Page:United States Reports, Volume 1.djvu/160

Rh 

1785.

in obtaining it although it was money which they party could not recover by law, this action has never been fo far extended as to enable the party who paid the money voluntarily, to recover it back again. The cafe of Lowrey vsBourdieu in Doug. 432, and that of Farmer vs Arundel in 2 ''Black. R.'' 825, are full to this point.

In the prefent cafe the defendant had prefented the bill to the drawee for acceptance, and on refufal got it portefted. Shortly after, and before the day of payment, an arrêt from the King of France prohibits the creditors of the drawee from fuing him ; upon which the bill was immediately fent back, and Mr. Morris, without waiting for a proteft for non payment, voluntarily takes up the bill and pays the damages. A proteft for non payment, however, appears to have been made in France before the money was paid by Mr. Morris,  although he did not know it. The defendant has acted with fairnefs, and lain out of his money, and might with a good confcience receive the legal damages.

The point of law principally agitated in this caufe, whether a proteft for non acceptance only, is fufficient to recover the money from the drawer, is not material to be determined in this action, becaufe as it is voluntarily paid, and the defendant might confiftent with juftice receive it, whether that point of law is for, or againft the plaintiff, we tick he cannot recover ht e money back.

Judgment for the defendant. 

Judgment had been entered at the fettlement of the docket, and the defendant was taken in execution on a Ca. Sa. returnable to December  Term 1785. He now applied for the benefit of the infolvent acts, although he was not taken in execution till the 26ht of September, and his petition was prefented fubfequent to the application made by the debtors, on the third day of the term.

faid that the practice under the act for the relief of infolvent debtors, was, that only thofe fhould be difcharged, who made their application within the three firft days of the term; for, otherwife, the Court might be continually employed on this bufinefs, to the delay and detriment of every other.

The Prothonotary mentioned, on this occafion,, that it was the conftant practice to enquire, whether the writ of execution was returnable to the term, at which the defendant applied for his difcharge.

The petition was difmiffed.

Bankʃon for the plaintiff—Rawle for the defendant.