Claflin V. Godfrey again mortgaged the same real estate to William Whitney, to secure the payment of all such advances and claims as ne might have against Parkhurst & Co. In January, 1833, the right in equity of Stephen, Nathan and Parmenas, to redeem the same real estate was taken on an execution in favor of a creditor, and the plaintiff and Lee Claflin and the defendant, agreed to become the joint purchasers, provided they could obtain it for a certain price; and on February 25, 1833, it was sold to them for $2000, and on the same day a deed thereof was duly made to them by the officer. Among the incumbrances on the estate, subjec to which the equity of redemption was sold, the Farnum mortgage was mentioned by the officer, at the sale and in his deed. He also mentioned the Whitney mortgage, and stated that the amount due thereon was less than $2000. It was a part of the agreement between the plaintiff and defendant and Lee Claflin, that the Farnum mortgage should be relieved from the claim of the Mendon bank, by the payment of the note for $4000, and that the assignment to the bank, which had not been recorded, should be cancelled, and that the defendant should convey one third of the mortgage to the plaintiff and one third to Lee Claflin. Stephen R. Parkhurst, by conveyances from Nathan and Parmenas, had become the sole owner of the right to redeem from the sale on execution, and on March 6, 1833, in consideration of $300 paid him by the plaintiff, the defendant and Lee Claflin, he quitclaimed to them all his right, title and interest in the estate, they agreeing to take up the note for $4000 to the Mendon bank. On June 17, 1833, the plaintiff and Lee Claflin each paid to the defendant one third part of the amount due on the note for $4000, by giving with the defendant their joint and several note therefor to the bank, which note has since been paid by them in equal portions; and the plaintiff and Lee Claflin also paid each one third part of the sum of $756, with interest thereon, by cash paid to the defendant; the third part of both sums amounting to $1722-77. The bank thereupon gave up the note for $4000, and the note for $4500, and cancelled the deed of assignment made by the defendant to the bank, of the Farnum mortgage, intending thereby to revest in the defendant whatever estate he had at the time of making the assignment, so as to enable him to assign to the plaintiff and Lee Claflin, in the manner before mentioned. On the same 17th of June, the defendant, in consideration of the sum of $3454.54 so paid by the plaintiff and Lee Claflin, by his deed of that date transfer ed to them two third parts of the Farnum mortgage, and two third parts of the note for $4500 thereby secured. Stephen, Nathan and Parmenas Parkhurst had all become insolvent before the same 17th of June, and are still insolvent. The plaintiff proved, that after the conveyance by the defendant to the plaintiff and Lee Claflin, Whitney, in a bill in equity between him and the present plaintiff and Lee Claflin, resisted the note and mortgage for $4500, on account of the payment made by Parkhurst & Co. to Farnum, and thereby defeated the same. The claim of Whitney under his mortgage, turned out to be more than $10,000, instead of being less than $2000, as stated by the officer at the sale of the equity of redemption. After Whitney had so defeated the note and mortgage for $4500, the plaintiff brought his present action to recover the sum of $1722-77 paid by him therefor to the defendant. Judgment was to be entered on a nonsuit or default, according to the opinion of the Court upon the foregoing facts. Newton and Merrick, for the plaintiff. C. Allen and Washburn, for the defendant, argued that the plaintiff had paid the money under a mistake of law, with a knowledge or means of knowledge of the facts, and therefore that it could not be recovered back; that he had received everything that he had bought, having with the defendant purchased subject to Whitney's mortgage. Gates v. Winslow, 1 Mass. R. 66; Herbert v. Champion, 1 Campb. 134; Brisbane v. Dacres, 5 Taunt. 143; 1 Story on Eq. 121 to 153, 161, 163, 164; 2 Stark. Evid. (4th Amer. ed.) 112; Chit. Contr. 190; Roscoe on Evid. 230; Stevens v. Lynch, 12 East, 38, and Day's note; Bilbie v. Lumley, 2 East, 469; Mowatt v. Wright, 1 Wendell, 360; Gloucester Bank v. Salem Bank, 17 Mass R. 42; Ellis v. Wild, Claflin v. Godfrey Oct. 10th 1837. Claflin V. Godfrey. Oct. 8th, 1838. 6 Mass. R. 321; Seaman v. Price, 2 Bingh. 437 ; Bree v Holbech, 2 Doug. 655; Dorsey v. Jackman, 1 Serg. & R. 42; Cunningham v. Spier, 13 Johns. R. 392. The opinion of the Court (Shaw C. J. and Dewey J. dissenting), was delivered by MORTON J. We have bestowed unusual labor and care upon this case, and with our best efforts have found some difficulty in understanding the very complicated state of the facts, and stil' more, in applying to them the principles of law by which the rights of the parties should be determined. We have the more carefully investigated the subject, because there has been from the beginning a difference of opinion among the members of the Court. And I regret to add, that with our most earnest endeavours we have not been able to unite in the result which I am now about to announce. The action is assumpsit for money had and received by the defendant to the plaintiff's use, and for money paid by the plaintiff for the defendant's benefit. This is often called an equitable action and is less restricted and fettered by technica. rules and formalities than any other form of action. It aims at the abstract justice of the case, and looks solely to the inquiry, whether the defendant holds money, which ex æquo et bono belongs to the plaintiff. It was encouraged and, to a great extent, brought into use by that great and just judge, Lord Mansfield, and from his day to the present, has been constantly resorted to in all cases coming within its broad principles. It approaches nearer to a bill in equity than any other common law action; and indeed has many of the advantages, without the artificial formalities and dilatory proceedings, of a chancery suit. Moses v. Macferlan, 2 Burr. 1012; Straton v. Rastall, 2 T. R. 370; Roland v. Hall, 1 Hodges, 111; S. C. 1 Scott, 539; Parry v. Roberts, 3 Adolph. & Ellis, 118; S. C. 5 Nev. & Manning, 663; 1 Leigh's N. P. 44. The plaintiff's claim grows out of a transaction in which all the parties concerned were involved in a series of gross mistakes and errors, which brought upon them great pecuniary suffering. The object of the present suit is to determine, as far as practicable, upon whom the losses shall fall, and how .hey shall be apportioned. The mistakes were accidental, aud there is no reason to suppose that any misrepresentation or deception was attempted or practised by either party. We have therefore to determine who of the innocent sufferers shall sustain a particular loss growing out of the misfortunes of a joint speculation. It will be impossible to discuss this question without advertung to and examining the claims of a person who is not a party to the suit, who has not been heard and who therefore cannot be bound by our judgment. Lee Claflin has upon the docket an action founded upon the same transaction, and which probably will depend upon the same facts and principles as the case at bar. We cannot therefore proceed in the investigation without canvassing the claims, liabilities and rights of all the persons engaged in the disastrous speculation. Early in the year 1833, the right in equity of redeeming certain real estate in Milford was advertised for sale on execution. John Claflin, the plaintiff, Lee Claflin, and William Godfrey, the defendant, agreed to become the joint purchasers, provided they could obtain it for a price which they had agreed upon. Accordingly, on February 25, 1833, they bid off the equity for the sum of two thousand dollars, which was paid equally by the three, and took a joint deed of the At the auction the officer represented, that the incumbrances to which the estate was subject, consisted of two mortgages to D. and R. Waldo, one originally given to John Farnum, and one to W. Whitney, upon which less than two thousand dollars were due. But it was afterwards discovered that, instead of two thousand, over ten thousand dollars were due upon the Whitney mortgage. This amount, with the Waldo mortgages, greatly exceeded the value of the estate, so that it became inexpedient to redeem it, and the purchasers lost the whole consideration paid for the equity of redemption. There can be no doubt that, by the principles of law and equity, this loss must fall equally upon the parties. But this was only the beginning of the errors and losses, into which this unfortunate transaction led them. In 1828, Stephen R. Parkhurst & Co., who were the owners of the real estate aforesaid, mortgaged it to John Farnum to secure the payment of $4500. Farnum assigned Claflin v. Godfrey Claflin บ. Godfrey. the mortgage to John Claflin the plaintiff, to secure him for his liability to Farnum as the surety of Parkhurst & Co. Afterwards John Claflin, having been relieved from his suretyship, at the joint request of Godfrey and Parkhurst & Co., and without receiving any consideration from either, assigned the mortgage to Godfrey. This assignment was procured by Parkhurst & Co. to secure Godfrey for his liability for them tc the Mendon bank, on a note of $4000. Godfrey again assigned the mortgage to the bank as collateral security for the above note, which he had signed as surety. In this state was this mortgage, when the Claflins and God frey agreed to purchase the equity of redemption. It was a part of their agreement, that this mortgage should be relieved from the claim of the Mendon bank by the payment of the note for which it was holden as collateral security; and that the assignment to the bank, which never had been recorded, should be cancelled, and that Godfrey, who would thus be restored to his rights as holder of the mortgage, should convey to each of the Claflins one third of it, so that the three should become equally interested in it. In pursuance of this agreement, "on the 17th of June, 1833, the Claflins each paid to Godfrey one third of the amount due" to the bank, and the whole being paid the note was taken up and delivered to Godfrey, and the assignment to the bank cancelled. The inortgage having, as the parties supposed, revested in Godfrey, he made an assignment of two thirds of it to the Claflins, thereby vesting in each of the three an equal interest in the mortgage. The payment to the bank was made, in the first instance, by three equal notes, for the amount, given jointly and severally by the three parties. When these notes became due, each party paid one of them. So that the payment is not to be deemed a joint act of the three, but a several payment by each, of one third of the amount. And the three notes should be considered as the several notes of the parties, two, in each case, being sureties for the other. Soon after this transaction, it was ascertained, and decided by this Court, in a bill in equity between Whitney and their assignees, that the payment to Farnum of the debt which the |