Clark v. Pinney , 6 Cow. 297 ( 1826 )

Curia, per

Savage, Ch. J.

The important question in this case is, whether indebitatus assumpsit for money had and received, lies to recover money paid on an execution upon a judgment, which was afterwards reversed.

The general proposition is, that this action lies in all cases where the defendant has in his hands money which, ex equo et bono, belongs to the plaintiff. When money is collected upon an erroneous judgment, which, subsequent to the payment of the money, is reversed, the legal conclusion is irresistible, that the money belongs to the person from whom it was collected. Of course, he is entitled to have it returned to him. The only question is, whether this be the proper remedy.

The cases referred to by counsel do not fully decide the point; nor have I found any case where this very point has been decided, except Green v. Stone, (1 Har. & John. Maryland Reports. 405, Gen. Court, May Term, 1803.) It was raised in Isom v. Johns, (2 Munf. 272.) There the defendant had been plaintiff in a former action; recovered judgment, and issued execution, upon which the defendant’s property was sold by the sheriff. On the argument, most of the English cases which are now cited were referred to. The court decided against the plaintiff, on the ground that the money did not appear to have come to the defendant’s use; not denying the doctrine, however, that, if the defendant had received the money, the plaintiff might recover it in this action.

In Green v. Stone, this very point was decided in favor of the plaintiffs.

The principle in question is supposed to have been acted on in Feltham v. Terry, (Lofft, 207,) which was an action for money had and received by the church-wardens against the overseers of the poor, for money levied bv the latter, on a conviction' of one of the former, which was subsequently quashed. The court held the plaintiff might sue for the money collected by a sale of the property ; or, by bringing trespass, he might have recovered the value of the property. This conviction, I apprehend, must have been irregular ; otherwise the court would not have said trespass might have been brought. Trespass surely would not lie for collecting the amount of a judgment which was merely erroneous* In that case, therefore, the court must have acted on the principle, that the money was collected by a void authority. The authorities are clear and abundant that, in such a case, indebitatus assumpsit lies. (1 Bac. Abr. 261. Newdigate v. Davy, Ld. Raym. 742.)

In the case of Mead v. Death & Pollard, (1 Ld. Raym. 742,) it was decided, that money paid upon an order of the quarter sessions could not be recovered back, though the order had been quashed on certiorari. And Tracy, baron, before whom the cause was tried, compared it to the case where money is paid upon a judgment which is afterwards reversed for error, in which case indebitatus assumpsit will hot lie. No reason is given why this action will not lie ; nor is any case referred to in support of the dictum. It is shewn, however, that, in the English courts, the proper remedy, upon the reversal of a judgment, is a scire facias, quare restitutionem non,, upon which the party recovers all that he has lost by reason of the judgment. (Com. Dig. (3 B. 20.) Cro. Car. 699.) And if it appear on the record that the money is paid, restitution will be awarded without a scire facias. (2 Salk. 588.)

Cases have been cited in which it is said, that this action does not lie to recover money collected under legal process afterwards vacated, which is true as applied to those cases; but the principle is not applicable in this case.

Upon the whole, my view of the question is this : the general principle is, undoubtedly, in favor of sustaining the action. Isom v. Johns, decided by the court of appeals of Virginians a plain recognition of the principle as governing this very case ; and Green v. Stone is an authority in point. These are opposed only by a nisiprivs decision, at a time When the action for money had and received had not come into general use. I am inclined to sustain the action. The inclination of courts is to extend the action for money had and received. It is not denied that the plaintiff is entitled ⅜ to some remedy for the money, though it was taken from him by process erroneous merely. Then, why turn him round from this simple action to the antiquated remedy by scire facias ? I do not think the purposes of justice require it.

It is also contended, that the facts in this case do not amount to a payment of money to the defendant. A note was received by the sheriff as payment of the execution, by the direction of the plaintiff and his attorney. And the execution was returned satisfied. Nay, more; a judgment has been obtained ; and the money actually paid upon that note. To what would the plaintiffs be restored on a sci. fa. ? To the money paid by the note, as money. Restitution could be of nothing else. The difficulty in Isom v. Johns was, that the sheriff could not be held the plaintiff’s agent. The facts shew him to be so in this case.

In my opinion, there should be a new trial.

New trial granted.