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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119 cases
  • Dextra Bank and Trust Company Ltd v Bank of Jamaica
    • Jamaica
    • Court of Appeal (Jamaica)
    • 30 November 1999
    ...ground, Mr. Mahfood Q.C. relied on certain dicta in the case of R.E. Jones vs Waring and Gillow Ltd [1926] A.C. 670 in which the case of Kelly v Solari [1841] 9M & W 54 was approved. 37 In order to see the relevance of the passages which will be cited later from this case, an outline of t......
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    • Chancery Division
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  • BP Oil International Ltd v Target Shipping Ltd [QBD (Comm)]
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • 14 June 2012
    ...discussions variously refer to a person who pays in such circumstances as having waived inquiry into the true facts (as it was put in Kelly v Solari, (1841) 9 M & W 54) or having paid by way of "settlement of an honest claim" (see the Kleinwort Benson case, loc cit at p.382G/H per Lord Goff......
  • Avon County Council v Howlett
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 21 December 1982
    ...recoverable. 42 Baron Parke authoritatively stated the principles governing the recovery of money paid under a mistake of fact in Kelly -v- Solari 9 M&W 54 at page 58 as follows: "I think that where money is paid to another under the influence of a mistake, that is, upon the supposition tha......
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20 books & journal articles
  • 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......
  • Speaking the Class Action, Thinking the Class Action: A Discussion of Changing Trends in Quebec's Class Action Lexicon
    • 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......
  • Strategies to Avoid Or Mitigate Class Action Litigation
    • 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......
  • Access to a Just Result: Revisiting Settlement Standards and Cy Près Distributions
    • 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......
  • Request a trial to view additional results

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