
    Whitesell & Sons to use of Frederick Maul v. Harry R. Peck, Edgar R. Phillips, W. J. Wallace and the Peck, Phillips & Wallace Co., Limited.
    
      Restitution — Writ of restitution — Appeal—Judgment.
    Pending an appeal from an order of the common pleas striking off the satisfaction of a judgment, the plaintiff in the judgment issued an execution, and the terre-tenant of the land was compelled to pay to the sheriff a large sum of money to prevent a sale of the land. The Supreme Court subsequently reversed the order striking off the satisfaction of the judgment. Held, that the terre-tenant was entitled to a writ of restitution.
    Petition for writ of restitution. Oct. T., 1894, No. 238.
    From the record it appeared that M. H. Stevenson, the petitioner, on November 26, 1892, purchased a one half interest in real estate in Pittsburg from Harry R. Peck. On the same day a judgment against the land was satisfied of record by White-sell & Sons, the legal plaintiffs in the judgment and attorneys of record for the use of Frederick Maul. Subsequently the court of common pleas, No. 3, of Allegheny County, on the application of Maul ordered that the satisfaction of the judgment should be stricken from the record. Stevenson appealed from the order and secured its reversal: See Stevenson’s Appeal, 165 Pa. 571. During the pendency of the appeal the plaintiff issued an execution upon the judgment and made a levy upon real estate of which M. H. Stevenson was terre-tenánt, and he was compelled to pay the sum of 1757.26 in order to avoid a sheriff’s sale of Ms land. Stevenson applied to the court below for restitution, but that court in an opinion by Porter, J., held that the case was entirely within the control of the Supreme Court, and that the common pleas had no power to ingraft an order of restitution upon the decree of the Supreme Court, citing Hughes’ Appeal, 90 Pa. 60.
    
      M. H. Stevenson and S. Davis Page for petitioner.
    The following cases all show that the court below has full power to order restitution and that it is their constant practice to do so: Krepps v. Mitchell, 156 Pa. 322; Breading v. Blocher, 29 Pa. 347; McGee v. Fessler, 1 Pa. 131; Boas v. Updegrove, 5 Pa. 517; Ranck v. Becker, 13 S. & R. 41; Cooke v. Reinhart, 1 Rawle, 317; Harger v. Commissioners, 12 Pa. 255; Alden v. Lee, 1 Yeates, 160; Glenn v. Mickey, 130 Pa. 600; Johnson’s App., 18 W. N. C. 205.
    An appeal for restitution applies to the legal discretion of the court: Baker v. Smith, 4 Yeates, 192; Alden v. Lee, 1 Yeates, 160; Gould v. McFall, 118 Pa. 455; Cooke v. Reinhart, 1 Rawle, 317; Boals’ App., 2 Rawle, 37.
    
      Bredin Whitesell, for Frederick Maul.
    A court below can not engraft on a decree of the Supreme Court an order of restitution not contained in said decree: Hughes’ App., 90 Pa. 60.
    A writ of restitution however will not be awarded, when it is against equity and justice : Gould v. McFall, 118 Pa. 455.
    Restitution will not be granted on a bald legal right against equity and justice: Grant v. Rodgers, 6 Phila. 132; Fitzalden v. Lee, 2 Dallas, 205; McGee v. Fessler, 1 Pa. 131; Barr v. Craig, 2 Dall. 151; Haldane v. Duche, 2 Dall. 176.
    
      May 25, 1896:
   Per Curiam,

This is a proper cas'e for restitution. It might properly have been awarded by the court below, as the judgment was collected after the appeal to this court was taken and did not regularly appear as part of the record here. Having been brought to our attention however by petition and motion, we now have no hesitation in saying that a writ of restitution should issue out of the court below.

The writ is awarded.  