Page:Harvard Law Review Volume 10.djvu/251

225 KEENER ON QUASI-CONTRACTS, 225 incapable of a real application as a principle of jurisprudence, and that if the attempt is made so to use it, the attempt results either in begging the question or else in a more or less conscious resort to some, other and extrinsic principle. An examination of the treatise under the review is an empirical proof of the justness of this conclusion. In each discussion one or the other of these two errors is exemplified. Thus the former is illustrated in the follow- ing passage ^ : — " In Farmer v. Arundel ^ the plaintiff sought to recover money which he had paid the defendant for the support of a pauper, supposing that the defendant, who had supported the pauper, had a right to call upon him for reimbursement. It was held that regardless of the defendant's right to demand payment, there could be no recovery, since it was not against conscience for the defendant to retain the money so paid. De Grey, C. J., said : — ' When money is paid by one man to another on a mistake either of fact or of law, or by deceit, this action will certainly lie. But the proposition is not universal that whenever a man pays money which he is not bound to pay he may by this action recover it back. Money due in point of honor or conscience, though a man is not com- pellable to pay it, yet if paid, shall not be recovered back, as a bo7ia fide debt, which is barred by the statute of limitations. . . . by the defendant (which it is not now necessary to decide), yet I am of the opinion that it is an honest debt, and that the plaintiff having once paid it shall not by this action, which is considered an equitable action, recover it back again.' '^ If this passage is analyzed, It will appear that the only reason stated by the learned author is that it was " not against conscience " for the defendant to keep the money, and that the only reason stated by the Chief Justice is that " it was an honest debt." The sum and substance of these reasons is only this, that the plaintiff ought not to recover. Was not this the very matter in issue, and did the plaintiff receive a sufficient answer, or any answer at all, to his arguments to the contrary? The following passage illustrates the reference to extrinsic principles^: — " This suggestion [not now material] presents for consideration the theory upon which a plaintiff who has a right to sue for a breach of con- tract is allowed to sue in indebitatus assumpsit. If this right is to be 1 Page 43. a 2 Wm. Bl. 824. » Page 299. — The italics are mine.
 * ' * Admitting, therefore, that the money could not have been demanded