In this case the demurrer was properly sustained. The plaintiff’s declaration sets forth no cause of action which entitles him to recover. The amount which he seeks to reclaim was a sum which he voluntarily paid; he paid it under no mistake of fact, and it has long been held that money so paid cannot be recovered back.
There is an early case, Moses v. Macpherlan, 1 W. Bl. 219, in which it was held that money paid, even under a judgment of a court of competent jurisdiction, could be recovered back, if in equity and good conscience the party receiving it was not entitled to hold it. In that cáse, the plaintiff had indorsed a promissory note, and, at the time of the indorsement, it was agreed between himself and the indorsee that the latter should not look to him for payment, but should rely wholly upon the obligation of the maker. Suit, however, was brought against the indorser, and it was held by the court that the paroi collateral agreement made at the time of the indorsement could not be given in evidence in bar of a suit upon the indorsement, and judgment was rendered against him, which judgment he satisfied. He then brought' his action upon the paroi agreement to recover the amount which he had thus paid contrary to such agreement, and it was decided *487that the action could be maintained. Lord Mansfield in giving his opinion says that the agreement was properly rejected in the former suit, and judgment properly rendered therein; but that, the paroi agreement having been made, the party received payment of the note when in equity and good conscience he ought not to have received it, and that, in the equitable action for money had and received, the plaintiff should be entitled to recover back the amount paid which equitably the plaintiff in the former suit had no right to demand.
That decision, however, was never deemed satisfactory; and, although the courts for a long time struggled to sustain the principle upon which it was based, that money paid to a party, who in equity and good conscience ought not to hold it, might be recovered back, yet the decision itself has never been regarded with approbation, and the limitation has come to be fixed that a party may in equity and good conscience continue to hold money voluntarily paid to him under no mistake of fact, and without fraud upon his part. This rule was established in Brisbane v. Baeres, 5 Taunt. 143, and from that time to the present that decision has been recognized and followed. It was distinctly recognized by Chief Justice Shaw in Bacon v. Bacon, 17 Pick. 134, and by the court in Forbes v. Appleton, 5 Cush. 115. And in Benson v. Monroe, 7 Cush. 125, 131, Mr. Justice Metcalf says: “The court deem this a plain case. It-is an established rule of law, that if a party, with a full knowledge of the facts, voluntarily pays a demand unjustly made on him, and attempted to be enforced by legal proceedings, he cannot recover back the money, as paid by compulsion, unless there be fraud in the party enforcing the claim, and a knowledge that the claim is unjust.” Commencing with the case of Brisbane v. Dacres, before cited, he then proceeds to review the English authorities from that time forward in which the doctrine has been acted upon, and refers approvingly to the expression of Lord Kenyon in Brown v. M’Kinally, 1 Esp. 279, that to allow such an action “ would be to try every such question twice.”
The fact that the plaintiff in this case might have been under embarrassment as to the amount of rent which he should withhold, or which he might properly claim to rebate, does not affect the principle. It was his right to litigate that question with his *488lessor, and Ms election to pay the full amount rather than to resist the payment of any portion of it makes the payment a voluntary one. It is not necessary to consider whether the plaintiff would have been entitled to a cross action had the lease contained an express covenant to keep the premises in repair, for the lease contains no such covenant, and the law raises no implied promise to do so. The lease is in the form long used in tMs Commonwealth, which requires the lessee Mmself to keep the premises in such repair as he receives them, (reasonable use and wear, and damage by accidental fire or other inevitable accident only excepted,) with the right, commonly reserved in such leases, to have deducted from the rent a reasonable amount, if he is deprived of the use of the premises by such casualty.
Judgment affirmed.