paid into court under a rule of court, the sum thus recovered (having in one case passed in rem judicatam, and in the other been paid in on record) cannot be regained in an action for money had and received to the use of the unsuccessful party, whatever the demerits of the judgment, &c., may be, upon the strength of any facts which would have availed him in a defence to the former proceeding, at least as long as the judgment or rule, &c. stands without disaffirmance.1 For the money thus recovered is not received to the plaintiff's use, but to that of the successful party by authority of law; and were the rule otherwise, the rights of parties could never be finally settled by proceedings however solemn, and judgments would be rendered nugatory by evidence which, if produced at the proper season, might have received a complete answer.2

The facts of Marriot v. Hampton deserve to be here stated, as from their common occurrence in every-day life, they afford the most useful illustration of a maxim. In a former case,3 Eyre, C.J., by way of illustration, put the case of a man's recovering a debt which had been already paid him, on account of the receipt being mislaid, and then said, that though the receipt, when found afterwards, disproved the whole ground of the recovery, yet the action of money had and received was never thought to lie for it. Two years after, the case thus supposed by C J. Eyre occurred in fact, in Marriot v. Hampton. Hampton sued Marriot for goods sold, though Marriot had previously paid for them and obtained Hampton's receipt. However, as it could not be found at the time, and there was no other proof of the payment, he could not defend the action, so was obliged to submit and pay the money again, and gave a cognovit for the costs. Marriot afterwards found the receipt, the creditor had not sued on the bills given him, and that they were out in a third person's hands when paid, as had been supposed by Maule, J. The Court, however, refused to overrule Wilson v. Ray, but granted a new trial on another ground, suggesting that Wilson v. Ray would be more properly impugned in a Court of Error. As to the qualification in case of fraud, see 2 B. & P. 402; 2 T. R. 482; 9 Bing.

644.

1 See Marriot v. Hampton, as stated by Lord Denman, in Duke de Cadaval v. Collins, 7 Ad. & E. 858; and see by Patteson J. id. 866; Phillips v. Hunter, 2 H. Bla. 415; Malcolm v. Fullarton, 2 T. R. 645; also Moses v. Macfarlane, 4 Burr. 1009.

2 Per Cur. in Wilson v. Ray, 10 Ad. & E. 88.

3 Phillips v. Hunter, 2 H. Bla. 415.

and brought his action against Hampton for money had and received, in order to recover the sum he had thus paid a second time. But the court, for the reasons above stated, held him estopped from suing. It should be remembered that the bona fides of Hampton was not negatived by the evidence, for in the absence of contrary proof, he might have believed the debt to be still due;1 and it would seem that in equity2 it is too late after a verdict to file a bill for discovery, on the ground of having lost receipts; though, in a previous case, the court of Chancery, on bill filed, ordered a new trial, on the ground that a note, for want of which the verdict was lost, had been found since the trial at law.3

The judgment of the Mayor's Court of London against a garnishee on the custom of foreign attachment is another instance of that "process of law" which will prevent payments made by its coercion from being voluntary, so as to render them null as against the creditor or his assignees. Again, a probate obtained as the judicial act of the competent ecclesiastical court, will save a party who has paid the executor a debt due to testator from paying it again, though the will afterwards proves forged, and the probate is annulled; for the payment was to a person who at the time had the legal authority of the probate to receive it, and the debtor was not obliged to wait for a suit to which he did not know that any defence could be made.5 Nor is it any defence to an action for a debt, that since it was incurred the plaintiff has committed an act of bankruptcy, of which defendant is aware; for till followed up by the suing out a fiat, the plaintiff's act of bankruptcy would not so "overreach " a judgment subsequently recovered without collusion, as to make a payment under it merely voluntary, or other than one enforced by coercion of law, and therefore valid against any claim by the plaintiff's assignees under any subsequent commission. Again, the interlocutory order of an inferior court in a borough, for paying out to a

Per Lord Denman, 4 Ad. & E. 864.

2 Barbone v. Brent, 1 Vernon, 176; Turn. 1683; see Richards v. Symes, infra. 3 Hennell v. Kelland, 1 Eq. Cas. Abr. 377, pl. 2.

* See Williams v. Everett, 14 East, 588.

Allen v. Dundas, 3 T. R. 125.

6 Foster v. Allarson, 2 T. R. 479; see now Geo. IV. c. 16, s. 86; Whitmore v. Robertson, 8 M. & W. 463.

plaintiff' money deposited there by a defendant in lieu of bail, on the ground that no bail had been afterwards perfected, or the requisites of 7 & 8 Geo. IV. c. 71, s. 2, complied with, was held sufficient process of law to protect the payment made under it from being ripped up by the defendant's assignees as merely voluntary, though he had committed an act of bankruptcy before the money was paid in, and that fact was communicated to the court before it was ordered to be paid out.1 For as no fiat was issued at the time the order was made, the court had no power to refuse it.

Again, where mesne process had issued against the plaintiffs, after demand of a particular sum by letter, in terms sufficiently explicit to call their attention to the subject, and they paid the amount in consequence of the writ, they were held not entitled to recover the sum so paid as money had and received to their use, on the grounds of its being paid by mistake, and without knowledge or reasonable means of knowledge of the facts on which the demand had proceeded; and the court granted a new trial after verdict for the plaintiffs, assenting to the judgment of Holroyd, J., in Milnes v. Duncan, 6 B. & C. 679, that as the money had been paid after legal process actually issued to recover it, the then defendants knowing the cause of action proceeded on, no action was maintainable to recover it back.3

But where a certificated bankrupt was taken in execution for a debt provable under his commission, and in vain claimed his discharge till he deposited the debt and costs, protesting against the right to demand either, and warning the sheriff not to pay over any of the money, he intending to dispute the plaintiff's claim to it, the court made a rule absolute against the sheriff and plaintiffs for paying it over to the defendant, saying, it was not the case of a party who, with knowledge of the facts, paid over money under legal process, as in Hamlet v.

1 Reynolds and another, assignees, v. Wedd, 4 New C. 694; see 6 Geo. IV. c. 16, s. 82; Ferrall v. Alexander, 1 D. P. C. 132.

2 Hannah v. Willis, 4 New C. 310.

3 Hamlet v. Richardson, 9 Bing. 644. Though the marginal note introduces an exception in case of fraud on the part of the person obtaining the money, no fraud seems to have been in question in the case. If Cobden v. Kenrick, 4 T. R. 432, n. can be supported on this point at all, it must be on the ground of fraud in defendant, when plaintiff in the former action. S. C.

Richardson, but a payment under protest, by which he said, in effect, that if the sheriff was not entitled to take it, it must be paid back.1

2

The order of a judge has been held such legal process as would protect persons receiving payment from the person ordered to pay, against a suit by his assignees to recover it, though his attornies had, in fact, paid over the money, after his bankruptcy, out of funds furnished them by him for the purpose, before the fiat issued. They might, however, be liable to an action by the assignees, the property in the money having vested in them at the time it was parted with. Payment of money by a sheriff, under compulsion of attachment, is placed on a similar footing.3

The principle of these decisions is, that the party aggrieved should resist the claim in the first instance, so that there should be some end of litigation and cross actions,—a result which would never arrive, if after a recovery by legal process, a door was opened for parties to try their causes again, because they were not properly prepared the first time with the necessary evidence, or, possessing it, accidently omitted. to produce it at the trial; and though in one case, which we shall now shortly state, the rule was relaxed, the later decisions show that its principles can by no means be extended. A party was sued for a debt in a court of conscience, as indorser of a bill, and from the inferior nature of the jurisdiction, and the mistake of its judges, was prevented from availing himself of a defence which was open to him at law, viz. that the indorsee, the plaintiff, agreed that the indorser should not be liable by reason of his indorsement. However, the indorsee having obtained judgment for the amount of the bill against the indorser in the inferior court, the court of King's Bench suffered the latter to recover it back in an action for money had and received. But Moses v. Macfarlane is now

1 Payne v. Chapman, 4 Ad. & E. 364.

2 Belcher, assignee, v. Mills and another, 5 Tyr. 715, acted on in 4 Bing. N. C. 694, Reynolds v. Wedd.

3 Belcher v. Mills.

4 Moses v. Macfarlane, 2 Bur. 1006, as stated by Lord Kenyon at Nisi Prius, in Marriot v. Hampton, 1 Esp. N. P. C. 548.

doubted: Eyre C. J., said of it,1 that he could never subscribe to it, "it seemed to unsettle foundations," and suggested that the proper remedy would by by action for breach of the agreement to keep the indorser harmless. It would seem that the damages in such an action would be measured by the amount recovered on the bill.

But a surety who is primarily liable, e. g. as maker of a joint and several promissory note, may safely pay the amount for which he is liable on it, without waiting till the money is sued for, or even demanded. For he will not thereby endanger his remedy against his co-surety for contribution ; as such payment, though not by compulsion of legal process, is not voluntary, or, in other words, not in his own wrong.2

Again, if money is paid in consequence of the fraudulent abuse, or even the colourable use of ex parte legal process, by one who knows he has no right to the money he obtains, it may be recovered back. In August, 1834, the Duke de Cadaval, who had been a member of Don Miguel's administration in Portugal, fled from Lisbon to England, and while resident at Falmouth was arrested on mesne process for a debt of 10,000l., sworn to be due from him to one Collins, who assumed to have claims on the late Portuguese Government. The Duke, in order to obtain his release, and to get time to put in bail for the residue of the sum claimed, paid Collins 5007. "in part of the writ," and was accordingly set free; but the writ being afterwards set aside for irregularity, no bail was put in, and he sued Collins to recover the 5007. as money received to his use. It was shown that in 1833 Collins had filed his schedule, in order to procure his discharge under the insolvent act, without inserting this alleged claim on the Duke. The jury were of opinion that Collins knew at the time of the arrest that he had no such claim, and found a verdict for the plaintiff for the whole amount. On a rule for setting aside the verdict, it was argued for Collins, that if he had in fact no claim on the Duke, still as the money was paid in part of the

1 Phillips v. Hunter, 2 H. Bla. 416.

2 Pitt v. Purssord, 8 M. & W. 538; see 6 id. 153.

3 Duke de Cadaval v. Collins, 4 Ad. & E. 858, commented on per Cur. 10 Ad. & E. 89.