
    ASHLY G. POWELL ADM’R, &c. vs. WILLIAM H. WATSON, ADM’R, &c.
    
    Where there has been a judgment at law, a Court of Equity, except in a ease of fraud, will not interfere in behalf of either party, upon the ground of testimony being discovered since the trial, which was unknown to the party at the time of the trial and which would have materially varied the result.
    The cases of Brown v. Long, 1 Ired. Eq. 190, Pegram v. King, 2 Hawk. 610, Wilson v. Leigh, 4 Ired. Eq. 100, and Martin v. Harding, 3 Ire. Eq. 603 cited and approved.
    Appeal from an interlocutory order made at the Spring Term 1849 of Johnston Court of Equity, his Honor Judge Settle presiding.
    The plaintiff is the administrator of John B. Turner, who had been the administrator of Thomas Rice, deceased. The defendant Watson is the administrator de bonis non of Thomas Rice, and the other defendants, his heirs. The defendant Watson sued the plaintiff, Powell, as such administrator, and recovered a judgment against him. The bill alleges, that, on the trial at law, a reference was made to a commissioner to take an account of the assets of Turner in the hands of the present plaintiff, as his administrator, who made his report, and which was confirmed, and from which it appeared, that the plaintiff had in his hands assets to the amount of $415 61: for which there was a verdict and judgment, which he has paid. The bill then alleges, that the plaintiff’s intestate, before his death, had deposited with one Hobbes, who lived about six miles from him, a bundle of vouchers, showing payments made by him to a large amount, and which were not taken into consideration on the trial of the suit at law; and that, at that time, he, the plaintiff, had no knowledge of their existence, and therefore they were not 1 aid before the commissioner. The bill prays, that the defendants may be decreed to pay him “so much of said sums, as he, the defendant Watson, may have assets iu his hands,” &c.
    The defendants demurred generally.
    
      Miller and Husled, for the plaintiff.
    
      W. H. Haywood and Busbee, for the defendants.
   Nash, J.

We do not exactly see, what it is the plaintiff wishes us to do for him, or in what manner he desires to be relieved. If it is, that we shall grant him a decree for so much money wrongfully paid by him under the judgment at law, we cannot grant his request. It is calling upon the Court to give him a decree against the defendants for a legal demand, unascertained by a judgment at law. If the plaintiff have a legal claim he must establish it at law, before he can ask the aid of this Court. Brown v. Long, 1 Ire. Eq. 190. But he has no claim at law. The money paid by him was paid under the judgment of a Court of Justice — under compulsion of law_

an action for money had and received, which is an equitable action, will not lie to recover it back, however unconscientiously retained by the defendant. The contrary was at one time ruled by Lord Mansfield in Moses v. McFarland, 2 Bur. 1009, but that case has been repeatedly overruled. Marriott v. Haughton, 7 Term Rep. 268, 2 East. 469. 5 Fawn. 143. In the first case. Lord Kenyon would not grant a rule to show cause, lest it should imply a doubt as to the plaintiff’s right to recover — observing “after a recovery by process of law, there must foe an end of litigation — otherwise, there would be no security for any one ” There the defendant bad brought an action for goods sold, and for which the plaintiff had paid him and taken his receipt, but the receipt was, at the time of the trial, mislaid, and the plaintiff, not being able otherwise to prove the payment, judgment was given against him, which be paid. Afterwards the receipt was found and the application made for a rule t&shaw cause. Neither will a Court of Equity interfere, and fear the same reason. In the case of Pegram v. King, 2 Haw. 610, which was a bill to set aside a verdict at law, obtained by fraud and perjury, Chief Justice Taylor, in delivering the opinion of the Court, observes, that the power of the Court of Equity to grant new trials “is never extended to any case, where the party applying has been guilty of any Haches and might have made use of the evidence at law.’* The language of the Court in Wilson v. Leigh, 4 Ired. Eq. 100, speaking of the trial at law, the verdict in which was sought to be set aside on the ground of subsequently discovered testimonjr, is, “the question being legal, the tribunal legal, and the trial regular, the result must be She conclusion on the one party as well as on the other, unless there was fraud practised by one ©f them on the trial, so as to prevent its being a fair trial.* To the same effect is the ease of Martin v. Harding. 3 Ired. Eq. 603. In each of these eases there was a demurrer, which was sustained, and the bills dismissed. No fraud is alleged in this case. The plaintiff does not ask a new trial at law, but a decree for the money over paid, and the same prin* ciple applies — it is in substance the same redress.

The decree in the Court below, overruling the demurrer, is erroneous, and must be reversed, and the bill dismissed with costs in this Court.

Per Curiam.

Decree accordingly.  