Little v. Bunce

Richardson, C. J., delivered the opinion of the court. The question, whether this action can be maintained upon the facts stated, is entirely new. In England it could not arise, for there they have no reviews. And no case has been cited, nor has any case occurred to us, in which the question has presented itself to any court in this country. There seems to be some analogy between the reversal of a judgment upon a writ of review and a reversal upon a writ of error ; and in order to see if any light can be obtained upon the question now before us, from the law of restitution upon a reversal of a judgment on a writ of error, we shall proceed to examine how far the analogy between a reversal of a judgment upon a writ of error and a reversal upon a review, extends. When a judgment is reversed upon a writ of error, he against whom it was rendered is to be restored to all which he has lost by it. 2 Saunders 101, y; Lilly's Entries 641, & 650; Cro. James 698; Tidd's Prac. Forms 336; 2 Salkeld 588; Comyn's Digest “ Pleader,” 3 B 20. And when a judgment is reversed upon a writ of review, the law is the same. The party prevailing upon a review is to be restored to all he has lost by the first judgment. If lands be recovered in a writ of entry, or ejectment, and the judgment be afterwards reversed upon a writ of error, he of whom it was recovered shall have restitution. 1 Roll. Ab. 778; Cro. Eliz. 278, Eyre vs. Woodfine. So if land be recovered in a writ of entry, and the judgment afterwards reversed upon a writ of review, the tenant shall have restitution. — 492 — • If .-goods are -sold by. virtue of an execution, and-the. judg-meni-be afterwards reversed,' the title 'of the purchaser is not affected- .by . the reversal .of: the- judgment • but the-debtor’ shall have restitution in money. Cro. James 246, Goodyere vs. Ince; Moor 573; 5 Coke 90, Hoe's case 8 Coke. 281, Drury’s case; 2 Tidd's Prac. 1138. '• .And. the law is'without doubt the same, where the judgt meht has been reversed.-upon'a Writ-of review.- V. ■ . " IE -an execution' be, extended upon real'estate, and the--jñdgment-be afterwards reversed, -the title tinderihe, extent fails and . the debtor shalHiave the land again. 1 Roll's Ab. 778; Cro. James 246; Yelverton 179, Goodyer vs. Junce. , ’ How'the. law is; where' an execution-.is extended upon lands and : the -judgment-afterwards reversed upon a writ of review, seems not yet to have been determined. Our statute regulating, reviews declares that the. former' judgment-may be- reversed- wholly;or, in part.' -But whether this means that, -the first judgment- may be- reversed and annulled, as upon, a. writ of érror, or . only-that judgment may be ;rendered in favor' of the plaintiff in review-to recover back the money erroneously recovered by-the first judgment,.leaving-that-judgment in force, has not been settled in this-State. But however the law may be in that respect,' there: is undoubtedly a .very close. analogy in many respects, between cases- of-judgments, reversed upon writs- of error--and -cases of -judgments reversed'-upon writs of review’.- ’ - - ■ ,. If,’as it-seems to havo-beeii heldin, Massachusetts, the first judgment is not annulled.but remains m forcé after the plaintiff in review has obtained judgment,. 7 Mass. R. 26, it will .follow of course, that a judgment in favor of the plaintiff in-review -gives him no right '-beyond' that of .having his judgment enforced against the -defendant in review, ;It will not enablehim to maintain an. action for money had and receiv-edr against' the defendant in, review or any other personfto recover back money-thari has, been paid in satisfaction of the first -judgment:; For that judgment remains in force, and not .at all affected by thé judgment given on the review. — 493 — But if the judgment m l'avor of a • plaintiff in review annuls the first judgment, it Iras precisely the effect of the reversal of a judgment upon a writ of error.. ' - We shall therefore consider, whether this action could have been maintained, if the first judgment had -been reversed upon a writ of error. ' In Vesey vs. Harris and wife, Cro. Car. 328. the wife-; while sole, recovered judgment against Yesey. which was ■satisfied.. -- Yesey brought a writ of error, and the. judgment was. reversed. - She then married Harris,- upon which Yesey brought a scire facias against .the husband arid wife, to have restitution, and it was held.to lié.- . " -' .. But in Rex vs. Leaver, 2 Salkeld 587, where one was eon-vietecl upon an indictment and fined .£100, which was paid into the hands of the collectors, and the-judgment afterwards reversed upon a writ-of error, Lord Holt, seems to have been of, opinion that no remedy-for restitution could- be-had against the .collectors, because- they- were not parties .to the record. - .When, a -single woman, who has obtained a-judgment, marries after that judgment has been reversed upon a writ-of error, there must without doubt be a remedy- for,restitution against the husband. : So. if any one who has had .judgment, dies'after the judgment has been, reversed,: there must be a remedy against- his executor -or administrator- to obtain restitution. . But in general there is-rio remedy against any body ■who was not a party to.the record; Lord Coke thus explains-the law on this subject, when a judgment in -a real action, is reversed. “ When any-man 1 recovers any possession or seizin of land in any actiowby ! erroneous’judgment, and afterwards the-judgment is revers- ‘ ed, the plaintiff in the writ of error shall- have -a writ of ‘ restitution, and that writ, reciting the first-recovery and the - reversal of it in the. writ of error', is that the plaintiff in the ‘ writ of error shall be restored to his possession and seizin ¡ una cum exitibus thereof from the time of judgment. By ‘ which it appeared! that the plaintiff in the writ of error — 494 — ‘ shall have restitution against him who recovered, of all the ‘ mesne profits without any regard by whom taken. For the ‘ plaintiff in the writ of error cannot have any remedy against ‘ any stranger, but only against him who is party to the writ ‘ of error ; and therefore the words of the said writ com- ‘ mand the sheriff to enquire of the issues and profits gene- ‘ rally between the reversal and the judgment, with all ‘ which he who recovered shall be charged. And as the ‘law chargeth him with all the mesne profits, so the law ‘ gives to him remedy, notwithstanding the reversal, against ‘ all trespassers in the interim. For otherwise the law should ‘ make a construction by relation to discharge them who are ‘ wrong doers and to charge him who recovered with the ‘ whole, who peradventure hath good right, and him who ‘ entered by judgment of law which peradventure is reversed ‘ for want of form, or negligence, or ignorance of a clerk. ‘ And therefore as to that purpose, the judgment shall not be ‘ reversed ab initio by fiction of law, but as the truth was, ‘ the same stands in force until it was reversed. And there- ‘ fore the plaintiff in the writ of error, after the reversal shall ‘not have an action of trespass mesne, because he shall re- ‘ cover all the mesne profits against him who recovered ; nor ‘ he that recovered shall be barred of his action of trespass, ‘ for a trespass mesne by reason that his recovery is reversed, ‘ because he shall answer for all the mesne profits of the ‘ plaintiff in the writ of error.” 11 Coke 21 — 22, MenvilVs ease. The principles thus explained by Coke, were recognized as sound law by the supreme court of New-York, in Case vs. Degoes, 3 Caine’s R. 261. If, then, the judgment against Little had been reversed upon a writ of error, what would there have been in the case that could have made it an exception to the general rule that there is no remedy for restitution against any one who is not a party to the record ? Bunce prosecuted the action. But he prosecuted in the name and for the benefit of Albee. — 495 — Whatever might be recovered was to go in satisfaction of Albee’s debt. Bunce held the note only as collateral security for Albee’s debt. Albee was not only the nominal but the real party. The debt was still his, although it had been pledged to Bunce. It appears by the report of this case in 5 N. H. R. 277, that Little’s defence was a set-off against Albee, and the real controversy between the parties was whether Little had so acquiesced in the assignment of the note as to deprive him of the benefit of the set-off. Bunce had without doubt an interest in the suit. But this did not make him a party to the record. Had Little prevailed on the first trial, his remedy for costs must have been an execution against Albee. He could have had no remedy against Bunce. Upon a reversal of the first judgment on a writ of error he could have had no writ of restitution against Bunce. Tidd’s Prac. Forms 337—338. How could the reversal give any right to restitution against any other person than Albee ? The judgment for restitution would have been against him,. There is no case to be found that gives the slightest countenance to the supposition that there could in that case have been any remedy whatever against Bunce. If, then, the judgment on the review had the effect, to annul the first judgment, it is very clear that all the right acquired by it on the part of Little was to have execution against Albee to recover back whatever he had paid. The judgment on the review was against Albee. The sum paid by Little upon the first judgment must be considered as having been paid to Albee, in whose favor that judgment was. And the cost paid by him on that judgment can no more be followed into the hands of Bunce in this case, than it could be followed into the hands of counsel, had it been retained for fees. Bunce had no other remedy to enforce the payment of the note against Little, than a suit in the name of Albee. And now, since the judgment he obtained in that suit has been — 496 — reversed, we are of opinion that the law. furnishes Little no ' ' " . other remedy-for .a restitution of what he paid under, the grgt judgment, than the judgment he obtained against Albee on the ..review. . . Judgment for the defendant, •