Boyd v. Taliaferro

CHILTON,, J. This case is entirely unlike the case of The Trustees of the University of Alabama v. Keller, Ex’x, 1 Ala. Rep. 406, in which it is held, that money voluntarily paid, under, ignorance of the. law., cannot, be recovered back in an action for- money had and, received. Nor does it come within the rule, that a defendant in a judgment cannot recover from the plaintiff such monies as the latter has recovered by virtue of the judgment, so long as such judgment remains in full force. This is a suit by the second indorser of a bill, to recover from a prior indorser, the amount which has been collected from him by law. There can be no doubt but that the payment of the bill by Boyd to, the bank, could have been pleaded b.y Taliaferro in bar of the action of the bank against him. But he is unadvised of this payment, and the means of ascertaining it ai;e withheld from, him, virtually,, by the, agreement between Boyd and the bank ; for it appears.by. this agreement, the payment is not tp.be entered upon the books of the bank. Why, it may be asked;, \yagit not to be entered? The reason is obvious, if- entered, the second indorser of the bill, Taliaferro, would then have had the means of being informed of the payment, and would have availed himself of it. Taliaferro then, having been compelled to pay the bill, which both Boyd and the bank agreed should not be considered as paid by the arrangement between them, has a right to, recover out of Boyd, and the latter cannot be permitted to. avail hipiself of his .own wrpng to defeat such recovery. The action of assumpsit has well [427] been assimilated to a bill in equity, in its application to many cases. This is one of those cases, wher'e, according to* both conscience and law, the plaintiff should have his remedy. See Dupuy v. Roebuck, 7 Ala. R. 486; Knox v. Abercrombie, 11 Ib. 997. The court, as we have seen, did not mistake the law in the charge excepted to. Let the judgment be affirmed.