Kelly v Solari

JurisdictionEngland & Wales
Judgment Date18 November 1841
Date18 November 1841
CourtExchequer

English Reports Citation: 152 E.R. 24

EXCHEQUER OF PLEAS.

Kelly
and
Solari

S. C. 11 L. J. Ex. 10; 6 Jur. 107. Followed, Bell v. Gardiner, 1842, 4 Man. & G. 11; 4 Scott, N. R. 621; Dails v. Lloyd, 1848, 12 Q. B. 531; 5 Railw. Cas. 572; Townsend v. Crowdy, 1860, 8 C. B. (N. S.) 493. Approved, Imperial Bank of Canada v. Bank of Hamilton, [1903] A. C. 49. Distinguished, Chambers v. Miller, 1862, 13 C. B. (N. S.) 133. Referred to, Brownlie v. Campbell, 1880, 5 A. C. 952; Barrow v. Isaac, [1891] 1 Q. B. 425; Deutsche Bank (London Agency) v. Beriro, 1895, 1 Com. Cas. 255; 73 L. T. 669.

3 f-*-/?- sY3- &fJ34] kelly v. solari. Exch. of Pleas. Nov. 18, 1841.-Money paid by the Ci.-e.t-T/, plaintiff to the defendant under a bona fide forgetfulness of facts which disentitled -Q.t.iifA, the defendant to receive it, may be recovered back in an action for money had .M.f-f. r*?pa,nd received.-It is not sufficient to preclude a party from recovering money //tr^ -/A. paid by him under a mistake of fact, that he had the means of knowledge of the ,, ,,1 fact; unless he paid it intentionally, not choosing to investigate the fact. [S. C. 11 L. J. Ex. 10; 6 Jur. 107. Followed, Bell v. Oardiner, 1842, 4 Man. & G. 11; 4 Scott, N. K. 621; Dails v. Lloyd, 1848, 12 Q. B. 531; 5 Uailw. Cas. 572; Townxend v. Cruwdy, 1860, 8 C. B. (N. S.) 493. Approved, Imperial Hank of Canada v. Bank of Hamilton., [1903] A. C. 49. Distinguished, Chambfrx v. Miller, 1862, ]3 C. B. (N. S.) 133. Keferred to, Brownlie v. UamyMl, 1880, 5 A. C. 952; Burrow v. Isaacs, [1891] 1 Q. B. 425 ; Deutsche Bank (London Agency) v. Beriro, 1895, 1 Com. Cas. 255; 73 L. T. 669.] Assumpsit for money paid, money had and received, and on tin account stated. Plaa, non aasunipsit. At the trial before Lord Abinger, C. B., at the London sittings after Trinity Term, it appeared that this was an action brought by the plaintiff, as one of the directors of the Argus Life Assurance Company, to recover from the defendant, Madame Solari, the sum of 1971. 10s. alleged to have been paid to her by the company under a mistake of fact, under the following circumstances. Mr. Aiigelo Solari, the late husband of the defendant, in the year 1836, effected a polic}' on his life with the Argus Assurance Company for 200. He died on the 18bh of October, 1840, leaving the defendant his executrix, not having (by mistake) paid the quarterly premium on the policy, which became due on the 3rd of September preceding. In November, the actuary of the office informed two of the directors, Mr. Bates and Mr. Clift, that the policy had lapsed by reason of the non-payment of the premium, and Mr. Clift thereupon wrote on the policy, in pencil, the word " lapsed." On the 6th of February, 1841, the defendant proved her...

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124 cases
21 books & journal articles
  • Bank Account Operation
    • Canada
    • Irwin Books Archive Bank and Customer Law in Canada
    • 8 September 2007
    ...bank as “fundamental,” but this is now regarded as meaning simply that the mistake must be material, in the sense that it caused 209 (1841), 9 M. & W. 54, 152 E.R. 24 (Exch. Ch.). See also the earlier case: Price v. Neal (1762), 3 Burr. 1354, 97 E.R. 871 (K.B.) and J.B. Ames, “The Doctrine ......
  • Introduction
    • Canada
    • Irwin Books The Canadian Class Action Review No. 6-1, April 2010
    • 1 April 2010
    ...150 at 239. 162 Smith, above note 121 at 7–8. 163 See, generally, Pettyjohn, above note 126. 164 See, for example, Kelly v. Solari (1841), 9 M. & W. 54, 152 E.R. 24; Clark v. Eckroyd (1885), 12 O.A.R. 425 (C.A.) This claim may be subject to the defense of change of position. See Rural Munic......
  • An Old Snail in a New Bottle? Waiver of Tort as An Independent Cause of Action
    • Canada
    • Irwin Books The Canadian Class Action Review No. 6-1, April 2010
    • 1 April 2010
    ...150 at 239. 162 Smith, above note 121 at 7–8. 163 See, generally, Pettyjohn, above note 126. 164 See, for example, Kelly v. Solari (1841), 9 M. & W. 54, 152 E.R. 24; Clark v. Eckroyd (1885), 12 O.A.R. 425 (C.A.) This claim may be subject to the defense of change of position. See Rural Munic......
  • Waiving Goodbye: The Rise and Imminent Fall of Waiver of Tort in Class Proceedings
    • Canada
    • Irwin Books The Canadian Class Action Review No. 6-1, April 2010
    • 1 April 2010
    ...150 at 239. 162 Smith, above note 121 at 7–8. 163 See, generally, Pettyjohn, above note 126. 164 See, for example, Kelly v. Solari (1841), 9 M. & W. 54, 152 E.R. 24; Clark v. Eckroyd (1885), 12 O.A.R. 425 (C.A.) This claim may be subject to the defense of change of position. See Rural Munic......
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