Page:Harvard Law Review Volume 4.djvu/326

310 3IO HARVARD LAW REVIEW, court gave judgment against the plaintiff, on the ground that the defendant was a purchaser for value without notice. It requires a considerable effort of the imagination to find here the elements of a purchase. But the decision seems clearly right, for the equities were equal, and the defendant had the bonds. Here, too, as in the preceding two instances, the loss, which first fell on the defendant, was afterwards transferred to the plaintiff. The rule as to equal equities is also applicable, although the holder of the legal title parts with his money, neither before nor contemporaneously with its acquisition, but subsequently thereto. If, for example, a plaintiff pays and the defendant receives money, supposed by both to be due from the defendant, but really due from X, and the mistake is not discovered until the claim against X is barred by the Statute of Limitations, or has become worthless by the insolvency of X, the defendant can keep the money. The rule is the same, if the defendant's pecuniary position has become changed in other ways, in consequence of the receipt of the money. Here, again, both parties are innocent, and one of them must suffer; but the defendant, having the legal title to the money, prevails.^ It is hoped that what has been written may serve to convince the reader of the extensive scope of the doctrine that equity will not interfere as between two persons having equal equities, but will let the loss lie where it has fallen. It will certainly be a satis- faction to the writer, if he has helped to vindicate the opinion of Lord Mansfield in Price v. Neal from the false gloss that has been put upon it by his successors. J. B. Ames, Cambridge. ^ Brisbane v. Dacres, 5 Taunt. 144; Skyring v. Greenwood, 4 B. & C. 281; Watson V. Moore, 33 Law Times, 121; Union Ass'n v. Kehlor, 7 Mo. Ap. 150; Mayer v. State Bank, 8 Neb. 104, 109; Union Bank v. Sixth Bank, 43 N. Y. 452; Mayer v. Mayor, 63 N. Y. 253; White v. Continental Bank, 64 N. Y. 476; Curren v. Mayor, 79 N. Y. 511, 515; Beam v. Copeland, Texas, 14 S. W. R. 1094; Union Bank v. Ontario Bank, 24 Lx)w, Can. Jur. 309; Pothier, Obligations, No. 256; 13 Duranton, Cours de Droit Frangais, § 685. The principle was clearly stated in Kingston Bank v. Eltinge, 40 N. Y. 391, but strangely misapplied, the court considering that the plaintiff had the legal title, although the money had been paid to the defendant by the pla'mtiff's consent. If land had been conveyed, instead of money, it it hardly to be supposed that the court would have treated the legal title as being in the plaintiff; but there is obviously no difference between the two cases in principle. Durrant v. Eccles. Commissioners, 6 Q. B. D. 234, is difficult to explain, unless, by reason of the relative positions in life of the parties, the defendant should be held responsible for the consequences of the mistake.