#### * Sylvanus Lazell *versus*Seth Miller, Jun.

A, having recovered a judgment against B, extends his execution upon certain real estate of B, whereby he becomes tenant in common with C. He after-wards obtains a judgment against C for his share of the rents and profits accruing after the extent. The judgment recovered by him against B is, after this, reversed on error. C has a right to recover back the rents and profits paid by him on the said judgment, although the judgment remains unimpeached.

Assumpsit for money had and received. The action was submitted to the determination of the Court, on certain facts agreed by the parties.

The plaintiff, in the year 1808, recovered a judgment against *James Thacher*and *Nathan Hayward,*for 8383 dollars, and levied his execution, on the 27th of October, in the same year, upon an individual moiety of a furnace and its appurtenances, that being the share or purparty of the said judgment debtors therein. The defendant, in November, 1808, recovered a judgment against the same persons, for 375 dollars, having, in that suit, attached the said furnace, prior to the attachment made in the plaintiff’s said suit, and within thirty days levied his execution on five sixteenths of the said furnace, &c. Having thus become a tenant in common with the plaintiff, in 1814 the defendant recovered judgment against the plaintiff for his share of the rents and profits of the furnace, which judgment the plaintiff satisfied. Afterwards, the judgment obtained by the defendant against *Thacher 8f Hayward*was reversed upon error ; since which, the defendant has recovered another judgment against them for the same original cause of action. The present suit was instituted to recover back the amount of the said judgment recovered by the defendant against the plaintiff for the said rents and profits ; and it was agreed that if, in the opinion of the Court, this action could not be maintained, the plaintiff should become nonsuit; otherwise, his damages should be ascertained by a jury, and judgment be rendered for him accordingly.

*The Solicitor-General,*and *N. M. Davis,*for the plaintiff,

cited and relied on the case of *Moses*vs. *Macferlan.*(1) The ground of the judgment obtained by the defendant against the plaintiff" is wholly taken away. It was as tenant in common with the plaintiff that he obtained the judgment. It is now ascertained, by the re-

versal of his judgment against *Thacher Hayward,*that he never was rightfully tenant * in common with the plaintiff, and so was never entitled to any part of the *194rents and profits. It is true that his judgment against the plaintiff has not been reversed, but it is ascertained that he ought not to have recovered it; and he cannot retain the money, paid him by the plaintiff, in satisfaction of that judgment, in equity and good conscience, which is the foundation of the action for money had and received. Unless the plaintiff can recover in this action, he must forever be without remedy ; for it is not in his power to obtain a reversal of the judgment. The case of *Moses*vs. *Macferlan*has never been questioned here, although it has not been so entirely acquiesced in in *England.*(2)

*Wood,*for the defendant,

insisted that, until the defendant’s judgment was reversed, the plaintiff could on no principle recover back the money paid in satisfaction of that judgment. (3) He may obtain a review of that action, on petition; but he cannot try it again in this collateral way.

(1)

 2 *Burr,*1005.

(2)

 See 2 *Comyns on Contracts,*50.

(3)

14 *Mass. Rep.*233, *Hawes*vs. *Hathaway,*m error.

*By the Court.*

It appears that the money demanded in this action was paid by the plaintiff to the defendant under a mistake of fact, and he now claims the money so paid by him. Equity is wholly with the plaintiff. But the defendant objects that the judgment under which he received the money is still in full force, and that it is not competent to the plaintiff now to go into the merits of that judgment, or again to try that action. If the plaintiff had paid the rents and profits voluntarily, and without a suit, it will not be contended that he could not recover them back in this action, in the actual state of things. He has it not in his power to reverse that judgment by writ of error. Having a legal right to the money which he now demands, it would not be right to turn him over to his petition for a review. By awarding him the money he paid under a mistake of the facts, we do not violate any principle. The judgment was right, nor does the present action impeach it; but the defendant has no right, from posterior circumstances, to * retain the proceeds of it. And when one wrongfully detains money, although it was rightfully received, the action for money had and received furnishes a just and appropriate remedy. When the jury have ascertained the amount due to the plaintiff, he will be well entitled to judgment, (a)

(a)

 Vid *Homer*vs. *Fish & Al.*1 *Pick.*435. — *Loring*vs. *Mansfield,*17 *Mass Rep.*394.