 434.

A bought an old safe, and afterward offered it to B, who refused to purchase it. It was then left with B for sale, B having permission to use it. B found between the outer casing and the lining a roll of bank bills belonging to some person unknown, whereupon A first demanded the money and then demanded the safe and its contents as they were when B received them. The safe was returned, but the money was retained by B. In assumpsit brought by A against B for the money found, it was held, that as against A, B was entitled to retain the money. Durfee v. Jones, 11 R. I. 588. And see Tancil v. Seaton, 28 Gratt. 601; Bridges v. Hawkesworth, 7 Eng. L. & Eq. 424. Ante, Vol. 2, 234.

§ 12. Mistake of law. The law is now well settled that where money has been voluntarily paid with a full knowledge of all the facts and circumstances under which it was demanded, it cannot be recov