action on this promissory note, under circumstances which would satisfy the jury that the action was commenced and carried on by them fraudulently, with the purpose of extorting money from the plaintiff by duress, under color of legal process; that in pursuance of this purpose, they went about two o'clock on Monday morning with a writ in the hands of an officer and made an attachment of the carts, horses, and harnesses; that the attorney-at-law, who had been with the officer in making the attachment, went to the plaintiff's house and informed him of the attachment, and told him that none of the property so attached could go to Boston unless the claim should first be settled by the payment of $300; that the plaintiff told the attorney that he did not owe anything, and said he would dissolve the attachment by giving a bond; that the attorney then told him that it would take three days to dissolve it, and that for that time the property would be held under it, and that his discharge in insolv ency did not cut off the claim; that the plaintiff believed thes statements, and being ignorant of the method of dissolving attachi ments and being in fear of great loss in his business, to relieve the property from attachment he paid the $300 to the attorney under protest, stating that he should claim and enforce his rights, and recover back the money.

The presiding judge being of the opinion that these facts, if proved, would not sustain the action, so ruled; whereupon, by consent of the parties, he reported the case to this court for their decision. It was agreed that if the court should be of opinion that these facts, if proved, were sufficient to sustain the action, then it was to stand for trial; otherwise judgment was to be entered for the defendants.

GRAY, J.-This is not an action of tort, to recover damages for malicious prosecution, or abuse of legal process, but an action of contract, in the nature of assumpsit, for money had and received by the defendants, which they have no legal or equitable right to retain as against the plaintiff. Although the process sued out for the defendant was in due form, yet if, as was offered to be proved at the trial, he fraudulently, and knowing that he had no just claim against the plaintiff, arrested his body or seized his goods thereon, for the purpose of extorting money from him, then, according o all the authorities, the payment of money by the plaintiff, in order to release himself or his goods from such fraudulent and wrongful detention, was not voluntary, but by compulsion; and the money so paid may be recovered hack, without proof of such a termination of the former suit as would be necessary to maintain an action for malicious prosecution. Watkins v. Bird, 6 Mass. 506; Shaw, C. J. in Preston v. Boston, 12 Pick. 7, 14; Benson v. Monroe, 7 Cush. 125, 131; Carew v. Rutherford, 106 Mass. I, II, et seq.; Richardson v. Duncan, 3 N. H. 508; Sartwell v. Horton, 28 Vt. 370; Gibson, C. J., in Colwell v. Peden, 3 Watts 327, 328; Cadaval v. Collins, 4 A.

& E. 858; Parke, B., in Oates v. Hudson, 6 Ex. 346, 348, and in Parker v. Bristol and Exeter Railway Co., 6 Ex. 702, 705. New trial ordered.

TURNER v. BARBER.

66 N. J. L. 496.—1901.

GARRISON, J.-This is an action brought in the Salem pleas upon an appeal to recover money paid by Turner to Barber's proctor in admiralty. The ground of the plaintiff's action was that the money so paid had been obtained from him by duress of his goods. The duress referred to was the seizure and detention of a scow belonging to Turner by the deputy United States marshal under a monition of libel issued in a suit in admiralty brought by Barber against the scow for wharfage. To effect the release of the scow, Turner, without contesting the claim, paid it under protest to the proctor of the libelant, and then sued Barber on it in the court for the trial of small causes, and recovered a judgment against him. Upon an appeal by Barber to the common pleas, a similar judgment was recovered by Turner. Thereupon Barber removed the judgment of the pleas to this court by a writ of certiorari. The facts found by the court of common pleas appear in the return made by the judge of that court in response to a rule.

The judgment of the common pleas must be reversed. The plaintiff did not make out a case of extortion. The payment by the plaintiff of the claim for wharfage with full knowledge of the facts was a voluntary one, even if he did not owe it.

The proposition maintained by the case annotated upon this subject in Smith's Leading Cases is that money paid under regular legal process in a judicial proceeding, without contest, and with a full knowledge of the facts, is, in the absence of fraud, not recoverable. 2 Smith, Lead. Cas. (8th Am. Ed.) 436.

There is nothing in the facts of the present case to take it out of this rule, or to invoke the rule with respect to the duress of goods. The court decided that the plaintiff did not owe the wharfage, but did [not] find fraud in the libelant, or that he knew or ought to have known that the scow was not liable for the wharfage, or even that he knew of the pending sale of the scow, and timed his process as a means of extortion. The essential factors of a duress of goods by the use of process were lacking. The libelant had not received pay for the scow's use of the wharf, and had a legal right to test its liability in a competent tribunal of his own selection. Moreover, a complete answer to the claim of duress is contained in the finding of the trial court that the "plaintiff was of ample pecuniary ability to give sufficient bond to enable him to procure the release of the said boat from the custody of the said United States marshal." WOODRUFF'S CASES-34

This fact destroys the force of the plaintiff's contention that the immediate delivery by him of his boat to complete a contract of sale compelled him to pay the claim against it. Under the circumstances his payment of the claim was a matter of convenience merely. The course pursued by the plaintiff enabled him to release his boat without litigating the validity of the claim against it in a tribunal where the libelant had acquired a right to have the matter decided. To permit the matter to be afterwards litigated in a forum of the plaintiff's choosing is contrary to sound policy. His payment of the admiralty claim must be deemed to have been made voluntarily, and without fraud or force.

The judgment of the pleas must be reversed and set aside, and a judgment of non-suit entered.

2. AFTER JUDGMENT.

MOSES v. MACFERLAN.

2 BURR. (K. B.) 1005.-1760.

LORD MANSFIELD delivered the resolution of the court in this case, which stood for their opinion: "Whether the plaintiff could recover against the defendant in the present form of action (au action upon the case for money had and received to the plaintiff's use), or whether he should be obliged to bring a special action upon the contract and agreement between them."

It was an action upon the case, brought in this court by the now plaintiff, Moses, against the now defendant, Macferlan (heretofore plaintiff in the Court of Conscience, against the same Moses now plaintiff here), for money had and received to the use of Moses, the now plaintiff in this court.

The case, as it came out upon evidence and without dispute at nisi prius before Lord MANSFIELD at Guildhall, was as follows:

It was clearly proved, that the now plaintiff, Moses, had indorsed to the now defendant, Macferlan, four several promissory notes made to Moses himself by one Chapman Jacob, for 30s. each, for value received, bearing date 7th November, 1758; and that this was done in order to enable the now 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 plaintiff, 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 defense for Moses in that court. But the Court of Conscience rejected this defense, 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 upon evidence before Lord MANSFIELD at nisi prius at Guildhall, there was no doubt but that, upon the merits, the plaintiff was entitled to the money; and accordingly a verdict was there found for Moses, the plaintiff in this court, for 61. (the whole sum paid into the Court of Conscience), but subject to the opinion of the court upon this question, "Whether the money could be recovered in the present form of action, or whether it must be recovered by an action brought upon the special agreement only."

The court having heard the counsel on both sides, took time to advise.

Lord MANSFIELD now delivered their unanimous opinion, in favor of the present action.

There was no doubt at the trial, but that upon the merits the plaintiff was entitled to the money; and the jury accordingly found a verdict for the 61., subject to the opinion of the court upon this question, "Whether the money might be recovered by this form of action," or "must be by an action upon the special agreement only. Many other objections, besides that which arose at the trial, have since been made to the propriety of this action in the present case.

The 1st objection is, "That an action of debt would not lie here; and no assumpsit will lie where an action of debt may not be brought;" some sayings at nisi prius, reported by note-takers who did not understand the force of what was said, are quoted in support of that proposition. But there is no foundation for it.

It is much more plausible to say, "That where debt lies an action upon the case ought not to be brought." And that was the point

relied upon in Slade's case, 4 Co. 92; but the rule then settled and followed ever since is, "That an action of assumpsit will lie in many cases where debt lies, and in many where it does not lie."

A main inducement, originally, for encouraging actions of assumpsit was, "to take away the wager of law;" and that might give rise to loose expressions, as if the action was confined to cases only where that reason held.

2d Objection. "That no assumpsit lies except upon an express or implied contract; but here it is impossible to presume any contract to refund money which the defendant recovered by an adverse suit." Answer. If the defendant be under an obligation, from the ties of natural justice, to refund, the law implies a debt, and gives this action, founded in the equity of the plaintiff's case, as it were upon a contract ("quasi ex contractu,") as the Roman law expresses it.

This species of assumpsit ("for money had and received to the plaintiff's use") lies in numberless instances for money the defen 1ant has received from a third person; which he claims title to, in opposition to the plaintiff's right; and which he had by law authority to receive from such third person.

3d Objection. 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.

Answer. 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 defense against that sentence.

It is enough for us, that the commissioners adjudged "they had no cognizance 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. But we think "the commissioners did right, in refusing to go into such collateral matter." Otherwise, by way of defense 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 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." 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