18 Iowa 108 | Iowa | 1864
- It will be observed, in examining the authorities, that the defendants in the first action have sought relief or redress for payments made and not credited in different modes, as, 1st. By bill in equity for relief against the judgment. (Story Eq., §879, citing Gainsborough v. Gifford, 2 P. Wms., 424 (1727), and see observations on this case in Protherve v. Forman, 2 Swanst., 227, 233 (1818), per Lord Eldon; in Smith v. Lowry, 1 John. Ch., 320, 324, per Chancellor Kent, who intimates that it is overruled by Marriott v. Hampton, 7 Term, 296; S. C., 2 Smith’s L. Cas., 237 (marg.); see also L. Cas. in Eq., vol. 2, part 2, p. 102; Bateman v. Wilcox, 1 Sch. & L., 201, per Lord Redesdale ; Taylor v. Wood, 2 Hay., 332; Beams v. Denham, 2 Scam., 58; and see Revision, chap. 141; also Marshall v. Dupuy, 11 Ben. Mon., 219, as to remedy provided by statute.)
Or 2d. By action for money had and received. Marriott v. Hampton, supra, is the leading case, denying the right to maintain this action. Some cases in this country, though not professing to overrule or deny it, seem to me not to be reconcilable with it; such as Fowler v. Shearer, 7 Mass., 14; Rowe v. Smith, 16 Mass., 306; as to which last case doubts are intimated in a note, and in Fuller v. Little, 7 N. H., 535; but it was expressly followed in the recent case of Smith v. Weeks, 26 Barb., 463 (1857). See also Loring v. Mansfield, 17 Mass., 394; 2 Smith’s L. Cas., 342 (top); Fuller v. Little, 7 N. H., 538; King v. Hutchins, 8 Foster, 561.
Or 3d. By an action for the breach of the agreement to credit, whereby the plaintiff seeks to recover as damages an amount equal to the unjust recovery against him. (Cobb v. Curtiss, 8 John., 470. See also Fuller v. Little, 7 N. H., 535; King v. Hutchins, 8 Foster, 561.) Of course, if there
We do not say that there can be no relief or recovery under any circumstances. We only say that in our judgment, after a full examination of the subject, both upon principle and authority, these circumstances are sufficient.-
Affirmed and remanded.