money for a promissory note with a forged indorsement, it was held that he might recover back the amount with interest (Terry v. Bissell, 26 Conn. 23; Roth v. Crissy, 30 Penn. St. 145); so, where an administrator paid out money upon a note purporting to have been made by his intestate, but which in fact was forged, it was held that he might recover it back, as the same rule could not be applied in such a case, as would have applied if the note had been paid by the intestate himself in his life-time. Wilson v. Alexander, 4 Ill. 392. So, where a person has received forged or counterfeited bank notes or coins, in payment of a debt or for property sold, he may recover the amount of the payor in an action for money had and received (Pindall v. North Western Bank, 7 Leigh [Va.], 617; Hargrave v. Dusenbury, 2 Hawks. [N. C.] 326; Chalmers v. Harris, 22 Tex. 265; Young v. Adams, 6 Mass. 182); but he must exercise reasonable diligence in the matter. One keeping a counterfeit note six months, knowing it to be so, was thereby held disentitled to recover the amount of one who innocently passed it to him (Raymond v. Baar, 13 S. & R. [Penn.] 318; Union National Bank v. Baldenwick, 45 Ill. 375); and the same rules apply to cases where depreciated money has been received at its par value, in ignorance of the depreciation. Bank of Missouri v. Benoist, 10 Mo. 519.

§ 19. Payments on illegal contracts. When money is voluntarily paid under an illegal contract, both parties being in pari delicto, it cannot be recovered back. Spaulding v. Bank of Muskingum, 12 Ohio, 544; Jacobs v. Stokes, 12 Mich. 381; Barnard v. Crane, 1 Tyler (Vt.), 457; Perkins v. Savage, 15 Wend. 412; Wolfe v. Marshal, 52 Mo. 167; Wabaunsee Co. v. Walker, 8 Kans. 431; Merwin v. Huntington, 2 Conn. 209; Howson v. Hancock, 8 T. R. 575; Tomkins v. Bernet, 1 Salk. 22; Norman v. Cole, 3 Esp. 253; Commr's of Catawba v. Setzer, 70 N. C. 426. But it is said that where money is contributed for an unlawful purpose, it may be recovered back at any time before it has actually been used for such purpose. Taylor v. Bowers, L. R., 1 Q. B. Div. 291; 16 Eng. Rep. 348; Bailey v. O'Mahony, 33 N. Y. Superior Ct. 239. See, also, similar in principle, White v. Franklin Bank, 22 Pick. 181; Spring v. Coffin, 10 Mass. 31. That is, where a contract is simply void, but not criminal, money paid in pursuance of it may be recovered back so long as it remains executory. Brown v. Timmany, 20 Ohio, 86; Pepper v. Haight, 20 Barb. 429; Skinner v. Henderson, 10 Mo. 205; Woodworth v. Bennett, 43 N. Y. (4 Hand) 273; 3 Am. Rep. 706; Bailey v. Belmont, 10 Abb. Pr. (N. S. N. Y.) 270. By "in pari delicto" is meant when the parties are in equal fault. That is, when they are on an equal footing as to the naVOL. IV. -63

ture and character of the enterprise in which the money is to be invested, in which case the courts, either of law or equity, will give no relief; but when the party paying the money is not aware of the illegal character of the transaction, or when the money is extorted from him by duress either of the person or goods, he may recover it back (Mobile Branch Bank v. Scott, 7 Ala. 107; Webb v. Fulchire, 3 Ired. [N. C.] 485; Boutelle v. Melendy, 19 N. H. 196; Wyman v. Fiske, 3 Allen, 238; Carey v. Prentice, 1 Root [Conn.], 91; Concord v. Delaney, 58 Me. 309); and the same rule applies when the money is paid under a contract that is void upon grounds of public policy. Liness v. Hesing, 44 Ill. 113; Tyler v. Smith, 18 B. Monr. (Ky.) 793. Thus, it has been held, that money paid to stop a criminal prosecution for a felony (Barclay v. Breckenridge, 4 Metc. [Ky.] 374); or for losses in a stock jobbing transaction (Wyman v. Fiske, 3 Allen, 238); or to procure a person to be nominated for an office (Liness v. Hesing, 44 Ill. 113); and, generally, for any purpose that is prohibited by law or that is against public policy, cannot be recovered back. Comm'rs of Catawba v. Setzer, 70 N. C. 426; Lusk v. Patton, id. 701. But, where the act is only illegal as to the party receiving the money, a different rule prevails, as where by statute it is made unlawful to sell intoxicating liquors or to take more than a certain rate of interest upon a loan, the purchaser of the liquors (Adams v. Goodnow, 101 Mass. 81; Laport v.. Bacon, 48 Vt. 176); or the payor of the interest may recover back the money paid (Cross v. Bell, 34 N. H. 83; Wheaton v. Hibbard, 20 Johns. 290; Boardman v. Roe, 13 Mass. 105.

So, where a payment is prohibited by law, the amount paid may be recovered back (Association v. Ellslin, 6 Phila. [Penn.] 6; Curtis v. Leavitt, 15 N. Y. [1 Smith] 9); so, where money is paid upon a void consideration (Spring v. Coffin, 10 Mass. 31); or where a man is cheated out of his money, although in playing a game forbidden by law. Webb v. Fulchire, 3 Ired. (N. C.) 485. So, where money is paid upon an invalid contract, that cannot be enforced by law, as where it is void under the statute of frauds, it may be recovered back if the person to whom it was paid refuses to perform specifically (Marsh v. Wyckoff, 10 Bosw. [N. Y.] 202; Reynolds v. Harris, 9 Cal. 338; Phillips v. Hudson, 31 N. J. Law, 143); but not if the party to whom it is paid offers to perform (Beaman v. Buck, 17 Miss. 209; Congdon v. Perry, 13 Gray, 3; Collier v. Coates, 17 Barb. 471; Bennett v. Phelps, 12 Minn. 327.

§ 20. Payment of illegal interest. When the law fixes the legal rate of interest, and prohibits the taking of a greater rate, all interest charged and paid in excess of the legal rate may be recovered back in

an action for money had and received. Wheaton v. Hibbard, 20 Johns. 290; Thomas v. Shoemaker, 6 W. & S. (Penn.) 179; Berry v. Makepeace, 3 Ind. 154; Cross v. Bell, 34 N. H. 83; Boardman v. Roe, 13 Mass. 105; Scott v. Leary, 34 Md. 389; State Bank v. Ensminger, 7 Blackf. (Ind.) 105. But if the contract does not provide for the payment of interest at all, and the party, supposing that it was upon interest, paid interest, it was held that it could not be recovered back (Buel v. Boughton, 2 Denio, 91); so, in Minnesota, in Nutting v. McCutcheon, 5 Minn. 382, it was held that where the parties verbally agreed upon the payment of interest at the current rate of seven per cent, but payments were in fact made at a higher rate, that the excess could not be recovered back. But in Vermont, in Stevens v. Fisher, 23 Vt. 272, it was held that where a greater rate of interest than that provided by law was taken, it was immaterial to the right of recovery, whether the excessive rate was paid in pursuance of an usurious agreement made at the time when the contract was entered into or not, but in that State the statute provides that if any greater rate of interest than six per cent shall be taken for the use of money, the excess may be recovered back. There is an apparent inconsistency in permitting a person to recover back usurious interest paid upon a contract, unless the statute provides therefor, as the payment is certainly voluntary, and the party by resisting the claim could prevent its recovery; and although it may be true that it is more economical to pay the excessive rate than to litigate the question, yet, in all other instances, except where there is duress, coercion or fraud, a party is bound to stand upon and defend his rights at his peril, and there would seem to be no good reason why the same rule should not prevail as to usurious interest.

§ 21. Payments without consideration. Of course, where money is given to a person as a voluntary gift, it cannot be recovered back; but where it is paid to a person under a contract by which the person paying expects to receive something of value, and it proves valueless, or where it is paid to secure a certain right or privilege, and it proves utterly inoperative for such purpose, it may be recovered back; as where a person pays money for an insurance that never attaches (Hazard v. Franklin Ins. Co., 7 R. I. 429); or where a slave, already free, pays money to his master to secure his freedom (Curranee v. McQueen, 2 Paine's C. C. 109); or money is paid to a municipal corporation for a license which it had no power to grant. Leonard v. Canton, 35 Miss. 189. But in these cases the recovery proceeds upon the ground that there was a failure of consideration, and not that the money was paid without consideration. As in that case, in the absence of duress, coercion

or fraud, the payment would be voluntary and gratuitous. Speise v. McCoy, 6 W. & S. (Penn.) 485; Gibbs v. Swift, 12 Cush. 393. See & 22 for a fuller treatment of the subject.

§ 22. Payment upon a consideration that has failed. Money that is paid by one to another upon a consideration that has entirely failed, as, where it was paid in consideration of something which was agreed to be done, but which was never performed (King v. Hutchins, 28 N. H. 561; Congdon v. Perry, 13 Gray, 3; Beaman v. Buck, 17 Miss. 209; Phillips v. Hudson, 31, N. J. Law, 143; Richard v. Allen, 17 Me. 296; Hickock v. Hoyt, 33 Conn. 553; White v. Merrell, 32 Ill. 511; Leach v. Tilton, 40 N. H. 473); or for property the title to which has failed in all those cases where the law implies a warranty of title, either because the vendor had no title, or because he fails to do that which he was bound to do to perfect it. Phillips v. Hudson, 31 N. J. Law, 143; Pennington v. Clifton, 10 Ind. 172; Murray v. Carret, 3 Call. (Va.) 373; Lebanon v. Heath, 47 N. H. 353. Thus where money is paid for efforts to be used in procuring a pardon of a criminal and no efforts are ever made (Adams Express Co. v. Reno, 48 Mo. 264); so where a town paid money to a substitute broker for a substi tute who proved to be a deserter, and was dropped from the credit of the town (Lebanon v. Ileath, 47 N. H. 353); so, where a person purchased a draft, and having lost it, the drawer refused to give a duplicate (Murray v. Carret, 3 Call. [Va.] 373); or where he has paid money for property that proves utterly worthless, where there is a warranty express or implied, or that proves not to be as warranted, or where it proves to be different from what it was represented to be by the seller, the purchaser may, by tendering back the property, recover the sum paid, in an action for money had and received, if he prefers to do that, instead of proceeding for damages for a breach of warranty, or for deceit. Way v. Cutting, 17 N. H. 450; Dutricht v. Melchor, 1 Dall. (Penn.) 428; Wilson v. Jordon, 3 S. & P. (Ala.) 92; Bradford v. Manly, 13 Mass. 139; Conner v. Henderson, 15 id. 319. So where a person draws an order in favor of one upon another, but, before the order is presented, directs the person upon whom it is drawn not to pay it, the drawee may recover the amount as for money had and received of the drawer (Child v. Moore, 6 N. H. 33); so where money is paid for property which the payee refuses to deliver (Harrison v. Chilton, 5 Yerg. [Tenn.] 293; Hancock v. Tanner, 4 S. & P. [Ala.] 262; Davis v. Marston, 5 Mass. 199); so, where money is paid for certain land which is deeded, and no land exists of the description contained in the deed (Dutricht v. Melchor, 1 Dall. [Penn.] 428); so, when money is paid as advance rent of premises, which the

owner conveys to a third person before the lease is made (Weeks v. Hunt, 13 Vt. 144); so, where a person pays money under a verbal agreement for land with a house on it, and before the land is conveyed the house is burned, he may recover back the money paid (Thompson v.Gould, 20 Pick. 134); and, generally, in all cases where the consideration for which money was paid fails through no fault of the payor, he may recover it back. Pindall v. North Western Bank, 7 Leigh (Va.), 617; Barnes v. Baylies, 18 Vt. 430; Earle v. De Witt, 6 Allen, 520; Steele v. Hobbs, 16 Ill. 59; Griggs v. Morgan, 9 Allen, 37; Strong v. Bliss, 6 Metc. 393; Lyon v. Annable, 4 Conn. 350; Putnam v. Westcott, 19 Johns. 73; Smith v. McCluskey, 45 Barb. 610. But in order to recover, the plaintiff must show that he paid money, or that which was accepted as, or has been converted into money (Van Ostrand v. Reed, 1 Wend. 424); and the failure of consideration must be total. Free man v. Galbraith, Wright (Ohio), 591; Charlton v. Lay, 5 Humph. (Tenn.) 496; Miner v. Bradley, 22 Pick. 457; Begbie v. Phosphate Sewage Co., L. R., 10 Q. B. 491; 14 Eng. Rep. 296.

§ 23. Rescinded or abandoned contract. In all cases where money has been paid to a person in pursuance of an executory contract, and he has the power to and does rescind the same, or even where he is legally bound to perform, but refuses to do so, the payor may recover back the money paid. Stevens v. Lyford, 7 N. H. 360; Holbrook v. Holbrook, 30 Vt. 432; Gillett v. Maynard, 5 Johns. 85; Wilson v. Van Winkle, 7 Ill. 684; Pharr v. Bachelor, 3 Ala. 237; Graham v. Chandler, 38 Vt. 559; Martin v. Howil, 3 Brev. (S. C.) 547. So, too, where money has been paid to one for a certain purpose and he fails or refuses to perform as agreed, the payor may rescind the agreement and recover back the amount paid (Appleton v. Chase, 19 Me. 74); but if he has derived any benefit under the contract the amount of the benefit must be deducted. Richards v. Allen, 17 Me. 296. If a parol contract for the purchase of land is entered into and money is paid thereon, and the owner of the land refuses to convey (Bennett v. Phelps, 12 Minn. 327; Congdon v. Perry, 13 Gray, 3; Marsh v. Wyckoff, 10 Bosw. 202); or has conveyed it to another (Goddard v. Mitchell, 17 Me. 366); or cannot give a title to the premises (Way v. Raymond, 16 Vt. 371); without the default or wrong of the payor; or where the parties, by mutual consent, have rescinded the contract, he may recover back the money paid. Graham v. Chandler, 38 Vt. 559; Beaman v. Simmons, 76 N. C. 43; Tompkins v. Seely, 29 Barb. 212; Smith v. Lamb, 26 Ill. 396. But he cannot maintain the action so long as he is in the peaceable and undis turbed possession of the land (Cope v. Williams, 4 Ala. 362); nor