knowledge of the facts, but has since forgotten them. I certainly laid down the rule too widely to the jury, when I told them, that if the directors once knew the facts, they must be taken still to know them, and could not recover, by saying that they had since forgotten them. I think the knowledge of the facts which disentitles the party from recovering, must mean a knowledge existing in the [17] mind at the time of payment. I have little doubt in this case that the directors had forgotten the fact, otherwise I do not believe they would have brought the action; but as Mr. Platt (a) certainly has a right to have that question submitted to the jury, there must be a new trial." The other barons concurring, the rule was made absolute. That case, therefore, is a decisive authority in favour of the defendant. In Bilbie v. Lumley (2 East, 469) it appeared not only that the party who made the payment had the means of knowledge, but also that he had the actual knowledge, of all the material facts. In every case where the plaintiff has been held entitled to recover money paid under a mistake of the facts, the means of knowledge existed, if they had been exercised. Thus, in Bize v. Dickason (1 T. R. 285), where a bankrupt had underwritten a policy to a broker acting under a commission del credere, and losses on the policy happened before the bankruptcy and were adjusted by the bankrupt, it was held that, as the broker might have deducted the amount of the loss from the debt which he owed to the estate of the bankrupt, but had, by mistake, paid all that was due, to the assignees, without deducting such money, he might recover it from them, as money had and received to his use (d). In that [18] case there is no doubt that the broker might have known all the circumstances. So, in Cox v. Prentice (3 M. & S. 344), where the defendant had received from his principal abroad a bar of silver, and took it to the plaintiffs, who melted it, and sent a piece to an assayer to be assayed at the defendant's expense, and paid a price for the bar to the defendant, as for the number of ounces of silver which, by the assay, it was calculated to contain, which number was afterwards discovered to exceed the true quantity; it was held, that the plaintiffs might, after having offered to return the bar, maintain an action for money had and received against the defendant for the price thus paid to him under a mistake. There, also, the plaintiffs might, by inquiry, have ascertained the exact quantity of the silver before they paid the money over to the defendant. The principle upon which all these cases have been decided, has, in truth, nothing to do with the fact of the party having or not having the means of knowledge. If, indeed, a payment be made voluntarily, either with a full knowledge of the facts, or under a determination not to inquire into them, the money so paid cannot be recovered: but that is not the present case; for it is obvious that this defendant always considered [19] himself liable upon the bill, and was so treated by the other parties, when, in fact, he was discharged from his liability by the alteration

(a) Counsel for the defendant.

(d) Bize v. Dickason would seem to be the case of a payment made rather under a mistake of law than of fact. It does not appear from the report that the plaintiff was in ignorance of any of the facts. The rule laid down by Lord Mansfield is very broad. "Where money is paid under a mistake, which there was no ground to claim in conscience, the party may recover it back again by this kind of action." (P. 287.) Gibbs J., in commenting upon this case in his judgment in Brisbane v. Dacres (5 Taunt. 154), says, "It is most certain that the only question under the consideration of the court was, whether the right of the broker, who had a del credere commission,— to make the deduction, ranged itself under the case of Grove v. Dubois, 1 T. R. 112, and Mingay declined all argument, and gave up the case. It was taken for granted without argument, that if the plaintiff would have had a right to make the deduction before payment, he might recover back the amount after payment." And afterwards, observing upon the passage from Lord Mansfield's judgment above cited, he adds, "Mistake may be a mistake of law or of fact; but I cannot think Lord Mansfield said 'mistake of law,' for Lord Mansfield had, six years before, in Lowry v. Bourdieu (2 Dougl. 467), heard it said, 'money paid in ignorance of the law could not be recovered back,' and had not dissented from the doctrine, and Buller J. sat by him, who had expressly stated the distinction six years before, in Lowry v. Bourdieu, and would not have sat by and heard the contrary stated without noticing it."

Upon the point that money paid under a mistake of law, but with knowledge of the facts, cannot be recovered, Brisbane v. Dacres, 5 Taunt. 143, is a leading authority. And see post, 26 (a).

that had been made in the bill. The note, therefore, was given by the defendant under a belief that he was discharging a legal liability; there was a mistake in fact, and not in law; consequently the note cannot be enforced against him. [Tindal C. J. It appears that at one time the defendant must have known the bill had been altered; as the memorandum, in his own writing, shews the time when it was originally due.] The fact was not in his mind at the time he gave the note: the jury have so found, and that amounts to want of knowledge on his part.

Independently of the want of knowledge there is, moreover, enough upon the face of the plea to afford a good defence. It is stated, that the note was given without consideration; and that would be sufficient after verdict. In Easton v. Pratchett (1 C. M. & R. 798, 4 Tyrwh. 472, affirmed upon a writ of error, 2 C. M. & R. 542), in assumpsit on a bill of exchange by indorsee against indorser, the defendant pleaded that he indorsed the bill to the plaintiff, without having or receiving any value or consideration whatsoever for or in respect of his said indorsement, and that he had not at any time had or received any value or consideration whatsoever for or in respect of such indorsement. It was held that the plea was sufficient after verdict, although on special demurrer it might have been bad, for not setting forth the circumstances under which the bill was sought to be impeached. On the authority therefore of that case, the present plea would be sufficient, as alleging want of consideration; even should the court be disposed to think that the defendant, having had the means of knowledge, could not resist the payment of the note; for having been given without consideration, it would amount to [20] a mere present, and would afford no ground of action (a).

the

Channell Serjt. in support of the rule. The decision in Kelly v. Solari (9 M. & W. 54), which had not been reported when the present rule was moved for, is undoubtedly adverse to the plaintiff; but still that case is to be distinguished from the present. The circumstances of this case are strong to shew that the defendant had actual knowledge of the alteration of the bill at the time he gave the note; but as the jury have found the other way, it must be so taken. Still there can be no doubt that he had the amplest means of knowing the fact. The previous authorities certainly seem to bear out the proposition, that it is not enough for a party to have made a payment in ignorance of the facts, but that if he had full means of knowledge he cannot recover money paid. And this rule appears to be consonant with common sense. Suppose a party to make a payment in ignorance of facts, which by using the most ordinary diligence he might have ascertained, it seems hard upon the party receiving the money that he should be obliged to refund it, after a long period has elapsed, and when the situation of the parties may have been entirely changed; for if the rule contended for is strictly adopted, it would follow that the party paying under such circumstances might recover the money at any time within six years. In Milnes v. Duncan (6 B. & C. 671, 9 D. & R. 731), a bill of exchange had been drawn in Ireland, upon the stamp required [21] by law, which was less in amount than the stamp required on a bill drawn for the same sum in England; but there was nothing on the face of the bill to shew that it had been drawn in Ireland. The holder in England neglected to present it for payment, and held it a month after it was due. The acceptor having become bankrupt, the holder applied for payment to the indorser who had paid it to him. The latter refused to pay it, alleging that the holder had made it his own by his laches. The holder then threatened to sue him, alleging that the bill was void on the ground that it was drawn on an improper stamp. The indorser inspected the bill, and finding that the stamp was not that required for a bill of the same amount drawn in England, but ignorant of the fact that it had been drawn in Ireland, paid the amount to the holder. It was held that the money, being paid in ignorance of the fact, and there being no laches imputable to the party who paid the money, he might recover it back in an action for money had and received. The want of laches was strongly relied upon in that case. Bayley J. in giving his judgment said, "There is no doubt as to the rule of law applicable to this case. If a party pay money under a mistake of the

(a) Vide Pothier, Traité du Contrat de Change, No. 225. "Des Rescriptions." No. 234, 235. "Des Rescriptions pour cause de Pret ou de Donation," as to orders for the payment of money made by way of gift to the payees.

And see ante, vol. ii. 691 (a), as to the general rules by which donations inter vivos and donations mortis causâ, are governed.

C. P. XII.-1*

law, he cannot recover it back. But if he pay money under a mistake of the real facts, and no laches is imputable to him, (in respect of his omitting to avail himself of the means of knowledge within his power), he may recover back such money" (6_B. & C. 677). And Littledale J. added, "whether the bill was valid or not, depended on a fact of which the plaintiff was at that time ignorant, viz., whether it was drawn in England or Ireland. It is said, that he had means of knowing that, for he might have inquired of the prior indorser; but there being nothing on the face of the [22] bill to lead him to suppose that it was drawn in Ireland, he was not bound to make any inquiry" (6 B. & C. 680). In the present case there was that on the face of the bill which ought to have induced a man of ordinary caution and prudence to make inquiries concerning the matter; the alteration was plain enough, and the defendant having had previous knowledge of the original date, ought to have had his attention alive to the fact. Bilbie v. Lumley (2 East, 469), is also in favour of the plaintiff. Kelly v. Solari, though apparently an authority against him, may be supported upon a ground which is not applicable to this case. The passage cited from Lord Abinger's judgment is most strongly in favour of the defendant; but a passage from the judgment of Parke B. shews the true ground of the decision. His lordship says, "I think that where money is paid to another under the influence of a mistake; that is, upon 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 it had been known to the payer that the fact was untrue, an action will lie to recover it back; and it is against conscience to retain it" (9 M. & W. 58). In that case it would undoubtedly have been most unconscientious in the defendant to keep the money when the policy had lapsed. But supposing the note had been paid in this case, and the defendant were seeking to recover back the amount, there would be nothing unconscientious on the part of the bank in retaining it; for it does not appear, they had any more knowledge of the alteration in the bill than the defendant. It might have been different if there had been any misrepresentation on their part; or if they had known of the alteration and that they had lost their remedy, and had not shewn the bill to the defendant.

[23] As to the other point, the authority of Easton v. Pratchett is not disputed. A plea which distinctly alleges that a bill or note was given without consideration, is sufficient after verdict; but in this case there is no distinct statement of want of consideration. The plea says that the defendant, believing he was liable on the bill, and being ignorant of the alteration in the date, agreed to deliver the note "in consideration of his supposed liability, and for no other consideration whatever," and in pursuance of such agreement did deliver the same "in consideration of his said supposed liability upon the said bill, and for no other consideration whatsoever; and then it concludes thus: "and so the defendant saith" that he made the note in the mistaken belief that he was liable upon the bill; "and that he, the defendant, never received any consideration or value for making the said promissory note." This is only a qualified statement of want of consideration; the words "and so," in the latter sentence, connecting both its branches with the former statement

TINDAL C. J. The question before the court arises upon a plea in answer to a declaration against the maker of a promissory note; in which plea the defendant alleges that the note was given under a mistake as to the facts, and, in effect, states that the defendant having indorsed a bill of exchange for the accommodation of the drawer, the bill was afterwards, without the defendant's knowledge, altered in a material point, so as to relieve him from his liability; that a demand being made upon him in respect of the bill, he gave the note in satisfaction of that demand, being ignorant at the time that he had been discharged from liability by the alteration of the bill. That is the general substance of the plea. Then the question is, whether this plea is sufficient without further alleging that the defendant, at the time he gave the note, was [24] also without the means of knowledge of the alteration of the bill. Whatever doubts might have been created by the dicta in Bilbie v. Lumley (2 East, 469) and other cases, it appears to me that the late case of Kelly v. Solari (9 M. & W. 54; supra, 19, 21) is decisive upon the point, and establishes that it is not necessary to the validity of such a plea that it should negative the existence of the means of knowledge as well as actual knowledge. We can, in fact, regard the possession of the means of knowledge only as affording a strong observation to the jury to induce them to believe that the party had actual knowledge of the circumstances; but there is no conclusive rule of law that, because a party has the means of knowledge, he has the

knowledge itself. There is no ground, therefore, for a rule for judgment non obstante veredicto.

There may be cases where the existence of the means of knowledge might lead irresistibly to the inference that the party had actual knowledge; but I think, as the jury have found that the defendant had not knowledge, in fact, when he gave the note, that this rule must be discharged. I may add, however, that the case of the present defendant is, in my opinion, stronger in his favor than if the money had been actually paid over and was sought to be recovered back; for here the defendant stands upon the invalidity of the document which he is called upon to pay (c).

COLTMAN J. The case of Kelly v. Solari (9 M. & W. 54; supra, 19, 21) has certainly modified an impression which previously existed in the profession, that a party, in order to recover back money paid under a mistake of facts, should also shew that he had no means of knowing them. The inconvenience that has been pointed out in argument may [25] undoubtedly exist; but it is not sufficient to induce us to differ from that case, which must decide this question. I agree also, that this is a stronger case than the recovering back of money actually paid; for this is no more than a promise to pay.

ERSKINE J. I am of the same opinion. It appears that the late case of Kelly v. Solari has overruled the dicta in the other cases cited at the bar; and it must now be taken that it is no answer in an action for money had and received, brought to recover back money paid by mistake, to say that the party had the means of knowing the facts, if he had not the knowledge in reality. But I think this case does not wholly depend upon that point. This is not an action to recover back money. If a party has paid money with a full knowledge of all the circumstances, he cannot recover it back; it is like a gift or a present (a); but this is an action brought on a note, for which the defendant says there was no consideration. He says, in effect, "I thought I was liable upon the bill at the time I gave the note; but I was ignorant of a fact that had freed me from my liability, and therefore there was no consideration for my signing the note." The jury have found that the note was given in ignorance of that fact; there was therefore no consideration for it. It is a much stronger case than Kelly v. Solari; and there is nothing unconscientious in the defendant's resisting the claim.

CRESSWELL J. I also am of opinion that this rule must be discharged. It has hardly been contended that the direction of the Lord Chief Justice was incorrect. The question left to the jury was, whether the note had been given in ignorance of the alteration of [26] the bill. They have found it was so given, and no attempt is made to disturb their verdict in that respect. But a point is now raised, whether it was sufficient for the defendant to negative knowledge of the alteration, or whether it was not necessary for him to negative also the possession of the means of knowledge. The case has been argued upon analogy to an action for money had and received; and in that view I should consider we were bound by the late case of Kelly v. Solari (9 M. & W. 54), which does not appear to me to be at variance with the decisions in former cases. Where a party has the means of knowledge, it may be evidence of actual knowledge; but no case has been decided that means of knowledge are equivalent, as a matter of law, to actual knowledge. In Milnes v. Duncan (6 B. & C. 671, 9 D. & R. 731), a party who had paid money in ignorance of the real facts, though he had the means of knowledge, was held entitled to recover. But, supposing the means of knowledge to be equivalent to actual knowledge, I do not see how the absence of laches could make any difference.

On the second point the case in the Exchequer is strongly in favour of the defendant. This is not an action to recover money. If money be paid without consideration, and with a full knowledge of the facts, it cannot be recovered back; but a party who makes a promise without consideration, in ignorance of the true state of the facts, may certainly say he is not bound to the performance of it. Suppose, in this case, the defendant, omitting the latter part of the plea, had only stated that there was no consideration for the note by reason of his want of knowledge of the facts, and the plaintiff had replied, "you had the means of knowledge," would that replication have

(c) And see Coles v. The Bank of England, 10 A. & E. 437, 2 P. & D. 521.
(a) Vide ante, 20 (a).

been sufficient? I [27] apprehend clearly not. On the authority, therefore, of Kelly v. Solari I think the rule must be discharged.

Rule discharged (a)1.

THOMAS WEBSTER AND ELIZABETH his Wife TO RICHARD CARLINE. April 21, 1842.

[S. C. 4 Scott, N. R. 636; 1 D. N. S. 678. Not followed, Blackmur v. Blackmur, 1876, 3 Ch. D. 634.]

The two commissioners who take the acknowledgment in England of a married woman under sects. 79 & 81 of 3 & 4 W. 4, c. 74, must both be appointed for the county in which the acknowledgment is taken.

Talfourd Serjt. moved that an acknowledgment by a married woman taken at Worksop in the county of Nottingham, where the property lay, might be filed of record, under the 85th section of the 3 & 4 W. 4, c. 74 (the fines and recoveries act) (a). A difficulty [28] had been raised in the master's office because it appeared that one only of the commissioners before whom the acknowledgment had been taken had been appointed for the county of Nottingham, the other being a commissioner for the county of Lincoln. The eighty-second section, it was submitted, had provided for such a case, having enacted, "that any person appointed commissioner for any particular county, riding, &c., shall be competent to take the acknowledgment of any married woman, wheresoever she may reside, and wheresoever the lands or money in respect of which the acknowledgment is to be taken may be.”

TINDAL C. J. That cannot mean that the commissioners are to act except in the county for which they are appointed. Otherwise what would be the use of appointing them for separate counties?

The learned serjeant consequently

Took nothing.

DOE DEM. NOTTIGE v. ROE. April 21, 1842.

Where judgment against the casual ejector is sought to be obtained upon service on the agent of the tenant, the tenant being abroad, the agency must be distinctly sworn to; and it is not sufficient that the party serving the declaration has been informed by the party served, and believes, that such party is agent.

Channell Serjt. moved for judgment against the casual ejector. It appeared from the affidavits that information had been obtained from certain parties,-who stated

(a) See Hornbuckle v. Hornbury, 2 Stark. N. P. C. 177; Williams v. Bartholomew, 1 Bos. & P. 326; Stevens v. Lynch, 12 East, 38. S. C. 2 Campb. 332; East India Company v. Tritton, 3 B. & C. 280, 290. S. C. 5 D. & R. 214; Dig. lib. 22, tit. 6; Doctor and Student, Dial. 2, cap. 46, 47; Pothier, Traité de l'Action Condictio indebiti, part 2, sect. 3, art. 3; 2 Nev. & M. 711; 6 N. & M. 87 (a); Chatfield v. Paxton, 2 East, 471, n., more fully stated by Gibbs C. J. in 5 Taunt. 155.

In Lucas v. Worswick, in the court of Common Pleas of the county palatine of Lancaster, 1 Moo. & Rob. 293, Lord Denman C. J. and Bolland B. held that money had and received lies to recover back the amount of a payment made under a forgetfulness of facts.

(a)2 Sect. 79 enacts, "That every deed executed by a married woman shall be acknowledged by her before a judge, a master in chancery, or two commissioners." Sect. 80 enacts, "That the judge, &c., before receiving such acknowledgment, shall examine her apart from her husband."

Sect. 81 enacts, "That the Lord Chief Justice of the Common Pleas shall from time to time appoint persons for every county, riding, division, soke or place for which there may be a clerk of the peace, to be perpetual commissioners for taking such acknowledgments."

By sect. 85 the certificate of the acknowledgment, signed by the judge or commissioners, with an affidavit verifying the same, is to be lodged with some officer of the court of Common Pleas, who shall cause the same to be filed of record in the court.