
    *Isom v. Johns.
    Tuesday, May 2d, 1811.
    Assumpsit — Money Levied by Sheriff. — Money levied by the sheriff upon a judgment which is after-wards reversed, cannot be recovered back by general indebitatus assumpsit for money had and received, without proof that the money was actually received by the plaintiff, or applied to his use.
    In a general action of indebitatus as-sumpsit, in the Sweet Springs district court, on behalf of Robert Johns against Jonathan Isom, (the declaration containing only two counts, viz. for “money had and received, ” and “laid out and expended,”) the defendant pleaded non assumpsit, and at the trial demurred to the plaintiff’s evidence, which was, in substance, that the defendant (who was plaintiff in a former action, in the county court of Montgomery, between the same parties) had obtained a judgment and sued out a writ of fieri facias, and, subsequently, a venditioni exponas, against the present plaintiff, in part satisfaction whereof certain negroes of his were sold by the sheriff; that afterwards the said judgment was reversed, upon a writ of supersedeas, and new proceedings directed.
    The jury found a conditional verdict; and the court, upon argument of the demurrer, was of opinion that the evidence demurred to was sufficient to support the plaintiff’s declaration. Judgment was entered accordingly, to which a supersedeas was awarded by a judge of this court.
    Wickham, for the plaintiff in error, made three points: 1. That money paid on a judgment of a court of competent jurisdiction, afterwards reversed, cannot be recovered in assumpsit, the proper remedy being by writ of restitution, or by motion to the court,  Assumpsit lies, indeed, for money paid under the sentence of a court which has no jurisdiction. But the case is otherwise where the authority is not void ab initio, though it may be afterwards vacated,  And even if a special action *of assumpsit could be supported, a general indebitatus could not.
    
    2. The evidence demurred to was defective in this, that a full copy of the record of the original judgment and proceeding's was not exhibited.
    3. It did not appear from the evidence, that the sheriff had ever paid the sum levied by him to the plaintiff. There was evidence enough toe sue the sheriff, but not the plaintiff.
    Wirt, on the other side, contended that the decision in Overton and Wife v. Hudson, does not touch the present case. The reason given by the court  proves this.
    In support of the action, he cited 1 Esp, N. P. 6, and Eel than v. Tyrrel, Eoft, 207, there referred to, as well as in Bull. N. P. 131, in Cowp. 419, and in 1- T. R. 387, Moses v. M’Eerlan, 2 Burr. 1005, is the leading case establishing the principle that wherever the defendant has money in his hands, which, ex aequo et bono, he ought to refund, the general action for money had and received properly lies. The principle of that case exactly applies to this. The objection of surprise, the court will find, would equally apply to every case (founded on the same principle) that has occurred since. The action for money had and received is an equitable action, and the defendant may avail himself of every equitable defence.
    The writ of restitution lies, in England, after final judgment, on a writ of error; and sometimes, during the pendency of a supersedeas, the court will, on motion, order the sheriff, where the money is still in his hands, to pay it into court. But, in the case at bar, though it is not expressly proved that the sheriff had paid the plaintiff the money before this action was brought, there is reason to presume it. The remedy by motion could not, then, have succeeded.
    *Our act of assembly says the appellate court shall, on a supersedeas, enter such judgment as the court below should have given. This does not empower it to award a writ of restitution ; and there is no decision of the courts in this country authorizing' such writ. But, at any rate, the ■defendant has no cause to complain that we relinquished a more summary remedy, and resorted to one which gave him a better opportunity of exhibiting any equitable defence which he might have.
    As to the 2d point made by Mr. Wickham, I can see no necessity for producing the full record of the judgment. If the evidence was not proper, the objection goes to its competency, and not to its sufficiency. The defendant should, therefore, have excepted, instead of demurring. The demurrant has admitted the fact of the reversal of the judgment; by doing which, he admits every thing that was necessary to make it appear.
    3. The action for money had and received will lie without proof of actual receipt of money. The case of Israel v. Douglas, 1 H. Bl. 239, proves that it will lie on an accepted order. Eongchamp v. Kenny, Doug. 137, and Eeery v. Goodson, 4 T. R. 687, also show that, under circumstances, the receipt of the money may be presumed.
    But I contend that payment to the sheriff is equivalent to payment to the plaintiff, the sheriff being, in effect, his agent, upon the writ of fieri facias.
    Wickham, in reply. The dictum in Esp. 6, “that if money has been recovered in consequence of any judgment,” &c. is not supported by authority. The case of Moses v. M’Ferlan was of a judgment of an inferior court having no jurisdiction, and comes within the rule I have laid down.  Espinasse has clearly mistaken the law, or has used an inaccurate expression.
    *The doctrine of “ex aequo et bono,” in the latitude contended for, would lead .to this ; that in every case, by a side wind, the merits of a former cause might be tried over again. The defendant in the second action, who was plaintiff in the first, would have a right to say, “it is true that my judgment was reversed for error in form; but, ex aequo et bono, I ought to keep the money levied on the execution, because it is a just debt.”
    As to the writ of restitution, I admit there is no decision of the courts of this country upon the subject; but neither has there been any decision that the action of assumpsit lies in such a case as this. We must, therefore, resort to principles and to British authorities.
    
    2. The evidence is defective in not showing the whole record of the reversing judgment as well as of that which was reversed. And this objection may well be taken by demurrer; for insufficiency is necessarily included in incompetency.
    *3. There are no circumstances in this case to induce a presumption that the money was paid to the plaintiff. The contrary should rather be presumed, because it might have been stayed in the sheriff’s hands by the very supersedeas upon which the j udgment was reversed.
    The sheriff is not the plaintiff’s agent, but an officer of the court; and by its order he might have been compelled to return the money. In England, upon a ca. sa. the sheriff has no right to receive the money, unless with the assent of the plaintiff ; (though the law is otherwise under our act of assembly ;) because the writ commands him to take the body of the defendant; not to make the money. If he receives it with the assent of the plaintiff, he is then his agent for that purpose. But this does not prove the sheriff to be the plaintiff’s agent in the case of a fi. fa. Where an attorney regularly receives money for his client, the remedy of a third person, claiming the money, is against the client only, not the attorney ; but the sheriff acts in a very different capacity.
    Cur. adv. vult.
    
      
       2 Bac. Abr. (Gwill. edit.) 505, 2 Sell. Prac. 519, 729, and 2 Salk. 588.
    
    
      
       1 Lord Raym. 742, Newdigate v. Davy.
    
    
      
       lb. Mead v. Death and Pollard, 1 Bac. 261.
    
    
      
       Overton and Wife v. Hudson, 2 Wash. 172.
    
    
      
       2 Wash. 180.
    
    
      
       2 T. R. 370, Stratton v. Rastal.
    
    
      
       2 Lev. 203, Taylor v. Kermon; 3 Show. 140, Morton’s Case; Skin. 665, 5 Mod. 296.
    
    
      
       Note. On the subject of the writ of restitution, see Tidd’s Practice, 936, 937, and 1137, and his Practical Forms, 336, 337. — Note in Original Edition.
    
   Monday, Sept. 30th. The president pronounced the following opinion of the court :

“The court (without considering the other points in the cause) is of opinion that a general action of indebitatus assumpsit cannot be sustained against the plaintiff in this case, there being no evidence of the money having ever been actually received by him, or applied to his use.”

Judgment reversed, and entered in favour of the plaintiff in error.  