The opinion of the Court was pronounced by
Paddock, J.It will readily be seen that Forbes is the sufferer in this transaction, to the amount which Brown collected of him; and it is no answer to the action to say, that the money was received by Webster previous to the reference between him and Forbes ; for if there is now any cause of action, it accrued subsequent to the reference, that is, upon Brown's compelling Forbes to pay the half of his execution. For though Brown did pay for the lumber, a second time, to Webster, it was no injury to Forbes; and he was under as much obligation to account with Webster for the amount received by him, as he would have been, if Brown had not paid a second time : thoughhadhe known ofthe second payment, he might have required before the referees security against his liability to refund the thirty dollars, it being received by Webster while Forbes was a partner.
Nor does Brown's judgment against Forbes & Webster stand in the way of a recovery, as suggested by council; for if Forbes has a cause of action in the present case, that judgment is the foundation upon which it rests. Let this case be determined either way, and Brown is not affected by it, nor is that judgment in any wise disturbed: if it were, it would follow, that a surety being compel-ed by process to pay a portion of the sum for which he was bound, «Wald not. recover the same of his principal.
*61The only doubtful question in the case is, whether Brown's paying the $30, to Webster, can be called a voluntary for if it was, he could not have recovered back the amount in a suit against Forbes & Webster.
There is some difficulty in reconciling all the decisions which have been made where a voluntary or involuntary payment was the principle point to be decided, and upon which the cause was to turn ; and perhaps they cannot, upon any other ground than that where the evidence was such as nearly to balance the case, strong equity on the part of the plaintiff caused a preponderance. It may be said, that to decide this cause in favor of the plaintiff, will be directly contradicting the case of Marriot vs. Hampton, 7. T. R. 269. It is true that some of the features of that case bear a near resemblance to Brown's suit against Forbes & Webster ; but may be distinguished from it. Marriot had once paid his debt to Hampton, and bad taken his receipt; but when sued for the same a second time, his receipt was mislaid, and he was without proof to defend himself; and therefore paid a second time. But upon bringing has action for money had and received, after finding his receipt, it was adjudged that he should not recover. And undoubtedly the Court were led to such decision by considering, that the mislaying the receipt was his own negligence, and would not suffer another suit to grow out of his own folly.
But in Astley vs. Reynolds, 2 Str. 915, where Astley had pawned to the defendant certain goods; upon going to redeem them, and offering £4 as interest on the loan, which was more than the legal interest, the defendant demanded £10.; whereupon Astley finding he could not get his goods back short, paid the sum demanded, and then brought his action to recover back the balance: and it was held well to lie, having been paid by compulsion.
The compulsion, however, was no greater in that case, than in Brown's payment to Webster. Astley could not get his goods without paying the amount demanded, or resorting to his action of trover: Neither could Brown get released from the suit Webster had brought against him in a foreign government, short of paying the $30; and if necessity would justify paying in the one case, it would in the other ; for itwas taking an undue advantage of Brown, suing him in Quebec, as I understand he did, where he was neither acquainted with the people nor their laws.
It was also a gross imposition in Webster, affirming that Forbes had no interest in the lumber, nor right to receive the pay for it; and he comes forward now with a poor grace indeed, saying that the payment to him was voluntary. Why did he not make that defence to Brown's, suit against Forbes and himself? Having neg~ *62lect.cd it there, it is too late to do it here. Without deciding the question whether Brown could have recovered against Forbes cf Webster or uot, had a defence been made, we think the judgment in that case is no bar to the present action, as this is not between the same parties, and has no tendency to disturb it : and as money was collected of Forbes which belonged exclusively to Webster to have paid, or refunded to Frown, Forbes has a legal claim to recover it back in this action: therefore the judgment of the County Court must be reversed, and a new trial granted.
FisJc, for plaintiff, Richardson, for defendant.Judgment reversed,