. Moses v. Macferlan, 2 Burr.
1005, 97 Eng. Rep.
1760). In this famous case the defendant had recovered against the plaintiff in the
Court of Conscience upon notes indorsed by the plaintiff under an agreement that the
defendant would not hold him liable on them. The latter court refused to hear evidence
of the agreement, and the plaintiff brought an action at law in assumpsit for money
had and received to recover the sums thereby awarded. While Lord Mansfield's decision
that the action lies on the implied promise is the point for which the case is best
known, the defendant had also argued that there could be no recovery of money awarded
by the judgment of a court of competent jurisdiction. Mansfield held that the action
was not inconsistent with the prior judgment because the Court of Conscience had properly
concluded that the agreement was not before it. In the process he enlarged upon the
theme that a new action could always be brought to attack a judgment on a ground that
was not available as a defense against that judgment. The phrase noted by
, which is from that portion of the opinion, appears in the following passage: “Suppose
a Man recovers upon a Policy for a Ship presumed to be lost,
which afterwards comes Home;—Or upon the Life of a Man presumed to be dead,
who afterwards appears;—Or upon a Representation of a Risque deemed to be fair,
which comes out afterwards to be grossly fraudulent.” 2 Burr.
1009–1010. As to the case, see C. H. S. Fifoot, Lord Mansfield
141–157 (Oxford, 1936).