
    G. Little vs. J. L. Bunce.
    When a judgment in favor of a plaintiff is reversed upon a writ of error, the general rule is that there is no remedy for restitution except against some party to the record.
    And the general rule is the same where a judgment is reversed upon a writ of review.
    A lodged with B, as collateral security, a note made by L, and payable to A, but not to order. B brought a suit against L on the note, in the name of A, and had judgmentfor the amount of the note and costs, which were paid by L to B. L having sued out a writ of review, upon which the first judgment was reversed, brought an action against B, to recover back the costs paid as aforesaid. It was held, that the action could not be sustained.
    Debt for money had and received.
    The cause was submitted to the decision of the court upon the following facts :
    On the 7th September, 1828, Bunce and one A. Ladd brought a suit in the name of Otis Albee, against Little, on a note for $275, dated December 1, 1826, made by Little, and payable to Albee, but not to his order. The note had been placed in the hands of Bunce and Ladd as collateral security for a debt due to them from Albee. Soon after the commencement of the suit, Ladd transferred to Bunce all his interest in the note, after which the suit was prosecuted for the benefit of Bunce alone.
    At the November term of the superior court, 1830, judgment was rendered in favor of the plaintiff, Albee. aswn<=i Little, for $175 damages, and $78 26 costs of suit. But Albee, being at that time insolvent, Bunce, in pursuance of an order of-the court, gave to Little a bond with condition to repay the damages, in case the judgment should be reversed upon a review,-and had execution, which was afterwards satisfied in full, and. the money received by Bunce.
    • A writ of review was sued out by Little,, and such proceedings had thereon that at May term, 1833, the said judgment was reversed. Bunce thereupon repaid to Little the damages recovered by the first judgprentbut he refusing to repay the said sum of $78 26, the costs received by him as aforesaid, this suit was brought to recover , that sum.
    
      J. Smith, for the plaintiff.
    All action of debt is founded on a contract, either express or implied, and is confined in legal consideration to the recovery, of a debt, eo nomine et in numero, and not for a compensation in damages. Bacon's Ah:, 11 Debt," Ai; Puller's N.P, 167; 4 Coke 93, Slade's case. /
    This action is a remedy of a more extensive and general nature than either an action of covenant. or assumpsit. 7 Petersdorff 354, (517.) -
    Wherever indebitatus assumpsit is maintainable, debt may be sustained. Douglas. I, Walker vs. Witter.. . -
    After the,.reversal of a judgment rendered in. favor of the demandant in a writ of entry, who had-entered into possession, it was held that the tenant might maintain assumpsit for the . mesne profits. 10 Mass. R. 433, Cummings vs. Noyes. ...
    The object of this suit is to recover the sum of $78 26, the costs recovered by Albee, a sum certain debt is, .therefore, thé most appropriate form of action that could be selected. - :
    A chose in action has been defined to be a legal interest possessed by a party in a contract, ox right,, which, incase of opposition, cannot be reduced to beneficial enjoyment without action or suit. The assignment or transfer of a chose in action has been from remotest periods interdicted.
    At the common law, nothing in action, entry, or re-entry could be granted over. Co. Lilt. 214, a.
    
    This rale in its origin appears to have been applied only to real estate ; but it is evident, that even at a very early, period the same rule was observed as to the assignment of mere personal chattels not in possession. 5 Petersdorff 281,;. (404.)
    The only strict common law right possessed by the assignee of an obligation was that of being enabled by virtue of the assignment to retain the parchment, or paper upon which it was written, and to cancel and use the same at his pleasure. Co. Litt. 232, b, note 145.
    This principle is still inflexibly adhered to, so far as the remedy is concerned. The legal interest is still considered to be in the assignor, and the action must be brought in his name, to enforce the right of the assignee.
    At the same time that this doctrine was held in courts of law, a different doctrine prevailed in courts of equity. The rights of an assignee were there distinctly recognized. And if an obligor, after he had notice of the assignment of a bond, paid it to the assignor, a court of equity would compel him by decree to pay it again to the assignee. 2 Vernon 595 ; 1 Vezey 411 ; 3 P. Williams 199.
    The courts of law at length began to take notice of the equitable interests of assignees. It was said that if an as-signee have an equity, that equity should be no exile in the courts of common law. And it is now well settled that courts of law will protect the equitable interests of assignees. 1 B. & P. 447, Legh vs. Legh ; 1 Campbell 392, Alner vs. George; 4 jB. & A. 419, Innell vs. Newman.
    
    I do not state these principles of law in relation to the assignment of choses in action, as they formerly existed, or as they now exist, modified and changed so as to secure the rights of assignees at law as well as in equity, because there k.ariy thing, of novelty in the. matter ; but that the source whence: the modern doctrine on the subject, was derived being brought into view., the ground.on'which the .plaintiffs right to. recover in this action is placed, might more fully and .clearly appear. . ■ ■ . ■ , . 1 ...
    , Bunce and Ladd'instituted. .a suit against tittle in the name of Albee. Little came into court with a perfect de-fence ■ against .Albee. JLu fact, Albee disclaimed -the suit. Why was'not the. suit then.dismissed ? ' The nominal plaintiff disavowed it. Because ;Bunce claimed by virtue of the assignment an equitable interest, .in the. suit-against. Little. 'This equitable claim made by Bun-ee was deniedby-Little'
    Who .were the persons.interested in the suit ?.
    : In answering this": question we determine' who the real parties to the-suit were.' ■-' - : • -
    V Had Albee any interest' in the suit ? . We answer..no. If a judgment were obtained -against Little, and satisfied, it would pay so much of ' Aftee’s. debt to Bunce -by increasing to a like amount the real balance due-to Little from Albee.' -Albee' therefore- stood indifferent between Biuice and Little, .as to interest in the event of the suit, unless he could be -charged, by .Bünce with the cost ⅛ cáse the action failed, which we deny. . .
    How was the question of interest, as between Bunce and .Little ? . . " -, ; ' .' 1
    If .Bunce succeeded in; the suit,, and obtained judgment against Little, he-secured his debt against Albee to the same amount, which was otherwise worthless by reason of Albee?s insolvency.. On the.other hand, if Little had been compelled to pay the- sum claimed by.Bunce on Albee-’s account, it would have been a dead, loss to him. to. the same, amount. For Albee was in fact indebted to. Little.
    Bunce and Little were then the real parties in the suit.
    Little presented a good defence against the.nominal plaintiff. Bunce then.claimed an ecpiitable interest in the suit, that would enable him to maintain it for his own benefit. TJie suit proceeded, ' Bunce failed to substantiate such” equitable claim, .andf of course failed ill the suit, and Little was- put to more- than";$-300 expense in defending the suit.
    The same; principle 'of equity-thaf-would enable Bunce to maintain a,siiit if lie. had established his' equitable - .claimy requires him, now he "has failed;,"to-mata out such a cláiní to-pay’the Posts incurred-by-the -other.party,-" - . -
    Vlt is á maxim in- equity-that-he who ⅛⅛' for-.equity ⅛⅛11' do what equity requires.,' "■ ■; p
    . If this, be so, we have a sound' principle-on, which this action can be maintained. - For ⅞-.court of law to-resort'to equity for a rule-to do more substantial' justice between- pari ties than can be done; by. known rules- of Taw. and apply the rule, so as to'- favor one and do. gross' injustice to •another, would be a reproach to the law.
    The first judgment- having been'- reversed.,' we arel now -entitled-in equity ..to- recover of this defendant not only the costs which he-'received' under that, judgment, but the expenses'we incurred in defending the suit. But-' this 'snit-is only’brought for the cósts-which he'received..- /.-■ 1 ' / ’ ' :
    
      Bell] fox the defendant.-
    The action isffor money-had and received, The-defendant has received, none', of the plaintiff’s money. He" had a claim', against - Albée, '.and received, .the note against the plaintiff, as collateral security -for that debt The suit instituted” on- the nóte was for the "purpose; of-paying Albee’s debt, and the money,-when received,-wás' received and applied to-tfaut purpose. The law is unquestionably so, on the facts agreed. - The 'money, -was received on A1 bee’s account and. applied to the payment of -Albee's debt. Tlieíre was no" privity or -contract between Buhce -and Little : no agreement, .in: fact or in law, to; repay the costs which Bunce received, : ’■ V ■" - --W -
    But the decisive objection, to, the plaintiff’s recovery is that "the money -was both paid and.r.ecéived: under and by forge of the judgment, which.-½ regard, to any thing done under it remains as much in force now as it ever was; and the money was rightfully applied by Bunce to pay his debt against Albee. The reversal of a judgment on review does not vacate and render void the original judgment and all things done under it. The reversal of a judgment upon a writ of error has this effect, and possibly may have the effects expected by the plaintiff’s counsel from a reversal on review. But when a judgment is reversed upon a review, the title to real or personal estate acquired under it is not affected; and the sheriff and parties are sustained in all things done under the original judgment which that judgment warranted to be done.
    It has been holden in Massachusetts that on a writ of review the first judgment cannot be reversed in whole or in part; but the plaintiff in review will have judgment to recover back the money erroneously recovered in the former suit. 7 Mass. R. 25 & 348.
    And our practice in like cases has been the same. If a plaintiff in an action recover judgment, and extend his execution on land, and afterwards the defendant prevails upon a review, the title to the land is not affected. The judgment is not made void, as it is by a reversal on a writ of error.
    This money, then, was palpably received under process of law, which is still in force and unreversed, and therefore until the doctrine of Moses vs. Macferlan, 2 Burrows 1009, is overruled or forgotten, the plaintiff will not be able to recover in this action.
    But the plaintiff has no equitable claim to recover the costs which he paid under the first judgment, on the facts stated. When that judgment was rendered, this plaintiff applied to the court for relief on the case as now before the court. The court made an order upon his, the defendant’s, paying the costs of that suit. The plaintiff in that suit should have no execution until he gave bond to refund the damages in case the judgment should be reversed on review. This was an application to the conscience of the court to do what to right and justice appertained to be done. How absurd would it be to order these costs paid at all events, when the interest of Bunce, and the insolvency of Albee, were before the court merely for the purpose of turning this plaintiff round to a new action to recover them back.
   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.

• 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.

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 ‘ 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. 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 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, •  