It should be emphasized that change of position alone is not a defense - the change must be irrevocable. This point, which appears in some decisions to have been overlooked, is brought out with great clearness in a Rhode Island case: pp. 66, 67; Costigan, "Change of Position as a Defense," 20 Harv. Law Rev. 205, 216. Kingston Bank v. Eltinge, supra, has also been criticized by Professor Keener (" Quasi-Contracts," pp. 67-70); and Professor Costigan declares (20 Harv. Law Rev. 215, n. 4) that the later New York cases "are not unfriendly to a change," citing Continental Nat. Bank v. Tradesmen's Bank, 1903, 173 N. Y. 272, [65 N. E. 1108], and Nat. Park Bank v. Seaboard Bank, 1889, 114 N. Y. 28, [20 N. E. 632; 11 Am. St. Rep. 612], to which may be added, Hathaway v. County of Delaware, 1906, 185 N. Y. 368; 78 N. E. 153; 13 L. R. A. (N. S.) 273; 113 Am. St. Rep. 909; and Ball v. Shepard, 1911, 202 N. Y. 247; 95 N. E. 719. It should also be noted that upon an appeal from a second trial of Kingston Bank v. Eltinge, it having appeared that not only had the defendant relinquished a hen but such relinquishment had resulted in a benefit to the plaintiff as great as that received by the defendant, the right to restitution was denied. Kingston Bank v. Eltinge, 1876, 66 N. Y. 625.
1 Crocker-Woolworth Bank v. Nevada Bank, 1903, 139 Cal. 564; 73 Pac. 456; 63 L. R. A. 245; 96 Am. St. Rep. 169, (Plaintiff paid a raised check on an indorsement so restricted that the defendant was held not liable as a general indorser or as representing that it was genuine. Defendant, before learning of the error, paid the money over to its customer. Henshaw, J.: "The governing principle is this: that where equally innocent persons have dealt with one another under a mistake, the burden of loss resulting from the common error ordinarily will be left where the parties themselves have placed it, and so a recovery can only be had where in equity and good conscience the defendant should be called upon to refund."); Behring v. Somerville, 1899, 63 N. J. L. 568; 44 Atl. 641; 49 L. R. A. 578, (Money paid to second mortgagee instead of first; defendant surrendered his assignment and lost his legal hold upon the bond and mortgage as security for his claim against the assignor. See criticism of this case, 13 Harv. Law Rev. 530.); Union Bank of Lower Canada v. Ontario Bank, 1880, 24 Lower Can. Jur. 309; Boas v. Updegrove, 1847, 5 Pa. St. 516; 47 Am. Dec. 425, (Terre-tenant paid judgment mistakenly supposed to be hen on land; as a result, judgment discharged.) See Citizens Bank v. Rudisill, 1908, 4 Ga. App. 37; 60 S. E. 818; Pensa-cola, etc., R. Co. v. Braxton, 1894, 34 Fla. 471; 16 So. 317.
Phettephce v. Bucklin, 1893, 18 R. I. 297; 27 Atl. 211: The surety on an executor's bond, after the malversation and insolvency of his principal, paid the representatives of a legatee who, without leaving lineal descendants, predeceased the testator, and whose legacy had thus lapsed, the death of the legatee being unknown to the surety. The representative of the legatee distributed the money according to the legatee's will, after which the surety brought action against him to recover the amount paid. The defendant contended that since he had paid over the money, the enforcement of restitution would be inequitable, but the court said (p. 301): "It is possible that a simple request to the legatees, accompanied by a statement of the facts showing the injustice of their retention of the money, would result in their returning it to be restored to the plaintiff. Until all reasonable efforts have been made by the defendant to get back the money and have proved unavailing, how can it be said that it would be inequitable to permit a recovery?"1