Opinion
April Term, 1850
A. Taber, for appellant.
A.J. Vanderpool, for respondents.
If the defendant had been the assignee of the demand on which the suit was brought by Walsh in the marine court, and had commenced and carried on the suit in the name of Walsh, but for his own benefit, he would have been bound, on the reversal of the judgment, to refund the money which had been collected on the execution. ( Maghee v. Kellogg, 24 Wend. 32; Catlin v. Allen, 17 Verm. 158.) But no such facts are found by the jury; and the rule is, that a special verdict must find facts — not evidence; and it must find all the facts which are essential to the party's title, and not leave a part of them to be made out by argument and inference. ( Hill v. Covell, 1 Comst. 522; Sisson v. Barrett, 2 id. 406.) There is no evidence, I think, from which an assignment could be found; ( See Miller v. Franklin, 20 Wend. 630; Taylor v. Bolmer, 2 Denio, 193;) but if there was such evidence, it is enough to say, that it was for the jury, and not the court, to find the fact of an assignment.
The case then comes to this: the money in question, in the regular course of judicial proceedings, came to the hands of the defendant as the attorney of Walsh; and on a subsequent settlement between them, the money was passed to the credit of Walsh on account of his indebtedness to the defendant. It was the same thing, in effect, as though the defendant had first paid over the money to Walsh, and the latter had then re-paid it to the defendant in satisfaction of his debt. About two months afterwards the judgment was reversed, and restitution was awarded to the plaintiffs against Walsh. It was very proper that he should make restitution; for he had, in effect, received the money and applied it to the payment of his debt. The plaintiffs proceeded to execution against Walsh, in pursuance of the judgment for restitution; but failing in that, they now seek to recover the amount from the defendant. I see no principle on which the action can be maintained. The defendant has got none of the plaintiffs' money; he has got nothing but his own. Walsh had a perfect title to the money when it was collected — just as perfect as it would have been if no certiorari had been issued. He had a right to do what he pleased with the money; and he made a very proper use of it by paying his debt. The plaintiffs have taken up the strange notion, that because they were trying to get the judgment reversed, Walsh could not give a good title to the money, especially if he paid it to one who knew what they were doing. I am not aware of any foundation for such a doctrine. As Walsh had a good title to the money, he could of course give a good title to the defendant, or any one else. No one was bound to presume that the judgment of a court of competent jurisdiction was erroneous, and would be reversed. The legal presumption was the other way — that the judgment was right and would be affirmed. But if the judgment had been known to be erroneous, the pendency of the proceedings in error could not affect, in the least degree, the title of Walsh to the money. Nothing short of a reversal of the judgment could destroy or impair his right.
We are referred to cases where money paid to an agent has been recovered back from him, notwithstanding the fact that he had given his principal credit for the money in account. But they are all cases where the principal had no right to the money at the time it was paid to the agent; while here, the principal had a perfect right to the money at the time his agent received it. The distinction is obvious; and I can not but marvel that it should have been overlooked.
I am of opinion that the judgment should be reversed, and judgment rendered for the defendant on the special verdict.
Ordered accordingly.