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full force and effect. Historically, claims for the recovery of money paid under a mistake were brought in the classic action at law of indebitatus assumpsit (Ames, History of Assumpsit, 2 Harv. L. Rev. 1). The theory of the action was that a person who had been unjustly enriched by the mistaken payment to him of the money of another should not be suffered to retain that money as against the payor. Where a situation of that kind has arisen, the law raises an implied or imputed promise by the recipient to repay the money to the person rightfully entitled thereto. The obligation thus imposed by the law upon the recipient is termed quasi-contractual, since it exists regardless of consent, without contract, and yet may be enforced in a contract action. "In one word, the gist of this kind of action is that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money.” (Lord Mansfield, speaking in Moses v. MacFerlan, 2 Burr. 1005, 1012.)

Some cases have distinguished between payments made under mistake of law and payments made under mistake of fact. Those cases have barred recovery in the former case, while allowing it in the latter. However, the right of the Federal Government to recover public money paid under a mistake of law is unquestioned (Wisconsin Central R. R. Co. v. United States, 164 U. S. 190, 17 Sup. Ct. 45). And the cases of Grand Trunk Western Ry. Co. v. United States, 252 U. S. 112, 40 Sup. Ct. 309, and Sutton v. United States, 256 U. S. 575, 41 Sup. Ct. 563, establish the principle that it is immaterial whether payments of public funds thus sought to be recovered were made under mistake of law or mistake of fact (Talcott v. United States (C. C. A. 9th Circ. 1928) 23 F. (20) 897; see also Pomeroy's Equity Jurisprudence (5th Ed. 1941) vol. III, sec. 851a).

The record indicated the possibility of negligence somewhere within the Government in the disbursement of the funds involved in the present case. Nonetheless, if a benefit is bestowed through mistake, no matter how careless or inexcusable the act of the bestower may have been, the recipient must, in equity, make restoration (United States v. Northwestern National Bank & Trust Co. of Minneapolis (D. C., Minn. 1940) 35 F. Supp. 484, 486; see also Woodward, The Law of Quasi-Contracts, secs. 15 and 92). And the doctrine applied in some cases, prohibiting the recovery of payments voluntarily made, does not apply to payments without authority by public officers. Such payments are not presumed to be made voluntarily by the Government, but by its officers in excess of their authority and in defiance of its rights (Champ Spring Co. v. United States (C. C. A. 8th Circ. 1931), 47 F. (20) 1, (certiorari denied (1930) 283 U. S. 852, 51 S. Ct. 560) and cases cited).

The legal foundations supporting the right of the United States to maintain an action of the kind described have been spelled out with some


[C. M. 0.1–1948]

particularity because we are here in a misty realm where rights and remedies are in full interplay, the one ceaselessly enlarging or diminishing the other as different situations of fact define and redefine their respective scopes.

It can be accepted, then, that the United States may assert its claim against Lt. Col. A unimpeded by any of the substantive or remedial bars adverted to above. Indeed, a long line of cases testifies to the successful prosecution by the Government of such claims, either directly or by way of set-off, against officers of the armed services, as well as others. U. 8. v. Heidt (C. C. A. 5th Circ. 1932) 46 F. (20) 559 (certiorari denied 287 U. S. 601, 53 Sup. Ct. 8), is typical, as are several of the cases cited supra.

It was undisputed that $6,435 of public funds found its way into a bank account of Lt. Col. A. On the case stated, he was not aware of this accretion to his wealth until it had passed beyond his control and powers of disposition. Nonetheless, the public purse had been diminished by the unwarranted diversion of $6,435. Does the law require Lt. Col. A to make up the amount?

That the public money should be inviolate is a principle hallowed from the beginnings of democratic government. But when the public money has gone astray, and the sovereign descends into the forum to reclaim it, the sovereign must doff the purple robe, and array itself in the mufti of the common litigant. Like any other litigant asserting a right, the sovereign must make out its case, and must prevail or fall on the law and the facts (Walker v. U. S. (C. C. M. D. Ala. 1905) 139 F. 408, affirmed 148 F. 1022).

In this case, the United States attempted to charge Lt. Col. A, and in the nature of the case, must demonstrate to be proper the imputation to him of an enforceable undertaking to repay the amount by which he has been enriched. But the assertion of the right to recover, being quasi-contractual and based, therefore, on grounds of natural equity, was subject to many equitable defenses not available against other legal actions. The law will never imply a promise to pay where it would be unjust to the party to whom it would be imputed and contrary to equity so to imply it. No promise to pay can be imputed, unless duty creates the obligation to pay (12 Am. Jur., sec, 6; see also Carey v. Curtis, 3 How. (U. S.) 236, 11 L. ed. 576).

Illustrative of the wide scope of equitable defenses is the doctrine that where the innocent recipient of a mistaken payment has changed his financial position subsequent to its receipt so as to make his refusal to repay it as equitable as the other party's demand for repayment, the law will consider that change of position a complete defense (Costigan, Change of Position As a Defense in Quasi-Contracts, 20 Harvard Law Review, 205). In a celebrated English case, the doctrine received its uttermost extension. In that case, the defendant was a demobilized officer of the Royal Air Force. By certain regulations officers in the Royal Air Force were entitled to a bonus varying according to certain circumstances. The plaintiffs, the Government agents administering the payment of the bonus, mistaking the defendant's classification, paid him £434, instead of the £310 to which he was entitled. More than a year later, when the defendant had invested the money in stock which had become nearly worthless, the plaintiffs sued to recover back the excess payment as money paid in mistake of fact. It was held that the plaintiffs were estopped to recover, for the reason that the defendant had been led by the plaintiff's conduct to believe that the money was his own, and had altered his position by spending it for the stock, which he otherwise would not have purchased. Under such circumstances the court considered it inequitable to compel him to repay the money to the plaintiffs (Holt v. Markham, L. R. (1923), 1 K. B. 504, noted with approval at 72 Univ. of Pa. Law Review 179; see also Hibbs v. 18t Nat. Bank of Alexandria (1922), 133 Va. 94, 112 S. E. 669).

Similarly, the defense of change in position has been allowed in some cases where the plaintiff's mistaken payment has led to the defendant's paying over the sum to a third party from whom he cannot recover it (Crocker-Woolworth National Bank v. Nevada Bank (1903), 139 Calif. 564, 73 Pac. 456). In the same vein is the case of U. 8. v. Hart (D. C. Pa. 1935) 12 F. Supp. 596, where recovery was denied in a suit to recover a tax refund from the legatee of the person to whom the refund was erroneously made. See also Walker v. U. S., supra, where the Government was estopped from recovery because of its laches in making demand.

The case presented here is one of first impression, so far as is known. In every case where recovery has been allowed, the recipient at some time or other had had actual control of the funds mistakenly paid, knew the source from whence they came, used or could have used them for his own purposes, and in some cases knew their receipt by him did in fact indicate erroneous and unjustifiable payments to him. It is on the solid ground of real personal advantage conferred, unjustified personal enrichment sought to be retained, that justice rests the obligation to repay.

But wherein has Lt. Col. A been enriched? On the case stated, when he first became aware of the situation, he was confronted by an overdraft of $27.98 at his bank. Has he been enriched, in and of itself alone, by the monthly accretion to his account of $165? Certainly not in the sense of that personal enrichment common to every decided case where recovery has been allowed. It may be that real benefits have, in fact, accrued to Lt. Col. A's advantage. Thus far, the Government has not shown that to be the case, and the nature of any such benefits is as yet undisclosed.

It may be contended that, notwithstanding any other consideration, title to the money did vest in Lt. Col. A, no matter how fleetingly, and, accordingly, that at least a technical case of personal enrichment is made out against him thereby. Even conceding that the vesting of title suffices to establish enrichment, nevertheless, on the case stated and as the facts appear at present, Lt. Col. A was not aware of such vesting of title until the money was no longer available to his use. Should not the same equitable considerations which prompt courts to accept the defense of change of position even where the recipient has actually used the money, should not those same considerations protect a person to whom awareness, volition, advantage, and control have not been vouchsafed ?

It may be contended that Lt. Col. A could have known, by the exercise of reasonable care, that these erroneous payments had been made and were continuing to be made, and that the duty to have exercised such reasonable care should be cast upon him. That is a doctrine and a duty to be applied only in a case sounding in tort. This was not such a case. Here the duty, if one was owed, was owed to the United States, and not to persons generally, as in a case of tort. Can it be said that, having taken the prescribed action to stop his allotment, and thereafter having received his full pay as though his allotment had been stopped, Lt. Col. A nevertheless owed a duty to an unknown and unsuspected benefactor to keep himself continuously apprised that unsuspected benefactions were not being made available to him?

It might be urged on behalf of the Government that the money was used by Lt. Col. A's wife, and since he was under obligation to support her, its use by her should be chargeable to him. In a case in the Court of Claims, Melville v. U.S., 23 Ct. Cl. 74, a naval officer made an allot. ment to his wife of $90 per month. During the absence at sea of the officer, and without his consent or knowledge, the Secretary of the Navy undertook to "authorize” the increase of the allotment by $50 per month, and thereby the United States paid Mrs. Melville $650 beyond the officer's allotment. In a suit by Melville to recover $650 withheld from his pay, the Government defended on the ground the payment was made by order of the Secretary for the purpose of support of the wife in the absence of the husband, he being liable for his wife's debts, and she therefore being his agent to receive the amount stated. In deciding for Melville, the court rejected the defense, refusing to deny recovery on the Government's theory of agency arising out of duty to support, notwithstanding the admitted fact that the money had gone to Mrs. Melville's use. The court held rather, that in the premises, the Secretary of the Navy (and, by necessary implication, the Government) was without power to order the extra allotment, and that the money withheld from Melville's pay. should be restored to him. If the Government could not successfully urge its right to recover on the ground of agency arising out of duty to support in the Melville case, supra, where the additional payment was made in good faith, with full knowledge of the facts, and upon an express order of the Secretary of the Navy, is not the Government in a much more feeble position to urge an agency relationship arising out of Lt. Col. A's duty to support his wife, where the additional payment was a pure mistake, and could not possibly have been made with the intention of providing support for Mrs. A?

As the facts presently appear, upon the whole case as stated, and viewing the case through the eyes of the Chancellor, it was held that Lt. Col. A should not be charged with the amount involved here. “The principle which forbids the defendant enriching himself at the expense of the plaintiff should clearly forbid the plaintiff indemnifying himself at the expense of an innocent and blameless defendant" (Keener, Quasi-Contracts, 67). That is not to state that, should new facts be developed, a new holding might not be necessary.

Even were the Judge Advocate General to hold otherwise, it still would not be possible to order checkage of Lt. Col. A's pay account in the present state of the record. Involuntary checkage is permitted only under the act of May 26, 1936 (49 Stat. 1374; 5 U. S. C. 46b) and, under the holdings in 23 Comp. Gen. 555 and 911 is not to be resorted to until after credit has been disallowed in the statement of the account by the General Accounting Office of the disbursing officer who made the payment. So far as the record revealed, no disallowance had been entered of the payment of the $6,435 with which it was sought to charge Lt. Col. A. (File: JAG: II : EJT: mg), 12 Jan. 1948.) Child as witness: effect of failure to be sworn.

A general court martial convicted an accused of the charge of "Scandalous conduct tending to the destruction of good morals" (3 specifications).

Specification 2 under the charge alleged that the accused “** did, on or about 8 March 1947, in the city of San Francisco, Calif., wilfully and lewdly, in an indecent, lewd, and lascivious manner, place his,

* lips and tongue, upon and around the genitals of *, a female civilian of the age of about five and one-half years, with the intent of arousing the lust, passions, and sexual desires of him,

Specification 3 under the charge alleged that the accused u*

did, on or about 8 March 1947, in the City of San Francisco, Calif., wilfully and lewdly, in an indecent, lewd, and lascivious manner, place his, * penis, upon, and against the






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