
    DUNCAN vs WARE’S executors.
    1. Assumpsit is the proper action, to rocover back money paid upon a judgment, which is afterwards reversed.
    2. But a recovery in assumpsit can not be had of the amount paid by a garnishee in a ttachment, where the judgment has been reversed for mere irregularity; and where it appears that the amount recovered against the garishee is justly due by him, to the defendant, and by the latter, to the plaintiff in the attachment.
    3. A debt due from a garnishee, to a defendant in attachment, it seems, should be considered, in all respects, as the property of the latter.
    4. But, where such debt is clearly due from such defendant to the plaintiff in attachment, a payment by the garnishee, on a judgment recovered against him, as such, will discharge all liability to the defendant, as his creditor.
    In Montgomery Circuit Court, John Duncan, for the use of another, declared against Ware, Cowles and Robertson, executors of the last will and testament of Robert Ware, in assumpsit. The declaration contained sundry counts, for money had and received, &c. to and for the use of the plaintiff, by the said testator, in his life-time; and also by the defendants, as executors, &c. And the plea was non-as-sumpsit.
    
    The case, upon facts agreed, was submitted to the Court; whereupon, after due consideration, judgment was rendered in favor of the defendants. The facts were these—
    In 1826, Robert Ware, the testator, recovered a judgment in the. Circuit Court of Montgomery County, against Lawrence, Rapelye & Co; of New York, by process of foreign attachment, for the sum of two thousand and thirty two dollars and twenty-nine cents: at the same time, the said Robert Ware obtained judgment against John Duncan, the plaintiff, as á garnishee in said attachment, for the sum of three hundred and seventy-seven dollars — which was rendered upon the answer of Duncan, under oath, acknowledging his indebtedness to the defendants in the attachment, in that amount; that said Duncan paid to the said Ware, testator, the said amount under execution. That afterwards, and since the payment by Duncan, the judgment rendered in the attachment cause, against Lawrence, Rapelye & Co. was reversed. It was admitted, Lawrence, Rapelye & Co. owed to the said testator the amount of the said judgment, so rendered in his favor; and that the said sum of three hundred and seventy-seven dollars, had not been paid by Duncan, in any other manner than as aforesaid. Under this state of facts, the present action was brought to recover the amount paid by the garnishee, as aforesaid.
    On writ of error to this Court, Duncan assigned for causes of reversal — ■
    That the Court below erred, in giving judgment for'the defendants: that, judgment should have been rendered in favor of the plaintiff.
    Goldthwaite, for the plaintiff in error—
    Thorington, contra.
   TAYLOR, J.

This action of assumpsit was brought to recover back money collected oh a judgment of a Circuit Court, -which was afterwards reversed in this Court.

The suit in which the money was collected, was commenced by attachment in favor of the decedent,against Lawrence,- Rapelye & Co., and the plaintiff in error was summoned as a garnishee, and by an affidavit made before a justice of the peace, out of Court, acknowledged himself indebted to Lawrence; Rapelye & Co. in the amount for which the judgment was subsequently rendered against him; and to recover back which, this suit has been brought;

We have no doubt but the action of assumpsit is the proper one to be brought in a casé of the kind : all the American decisions, which have been made upon the subject, sustain this doctrine; and there have been recoveries in the Circuit Courts of this State, in the same action.- The only Question is; the facts of this ease, afford a ground of action to plaintiff? •

Assumpsit is an equitable action- — admitting every defence, with but few exceptions, to which the defendant is entitled, in equity and good conscience.

As between the defendants and Lawrence, Ra-pelye & Co., in equity and good conscience, the defendants certainly are not bound to refund the money.

By a judgment, which was irregular, and for that reason reversed; the amount of a debt, justly due, was recovered and paid to the decedent. In this situation, he was not authorised to renew his suit; his debt was paid, and if Lawrence, Rapelye & Co. were permitted to recover against him, would it not place; him in a worse situation, than if the money had not been collected 7 ' He must wait until they recover from him, before he sues them; or, without suit, he must refund to them, money, to which he is justly entitled, and which they owe him, that he may be authorised to institute a suit against them, and recover the same money back again. This can not be tolerated. If an irregular judgment has been obtained, and the money recovered, for a debt justly due, proof that the debt was due, affords a good de-fence, in an action of assumpsit, brought to recover ,1 , , . the money back.

But, the plaintiff paid as garnishee: does this place the defendants in a worse situation 7

Does the reversal of the judgment, render the garnishee liable to the defendant in the attachment'?

If the reversal had taken place upon the merits, shewing that no debt was due from the defendants to the attachment, it is doubtful whether a payment, made by the garnishee before that reversal, would authorise him to maintain an action. His payment, under the judgment, probably would be considered a discharge of the debt, to his creditor: and, if that creditor did not owe the plaintiff in the attachment, he should resort to him, and the garnishee would probably be discharged.

A debt due from a garnishee, we are inclined to think, should be considered, in all respects, as proper-perty of the defendant, especially after that debt has been paid, under the process of the Court.

But, where the debt is confessedly due from the defendant in attachment, to the plaintiff, we have no doubt, a payment by the garnishee, of the judgment recovered against him as such, fully discharges him from his creditor; and therefore, that, in this case, Lawrence, Rapelye & Co. have no claim against the plain tiff.

The judgment must be affirmed. 
      
       6 Cow. 297 15 Mass R. 207; 1 Har: & Johnsoil 405
     
      
       Harris & Johns. 405.
     