The defendant excepted. Verdict and judgment MAY. 1803. for the plaintiff; and the defendant appealed to the Court of Appeals. THE COURT OF APPEALS at June term, 1805, affirmed the judgment of the General Court. Gill Cole GENERAL COURT, MAY TERM, 1803. GREEN US. STONE. A judgment cause reversed. ASSUMPSIT for money had and received, to recover which is for any money erroneously paid by the plaintiff to the defen- can have no legal dant. The general issue pleaded. effect whatever. except to recover The plaintiff at the trial, to support the issue on ceived will not lie his part, produced a record of proceedings in an ac- money retained tion brought in Anne-Arundel county court defendant, as administrator of Robert Couden, against judgment by con by the by and right. Where an administrator gives fession, which is afterwards revers ed, he is not precluded from shewing afterwards the want of assets at If money be the plaintiff as administrator of Anne C. Green, which it appeared that an action on the case was brought, and an account filed, for sundry articles that time. chargeable in account, commencing in June 1769, and paid on a judg ending in April 1774, leaving a balance in favour reversed, it may of the plaintiff in that action of 135l 2s 6d current in an action for money. That no declaration was filed, but a judg ment afterwards be recovered back money had and received, unless it was equitably due at the time of 1786, such judgment or refer- action will not be there That ment confessed by the defendant at March term payment; andsuch at all affected by the proceedings in the original ac tion. Green Stone MAY 1803. discharge and payment of said judgment, to recover which sum this action was brought. And he also offered to give in evidence, that previously to the original judgment being obtained against him, he had fully administered the personal estate of the said Anne C. Green, except to the amount of 8l 19s od current money. The defendant then offered in evidence to the jury, the account in the record of proceedings first mentioned, with the endorsements thereon, on which the said original judgment was confessed, and the original docket entry of that judgment, with a reference to the arbitrators, and their award, viz. A probat by Mr. Couden on the 19th of August 1778, and a certificate by the justice who took the probat, that the books, &c. were legally proved, with an endorsement by the register of wills that the account would pass when paid. The entry on the docket was judgment for principal, and interest referred to," &c. with a copy of the award, saying interest was not to be allowed. The defendant then prayed the opinion of the court, and their direction to the jury, that upon the aforesaid facts the plaintiff was not entitled to recover, and that he could not, at this time, be permitted to prove the want of assets to discharge the said debt, for the purpose of entitling him to recover in this ac tion. Martin, (Attorney General), for the defendant. The judgment in the case of Couden's administrator against Green's administrator, it appears, was reversed for the want of a declaration, and not upon the merits. Suppose there had not been a judgment, and it was proved that the defendant confessed he owed the money, and had paid a part, even though he had not assets, he could not recover it back; and shall his confession upon record bind him less? The plaintiff has no right to go into evidence now to prove he had no assets at the time he confessed he had. The record removed by the writ of error contains the ac knowledgment of the plaintiff in error of the jus- MAY 1803. tice of the claim against him, and that he had assets to pay it. The reversal of the judgment could not do away that confession. Johnson and Brice, for the plaintiff. Money paid on a judgment, which is afterwards reversed, may be recovered back in an action of assumpsit-Esp. 6. The question is, whether or not the plaintiff in this action is so precluded by his confession in the county court, in the action against him in that court, as not now to be at liberty to go into evidence as to assets in his hands at the time of the judgment against him? Upon the reversal of that judgment, the consideration failed, and no longer exists. If the money had been paid upon a fieri facias issued upon the judgment, a writ of restitution could have issued to restore it without the trouble of this action. The confession ought not to be considered so conclusive as to bind the plaintiff. It was not made by him in person, but was done by his counsel, and may have been, and probably was without his knowledge. Martin, (Attorney General,) and Shaaff, in reply. This action is indebitatus assumpsit for money had and received. Is this the proper count? A fair and equitable claim can only be recovered in this form of action. The reversal of the judgment has not the effect to do away the confession of the plaintiff. The true state of the case is, that the plaintiff, as administrator, owed the defendant a sum of money, and he had no assets, but notwithstanding, he confessed the judgment and paid the money. Can he now recover back the money so paid? The reason why money is to be recovered back upon a reversal of the judgment is because the consideration fails; but the consideration does not fail where the judgment is reversed for a matter of form. It can only fail where the reversal is upon the merits of the case between the parties. The party shall not recover money back, though payment of it could not have been en Green Stone. Green Vs. Stone. MAY 1803. forced. Esp. 91, 93, 94, 96. The recovery by the plaintiff in this case would establish a dangerous precedent. The limitation to the prosecuting a writ of error is considered to be not less than twenty years. The practice formerly was universally to enter up judgments without filing declarations. In all which cases, at any time within twenty years, writs of error may be brought and the judgments reversed, and if the money has been paid, may be recovered back. This would be a dangerous doctrine, and ought to be looked at well before it is established by this court. The cause of reversal may surely be enquired into; and if found not to be on the merits of the question, the money is not to be refunded. The reversal of the judgment took away the remedy for recovering the money for which the judgment was rendered. It did not affect the admission of assets by the voluntary confession of the party. If there is no equity for the recovery of the money, it cannot be recovered where the reversal was for mere form. In this action the plaintiff can only recover of the defendant money which in conscience ought to be paid. The plaintiff must show that he was not obliged at the time to pay the money; that he was under no conscientious obligation to pay it, or he cannot recover it back. The confession of the judgment was evidence that there were assets, and that confession remains still in force. The confession of the attorney was the confession of the plaintiff himself, and is as binding as if he had made it in person. If a legacy is paid under an informal will, it cannot be recovered back. CHASE, Ch. J. (a). The court are of opinion that the judgment obtained by Couden's administrator against Green's administrator, being reversed, became a mere nullity, and ceased to have any operation or effect from the time of the reversal, and that no inference of law can arise from the judgment. The court are also of opinion, that the plaintiff cannot recover in this case, unless the defendant's re(a) Done and Sprigg, J. concurred. Green VS taining the money is contrary to equity and right. MAY 1803. That the defendant may resort to any equitable or Conscientious defence to repel the claim, of the plaintiff, and may show the justice of his original claim; and that the plaintiff may show he had not any assets to pay the debt due from A. C. Green to Couden, and is not in law or justice liable to pay the same; and that the account filed in the cause of Couden's administrator against Green's administrator, is not made competent evidence by the confession in the record, the award filed and the rendition of the judgment so reversed, if, independent of such circumstance, it is not legal evidence. A judgment reversed becomes mere waste paper, and the rights of the party, immediately on the reversal, are restored to the same situation in which they were prior to the pronouncing of the judgment so reversed. The defendant excepted. Verdict and judgment for the plaintiff for £150 current money, damages, and costs. The defendant appealed to the Court of Appeals; but the case abated in that court at November term 1804, by the death of the Appellant. GENERAL COURT, MAY TERM, 1803. WOLF vs. RODIFER. Proof of words spoken in the se cond person will not support a dec laration in an ac appellant tion of slander malicious, third persons APPEAL from Allegany county court. It was an action of slander, brought by the appellee against the appellant. The declaration charged the with proclaiming, &c. the following false, and scandalous English words of the appellee, viz. "That he the said Joseph was a thief, and had stolen one pine plank, and that he the said John would prove it." The general issue was pleaded; and the plaintiff, at the trial in the county court, gave in evidence to the jury, that the defendant, in the presence of the plaintiff, said "you are a thief, for you stole a plank, laying them in the |