I. The question of amendment did not arise under the 145th and 146th sections of the code. There was no variance in the case. There was an omission in the complaint of the entire allegation offered to be proved. It was therefore a case under the 149th section, and the motion *310should not have been granted unless it had clearly appeared that to grant it would be “ in furtherance of justice” If it be admitted that the fact offered to be proved was material for the plaintiff to establish, then that fact might be controverted by the defendant, which would require an amendment of the answer, and very likely, upon that new issue it would be material to produce witnesses who were not then in attendance at the court. At all events the defendant should have an opportunity to answer the application to amend. This opportunity he could not have at the circuit, for he was not there. The application therefore was properly denied. But we do not think that the denial of a motion to amend, where the law reposes a discretion in the judge, is an appropriate ground of exception. To sustain an exception for a refusal of the judge at the trial to allow an amendment of the complaint, the party must show a clear case of unquestionable right; and that can seldom occur except when the question arises under the 145th section. The decision in such a case is nothing more nor less than a decision upon a special motion informally made upon the trial.
II. The next question is whether the plaintiff was entitled to recover, at all; or, in any event, more than the sheriff’s fees. If the execution was absolutely void, then it was conceded on the trial that he would be entitled to recover the sheriff’s fees ; and the ruling at the circuit was upon the assumption, most favorable to the plaintiff, that the execution was void. We are of the opinion that assuming that the execution was void, the decision at the circuit was right. (1.) In order to arrive at a correct conclusion upon this point, it is necessary to inquire what facts appear from the pleadings. One of the general rules of pleading established by the code of procedure provides that any material allegation in the complaint not specifically controverted in the answer, and any material allegation in the answer not specifically controverted in the reply, shall be taken as true. (Laws of 1848, p. 525, § 144.) Applying this rule to the pleadings in this cause, it will be found that the following allegations of fact are admitted—1st. That the transcript of the judgment in the Albany common pleas was, before the issuing of the ex7 *311ecution, duly mailed to the clerk of Madison county to be filed, &c. 2d. That the officer who made the order setting aside the execution had no jurisdiction to entertain the motion, or to make the order. 3d. That the money was paid by the defendants in the judgment in satisfaction of the said judgment. These averments are found in the answer, and are not controverted in the reply, and are therefore admitted. (2.) Another question discussed upon the argument was, whether the action should be considered as sounding in tort, or be regarded in the nature of an action for money paid, or had and received. The forms of actions are abolished; and so far as the rights of parties depend upon the form of the action, there may sometimes be a difficulty not foreseen nor provided for by the legislature. In this case, however, we think the action clearly sounds in contract. If, under the old system, the action had been trespass, for the unlawful seizure of the goods on the execution, the plaintiff would have recovered the full value of the goods, however inequitable that might have been. But even then, if the goods had been restored to and received by the party, as they were in this case, then the recovery would only be for the actual damages occasioned by the seizure. The plaintiff has not so framed his complaint as to make the unlawful seizure the gist of the action. Nor has he alledged any fact that characterizes an action of tort. He has sued to recover the money paid. He sought to prove that he paid it by mistake. He made a demand of the money before the suit was commenced. And he demands at the close of his complaint the sum that was paid, with interest from the day of payment. It is quite clear, therefore, that we must regard this action as brought upon the equitable facts of the case, and as a substitute for the old action for money paid, and money had and received to the use of the plaintiff.
The question then arises, whether money paid in satisfaction of a valid judgment, which stands unreversed, can be recovered back, because the execution by which the goods were seized was irregularly issued, both parties at the time supposing it to be regular. We think it cannot. Blackstone says, (3 Bl. *312Com. 163,) “ this action is a very extensive and beneficial remedy, applicable to almost every case where a person has received money which ex aequo et bono he ought to refund.” Again, it must be a case in which “ the money received by the defendant ought, ex aequo et bono, to be deemed as belonging to him.” (Doug. 138.) Again, “ the defendant may go into every equitable defense which shows that the plaintiff, ex aequo et bono, is not entitled to the whole or any part of the demand.” (2 Burr. 1010.) No case has been cited which furnishes a precedent for this action, in a case where the judgment on which the money was received was valid and reriiained unreversed. In fine, the admission in the pleadings that the money was paid “in satisfaction of the judgment,” puts the question at rest.
III. The plaintiff. was rightly nonsuited, for another reason. A statute, which was overlooked by the counsel, both on'the trial and on the argument of the cause, removes the last vestige of the plaintiff’s ground of action. By the 7th section of the act in question, (Laws of 1844, p. 92, § 7,) power is given to the supreme court, and also to the courts of common pleas, to direct the amending and correcting of the dockets of judgments in other-counties, and to direct the docketing of judgments nunc pro tunc with the clerks of other counties ; and it is provided also that they shall possess the same powers over the dockets of their judgments in other counties as when docketed with their own clerks. By virtue of this provision, therefore, the county court has, or the county court of the county of Albany had, full power to order the transcript to be filed and the judgment docketed in the county of Madison nunc pro tunc. The defect was amendable, and therefore the execution stands good until, it be set aside by a court of competent jurisdiction. And whenever a motion to set the same aside shall be made, the amendment will doubtless be allowed and the motion denied. The regularity of the execution can not be questioned in this suit, or in any other collateral proceeding. The execution was a full justification to the sheriff for the seizure of the goods, and would have been so held in an action of trespass brought directly against him. (See 3 Caines, *313267; 11 Wend. 31, 32; 4 Cowen, 550 ; 4 Denio, 243; 3 Cowen, 39, 42.) The action is therefore left without the shadow of a foundation to rest upon.
Motion for new trial denied.