17 Mass. 394 | Mass. | 1821
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
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
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
The case of Moses vs. Macferlan
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.]