majority">Dillon, J.

1. Referee: report. By examining the issues made by the pleadings, in connection with the report made by the ref-eree> ^ will readily be perceived that the action 0f courj jn getting aside the report was not only eminently proper, but absolutely necessary. To the plaintiff’s claim for money paid on the note and mortgage; the defendant pleaded the statute of limitations, which makes the lapse of five years, after the cause of action accrued, a bar (Rev. §2740), except in cases of fraud. Id., § 2741. . The record shows that this action was brought February 20th, 1863. The report of the referee finds that the payments sued for were made “ at sundry times between the 23d day of August, 1857, and May, 1858.” It is impossible to tell from this whether they were made more than five years before this suit was brought, or within that period. This is the difficulty with the report, if the cause of action is to be considered as accruing from the date of payment. If the appellant insists that the defendant’s conduct in not crediting the payment and in taking a recovery for the full sum, amounts to a fraud, for which he is entitled to relief within the meaning of the sections above quoted (Rev., §§2740, 2741), and that the statute does not begin to run until “ the discovery of the fraud,” the answer is two-fold: 1st. He makes no such case by his pleadings, and 2d, there is no finding as to the date when he first became aware of the fraud. Again, if the appellant claims that his cause of action did not arise until‘the defendant obtained the judgment on the bond and mortgage, and that he could sue at any time within five years from the *112rendition or payment of such judgment, the report is entirely silent as to when the foreclosure action was brought, or when judgment therein was rendered, or at what time or under what circumstances, whether voluntarily or by compulsion, the defendant “ collected the whole or the greater part thereof.’’ A report so uncertain and defective as respects a material issue in the cause, was most properly set aside.

2. Res adjudicata: payment. 3 - negligence of plaintiff. *1134. - equitable circumstances. 5. - excuse required. 6. - after an appearanoe. 7. - promise to refund.*112As the cause will have to be retried, some observations in relation to the nature of t.he action are called for. Where a debtor has made payments which are i. */ not credited, and he has, afterwards, been compelled to pay the whole amount by judicial proceedings, the question, whether he can have redress, depends upon circumstances, some of which, without entering upon the subject at great length, we will proceed to state. We confine our observations to cases of payment strictly. (As to what is payment, see Strong v. McConnell, 10 Verm., 233.) 1st. It is as much the duty of a party, when sued, to plead payment, as it is to plead any other defense which he may have; and if he fails to do so, unless excused by equitable circumstances, and judgment is rendered against him for too much, he cannot make that recovery the ground of a new action. This is the general rule, and it is bottomed on the maxim, interest reipublicce ut sit finis litium. (Loomis v. Pulver, 9 Johns., 244; White v. Ward, Id., 232; Le Queen v. Governeur, 1 Johns. Cas., 436; Walker v. Ames, 2 Cow., 428; Faulkner v. Campbell, Morris (Iowa), 148, 150; Marriatt v. Hampton, 1 Term, 269; S. C., with English and American notes, 2 Smith’s Lead. Cas., 237 (marg.) 2d. If the defendant, in the first action, was, himself, negligent, this alone is sufficient to defeat his right of recovery or ground for relief. (See, in addition to the cases above cited, Kriechbaum v. Bridges, 1 Iowa, 14; Arnold v. Grimes, 2 Id., 1, 7; Houston v. Wolcott & Co., 7 *113Id., 173, and other cases in this State cited in Iowa Digest, p. 213; Briggs v. Shaw, 15 Verm., 78; Dilley v. Barnard, 8 Gill. & J., 170; Tapp v. Rankin, 9 Leigh, 478.) The plaintiff’s case, says Marshall, Ch. J., (Marine Ins. Co. v. Hodgson, 7 Cranch, 332), must be unmixed with any fault or negligence in himself. 3d. He must have been pre vented by accident, surprise, mistake or fraud of the 0pp0Site party from making his defense. (See same authorities, and also, Emerson v. Udall, 13 Verm., 477, and the many cases cited in 2 U. S. Equity Digest, p. 125, see. 138; Ware v. Harwood, 14 Vesey, 31. Further illustrations, see Turpen v. Thomas, 2 Hen. & Mumf., 139; Budhy v. Cole, 1 Dev. & Bat (Eq.), 429.) 4th. A party failing to defend at law when an opportunity is given him, is concluded both at law and in equity, unless A " ’ he can make a case “ externally clear.” (Per Lord Eldon in Protherve v. Forman, 2 Swanst., 227, where relief was denied, the defendant not showing why he did not defend at law; so in Haden v. Garden, 7 Leigh (Va.), 157; see also, Caldwell v. Fifield, 4 Zab., (N. Y.), 150.) 5th. The report of the referee, in the case at bar, does not find whether the present plaintiff appeared and defended the foreclosure action or not. If he did then appear, he knew that the payments were not credited, and if he failed to claim them, all of the authorities agree that he would be barred of an action to recover them, his only remedy being a review of the first action. (See, in addition to cases above, Loring v. Mansfield, 17 Mass., 394; Smith v. Weeks, 26 Barb., 463; De Sylva v. Henry, 3 Porter (Ala.), 321.) 6th. In the case at bar, the plaintiff alleges that the defendant, afterwards, promised to refund the money which the plaintiff paid on the note and mortgage, and . A 007 which was not credited. The referee does not make any finding upon the subject. If such an express promise is shown, it is valid, and will support a recovery *114thereon. (Bentley v. Morse, 14 Johns., 468; Cameron v. Fowler, 5 Hill (N. Y.), 306.)

- It will be observed, in examining the authorities, that the defendants in the first action have sought relief or redress for payments made and not credited in different modes, as, 1st. By bill in equity for relief against the judgment. (Story Eq., §879, citing Gainsborough v. Gifford, 2 P. Wms., 424 (1727), and see observations on this case in Protherve v. Forman, 2 Swanst., 227, 233 (1818), per Lord Eldon; in Smith v. Lowry, 1 John. Ch., 320, 324, per Chancellor Kent, who intimates that it is overruled by Marriott v. Hampton, 7 Term, 296; S. C., 2 Smith’s L. Cas., 237 (marg.); see also L. Cas. in Eq., vol. 2, part 2, p. 102; Bateman v. Wilcox, 1 Sch. & L., 201, per Lord Redesdale ; Taylor v. Wood, 2 Hay., 332; Beams v. Denham, 2 Scam., 58; and see Revision, chap. 141; also Marshall v. Dupuy, 11 Ben. Mon., 219, as to remedy provided by statute.)

Or 2d. By action for money had and received. Marriott v. Hampton, supra, is the leading case, denying the right to maintain this action. Some cases in this country, though not professing to overrule or deny it, seem to me not to be reconcilable with it; such as Fowler v. Shearer, 7 Mass., 14; Rowe v. Smith, 16 Mass., 306; as to which last case doubts are intimated in a note, and in Fuller v. Little, 7 N. H., 535; but it was expressly followed in the recent case of Smith v. Weeks, 26 Barb., 463 (1857). See also Loring v. Mansfield, 17 Mass., 394; 2 Smith’s L. Cas., 342 (top); Fuller v. Little, 7 N. H., 538; King v. Hutchins, 8 Foster, 561.

Or 3d. By an action for the breach of the agreement to credit, whereby the plaintiff seeks to recover as damages an amount equal to the unjust recovery against him. (Cobb v. Curtiss, 8 John., 470. See also Fuller v. Little, 7 N. H., 535; King v. Hutchins, 8 Foster, 561.) Of course, if there *115is an express promise to repay or refund, that is the ground of recovery.

8. - what is not negligence. Under our system of pleading the plaintiff sets out the fads entitling him to recover, and we recommend that he amend his pleadings. "We have thrown out the above remarks as to the mode of redress, so that the plaintiff may, if he sees fit to amend, do so, understanding our views of the general questions likely to arise. It only remains to be observed that we are of the opinion that where there is an agreement, especially a specific agreement, to credit the amount paid on the note, and where the debtor has reason to believe or no reason to doubt that this has been done, and fails to defend upon the faith thereof, and in ignorance that an unjust amount is sought to be recovered against him, he cannot justly be said to be negligent in not appearing and employing counsel to guard against a dishonest act which he had no reason to anticipate; and in such a case he may be relieved against the judgment if not paid to the extent of payments not credited, or if the judgment has been compulsorily collécted, we are inclined to hold, though this is more doubtful, he may, in the case supposed, maintain assumpsit for the amount out of which he has been defrauded.

We do not say that there can be no relief or recovery under any circumstances. We only say that in our judgment, after a full examination of the subject, both upon principle and authority, these circumstances are sufficient.-

Affirmed and remanded.

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