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Page:Harvard Law Review Volume 1.djvu/230

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answer to an action brought to recover money paid under mistake?

In Newall v. Tomlinson certainly the defendant’s position was materially changed in consequence of the payment, and in such a case, if the loss which the defendant will sustain, if the plaintiff is allowed to recover, equals the amount which be has received from the plaintiff, it is difficult to understand how he is unjustly enriched at the plaintiff’s expense. If the parties are equally innocent, and the defendant has the title to the money in question, it would seem rather that a Court in taking it away from him unjustly enriches the plaintiff at the defendant’s expense.

Of course, if it can be shown that the plaintiff, rather than the defendant, is responsible for the mistake, the defendant, rather than the plaintiff, should bear the loss.

There seems to be little in the way of authority on this point. In Durant v. Ecclesiastical Commissioners,[1] it was held that the defendant’s change of position would not prevent a recovery. This is opposed to the dicta found in Freeman v. Jeffries,[2] and is certainly opposed to the dicta contained in many cases in this country.[3]

What constitutes a mistake of fact as distinguished from a mistake of law will be considered hereafter, in discussing the question of the right to recover money paid under a mistake of law.

William A. Keener.


  1. 6 Q. B. D. 234.
  2. L. R. 4 Ex. 189.
  3. Appleton Bank v. McGilvray, 4 Gray, 518; Lawrence v. American National Bank, 54 N. Y. 432; Guild v. Balbridge, 2 Swan, 295.