1849. January

Term.

errors assigned in the petition of appeal as exceptions. And as it was apparent that the commissioner acted without authority, the Chancellor should have directed adm'r another account if he did not dismiss the bill.

Wills'

υ.

Dunn's adm'r.

adm'r.

Upon the legal proofs in the cause, there is no reason to doubt that all the personal estate of Lewis Dunn Mason's was exhausted in the payment of debts. The plaintiff ex'or filed with his bill the answer of Thomas Dunn the Dunn's elder to the bill of Heath and wife, with the inventory of the estate, and the account stated by him; which shew that all the personal estate, except slaves, had been exhausted in payment of debts. As to the real estate, he held that not as administrator, but as bailiff of the widow and child; and the profits of that were expended in part in the payment of debts, and the balance in their support. The witnesses on whose testimony the commissioner has made out his account, speak of the crops, and express the opinion that they amounted to more than the expenses of the estate; but they say nothing of the expense of supporting the widow and the plaintiff.

case.

The bill should have been dismissed, because of the delay in bringing the suit and the circumstances of the The transactions took place between 1785 and 1794. In this last year the land and slaves were delivered over to the plaintiff's guardian. Thomas Dunn the elder had been dead many years. His administratrix, and her husband, were ignorant of all the facts in relation to his administration of Lewis Dunn's estate, and were unable to render an account. It is true, they, in their answer, do not object to an account, if a just account can be made out from the papers of their intestate. Upon that answer, it may have been proper to make the experiment whether an account could be stated; and in making that experiment, the Court should have directed that the account returned by Wills and wife to the County Court of Sussex should be taken as

1849.

January

Term.

Wills' adm'r

V.

Dunn's

adm'r. Mason's

prima facie correct; and that the books and papers of Thomas Dunn the elder, should be laid before the commissioner. Then, when the report was returned, the Court could have seen whether an account could be stated. This was the course pursued in the case of Caruthers' adm'rs v. The Trustees of Lexington, 12 Leigh 610. But, beyond all doubt, the account taken in this cause, is based upon conjecture. The commissioner, from what he has heard, supposes the net profits of the Dunn's estate were about 150 dollars a year. It is doubtful, indeed, if there were any net profits; but if there were, how can this Court undertake to say that these net profits were more than sufficient to pay the debts of the estate and the expenses of the widow and child.

Equity has jurisdiction to relieve the appellants in the case of Masons v. Dunn. Crawford v. Thurmond, 3 Leigh 85; Callaway v. Alexander, 8 Id. 114; Mason v. Nelson, 11 Id. 227.

Stanard, for the appellee, in the case of Mason's adm'rs v. Dunn's adm'r.

Whatever may be the merits or demerits of the case of Wills v. Dunn, and though the decree in that case may be clearly erroneous, the appellants, the Masons, nevertheless, can have no title to be relieved from their bond, or to reverse the decree dismissing their bill. Let it be considered that the execution of their bonds by the Masons to Thomas Dunn the younger, was a payment in satisfaction of the judgment recovered against them. If the payment was compulsory, then, as there was no fraud, the money cannot be recovered back in an action for money had and received upon the occurrence of after circumstances, shewing that it ought not to have been paid. Marriatt v. Hampton, 7 T. R. 269; IIamlet v. Richardson, 23 Eng. C. L. R. 407; Wilson v. Ray, 37 Id. 50. The principle which runs through all the cases, is, that where there is no fraud or conceal

ex'or

V.

adm'r.

Wills'

V.

1849. ment, and the party pays the money with a full knowJanuary Term. ledge of the facts, he cannot recover it back, whether it is paid under compulsion of legal process or not. It is adm'r true that in the case of Cadoval v. Collins, 31 Eng. C. Dunn's L. R. 206, the plaintiff was allowed to recover back adm'r. money paid under compulsion of legal process; but the Mason's reason was, that the legal process was but colourable; ex'or and the jury found that the defendant knew he had no Dunn's right to receive the money from the plaintiff. But in that case the general principle was recognized by all the Judges. In our case, there is no fraud, and no colourable process. The party sues an administratrix who has not settled her accounts, and has an account and decree. There is then a suit on the administration bond, and a judgment, without pretence of fraud.

V.

adm'r.

It is said that money paid under a judgment, which is afterwards reversed, may be recovered back in an action for money had and received. It is true that this doctrine is authorized by the case of Clarke v. Penney, 6 Cow. 299. But that case was decided on the authority of Green v. Stone, 1 Har. & Johns. 405, which is the judgment of an inferior Court; and the other case cited from New York is based on Clarke v. Penney. The question was made by counsel in Isom v. Johns, 2 Munf. 272, but was not decided.

The proper remedy where money has been recovered upon a judgment which was afterwards reversed, is not by an action for money had and received, but by application to the Court which gave the judgment, for restitution. If the action for money had and received lies in such cases, it must be on the ground that it was recovered under colourable legal process.

This right to recover back money paid under a judgment which has been reversed, is confined to the parties to the judgment, and cannot be extended to others; and certainly not to parties who had paid money under a judgment which is not only not reversed, but is irrever

1849. January

Term.

Wills'

adm'r

sible: And such is this case. The true ground on which the right rests, is only applicable to the parties to the judgment reversed. That ground is, that the proceedings are ascertained by the result to have been merely colourable; and the Court, under its power to Dunn's superintend and correct its proceedings, repairs the error into which it had fallen, by restoring the money which Mason's has been wrongfully paid.

In this case the reversal of the decree in the case of Wills v. Dunn, is not a reversal of the judgment under which the money was paid. These parties are not affected by that decree. At most, it is only evidence against them; but they are not bound by it. And they are seeking to recover back money paid upon a judgment which is unreversed, because a part, and only a part, of the evidence on which it was founded is proved not to be correct. But if the decree had been the only evidence on which the judgment was founded, still the case cannot be distinguished from Marriatt v. Hampton, and that class of cases.

Treating this case, then, as a payment by compulsion of legal process, upon the principles of the cases cited, the money cannot be recovered back.

But in fact this was a voluntary settlement, by which these parties did not pay or undertake to pay the whole amount of the judgment; but they gave their bonds upon a compromise of the claim, for the amount of the decree, minus an error supposed to exist in it. That error was the charge of six per cent. per annum interest, instead of five per cent. from 1797 to 1824, for which a credit was given on the bonds. It was a payment voluntarily made, with full knowledge of the facts; and if it was made under any mistake whatever, it was a mistake as to the legal liability growing out of the facts. On this subject the Court is referred to Brisbane v. Dacres, 5 Taunt. R. 144; Clarke v. Dulcher, 9 Cow. R. 674; Mayor, &c. v. Judah, 5 Leigh 305.

adm'r.

ex'or

V.

Dunn's adm'r.

1849. January Term.

Wills'

V.

The objections to the decree in the case of Wills v. Dunn, are answered successfully by the Chancellor in his opinion. As to the objection that Nathaniel Dunn's adm'r representative was not a party, the bill states that he Dunn's died soon after his qualification as administrator of adm'r. Lewis Dunn; and the commissioner, in his report, states Mason's that Thomas Dunn the elder took possession of the ex'or whole estate early in 1785, which must have been imDunn's mediately on the death of Lewis Dunn. And if the adm'r. administrator of Nathaniel Dunn had been before the Court, all that could have been done as to him was to dismiss the bill.

V.

The widow of Lewis Dunn had been dead many years; and if any thing more than what appears in this record was necessary to shew the futility of the objec tion to the failure to make her administrator a party, it will be found in the authorities referred to on the other side, especially the case of Moore's adm'r v. George's adm'r, 10 Leigh 228.

That was the case of a suit by a distributee, as this is; and there the objection for want of parties was overruled.

It is objected that the report was made without authority. This objection should be made out by the party making it. But it appears affirmatively that it was made by authority. The commissioner so states the fact, and he is a sworn officer of the Court; and the Court so states it in the decree. If then the order for account could not now be found, yet all the parties and the Court having acted as if the order had been made, this Appellate Court will not reverse the decree, because it cannot now be produced.

It is objected that the report is ex parte. But there cannot be an ex parte report in a pending cause. It may be without notice, but it cannot be ex parte. If by the objection it was meant that the report was made without notice, that is a matter for exception, and should have been made to the Court below. 2 Rob. Pr. 362.