went in the October following to redeem them, when the defendant insisted on having 10l. as interest for the 20%. The plaintiff tendered him the 201. and 47. for interest, knowing the same to be more than the legal interest amounted to; the defendant still insisted on having 10l. as interest, whereupon the plaintiff finding that he could not otherwise get his goods back, paid the defendant the sum which he demanded, and brought an action for the surplus beyond the legal interest, as money had and received to his use; the Court held, that the action would well lie, for it was a payment by compulsion, and the plaintiff might have had such an immediate want of his goods that an action of trover would not have answered his purpose, and the rule volenti non fit injuria holds only where the party has a freedom of exercising his will.

2. OF AN EXCESSIVE FINE PAID UPON ADMITTANCE TO COPYHOLD PREMISES.] In the case of Leake v. Lord Pigot, (z) which was an action for money had and received by defendant for plaintiff's use. On the trial it appeared that the plaintiff had purchased of one Sansom a copyhold estate in Patingham, which was defendant's manor. The estate was let at a gross rent of 60l. per annum, landlord paying landtax, chief rent, &c. The plaintiff applied at the next manor court to be admitted, and tendered 120l. for the fine (two years' rent) saying that no lord of a manor had a right to more than two years' value for a fine. Stevens (Lord Pigot's agent) refused to admit him unless he paid 107. per cent. on the purchase money (16507.); he said he durst not take the sum offered by plaintiff, nor would he suffer Mr. Jeffreys, the courtkeeper, to admit plaintiff without payment of 1651. The plaintiff then paid the money demanded as a fine in order to procure admission, but said it was too much money; and plaintiff afterwards applied to Lord Pigot himself, and to his agent in town, Mr. Partington, and offered to refer the matter of the fine to counsel. Lord Pigot said he would not return any part of the fine received, nor would he leave it to counsel. The defendant at the trial, insisted that 10l. per cent. on the purchase money was the customary fine in that manor; and by estimating the estate, which was 100 acres, at 16s. 6d. per acre, made the two years' value amount to 165l. Yates J. said, "Fines were arbitrary formerly, the estate being held at the will of the lord; but the law having now drawn the line, and copyhold estates being permanent, no more than two years' value can be taken. The lord has a right to two years' real intrinsic value of the land, and is not to be prejudiced by any collusive lease. It was necessary for the plaintiff to show, that he did not pay the fine voluntarily, but upon compulsion. The custom to take 10 per cent. on the purchase money, be it of ever so long a continuance, cannot bind; the law having fixed the rate in another manner."

(2) Sel. Ni. Pri. 87. MSS.

3. OF MONEY PAID UNDER LEGAL PROCESS, &c.] - Where money has been recovered by the judgment of a court having competent jurisdiction, the matter can never be brought over again by a new action : for until the judgment is set aside or reversed, it is conclusive, as to the subject matter of it, to all intents and purposes. (a) Therefore; money paid under the compulsion of legal process, though it be afterwards discovered not to have been due, cannot be recovered back. Thus, in the case of Marriot v. Hampton, (b) where it appeared, that the defendant formerly brought an action against the present plaintiff for goods sold, for which the plaintiff had before paid, and obtained the defendant's receipt; but not being able to find the receipt at that time, and having no other proof of the payment, he could not defend the action, but was obliged to submit and pay the money again, and he gave a cognovit for the costs. The plaintiff afterwards found the receipt, and brought this action for money had and received in order to recover back the amount of the sum so wrongfully enforced in payment. But Lord Kenyon Ch. J. was of opinion at the trial, that after the money had been paid under legal process, it could not be recovered back again, however unconscientiously retained by the defendant.

So, where an attorney brought an action against his client for the amount of his bill of costs, which the client paid; but afterwards had the bill taxed by the proper officer; and upon taxation, one half of the charges were struck out and disallowed; upon which the client brought an action of indebitatus assumpsit for money had and received against the attorney, to recover back the amount so deducted and disallowed. But it was holden, that such an action would not lie; the money having been paid under the compulsion of legal process, and the client not having, as he might have done, the bill taxed pending the action: (c) the plaintiff was accordingly nonsuited. A motion, however, was afterwards made for a rule to set aside the nonsuit, and for a new trial; but Lord Kenyon Ch. J. said, "I am afraid of such a precedent. If this action. could be maintained I know not what cause of action could ever be at rest. After a recovery by process of law there must be an end of litigation, otherwise there would be no security for any person. I cannot therefore consent, even to grant a rule to show cause, lest it should seem to imply a doubt. It often happens that new trials are applied for on the ground of evidence supposed to have been discovered after the trial; and they are as often refused: but this goes much further." The rule was accordingly refused.

So, in the case of Brown v. M'Kinally, (d) which was an action of assumpsit for money had and received. The plaintiff and defendant

(a) Per Lord Mansfield, 3 Bur. 1009. (b) 7 Term. Rep. 269. 2 Esp. 546. S.C. Vide 1 Vin. Abr. 269.

(c) Gower v. Popkin, 2 Stark. 85. (d) 1 Esp. Rep. 279.

being in the same line of business, entered into an agreement by which the defendant agreed to sell the plaintiff all his old iron, except bushel iron, which was of an inferior quality, at 97. per ton. The iron he delivered was mixed iron of an inferior value, being part bushel iron, and charged the full value for the best sort: the plaintiff objecting to the charge, the now defendant brought an action for it. The plaintiff paid the full demand so made on him, at the same time telling the defendant, that he did it without prejudice, and meant to bring an action to recover back the overplus so paid: and this action was accordingly brought for that purpose. But Lord Kenyon said, "That such an action could not be maintained. That to allow it would be to try every such question twice, for that the same legal ground that would entitle the plaintiff to recover in the present action, would have been a good defence to the action brought against him by the present defendant; at which time, and in which manner he should have proceeded: that money paid by mistake was recoverable in assumpsit, but here it was paid voluntarily, and so could not be recovered under the circumstances of this case."

It has, however, been determined, that where money was recovered upon a judgment of a court of conscience, in consequence of a material part of the defendant's case having been rejected, which could not be gone into in that court, though from which it plainly appeared, that the plaintiff ought not in conscience and equity to have recovered the money; the judgment in such case is not conclusive, but the party paying the money under it, may recover it back again by action of indebitatus assumpsit. Thus, in the case of Moses v. Macferlan, (e) which was an action of indebitatus assumpsit for money had and received. The case, as it came out in evidence at the trial, was as follows: Moses (the plaintiff) had indorsed to the defendant, Macferlan, four several promissory notes made to Moses himself, by one Chapman Jacob, for 30s. each, for value received, bearing date 7th of November, 1758: and that this was done in order to enable the defendant, Macferlan, to recover the money in his own name, against Chapman Jacob. But previous to the now plaintiff's indorsing these notes, Macferlan assured him, “that such his indorsement should be of no prejudice to him:" and there was an agreement signed by Macferlan, whereby he (amongst other things) expressly agreed, "that Moses should not be liable to the payment of the money, or any part of it; and that he should not be prejudiced, or be put to any costs, or any way suffer by reason of such his indorsement." Notwithstanding which express condition and agreement, and contrary thereto, the present defendant, Macferlan, summoned the present plain

(e) 2 Bur. 1005. 1 Bl. Rep. 219. S.C. But see 2 H. Bl. 416. where it is said by Eyre Ch. J. "That the judgment pronounced in this case did not satisfy Westminster Hall at the time; that he never could subscribe to it; it seemed to him to unsettle foundations."

tiff, Moses, into the Court of Conscience, upon each of these four notes, as the indorser thereof respectively, by four separate summonses. Whereupon Moses, (by one Smith, who attended the Court of Conscience, at their second court, as solicitor for him and on his behalf,) tendered the said indemnity to the Court of Conscience, upon the first of the said four causes; and offered to give evidence of it, and of the said agreement, by way of defence for Moses in that Court. But that Court rejected this defence, and refused to receive any evidence in proof of this agreement of indemnity, thinking that they had no power to judge of it; and gave judgment against Moses, upon the mere foot of his indorsement, (which he himself did not at all dispute,) without hearing his witnesses about the agreement, that he should not be liable for the commissioners held this agreement to be no sufficient bar to the suit in their Court, and consequently decreed for the plaintiff in that Court, upon the undisputed indorsement made by Moses. This decree was actually pronounced in only one of the four causes there depending: but Moses's agent (finding the opinion of the commissioners to be as above-mentioned,) paid the money into that Court, upon all the four notes; and it was taken out of Court by the now defendant, Macferlan, (the then plaintiff in that Court,) by order of the commissioners.

All this matter appearing in evidence at the trial, there was no doubt but that upon the merits of Moses was entitled to recover back the money, and accordingly a verdict was given for him; but subject to the opinion of the Court upon this question, whether the money could be recovered in that form of action, or whether an action ought to have been brought upon the special agreement only? The Court were unanimously of opinion, that the gist of the action was that the defendant, upon the circumstances of the case, was obliged, by the ties of natural justice and equity, to refund the money; therefore, that the plaintiff might elect to wave any demand upon the foot of the indemnity for the costs he had been put to, and bring his action of indebitatus assumpsit to recover the 67. which the defendant had unjustly received. Lord Mansfield Ch. J., in delivering the opinion of the Court, said, "It is most clear that the merits of a judgment can never be over-haled by an original suit, either at law or in equity. Till the judgment is set aside or reversed, it is conclusive, as to the subject matter of it, to all intents. and purposes. But the ground of this action is consistent with the judgment of the Court of Conscience; it admits the commissioners did right. They decreed upon the indorsement of the notes by the plaintiff: which indorsement is not now disputed. The ground upon which this action proceeds was no defence against that sentence. It is enough for us, that the commissioners adjudged they had no cognisance of such collateral matter. We cannot correct an error in their proceedings; and ought to suppose what is done by a final jurisdiction to be right.

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But we think the commissioners did right in refusing to go into such collateral matter. Otherwise, by way of defence against a promissory note for 30s., they might go into agreements and transactions of a great value and if they decreed payment of the note, their judgment might indirectly conclude the balance of a large account. The ground of this action is not, that the judgment is 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. And at Guildhall, I declared very particularly, that the merits of a question, determined by the commissioners, where they had jurisdiction, never could be brought over again in any shape whatsoever. Money may be recovered by a right and legal judgment; and yet the iniquity of keeping that money may be manifest, upon grounds which could not be used by way of defence against the judgment. Suppose an indorsee of a promissory note, having received payment from the drawer (or maker) of it, sues and recovers the same money from the indorser, who knew nothing of such payment. Suppose a man recovers upon a policy for a ship presumed to be lost, which afterwards comes home: or upon the life of a man presumed to be dead, who afterwards appears; or upon a representation of a risk deemed to be fair, which comes out afterwards to be grossly fraudulent. But there is no occasion to go further: for the admission that, unquestionably, an action might be brought upon the agreement, is a decisive answer to any objection from the judgment. For it is the same thing, as to the force and validity of the judgment, and it is just equally affected by the action, whether the plaintiff brings upon the equity of his case arising out of the agreement, that the defendant may refund the money he received; or, upon the agreement itself, that besides refunding the money, he may pay the costs and expences the plaintiff was put to. The gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money. Therefore, we are all of us of opinion, that the plaintiff might elect to wave any demand upon the foot of the indemnity, for the costs he had been put to; and bring this action to recover the 6l., which the defendant got and kept from him iniquitously."

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So, where an action is brought, and the money is paid under a compromise, and not in consequence of a judgment of the court; and it is afterwards discovered that the money was paid by mistake or deceit, it may be recovered back by action of indebitatus assumpsit for money had and received. Thus, in the case of Cobden v. Kendrick, (f) where the following facts appeared: an action had been brought some time before by the present defendant, as indorsee of a promissory note for

(f) 4 Term. Rep. 451.