The opinion of the court was delivered by
Rogers, J.— The gravamen of the plaintiff’s suit is a fraud of-the defendant, for which, under the circumstances of this case, the. action for money had and received is the appropriate remedy. The, defendant alleges the money was received by virtue of a good, va-. lid, and subsisting judgment; but whether the judgment is subsist-, ing and unsatisfied is the very matter in controversy. The plaintiff alleges payment or other satisfaction, and that the judgment is kept on foot by fraud; that it is between other parties, and that he is indirectly, although not directly interested in it. This case is si- ' milar in principle to a suit brought by a creditor against an executor, who pleads plene administravit preeter, &c., goods and chattels not sufficient to pay outstanding and unsatisfied judgments, &c. to which the plaintiff may reply, and by this means put the vali-. dity of the judgment in issue, that the judgments were obtained, and kept on foot by covin and fraud. It is manifest, that the act of-the 13th of April, 1791, directing satisfaction to be entered on, judgments, furnishes no remedy to the plaintiff, for taking it for-granted, that he has such an interest as to entitle him to request satisfaction to be entered, (which is not altogether clear;) yet, a resort to the mode pointed out by the defendant would afford him no relief, as, on a refusal to enter satisfaction, it would merely subject the *454judgment creditor to a penalty to the party aggrieved, in a sum not-exceeding one-half the debt or damages.
But, it is contended, the validity-of the judgment is res j.udicita, and they rely on the entry, that on the 2d of February, 1819, there was a rule to show .cause why the judgment should not be postponed, and on the 3d of February, 1819, there was entered-on the docket, “ settled by compromise between the parties.” There is nothing in this entry which shows that the plaintiff was a party to this proceeding: on the contrary, he offers to prove that he nei-, ther obtained.the rule, nor was he aware of the compromise. But it is said, that if not a party; yet he might have been, and that he-is equally concluded by the decree of the court. In the first place, it strikes me that this cannot, with any propriety, be considered as-the act of the court, but as a controversy between other parties, and a settlement of their claims without any adjudication by the court. We are too well aware of the manner in which such entries are made, to give them the effect of a judicial decision. But; if the court had'passed upon the validity of the judgment, it is clear it would bind only the parties. Had there been a decree of the court, distributing the money raised by the sheriff’s sale, such an adjudication would have been conclusive, because the court would have-taken care that all persons interested should have had notice; but it appears to me that the proceeding does not partake of that character. There was no rule to bring the money into, court, which would be necessary to give it jurisdiction over the money made by the sheriff’s-sale. It was a rule obtained in that suit which affects the parties, but not a stranger, which the plaintiff alleges.and offers to prove he was. If such an entry as this is to bind others-who are not parties, and without any notice or opportunity of being heard, it requires but little reflection to' perceive the great fraud.* and injustice which would be the necessary consequence. We are of the opinion that the Court of Common Pleas erred in rejecting. 4he testimony, that the judgment should be reversed, and a venire, facias de novo awarded.
judgment reversed, and a venire facias de novo awarded..