
    Thomas Rowe versus Christopher Smith.
    
      A., holding B.’s promissory note, received a partial payment on account of it which, however, was not endorsed thereon. In an action upon the note, he recovered judgment for the whole amount apparently due, without deducting the payment. It was holden that B. might maintain an action for the sum paid by him, although he had not satisfied the judgment.
    Assumpsit on the common money counts. The cause was opened for trial before the chief justice at the last November term, when the evidence to support the action was a receipt of the defendant’s, for fifty dollars by the hands of D. Wild. It was agreed that, when this money was received, the defendant held the promissory note of the plaintiff for 400 dollars; on which he commenced a suit, after the receipt of the above sum, and recovered judgment for the whole sum appearing to be due on the note; without deduction of the above sum, which was agreed to have been paid on account of the note. Execution of that judgment had been satisfied in part only; there being a balance due thereon, much larger than the above payment. At the Common Pleas the defendant offered to discharge fifty dollars upon his execution, which the plaintiff refused; and at this trial he was still willing to do it. No verdict was taken", it being agreed that, if the action could be maintained under these circumstances, the defendant should be defaulted, and judgment be rendered for fifty dollars; otherwise the plaintiff was to become nonsuit.
    
      Orne, for the plaintiff,
    argued that this money had been received by the defendant in trust, that he would apply it to a particular Dnject, and that, having violated the trust, a right oi action had accrued to the plaintiff to recover it back. If it be said that this payment should have been given in evidence in the action upon the note, we answer, that the plaintiff was under no obligation to do so. That action was upon the note, and the judgment was correctly rendered. Because the present plaintiff submitted to that * judgment, it does not follow that he had no cross [*307] demands, which he might lawfully have set off in the action.
    It is not necessary, for the support of this action, that the plaintiit should have satisfied the judgment, which the defendant has recovered against him. The action is not founded on that judgment, nor does it go to impeach or disturb it. The trust was violated in not deducting this payment from the damages, before the judgment wa= rendered. Nor does the action rest on mere technical ground, The defendant may lie by with his judgment for seven years, and then bring his scire facias to have execution upon it. In that case the plaintiff would be prevented, by the statute of limitations, from availing himself of this payment.
    The offer to discharge so much of the judgment as this payment amounted to, can have no effect on the present suit, if the plaintiff had a good cause of action at its commencement .
    
      Aylwin, for the defendant.
    The notion of the violation of a trust is not applicable to the case at bar, as it was in Fowler vs. Shearer. The facts in that case showed plainly an intention to commit a fraud, of which there is no intimation here. There is yet a balance justly as well as legally due to the defendant. Let the plaintiff satisfy the judgment, and the defendant will not question his right of action for this money.
    The plaintiff has mistaken his remedy. He should apply for a review, and the defendant could make no resistance to such an application, unless he would remit the amount which had been paid .
    
      
       7 Mass. Rep. 14, Fowler vs. Shearer. —1 Vern. 176. —2 Burr. 1005. —1 Root’s Rep. 103, 132
    
    
      
       7 D. & E 269, Marriot vs. Hampton.
      
    
   Parker, C. J.

Our first impression was against this action; but, upon further consideration, we think it can be maintained. It is not like the cases, in which, after judgment suffered, an action is brought to recover back the sum, or a part of it, which was the foundation of the judgment. In those cases a new trial is the only proper * remedy; and when there has been any mistake [ * 308 ] or accident, our statute furnishes relief.

Here the creditor, by his own fault, recovered judgment for his whole debt, when a part of it had been paid. It was his duty to have credited the sum paid on the note; and not having done it, he ■is to be considered as retaining the money for the use of his debtor. The debtor might well lie by, and suffer judgment to go against him by default, relying upon a deduction of the sum paid before, judgment. The case of Fowler vs. Shearer cannot be disting tished from this; for in that'as well as this, the plaintiff might have given evidence of his payment; but he confided in the attorney, that the sum paid should be endorsed upon the note.

In the case of Marriot vs. Hampton, the plaintiff brought his action to recover money paid under legal process, which was thought dan gerous. In the case before us, there is no such technical difficulty. It is not attempted to disturb the judgment; it is not complained of; it is not alleged that too much has been recovered. The ground of the action is, that the defendant has received fifty dollars of the plaintiff, which he is not entitled to retain. He might have retained :t, if he had chosen to endorse it on the note, or to deduct it from nis damages; but not having done either, he cannot conscientiously retain the money .

Defendant defaulted. 
      
       [This case cannot stand in law. It allows the matters embraced in the former suit, and which had passed in rent jvdicatam, to be again brought in controversy. Upon the same principle that the plaintiff was allowed to show'that more was recovered in the former suit against him than was due, he might be permitted to show- that judgment was recovered therein when nothing was due. Of what use would a judgment be in such a case ? It would be only prima facie evidence of debt, and no better evidence than the prbmissory note itself. —Long vs. Mansfield, 17 Mass. 394. —Thacher & Al. vs. Gammon, 12 Mass. 268. —Homer vs. Fish, 1 Pick. 436. —Saxton vs. Chamberlain, 6 Pick. 422. —Minor vs. Walter, 17 Mass. 237. —New England Bank vs. Lewis, 8 Pick 113. —Whitcomb vs. Williams, 4 Pick. 228. -Livermore vs. Herschell, 3 Pick. 33 Adams vs. Pearson, 7 Pick. 341. —Ed.]
     