
    John Pinney against Asa Gleason.
    
    ALBANY,
    Dec. 1827.
    P. recovered in the C. P; against G.; who brought error to the S. C. who reversed the judgment of the C. P., and ordered a venire de novo in the C. Pi In the mean time, P. had collected his judgment below. G. then'took a writ of restitution, and an exécutioñ for his costs in the S. C.; and" the monéy Collected in the C. P. was restored, and- the costs i& the S. C.- collected. G. then compelled P. by rule in the C.- P. to go to trial on th'e venire de novo, who went on accordingly, and obtained a- second verdict and judgment against G: and then brought a writ of error Bom the judgnierit of the S. G. Étéíd, fh'aJt hé ha'd á right tó his Writ of error1 Bom the S. C.: that his" proceedings in the G. F;.iteré ho waiver' oi his right to bring error: ind- ]5er Jones, Ghafioellor,- á reversal of the judgment in- the S. C. will be a reversal of all the consequent proceedings, including those in the C. P. upon the venire de novo.
    
    J. E. Lovett, for Gleásóri, moved- that the writ of error in this- cause from the supreme court, be quashed. The papers for the motion presented the following, state of facts
    Pinney sued Gleason in the C. P. of Onondaga» county, on ■several notes, dated- the- 30th of June, 1820, for certain sums payable in salt at so much the bushel, at certain times. The cause was tried at the May term of the C. P., 1824, when a’ special verdict was- found for the plaintiff (P.,) and judgment- rendered for him, Gleason brought a writ of-error to the S'. C., the Writ being returnable at the October, term, 1824; and that court reversed the judgment of the C. P. at their October term, 1825, (5- Cowenj 152, S. C. reported as affirmed; but corrected 5 Cowen, 411, note ;) and ordered a venire de novo from the C; P. On the 23d January, 1826, the judgment *of reversal was perfected. Before the reversal, no bail in error being in, the judgment-below Was collected by Pinney; and on reversal, restitution was' awarded, a writ of restitution issued, the money restored under it, and an execution, for the costs in error was issued, arid Pinney was compelled to pay them. After the reversal, and in pursuance of the order for a venire de novo, at the September term of the C. P., 1826, on motion of Gleason, that court made a rule against Pinney, the-plaintiff below, for judgment as in case of nonsuit, for not proceeding to trial according to the course and practice of that court, with leave to stipulate to try at the next term, (January.) Pursuant to a stipulation, the cause was tried, and a verdict was again rendered for Pinney, the plaintiff below. The damages were assessed at $100. This- was at January term, 1827. Judgment was perfected on that verdict. Pinney then brought error to this court from the S. G.; a- copy of an- assignment of errors in this court was served by the attorney of Pinney upon Gleason’s attorney, on the 2nd day of July, 1827.
    Lovett referred to Hartshorne v. Sleght, (3 John, 554,) as supporting this application in principle. He admitted that Pinney "might have brought his writ of error to this court, from the decision made against him in the supreme court, had he proceeded in due season. But he first submitted to the restitution of costs and the damages «oTW*"*
    
      upon his execution in the common pleas ; and the collec tion of the costs of the writ of error. He then proceeds to avail himself of the reversal and venire de novo, obtains a second verdict, by which he hopes to ■ conclude the defendant below; and then brings error to reverse the very proceeding of which he has taken advantage. He has made his election; and shall be bound by it. His legal right to a writ of error is wrested to the purpose of vexation and oppression; and may be met in a summary way, as the chancellor remarked in Hartshorne v. Sleght.
    
      H. Bleecker, contra.
    Gleason first recovered back his money under the judgment of the supreme court, reversing the judgment against him, and then drove Pinney to a new trial by a rule. He, then, had no election but to try or be *nonsuited on the call of the very party who now complains that he is pursued by a writ of error. The question is, will -this court allow the cause to go to a hearing, and determine whether there be error in the record ? The statute (1 R. L. 134, § 7,) is imperative. upon this court to examine all errors assigned in records brought here on writ of error; to reverse or affirm, and give s,uch other judgment therein as the law shall require; and to send back the transcript of the record, and all things touching the same, for further proceedings in the supreme court according to the decision made here. By the same statute, any party aggrieved may bring error. Pinney is here damnified to the amount of the sum restored, and the costs ; and this, whatever common pleas may afterwards have done. I agree that if the judgment shall be reversed here, a difficulty will occur as to the new judgment in the common pleas ; but may not the supreme court or common pleas exercise such a control over the whole proceeding as to prevent injustice 1 Cannot the supreme court give Pinney a writ of restitution for the costs of the writ of error collected of him by execution ? And so of whatever he may appear to have lost by their erroneous proceedings 1 On the record going down from this court, the supreme court are, by the statute, to do what of right should be done.
    
      But suppose we had not been compelled to proceed; suppose we had submitted and gone to trial without the rule taken against as by Gleason; even that would not have concluded us. It would only have been following up the decision of the supreme court, which we were driven to by that decision; and on reversing it, the whole proceedings consequent upon it, would fall with it. Suppose Gleason, instead of his writ of restitution, had brought his action for money had and received, to recover back what he had paid, as he might have done, according to Clark v. Pinney, (6 Cowen, 297,) and had collected money, even this would not have shut us from our writ of error, which would, on its being successful, overturn all the suits and judgments growing out of it. Error lies at any time within five years, the ^statute of limitations, (1 R. L. 134, § 9.) So where the money due in consequence of the reversal is voluntarily paid; this does not prevent the writ of error at any time within the five years. '
    
      Lovett, in reply, said the now plaintiff in error should have retained the cause in the supreme court; and tried it at the circuit. This might doubtless have been done on his motion. The amount of his recovery would have carried costs in that court, who would then have retained the control of the whole matter. By proceeding in the common pleas he has taken away the power of the supreme court to do full justice in the event of a reversal. They cannot nullify the judgment which the plaintiff in error has obtained in the common pleas ; and give him his rights in the event of a reversal.
    
      
       5 Cowen, 152 arid 411, note, S. C. The pr'éaént' iuotioh Was decided at the July session of the court of errdYs, 1827.
    
   Jones, Chancellor.

The constitution and laws authorise this writ of error; and unless something has been done by the plaintiff in error to deprive himself of that right, he must go on. Hartshorne v. Sleght was where this court had passed upon the cause on a bill of exceptions by the plaintiff, reversing the judgment, and ordering a venire de novo. On the new trial another bill of exceptions was taken, and error brought by the defendant. The bill presented the identical point which had been before settled at the suit of- the plaintiff.. The court of errors were bound, by the previous decision-;, but here we are not. We have, never, passed upon the point-presented,.

It is- said the plaintiff in' error submitted to* and. followed up■ the decision.of. the supreme court.; but he did.not. do, this voluntarily. He proceeded to the trial in. the common pleas with- reluctance, and under a rule, of the court obtained by his- adversary.. All was, a consequence of the decision in the supreme, court,, as it was-- followed out and enforced by the defendant in error, and a reversal here on, this,- writ of error; will be- a reversal of every thing ;. the second trial and- judgment in the common pleas, as- well as, the judgment and proceedings of. the supreme, court, upon, which; it was bottomed. If we affirm the judgment of the •supreme court, then every "Thing is right* provided the common pleas followed the principle of damages settled for them on the writ, of error to the supreme, court. The whole is one connected proceeding. The judgment of the supreme, court, stood on the same; ground as an interlocutory decree of chancery.- - There the party may appeal in-the first instance, or submit to all consequences ;. and then appeal from the whole. ' The proceeding in the common pleas dues not relieve the plaintiff in error from his grievance by the judgment-in the supreme court. Even an entry by a .plaintiff in error, on land to which the judgment relates, will, not deprive him of his right ta proceed. It, will be in the power of this court, to give such directions in, repeat to the whole proceedings as justice shall require. The plaintiff in error has, at all- events, a right to prosecute- his writ in order to get back the costs of the writ of error to the supreme court, which he has been obliged to pay, as wed as to recover his, own costs in that court.

Motion denied.  