The first question is, upon the effect to be given to the judgment either as a plea in bar or as evidence between the parties ? For, if the judgment be conclusive, there is an end of the cause.
*420The rule in relation to the conclusiveness of a judgment, rendered by a court of competent jurisdiction, upon the same matter, which is again brought in controversy between the same parties and litigated for the same purpose, is as binding in this court as it is in a court of law : Orcutt v. Orms, 3 Paige’s C. R. 463. In order to bring a case within the rule, the second suit must be founded upon the same cause of action as the first; and the test of its being the same cause of action is that the same evidence will support both actions, although different in form: Rice v. King, 7 J. R. 20.; Johnson v. Smith, 8 Ib. 383.
In the case under consideration, the action brought in the Supreme Court was, in form; an action of assumpsit for money had and received. It was between the same parties and for the same sum which is in demand by the present bill.
Since the decision of Lord Mansfield in the often quoted case of Moses v. Macfarlan, 2 Burr. 1005, courts of law have constantly regarded the action for money had and received as an equitable action anda substitute, in a great measure, for a bill in equity. It is held to lie whenever a defendant has received money which he is under an obligation, from the ties of natural justice and equity, to refund. The law then implies a debt; and gives the action as being founded upon the equity of the plaintiff’s case. If it arise from fraud or imposition practised by the defendant, breach of confidence or trust, extortion or oppression or any other undue advantage taken of the plaintiff’s situation and the defendant has by any of these means received money which ex aquo et bono he ought to refund, the plaintiff may, at his election, waive the tort and, upon the notion of an implied contract or obligation in law, recover the money in this form of action. Upon these grounds or some of them the complainants brought their action at law ; and the present bill rests upon no broader basis. The same facts were given in evidence in support of the action which are now presented for the purpose of upholding the equity of the bill; and the merits of the case were gone into and passed upon by the Supreme Court. And if, upon the facts and under the circumstances of the case. *421the plaintiffs were not entitled to recover in an action for money had and received, I do not know upon what principle a bill in equity can be sustained. If we suppose the defendants chargeable with notice of the complainants being accommodation endorsers and that passing the draft to Leavit, under the circumstances and after the known failure of the drawers, can be regarded in the light of a fraud upon the complainants and that by this means the defendants received money to which they were not entitled, then the action for money had and received was calculated to present the question of the plaintiff’s right to it. Although the case may not have been put expressly upon this ground, yet it appears, from the decision of the Supreme Court, to have been contended that the peculiar circumstances of the case made the defendants trustees of the plaintiffs for the amount of money in controversy, but the court held there was no trust in favor of the plaintiffs and nothing on the part of the defendants from which an implied promise could be raised to support the action. Here then appears to be a decision broad enough to cover the whole ground of the complainants claim in any view in which it could have been presented. It was made by a court of competent jurisdiction of the plaintiffs own choosing ; and the form of the action was of such a nature as to let in the whole equity of the plaintiffs case. The right or wrong of the decision is not now the question. If there were error in the judgment, the plaintiff should have sought to correct it elsewhere. It is not the business, nor is it within the province of this court to review it; and while the judgment remains in force, it is conclusive upon the rights of the parties.
Courts of Equity will sometimes entertain bills and grant relief, notwithstanding a verdict and judgment at law. The cases in which this may be done are adverted to and the principles upon which the court proceeds are clearly stated by Spencer Ch. J. and Van Vechten, Senator, in King v. Baldwin, 17 J. R. 384. But there is nothing in those principles to warrant this court in disregarding the judgment at law set up in the present case as a bar.
I must dismiss the bill; yet considering the eircumstan*422ces under which the complainants obtained the money and the hardship of their case, I shall leave each party to bear their own costs of this suit. One of the complainants has died since the cause was submitted: the decree of dismissal may have relation back and be entered as of the fourth Monday of October last.