It appears that the money demanded in this action was paid by the plaintiff to the defendant under a mistake of fact, and he now claims the money so paid by him. Equity is wholly with the plaintiff. But the defendant objects that the judgment under which he received the money is still in full force, and that it is not competent to the plaintiff now to go into the merits of that judgment, or again to try that action. If the plaintiff had paid the rents and profits voluntarily, and without a suit, it will not be contended that he could not recover them back in this action, in the actual state of things. He has it not in his power to reverse that judgment by writ of error. Having a legal right to the money which he now demands, it would not be right to turn him over to his petition for a review. By awarding him the money he paid under a mistake of the facts, we do not violate any principle. The judgment was right, nor does the present action impeach it; but the defendant has no right, from posterior circumstances, to * retain the proceeds of it. And when one wrongfully detains money, although it was rightfully received, the action for money had and received furnishes a just and appropriate remedy. When the jury have ascertained the amount due to the plaintiff, he will be well entitled to judgment, (a)
Vid Homer vs. Fish & Al. 1 Pick. 435. — Loring vs. Mansfield, 17 Mass Rep. 394.