304 HARVARD LAW REVIEW. nocent parties having equal equities, the one who has the legal title will prevail, is conspicuously illustrated by another class of cases strongly resembling the one just considered. Aiken v. Short,* Heurtematte v. Morris,^ Fort Dearborn Eank v. Carter,^ South- wick V, First Bank,* and the like, decide, that the payee of an order or bill of exchange, who takes the same either by way of purchase or on account of a debt due to him from the drawer, and who after- wards procures its acceptance or payment by the drawee, may en- force the acceptance or keep the money, although the drawee was induced to accept or pay by the fraudulent representations of the drawer. This doctrine is a familiar one in the continental law.^ Duranton first considers the case where the payee was a creditor of the drawer, and remarks that the "Roman law not only denied the drawee's right to recall what he had paid on his acceptance, although induced by mistake, but also allowed him no defence to an action upon his promise, and that, too, although he accepted in consequence of the fraud and chicanery of the drawer." He then points out that if the payee were a volunteer he could not keep the money or enforce the promise, because in such a case "the payee is not fighting to avoid a loss, but rather to make a profit, and the drawee, on the other hand, is fighting to avoid a loss. . . . Whereas, when the payee is a creditor of the drawer, versaretur in damno, if the drawee could refuse to perform his promise or could recall his payment." In Hke manner the assignee of a chose in action, who acquires it by purchase or on account of a debt due him from the obligee, and who collects the claim from the obligor, may keep what he has got, although the obligor paid in ignorance of the fact that he had a vaHd defence to the enforcement of the claim; e.g., fraud,® illegality,^ failure of consideration,® payment,® set-off,*^ and the like.
- I H. & N. 210; Walker v. Conant, 69 Mich. 321, accord. ^ loi N. Y. 63.
^ 152 Mass. — , 25 N. E. Rep. 27. * 84 N. Y. 420.
- 12 Duranton, Cours de Droit Franfais, § 332; Gide, Novation, 421; Erxleben,
Condictiones sine Causa, 156 et seq.; 3 Endemann, Handbuch d. Handels-, See- und Wechselrechts, 1 102, 11 15. ^ Merchants' Co. v. Abbott, 131 Mass. 397. ^ Atty.-Gen. v. Perry, Comyns, 481, is contra. But this case is not likely to be followed, unless as a revenue decision. ® Youmans v. Edgerton, 91 N. Y. 403. ^ Mar V. Callander, Mor. Diet. 2927; Ker v. Rutherford, Mor. Diet. 2928; Duke V. Halcraig, Mor. Diet. 2929. ^° Franklin Bank v. Raymond, 3 Wend. 69, citing Price v, Neal.
