the debtor upon a judgment rendered in a suit upon the note containing the usurious interest.

It is a well-established principle of the common law, that a judgment can not be impeached directly, indirectly, or collaterally. While it remains unreversed, it is conclusive upon the parties in every respect: Loring v. Mansfield, 17 Mass. 394; Homer v. Fish et al., 1 Pick. 435 [11 Am. Dec. 218]; Whitcomb v. Williams, 4 Id. 228; Weeks v. Thomas, 21 Me. 465. To this general rule a judgment obtained upon a contract where usurious interest has been reserved or taken, is not an exception. In the case of Thatcher v. Gammon, 12 Mass. 268, it is said by the court, that no distinction is to be found in the books between this and any other defense. The court say further, in the same case: The judgment is in all cases considered conclusive evidence of the existence and justice of the demand, and unless voidable for error, it can not be impeached, except for matter going in discharge of it ex post facto."

But it is insisted for the plaintiff, that this doctrine of the common law has been modified by the revised statutes, chapter 69, section 5, wherein it is provided, that "whoever on any such loan shall in any manner pay a greater sum or value than is allowed to the creditor may, or his personal representatives may, recover of the creditor or his representatives, by action at law, the excess so received by such creditor, whether in money or other property." The counsel for the plaintiff contends, that the terms "in any manner pay," etc., will embrace all payments of illegal interest, not excepting those made in discharge of a judgment rendered on a contract tainted with usury, when no such defense was set up while the action was pending. This construction is contended for as being the literal meaning of the language used. If the terms employed are to be thus interpreted, they will equally well apply to the payment of a judgment, when the defense of usury was set up at the trial, and upon that issue a verdict was rendered for the plaintiff for the full amount appearing upon the face of the contract to be due, inasmuch as the statute has not made the right to recover back the excess over lawful interest to depend upon the issue presented at the trial.

But it is believed that the language of the statute itself, whether construed literally or according to its spirit, will not so clearly sustain the views taken for the plaintiff, as to render it certain that the rule of the common law was designed to be changed. When the manner in which a payment is made is

spoken of, it is not supposed to refer to the kind of obligation by which the payment is secured, demanded, or enforced, or the mode of enforcing it, but to the species of property or valuable thing in which payment is made. In a contract to give a consideration for something received, the manner of paying that consideration would have reference particularly to that in which the consideration consisted, whether money, labor, or goods, ard not to the instrument, which may be the evidence of indebtedness, such as a note, bond, or recognizance, or a judgment which may be obtained upon any such evidence. By the statute, the one who borrows money, afterwards paid in any manner, may recover the usurious excess of the lender, whether the latter received it in money or other property. The manifest intention of the legislature was not to restrict the right of reclamation to cash payments. The statute has carefully provided that its meaning should be understood, and that it should not be evaded by payments actually made, or by contracts stipulating for payments other than those in money. The language, "so received by such creditor, whether in money or other property," was obviously used as explanatory of the previous words, "whoever shall in any manner pay," etc. This construction secures to the borrower the fullest opportunity of recovering back money paid as interest above the legal sum, before a judgment has been obtained on the contract. It takes from him no right of availing himself of a defense upon the ground of usury, and at the expense of the creditor, if the usury is established. But by the construction contended for by the plaintiff's counsel, the one who has entered into a usurious contract may omit defending a suit thereon, and afterwards institute a new suit to obtain the excess which he has paid upon the judgment; thus unnecessarily creating the right of an additional action, and allowing a judgment standing unreversed to be impeached in its effect by parol evidence. That such was the design of the authors of the statute, to be gathered from the terms employed, can not be admitted.

Plaintiff nonsuit.

THE PRINCIPAL CASE IS CITED, arguendo, in Thayer v. Mowry, 36 Me. 290, to the point that the record of a judgment is conclusive evidence of the indebtedness and of the amount, and that no defense could be allowed which might have been proved at the time of its recovery. The court, however, did not follow or deny the principle, but apparently ruled against it, making one more of those exceptional cases which throw doubt upon the doctrine of res judicata. The action was debt upon a judgment. The facts of the case were, that after the rendition of the judgment, plaintiff promised to give

credit for a payment made prior to the judgment. This the defendant was allowed to prove, and the evidence was held admissible, on the ground that it showed a state of facts which constituted a sufficient consideration for the promise made by plaintiff, and that such amount was to be treated as money paid upon the judgment.

ACTIONS AND DEFENSES IN CONFLICT WITH JUDGMENTS.-"Defenses and causes of action once presented can not be again asserted in another suit without a violation of the principles of res judicata. But the obstinacy with which litigants press their claims upon the attention of the courts is such that it is not uncommon for matters once fully determined to be again made, or at least attempted to be made, the subjects of judicial inquiry. Sometimes the circumstances attending the former decision are such as to render the law of res judicata apparently a matter of great injustice. Hard cases have long been characterized as the quicksands of the law. Such cases are quicksands in which the law of res judicata sometimes sinks so far that the judges are entirely unable to see it, or even to remember it. Generally, however, such is not the case; and the instances are comparatively few in which any cause of action or defense is allowed to prevail where it is inconsistent with the facts necessary to uphold any previous adjudication between the same parties. Therefore a plaintiff taking judgment for too small a sum, without the fraud or fault of his adversary, can not maintain a subsequent action to recover the remainder, nor can a defendant avoid the effect of a judgment against him by showing that the debt on which it was based was void for want of consideration, or that such debt had been merged in a former judgment:" Freeman on Judg., 3d ed., sec. 284 a; citing Ewing v. McNairy, 20 Ohio St. 316; Lewis v. Armstrong, 45 Ga. 131.

SUITS FOR MONEY PAID ON JUDGMENTS WHERE DEFENSES WERE CONCEALED.—In an early case as far back as 1760, Lord Mansfield permitted a party to recover money paid by him on a judgment where it was impossible for him to set up his defense in the court in which the judgment was recovered, and where the compulsion of payment was certainly iniquitous: Moses v. Macferlan, 2 Burr. 1005; but that case was afterwards overruled by Lord Kenyon in Marriott v. Hampton, 7 T. R. 269. It was there held that an action could not be maintained to recover money paid under a judgment by reason of a subsequent discovery of evidence showing that the judgment should never have been obtained. Lord Kenyon 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 can not 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 doctrine is well settled now that a suit for money paid on a judgment where the defense to the action has been concealed or was not made when opportunity was offered can not be maintained. Thus a vendor sold some wheat, receiving part of the purchase money to bind the bargain, but failed to deliver it. The vendee brought suit for the non-delivery, and recovered judgment for the full value of the wheat. The vendor then sued the vendee for the price of the wheat; but it was held, the action could not be maintained, for the dam. ages could have been properly adjusted in the former suit, had the vendor insisted upon it. Not having done so, he could not recover in this action: Dey v. Dox, 24 Am. Dec. 137. So too where the holder of a note overdue,

for a valid consideration, agreed not to sue the debtor for a limited time, and in violation of such agreement commenced a suit on the note before the expiration of the time agreed on, it was held that the remedy of the debtor was to set up the agreement by way of defense to the action, and that he could not sustain an action on his part for a violation of the agreement: Pearl v. Well, 6 Wend. 291; White v. Ward et al., 9 Johns. 232; Canfield v. Monger, 12 Id. 347. And it makes no difference that the defense was not known and could not have been known to the defendant: Homer v. Fish, 11 Am. Dec. 218; First Presbyterian Church v. New Orleans, 30 La. Ann. 259. But "the general rule that the law will not allow money paid upon legal process to be recovered back does not apply where the transaction is res inter alias acta. The assignee of a bankrupt not being in privity with him may recover money taken from the bankrupt under execution after his act of bankruptcy:" Freeman on Judgments, sec. 288; Follett v. Hoppe, 5 C. B. 243; Phillips v. Hunter, H. Black. 402.

SUITS FOR PAYMENTS NOT Credited, and FOR CREDITS Not Allowed.— The general rule that a judgment on the merits by a court of competent juris. diction is conclusive on the parties, has been somewhat relaxed in a few hard cases where payments made before judgment have not been properly credited, or where proper credits have not been allowed; but they are evidently in contradiction of the principle on which the general rule is based. Thus where an attorney received a partial payment from a debtor on a note left with him for collection, and paid it over to the creditor without indorsing it, and afterwards took judgment for the whole amount, he was held liable to the debtor for the amount received: Fowler v. Shearer, 7 Mass. 14. And in a later case the same principle was applied, though there the plaintiff him. self received the payment. The court say: "Here the creditor, by his own fault, recovered judgment for the whole debt when a part of it had been paid. It was his duty to have credited the sum paid on the note, and not having done so, he is considered as retaining the money for the use of the debtor. The plaintiff might well lie by and suffer judgment by default, relying upon a deduction of the sum paid before judgment:" Rowe v. Smith, 16 Id. 306. But the principle was restricted in a subsequent case to cases where a trust and confidence existed between the parties, which the defendant in the first suit acted upon, and such as was deemed sufficient to excuse his neglect in avail. ing himself of the payments by way of defense to the former action: Loring v. Mansfield, 17 Id. 394. And in the still later case of Stephens v. Howe, 127 Id. 164, evidence that before the judgment was rendered the claim on which it was founded was in part satisfied was held incompetent while the judg ment remained unreversed. In some respects the case of Holland v. Cook, 10 Tex. 244, is similar. This was a suit on a promissory note claiming the amount due on its face, without mention of indorsed credits. Judgment went by default for the whole amount of the note, but upon appeal it was held that the assessment should have been for the real indebtedness, making due allowance for the credits indorsed. And following the suggestion offered in this case, the court held that where an action was brought in Texas on a judgment rendered in Kentucky, the defendant should be permitted to prove that pending the former suit he had paid part of the demand on which it was based, had reposed confidence in the then plaintiff that the payment would be properly credited, but that no credit thereof had been made: Clay v. Clay, 13 Id. 195. In Smith v. Weeks, 26 Barb. 463, where W. commenced proceedings against S., under the mechanic's lien law, and recovered a judg. ment for the amount of his account by default, without giving S. credit for

the amount of a receipt and an order which S. had paid to him, it was held that S. might maintain an action against W. to recover the amount so paid; but this case was specially overruled in Binck v. Wood, 43 Id. 315, and the opposite doctrine maintained. But if after the rendition of a judgment any facts occur making it clear that the judgment should not be enforced, relief may be given in equity, or an action for money had and received may be maintained: Smith v. McCluskey, 45 Id. 610.

SUITS FOR OBTAINING JUDGMENTS BY FRAUD, CONSPIRACY, OR PERJURY.— "The policy of the law forbidding that a matter once adjudicated shall be drawn in issue while the former adjudication remains in force does not permit the prosecution of an action for obtaining a judgment by false and fraudulent practices: Hillsborough v. Nichols, 46 N. H. 379; or by false and forged evidence: Phil. Ev., Cowen, Hill & Edwards' note 265. Neither can a party against whom a judgment has been recovered sustain an action against his adversary and the witnesses for damages occasioned by their conspiring together and procuring a judgment by fraud or perjury, as long as the judgment remains in force and unreversed; because the charges made in the second action are conclusively negatived by the former adjudication: Dunlap v. Glid den, 31 Me. 435, citing Damport v. Sympson, Cro. Eliz. 520, and Eyres v. Sedgewicke, Cro. Jac. 601. Where, in process of foreign attachment, a judg ment has been entered discharging the trustee on his disclosure, the plaintiff can not sustain an action on the case against the trustee for obtaining his discharge by falsehood or fraud in his disclosure, and by fraudulent collusion with the principal defendant. The action against the trustee would, if it were allowable, involve a re-examination of the questions determined by his discharge when summoned in the former suit:" Freeman on Judgments, sec. 289, citing to last point Lyford v. De Merritt, 32 N. H. 234. But in Kentucky it was held that money coerced from defendant by a judgment procured by fraud might be recovered back by a suit in equity without vacating or setting aside the original judgment: Ellis v. Kelly, 8 Bush, 621; West v. Kerby, 4 J. J. Marsh. 56.

MONEY PAID FOR USURIOUS INTEREST, included in a judgment which de fendant has satisfied, can not be rerovered back in an action for it, even in Massachusetts, where the law with reference to the conclusiveness of judg ments is less strict than elsewhere: Thatcher v. Gammon, 12 Mass. 268, and see principal case, supra. And the fact of usury, whether pleaded as a defense or not, is conclusively negatived by a decree of foreclosure, including the interest in the judgment: Ileath v. Frackleton, 20 Wis. 320.

RIGHT OF ELECTION TO DEFEND OR SUE AFTER JUDGMENT FOR MATTER OF DEFENSE.-A purchaser of goods having paid for them, partly in cash and partly by his negotiable promissory note, discovered that he had paid for more than he had received, but nevertheless suffered judgment to be recovered against him by the vendor in an action upon the note, without objecting that the consideration had partly failed. He then brought an action to recover back the amount overpaid, and the action was sustained, on the ground that giving the note being a payment, a cause of action accrued to him immediately, which was independent of the judgment on the note: Whitcomb v. Williams, 4 Pick. 228.

CONCLUSIVENESS OF JUDGMENTS: See King v. Chase, 41 Am. Dec. 675; Swigart v. Harber, 39 Id. 418; Smith v. Tupper, 43 I. 483; Eastman v. Cooper, 26 Id. 600, and note; Bimeler v. Dawson, 39 Id. 430, and note.