#6874 - Baylis V. Bishop Of London - Restitution of Unjust Enrichment BCL

Baylis v. Bishop of London

Facts

An apportioned tithe rent-charge was payable to the rector of Greenford in respect of each property. The testator occupied both properties and for some years prior to his death paid the tithe rent-charge in respect of them in one sum on one demand note for one sum (being the aggregate amount of the tithe rent-charge for both properties) delivered to him from time to time by a firm of Davis & Davis, the collectors for the rector. After the testator's death similar demand notes for the tithe rent-charge in one sum headed in like manner were from time to time sent in by Davis & Davis to the trustees of the testator's will, who continued to pay the same until October, 1910, in forgetfulness of the fact that the lease had determined in 1895, and under the impression that the whole of the tithe rent-charge demanded was payable in respect of the testator's freeholds.

In the meantime, in 1895, the rector of Greenford was adjudicated a bankrupt, and on June 17, 1897, the then Bishop of London, on the application of the trustee in bankruptcy under s. 52 of the Bankruptcy Act, 1883, made a sequestration order whereby, after reciting the proceedings in the bankruptcy, he appointed his secretary sequestrator of the benefice and directed him to collect and receive the tithes and emoluments of the benefice and to account to him (the bishop) for the same. Under this order the sequestrator employed Davis & Davis, as his local agents, to collect the tithes and emoluments of the benefice for the purposes of the sequestration, and, after paying thereout the stipend of the curate and other outgoings as directed by the bishop, paid over the balance to the trustee in bankruptcy.

The mistake as to the leaseholds was first discovered in October, 1910, and thereupon the plaintiffs, who had been appointed trustees of the testator's wills in 1906, applied to the bishop, as the person responsible for the execution of the writ of sequestration, to repay to them six years of the tithe rent-charge so by mistake demanded by and paid to the sequestrator through Davis & Davis in respect of the leaseholds, but the bishop declined to repay the same. Thereupon the plaintiffs *129 issued the writ in this action and claimed repayment of the sum of 197l. 6s. 11d. as moneys had and received by the bishop for their use, being moneys demanded from and paid by the trustees since the year 1904 under a mistake of fact.

Holding

Cozens Hardy MR

In this action the plaintiffs seek to recover from the Bishop of London certain sums paid to him in respect of tithe rent-charge, such payment being made under a mistake of fact, namely, that the rent-charge was payable in respect of lands in which the plaintiffs were interested, whereas in truth the liability of the plaintiffs to pay the rent-charge no longer existed. The mistake of fact and the receipt by the bishop are not now disputed. It has long been held that money paid under a mistake of fact can be recovered from the recipient, but an exception has been engrafted upon the rule that, where the money was paid to a person known to be an agent for a principal and known to be receiving as such, the agent cannot be sued if he has before notice of the mistake paid it over to his principal.

It is argued on behalf of the appellant that the bishop, whose precise position I shall more fully consider, ought not, within the principle thus laid down by Lord Mansfield, to be held liable in the action because he has no individual interest in the money paid and has applied it in accordance with his duty. I am unable to accede to this view. No case can be found in the books in which a defendant has been exempted except that of an agent who has paid over to his principal. I think it is impossible for us at the present time to say that this exception ought to be extended in the manner which is desired.

There was no agency relationship

Unless, therefore, the bishop can establish that he received this money as an agent and has paid it over to his principal, I do not think his defence can prevail. The rector of the parish in respect of which the tithe rent-charge was payable was adjudicated a bankrupt in 1895, and under s. 52 of the Bankruptcy Act, 1883, the trustee applied for a sequestration of the profits of the benefice. On June 17, 1897, Bishop Creighton sequestered in accordance with the provisions of that section, and granted to Mr. Lee his power and authority in that behalf until the bishop should think fit to relax the same. The duties of the bishop are...