2 Cow. 428 | N.Y. Sup. Ct. | 1823
The judgment must he reversed; This was overhauling the first judgment, and attempting to recover back a portion of it, on thé ground that it was fiot due, and had been unconscientiously recovered. The allegation of fraud does h'ot alter the nature of the case. It is substantially an action to recover back money improperly awarded by a former judgment; and is precisely the case of Marriott v. Hampton, (7 T. R. 269.) In that case, the defendant had recovered against the plaintiff for goods sold. The plaintiff had paid him for these goods, and taken his receipt; but not being able to find the receipt, at the time of the trial, judgment went against him and he paid the money again. Afterwards, finding the receipt, he brought his action to recover it back. Lord Kenyon says, “ 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.” The case of Cobb v. Curtiss, (8 John. 470,) is clearly distinguishable. There, the action was founded on an agreement to discontinue the first suit; and the Court go upon the ground, that this agreement could not have been set up as a defence to the second. There was nothing to prevent Ames’ showing upon the first trial, that the note included the account. • If he was not prepared with his proof it was his misfortune. There would, indeed, • be no end to litigation, nor any security to any person, if actions like this could be sustained.
Judgment reversed.
