
    * John H. Loring versus Abel Mansfield.
    
      A. brought his action against B. on a promissory note, on which partial payments were endorsed; B. appeared and made a defence in the action; judgment was finally rendered against him for the amount appearing due on the note, after deducting the sums endorsed. B. afterwards brings his action for money had and received against A., on the ground that he had made certain other payments, which were not endorsed upon the note, nor allowed in the former action. It was holden that he could not recover; his remedy, if any, being by applies tian for a review of the first action.
    This was an action of assumpsit, for 100 dollars had and received by the defendant, to the use of the plaintiff. Trial upon the general issue, before Jackson, J., at the last March term, at Concord.
    
    The case, as stated by the plaintiff’s counsel at the trial, was thus. The plaintiff had given to the defendant a promissory note for about 166 dollars. He had made two several payments, which were endorsed on the note. The present defendant, Mansfield, after-wards brought an action upon that note, against the present plaintiff, Loring. In that action Loring pleaded that the contract was usuri pus, and offered to prove it by his oath, as provided by the statute 
      
      Mansfield denied that it was usurious, and tendered his oath, which was admitted, and he was sworn accordingly; and thereupon he recovered judgment * against Loring, for the [ * 395 ] amount appearing to be due on the note, after deducting the amount of the said two endorsements. All these facts were admitted.
    The plaintiff’s counsel further stated, and offered to prove, that he had made certain other payments on account of the note, besides those which were so endorsed; and the present action was brought to recover the amount of those other payments; the same not having been allowed and deducted, in mailing up the said former judgment.
    The judge was of opinion that, upon these facts, the plaintiff was not entitled to recover in this action ; and he ordered a nonsuit, subject to the opinion of the whole Court on the case thus stated.
    
      Lawrence, for the plaintiff,
    cited and relied on the case of Rowe vs. Smith 
      . In that case a receipt had been given; and the plaintiff in the case at bar would not expect a verdict, unless he produced to the jury evidence of payment, which should be tanta mount to a receipt.
    
      Locke, jun., for the defendant.
    
      
      
        Stat. 1783, c, 55, § 2.
      
    
    
      
       16 Mass. Rep. 306.
    
   Wilde, J.,

delivered the opinion of the Court.

This case is, I think, distinguishable from that of Rowe vs. Smith, cited at the bar, and from that of Fowler vs. Shearer . Both of those cases were decided upon the ground that there was a trust and confidence between the parties, and that it was the duty of the defendant to have credited the sum paid on the note.

In each of those cases the debtor suffered judgment to go against him by default. There was no dispute between the parties, in relation to the note; and the Court did not think it reasonable, that the debtor should be held to retain counsel, and to produce proof of an inconsiderable payment, which he had a right to expect that the creditor would endorse on the note, or deduct from its amount, before taking judgment.

These reasons are not applicable to the present case. There was a trial in the former action, between these parties, * and the now plaintiff was present in Court, and might [ * 396 ] have been heard on the question of damages. But he lay by, and offered no evidence of his payments; with what view, or for what reason, we do not know. If it was by mistake, his proper remedy is by application for a review in the granting of which the Court will take care that no injustice shall be done in respect to costs. But if the plaintiff withheld the evidence now offered, for the purpose of maintaining the present action, neither justice, nor the policy of the law, will sanction a procedure so manifestly vexatious.

The general principle, that money paid under legal process cannot be recovered back again, is well established. The merits of a judgment can never be overhaled by a new action. Otherwise there would be no end of litigation.

The present case is stronger than that of Marriot vs. Hampton ; for there it appeared, that the evidence of payment was not voluntarily withheld at the former trial. The receipt had been mislaid, and there was no other proof of the payment; so that Marriot could not defend himself in the first action. He afterwards found the receipt, and brought his action, to recover back the amount of the sum wrongfully enforced in payment. But the Court thought the rule of law inflexible, and that it would be a dangerous precedent to allow the merits of the former judgment to be thus over haled. This case is noticed by the Court in Rowe vs. Smith, with out objection to the decision, the propriety of which was never intended to be questioned.

The case of Moses vs. Macferlan has been often doubted; but the case at bar goes much farther. “ The ground of this action,” says Lord Mansfield, “ is not that the judgment was wrong; but that (for a reason which the now plaintiff could not avail himself of against that judgment) the defendant ought not in justice to keep the money.” “ Money may be recovered by a right and legal judgment; and yet the iniquity of keeping that [ * 397 ] * money may be manifest, upon ground which could not be used by way of defence against the judgment.” It is clear, I think, from these and other remarks made by Lord Mansfield, in delivering the opinion of the Court, that the case of Moses vs. Macferlan turned on a distinction which cannot apply to the present case; so that, whether it was rightly determined or not, it is no authority for the plaintiff. Nor can any case be found in support of the case at bar.

The Court are, therefore, all of opinion that the nonsuit was rightly ordered, and that judgment must be entered up for

Costs for the defendant 
      
       7 JMass. Rep. 14
     
      
       7 D.fyE. 269.
     
      
       2 Burr. 1005.
     
      
       [Vide note to Rowe vs. Smith, 16 Mass. 306.—Ed.]
     