Restitution Discussion Group Archives
| Sender: |
Andrew Tettenborn |
| Date: |
Tue, 23 Nov 1999 13:12:59 |
| Re: |
Archer's woes |
There is some English
authority that may be of use. In Ward v Wallis [1900] 1 QB 675 P sues D
for a debt, mistakenly giving credit for £75 paid on account. D, who
knows the facts, pays the balance & gets a discharge for the whole sum.
Held: P can recover £75 as money had & received. Also Duke de Cadaval
v Collins 4 A & E 858, where P sues D and arrests him for a bogus debt.
D pays up. Held: D recovers what he has paid as money had & received on
the basis of illegitimate application of legal process.
True, there is also authority that you can't get back money paid under
a subsisting judgment (De Medina v Grove 10 QB 152). But factor in the
proposition that an action will lie at common law to get rid of a judgment
fraudulently obtained (Halsbury, Judgments & Orders, old vol 26, para
555) and you seem to have something approaching an answer.
SmLC, ii, 389 ff is a useful quarry of authority here.
Andrew Tettenborn Tel: 01392-263189 / +44-392-263189 (international) Snailmail:
Bracton Professor of Law
Fax: 01392-263196 / +44-392-263196 (international)
School of Law,
University of Exeter,
Amory Building,
Rennes Drive,
Exeter EX4 4RJ
England
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