
    Adolphus Whitcomb et al. versus Thomas Williams et al.
    
    A purchaser of goods having paid for them partly in cash and partly by his negotiable promissory note, discovered that he had paid for more than he had received, but nevertheless suffered a judgment to be recovered against him by the vendor, in an action upon the note, without objecting any want of consideration. He then brought an action to recover back the amount overpaid, and the action was sustained; for givingthe note being a payment, a cause of action accrued to him immediately, which was independent of the judgment upon the note.
    This Court will not take notice of any irregularity in filing exceptions (as that they were not alleged at the proper term), unless the irregularity appears by the certificate of the judge by whom the exceptions are allowed.
    Assumpsit to recover 60 dollars alleged to have been received by the defendants to the use of the plaintiffs.
    The cause was tried in the Court of Common Pleas, before Ward C. J.
    The plaintiffs proved, that they purchased rum, from time to time, of the defendants, who were distillers, and that it was delivered to them in two certain casks, which had been gouged at the distillery of the defendants. One of the casks was gouged at 121 gallons, but contained only 1143,-, the other was gouged at 112 gallons, but contained only 106. The plaintiffs were charged for the rum according to the gouge of the casks. They made partial payments from time to time, and some time before they discontinued purchasing rum of the defendants, they settled an account with them, and gave a negotiable note for the balance then due. After they had ceased to purchase rum of the defendants, they settled another account with them, and gave a negotiable note for the balance which had arisen since the former settlement. These notes were afterwards put m suit by the defendants, and a judgment was' entered against the plaintiffs on their default, for the whole amount of the notes ; which judgment • had been paid by the plaintiffs previously to the commencement of this action.
    It appeared that the plaintiffs, at the time when the action upon the notes was instituted, had come to the knowledge of the fact of their having been overcharged to the amount ol the difference between the actual and the gouged capacity of the casks ; but there was no evidence that they knew of that fact at the time when the settlements nere made .and the notes given.
    
      Oct. 20th
    
    Upon this evidence, it was contended for the defendants, that if the plaintiffs had paid for rum which had not been delivered to them, they had paid with a full knowledge of the fact, and could not maintain an action to recover the money back. But the judge instructed the jury, that if the plaintiffs had no knowledge, when they settled the accounts and gave the notes, that they were charged in the accounts settled, for rum which they had never received, the giving of the negotiable notes must be‘considered as payment of the accounts, and that whatever sum of money the plaintiffs had paid for rum which the defendants had never delivered to them, must be considered as money paid by mistake and without consideration, and in equity and good conscience the plaintiffs had a right to recover it back in this action.
    The jury found a verdict for the plaintiffs, and thereupon the defendants excepted to this direction, and on account of it filed their motion for a new trial.
    
      Morey and II II Fuller,
    in support of the exceptions, said that this action was brought to recover back money which had been paid under a judgment of court. As the former action was between the original parties to the notes, the promisors might have avoided the notes in part, by showing the mistake in regard to the consideration; Chitty on Bills (5th ed.) 91, and notes ; Bayl. on Bills (Phillips and Sewall’s ed.) 340, and notes ; and that being the case, the judgment cannot be collaterally impeached by this action. Homer v. Fish, 1 Pick. 435; Marriott v. Hampton, 7 T. R. 269; Homes v. Aery, 12 Mass. R. 134; Thatcher v. Gammon, ibid. 268.
    
      Hoar, contra,
    
    to show that the rum was paid for before the mistake was discovered, cited Maneely v. M'Gee, 6 Mass. R. 148; Thacher v. Dinsmore, 5 Mass. R. 302; Goodenow v. Tyler, 7 Mass. R. 39. He likewise moved that the exceptions might be dismissed, because they were not alleged at the term when the cause was tried. The party made a motion at that term for a new trial; which was afterwards turned into a bill of exceptions. The St. 1820, c. 79, § 5, does not intend that there shall be a motion for a new trial, and a bill of exceptions too, in the same case.
    
      April term 1827, at Concord.
    
   Wilde J.

drew up the opinion of the Court. If this ac-ti°n cannot be sustained without impeaching the judgment upon the promissory notes referred to in the report of the case, certainly the judgment of the Court of Common Pleas is erroneous.

It is a well established principle, that the merits of a judgment can never be impeached in a counter action by the judgment debtor ; otherwise a controversy could never be terminated, and the evils of litigation, already sufficiently numerous, would be unnecessarily increased and multiplied, But the opinion of the Court of Common Pleas is founded on a distinction which avoids this difficulty, and leaves the judgment upon the notes wholly unimpeached. They considered the rum as paid for by the promissory note of hand, and that there was an overpayment by mistake, to correct which this action might well be maintained.

This distinction appears to us to be well founded ; because we think that this action might be maintained, although the notes of hand had not been put in suit and now remained unpaid ; and if so, then clearly the action can be sustained on ground independent of the judgment. The mistake happened in the settlement of the account; and thereupon an action immediately accrued to the plaintiffs to recover back the amount thus overpaid.

This seems to be a fair, and indeed necessary inference from the admitted principle, that a negotiable promissory note of hand, given in consideration of a debt due on simple contract, is a discharge of the simple contract, and equivalent to payment in money. It is just and equitable that a party exposed to loss, by an overpayment thus made, should be entitled to an immediate remedy; otherwise it might wholly fail, by the insolvency of the other party, and the assignment of the note to a bona fide purchaser. And although the notes of hand in this case were not assigned, yet that circumstance does not affect the plaintiffs’ right of action ; nor was it taken away by the commencement of the action on the notes in the name of the promisees. For although the mistake might have been corrected in that action, the present plaintiffs were under no obligation to avail themselves of that mode of seeking relief. A new remedy arising on a contingency, will not deprive a party of a preexisting right of action. The plaintiffs had the right of election, like a party entitled to the privilege of set-off.

This mode of considering the case distinguishes it from the cases of Marriott v. Hampton, Homer v. Fish, and Loring v. Mansfield, 17 Mass. R. 394, and indeed from all the cases cited, as to the conclusive effect of a judgment between the parties. "

In all those cases the plaintiffs could show no right of action, without showing that judgment had been recovered against them, and that the judgment was erroneous. In the case of Loring v. Mansfield, a partial payment had been made on a note of hand due from the plaintiff to the defendant, but this payment was towards an existing debt, and could not be reclaimed but by showing that judgment had been afterwards recovered for the whole amount of the note, and this the plaintiff was not permitted to show in support of his action, because it directly impeached a judgment to which he was a party. The only ground of complaint was, that the judgment was recovered for too large an amount, and not that the partial payment on the note was wrong.

In this case a cause of action has been shown, independent • of the judgment; nor was the proof of the judgment, and the satisfaction of it, at all material to the merits of the case.

It was said at the argument, that the exceptions were not regularly filed ; but this does not appear by the certificate of the judge, and we can look only to that, to ascertain wnether the case is regularly before us.

Judgment of C. C. P. affirmed. 
      
       See Cornwall v. Gould, 4 Pick. 444; Reed v. Upton, 10 Pick. 525; Wood v. Bodwell, 12 Pick. 269, 270; Watkins v. Hill, 8 Pick. 522; Descadillas v. Harris, 8 Greenl. 298; Varner v. Nobleborough, 2 Greenl. 121. A different rule prevails in the courts of the United States. It is there held, that the giving a negotiable note is not payment, unless it is so expressly agreed. Peter v. Beverly, 10 Peters, 567; Sheehy v. Mandeville, 6 Cranch, 253; Wallace v. Agry, 4 Mason, 142 So in the courts of many of the States. See 
        Van Ostrand v. Reed, 1 Wendell, 424; Bank of Troy v. Topping, 9 Wendell, 278, 279; Burdick v. Green, 15 Johns. R. 247; Hughes v. Wheeler, 8 Cowen, 77; Booth v. Smith, 3 Wendell, 66; New York State Bank v. Fletcher, 5 Wendell, 85; Putnam v. Lewis, 8 Johns. R. 389; Johnson v. Weed, 9 Johns. R. 310; Bill v. Porter, 9 Connect. R. 23; Davidson v. Bridgeport, 8 Connect. R. 472; Elliot v. Sleeper, 2 N. Hamp. R. 525; Cheever v. Mirrick, 2 N. Hamp R. 376; Willie v. Green, 2 N. Hamp. R. 333; Geiser v. Kershuer, 4 Grill & Johns. 305; Glenn v. Smith, 2 Gill & Johns. 493; M‘Evoy v. Baltimore, 3 Harr. & Johns. 193; Curtis v. Ingham, 2 Vermont R. 290; Hutchins v. Olcott, 4 Vermont R. 555; Prescott v. Hubbell, 1 M'Cord, 94; Barrelli v. Brown, 1 M'Cord, 449; Kean v. Dufresne, 3 Serg. & Rawle, 233. This seems also to be the true doctrine of the common law. Puckford v. Maxwell, 6 T. R. 52; Owenson v. Morse, 7 T. R. 64; Kearslake v. Morgan, 5 T. R. 513; The King v. Dawson, Wightw. 32; Burney v. Poyntz, 1 Neville & Man. 229. So admitted in Maneely v. M'Gee, 6 Mass. R. 143. This is also the doctrine of the Civil Law. Pothier on Oblig. pi. 3, c. 2, art. 4; 1 Domat, bk. 4, tit. 3, § 1, p. 515; Inst. Just. lib. 3, tit. 3, § 3. So of the Scotch Law. Thompson on Bills, 192,194
      In Massachusetts the decisions have not been uniform. Sometimes the giving a negotiable note is held an absolute payment, like cash, as in the text. Sometimes it is held only primó, fade evidence of payment, liable to be rebutted by circumstances showing a different intent. See Reed v. Upton, 10 Pick. 525; Wallace v. Agry, 4 Mason, 142. The reasons for a departure from the rule of the common law on this head are not very apparent. The soundness of the reasons given is certainly very questionable.
      In Maneely v. M‘Gee, 6 Mass. R. 143, the presumption of payment from the giving of a negotiable note is said to arise “ from the consideration, that if the creditor could compel payment of the original debt, the debtor might afterwards be obliged to pay the note to an indorsee, and thus be twice charged.” But this could hardly be the case, since under the doctrine of the common law, the note must be produced and given up, or otherwise accounted for, before the plaintiff can prevail. See Bank of Troy v. Topping, 9 Wendell, 278, 279; Bayley on Bills, (2d Amer. ed.) 395 to 413; Chapman v. Durant, 10 Mass. R. (Rand’s ed.) 51, n. (a); Chapman v Searle, 3 Pick. (2d ed.) 45, note.
     