When a person pays money for another at his request, he is entitled to be reimbursed by the party for whom the payment was made.23 Where a person, not a party to a note, in the presence of the maker requested a third person to pay it, and such third person did pay it and on receiving it handed it to the maker, telling him; "Pay me, the amount of the note some time," it was held that the request in the presence of the maker without his objection, and his acceptance of the note, raised an implied promise on his part to repay the person who paid it.24

When money is voluntarily paid on an illegal demand it cannot be recovered back on the theory of an implied promise.25 On this point the Supreme Court of the United States said in Elliott vs. Swartwout:26 "The case put in the second point is where the collector has received the money in the ordinary and regular course of his duty, and has paid it over into the treasury, and no objection made at the time of payment, or at any time before the money was paid over to the United States. The manner in which the question is here put, presents the case of a purely voluntary payment, without objection or notice not to pay over the money, or any declaration made to the collector of an intention to prosecute him to recover back the money. It is therefore to be considered as a voluntary payment, by mutual mistake of law; and, in such case, no action will lie to recover back the money. The construction of the law is open to both parties, and each presumed to know it. Any instructions from the Treasury Department could not change the law or affect the rights of the plaintiff. He was not bound to take and adopt that construction. He was at liberty to judge for himself, and act accordingly. These instructions from the treasury seem to be thrown into the question for the purpose of showing, beyond all doubt, that the collector acted in good faith. To make the collector answerable, after he had paid over the money, without any intimation having been given that the duty was not legally charged, cannot be sustained upon any sound principles of policy or of law. There can be no hardship in requiring the party to give notice to the collector that he considers the duty claimed illegal, and put him on his guard, by requiring him not to pay over the money. The collector would then be placed in a situation to claim an indemnity from the government. But if the party is entirely silent, and no intimation of an intention to seek a repayment of the money, there can be no ground upon which the collector can retain the money, or call upon the government to indemnify him against a suit. It is no sufficient answer to this that the party cannot sue the United States. The case put in the question is one where no suit would lie at all. It is the case of a voluntary payment under a mistake of law and the money paid over into the treasury; and if any redress is to be had, it must be by application to the favor of the government, and not on the ground of a legal right.

20 Williams vs. Everett, 14 East, 583; Curtis vs. Pauly, 107 CaL, 8; 48 Am. St. Rep., 98; Northrop vs. Graves, 19 Conn., 555; Long vs. Straus, 107 Ind., 94; 57 Am. Rep., 87; Norton vs. Kidder, 54 Me., 189; Good-ridge vs. Lord, 10 Mass., 487.

21 Guthrie vs. Hyatt, 1 Harr., 446.

22 Benton vs. Craig, 2 Mo., 198.

23 Poe vs. Dorrah, 20 Ala., 288; 56

Am. Dec., 196; Gaines vs. Scott, 3 Ky. L. Rep., 418; Watkins vs. Richmond College, 41 Mo., 302; Wolff vs. McGavock, 39 Iowa, 190.

24 Bruguier vs. Goewey, 39 Iowa, 190.

25 Wilson vs. Ray, 10 Ad. & El., 82, 37 E. C. L., 50; Derby vs. Pierce, 1 Dane's Abr., 190; Philadelphia vs. Collector, 5 Wall., 720; The Nicanor, 40 Fed. Rep., 361; Sheldon vs. South School Dist, 24 Conn., 88; Elston vs. Chicago, 40 I11., 514; 89 Am. Dec, 361; Jackson vs. Ferguson, 2 La. Am., 723; New York, etc., R. Co. vs. Marsh, 12 N. Y., 308.

» 10 Peters, 137, 153.

"The case of Morgan vs. Palmer (2 Barn. & Cres., 729), was an action for money had and received, to recover back money paid for a certain license; and one objection to sustaining the action was that it was a voluntary payment. The Court did not consider it a voluntary payment, and sustained the action; but Chief Justice Abbot, and the whole court admitted that the objection would have been fatal, if well founded in point of fact. The Court said it had been well argued that the payment having been voluntary, it could not be recovered back in an action for money had and received. And in Brisbane vs. Dacres (5 Taunt., 154), the question is very fully examined by Gibbs, Justice, and most of the cases noticed and commented upon, and with the concurrence of the whole court, except Chambre, Justice, lays down the doctrine broadly that where a man demands money of another, as matter of right, and that other, with a full knowledge of the facts, upon which the demand is founded, has paid a sum of money voluntarily, he cannot recover it back. It may be, says the judge, that, upon a further view, he may form a different opinion of the law; and it may be, his subsequent opinion may be the correct one. If we were to hold otherwise, many inconveniences may arise. There are many doubtful questions of law. When they arise, the defendant has an option either to litigate the question, or submit to the demand and pay the money. But, it would be most mischievous and unjust, if he, who had acquiesced in the right by such voluntary payment, should be at liberty, at any time within the statute of limitations, to rip up the matter and recover back the money. This doctrine is peculiarly applicable to a case where the money had been paid over to the public treasury, as in the question now under consideration. Lord Eldon, in the case of Bromley vs. Holland (7 Vesey, 23), approves the doctrine, and says it is a sound principle that a voluntary payment is not recoverable back. In Cox vs. Prentice (3 Maule & Selw., 348), Lord Ellenborough says: 'I take it to be clear that an agent who receives money for his principal, is liable, as a principal, so long as he stands in his original situation, and until there has been a change of circumstances, by his having paid over the money to his principal, or done something equivalent to it.' And in Buller vs. Harrison (2 Cowp., 568), Lord Mansfield says: 'the law is clear that if an agent pay over money, which has been paid to him by mistake, he does no wrong, and the plaintiff must call on the principal, that if, after the payment has been made, and before the money has been paid over, the mistake is corrected, the agent cannot afterward pay it over without making himself personally liable.' Here, then, is the true distinction; when the money is paid voluntarily, and by mistake, to an agent, and he has paid it over to his principal, he cannot be made personally responsible; but if, before paying it over, he is apprised of the mistake, and required not to pay it over, he is personally liable. The principle laid down by Lord Ellenborough in Townsend vs. Wilson (1 Campbell, 396), cited and relied upon on the part of the plaintiff, does not apply to this case. He says, 'if a person gets money into his hands illegally, he cannot discharge himself by paying it over to another; but the payment, in that case was not voluntary'; for, says Lord Ellenborough, 'the plaintiff had been arrested, and was under duress when he paid the money.' In Stevenson vs. Mortimer (2 Cowp., 816), Lord Mansfield lays down the general principle, that if money is paid to a known agent, and an action is brought against the agent for the money, it is an answer to such action that he has paid it over to his principal. That he intended, however, to apply this rule to cases of voluntary payments made by mistake is evident, from what fell from him in Sadler vs. Evans (4 Bur., 1987). He there said he kept clear of all payments to third persons, but where it is to a known agent, in which case the action ought to be brought against the principal, unless in special cases, as under notice, or mala fides; which seems to be an admission that, if notice is given to the agent before the money is paid over, such payment will not exonerate the agent. And this is a sound distinction, and applies to the two questions put in the second and third points, in the case now before the court. In the former, the payment over is supposed to be without notice, and in the latter after notice, and a request not to pay over the money. The answer, then, to the second question, is, that under the facts there stated, the collector is not personally liable."