Wisner vs. Bulkley, 15 Wend. 321

By the court, Bronson, J. The court below erred in non-suiting the plaintiff. The judgment was satisfied by the payment made by the defendant. The assignment which he took wasj'tadér the circumstances of this case, a fraud upon the trustees, and the judgment was not an available security in his hands. It is said that the debt was not paid with the money of the trustees, who were the defendants in the judgment ; but there is no weight in the objection.

Independent of the arrangement betweén the parties, it was the duty of the defendant to collect the tax and pay over the money to the. trustees; and they would then have paid Hallock for the work he had done for the district; or, what was the same thing, would have paid the judgment. But under the agreement, the defendant paid the money directly to the creditor; and there can be no doubt that this worked as complete a satisfaction of the judgment as though the money had in the first instance been delivered to the trustees, and they had then, with their own hands, paid it over to the creditor.

It was, in effect, the money of the trustees which paid the judgment. It is said that the money was collected on a regular judgment and execution, and that an action for money had and received will dot lie to recover it back—that an action should have been brought on the defendant’s agreement to collect the tax and pay over the money ; or that a special action on the case was the appropriate remedy. It may be conceded that the case of Moses v. Macferlan, 2 Burr. 1005, which has been so often questioned, cannot be maintained. Cobb v. Curtiss, 8 Johns. R. 470. Walker v. Ames, 2 Cowen, 428.

But there was no attempt in this case to overhaul the judgment, or impeach the consideration on which it was obtained. The plaintiff did not deny that there had been a valid judgment, which he and the other trustees were bound to pay. His complaint is, that he has wrongfully been compelled to pay money under a satisfied judgment.

The defendant, having taken the assignment with full knowledge of the facts, can have no greater rights than the orignal judgment credit- or ; and whatever may be the rule in relation to third persons without notice, the defendant could acquire no right by proceeding under this satisfied judgment. So far as he is concerned there was no judgment, and he might have been sued as a trespassser. Sherman v. Boyce, 15 Johns, R. 443. Jackson v. Cadwell, 1 Cowen, 622. This was not a voluntary but a compulsory payment, under color of legal process. 1 Taunt. 359. 1 Maule & Selw. 609.

Where one receives money as a wrong-doer, it may, in general, be recovered from him in the equitable action for money had and received. If he convert the goods of another and turn them into rqoney, the owner may waive the tort and recover in this action. The defendant in such a case cannot complain that the plaintiff waives that form of action in which he might recover more than the value of the goods, and adopts a form in which he can only recover the money which the defendant has received, with interest. More v. Trumpbour, 5 Cowen, 588. 2 Ld. Raym. 1216. 3 Wils. 304. 1 Barn. & Cres. 418.

The plaintiff paid the debt to save his goods from sale on the execution. The money has passed into the hands of the defendant; and although there is no express promise, the law will in such case imply a promise to refund the amount. Ex (Equo et bono, this money belongs to the plaintiff; and he was not obliged to state the special circumstances of his case in tj10 declaration, but might recover for money had and received to his use. Judgment reversed, and venire de novo.