346 HARVARD LAW REVIEW Sale, consumption, or gift of the windfall before notice of the plain- tiff's right cannot necessarily and always give a defense.^®^ If the defendant has spent it beneficially to himself, he should clearly refund the equivalent. If he carelessly loses it, or spends it in riotous living, he should still be Hable. In these cases he should not be in a better position than the frugal man who has invested and kept the res. "It must be assumed that the defendant has had his money's worth of enjoyment." ^^^ If he gives the legacy to the Red Cross as his normal periodical contribution we should still reach, though without authority, the same result. Suppose, however, in consequence of the windfall he has altered his manner of living. He has journeyed to Palm Beach, an outing beyond his normal in- come, or he has shared his good fortune with Belgian refugees whom he otherwise could not aid. It is intimated in Brisbane v. Dacres,^^^ and in Skyring v. Greenwood, ^"^^ that the plaintiff could not reach him."^ A real hardship would result if he were compelled to make whole the payer. The wiser view is to leave matters in- statu quo, rather than shift the plaintiff's loss to the defendant's shoulders. The same result should be reached, though only on the authority of text-writers,^'^^ if the property received has before notice been without defendant's fault accidentally lost, as by fire or theft. The claim that the defendant is a purchaser for value without notice from the overpaid creditor or legatee is clearly a defense both at law and in equity .^^^ the Court of Appeal in Baylisc. Bishop of London, [1913] i Ch. 127, held that change of position as a defense was confined to payment by an agent to his principal. If the agent purported to act for himself in receiving the payment, it is no defense that he settled with his principal before notice. Newall v. Tomlinson, L. R. 6 C. P. 405 (1871); United States v. Pinover, 3 Fed. 305 (1880); Smith v. Kelly, 43 Mich. 390, 5 N. E. 437 (1880); Canal Bank v. Bank of Albany, i Hill (N. Y.) 287 (1841). See Costigan, 20 Harv. L. Rev. 211. This distinction, however, is without merit. 1^^ Standish v. Ross, 3 Exch. 527 (1849); Continental Co. v. Kleinwort Co., 20 T. L. R. 403 (1904); Moors v. Bird, 190 Mass. 400, 410, 77 N. E. 643 (1906); Picotte v. Mills, 203 S. W. 825 (Mo. App.) (1918). 1^ Costigan, "Change of Position as a Defense." 20 Harv. L. Rev. 212, note. 169 ^ Taunt. 143, 152. "0 4 B. & C. 281, 289 (1825). 1" But see Standish v. Ross, 3 Exch. 527, 534 (1849). 1^ Costigan, "Change of Position as a Defense." 20 Harv. L. Rev. 212, note. Compare Woodward, Quasi Contracts, § 30. 1" Berton v. Anderson, 56 Ark. 470, 20 S. W. 250 (1892); Hoffman v. Armstrong, 90 Md. 123 (1899). See Thompson v. Samson, 64 Cal. 330, 30 Pac. 980 (1883). A defendant obliged to refund is liable for interest from the date of demand and
