
    Richmond.
    Flemings v. Riddick’s ex’or.
    
    A decree directs the defendants to pay to the plaintiff certain sums of money. Upon appeal, the Appellate Court reverses the decree, and proceeding to render such decree as the Court below ought to have rendered, dismisses the bill; and this decree is entered in the Court below. Pending the appeal, executions are issued on the decree of the Court below, and the defendants pay the money. Held : They may proceed, by motion to the Court below upon notice, to have restitution of the money so paid by them: and this though the decree of the Appellate Court does not direct restitution.
    In a suit then pending in the late Circuit Court of Law and Chancery for the county of Henrico and City of Richmond, in which Josiah Riddick was plaintiff, and John 8. Fleming, as the executor of Martha H. Syme, and in his own right, George Fleming, administrator of George Fleming deceased, and others, were defendants, that Court, on the 27th of June 1837, made a decree, by which, among other things, John S. Fleming, he having admitted assets of his testatrix, was decreed to pay to the plaintiff the sum of 209 dollars 96 cents, with legal interest on 89 dollars 16 cents, part thereof, from the 1st day of April 1833, until paid; and George Fleming was decreed to pay the like sum out of the estate of his intestate, in his hands to be administered ; and they were also decreed to pay the plaintiff his costs.
    On the 9th of November 1837, these defendants obtained an appeal from this decree; though it does not appear when the supersedeas was served on the appellee ; and the cause coming on to be heard in this Court, the decree of the Court below was reversed, with costs: And this Court, proceeding to pronounce such decree as the Court below should have pronounced, the plaintiff’s bill was dismissed with the costs of the appellants in that Court.
    The certificate of this decree was received by the , clerk of the Superior Court of Chancery for the Richmond circuit, in vacation, and recorded on the 2d of April 1846 : And Josiah Riddick having died, the cause was revived in the Chancery Court against Richard H. Riddick, his executor; and in June 1846, a decree was made against him for the costs, to be paid out of the assets of his testator, in his hands to be administered.
    In May 1846, John S. Fleming, and George Fleming, administrator of George Fleming deceased, gave a notice to Richard H. Riddick, executor of Josiah Rid-dick, that they would, on the 2d of June following, apply to the Court for a decree requiring him, out of the assets of his testator, to refund to them the sums of money which they had been compelled to pay to Josiah Riddick, under the decree of the 27th of June 1837, with interest. The motion was made accordingly ; but the Court being of opinion that it had no jurisdiction to award the restitution prayed; and that if it had jurisdiction, the proceeding by motion was not the appropriate remedy, overruled the motion, with costs. The Flemings then applied to this Court for an appeal, which was allowed.
    It appeared in evidence upon the hearing of the said motion, that on the 29th of January 1838, a ca. sa. had been issued in the name of Josiah Riddick, against John S. Fleming, for the sum decreed against him by the decree of June 27th, 1837, under which he had been taken in custody. That he had delivered property in discharge of his body; and had then executed a forthcoming bond, with surety, which was forfeited. That there had been an award of execution by the Court on the forfeited forthcoming bond ; and that a fieri facias was issued, and went into the hands of the sheriff of Goochland, on which he made return, “ Money made and paid to plaintiff’s attorney, as per receipt retained by me.” This money was received by the sheriff on the 9th of October 1838.
    ^ aiso appeared, that on the 5th of January 1838, a fte™ fac^asj bi tbe name of Josiah Riddick, was issued against the effects of George Fleming deceased, in the hands of George Fleming, his administrator, for the amount of the decree of the 27th of June 1837; upon which the sheriff returned, “ Money made, and paid to John T. Swann, per order of plaintiff. See his receipt, and the order herewith returned.” The order was directed to the sheriff, and was as follows: Sir — Your favour, under date 24th of April, has reached me. In answer I have only to say, I have no interest in the money in your hands; it is the property of John T. Swann. After paying all expenses, pay the balance to Swann. (Signed) J. Riddick. The receipt of Sioann was dated June 11th, 1838, and acknowledged the receipt from the sheriff of 235 dollars 66 cents, in full of the execution.
    There was also another ca. sa. against John S. Fleming, for the costs of the suit, which was levied, and a forthcoming bond taken and forfeited. But there does not appear to have been an award of execution thereon.
    
      Bouldin, for the appellants.
    Of the power of the Court to award restitution of money paid under a judgment or decree, which has been reversed, there can be no doubt. Tidd’s Pr. 935 ; Archb. Pr. 237; Anonymous, 2 Salk. R. 588; Sympson v. Juxon, Croke Jac. 699. When the record shews the facts which authorize the restitution, the order is without further proceedings ; but when the facts are not shewn by the record, then there issues a scire facias quare restituiionem non. This is not a part of the proceedings in the original cause; but it is a new proceeding, after the original cause is ended. The judgment in the original cause is not that the money shall be restored, but that the appellant should never have been compelled to pay it. 2 Archb. Pr. 76. This is the doctrine of the common law : and a Court of Equity has the same power to correct any abuse of its process; and to restore a party to his rights. Windrum v. Parker, 2 Leigh 361.
    It is hot only within the powers of the Court, but it is its duty to award restitution. Branch v. Burnley & als. 1 Call 147; Stanard v. Brownlow, 3 Munf. 229. It is true, that in these cases, the decree of this Court directed that the Court below should award restitution. This direction is, however, no part of the decree ; but is intended merely to remind the Court below what it should do. This Court revises the decree of the Court below, which is the subject of the appeal; but does not, and cannot know or notice what has been done since the decree. Nor can the decree of this Court confer jurisdiction on the Court below: That is only to be derived from the law.
    If the decree of this Court in this case had contained the direction to award restitution, still the bill was dismissed ; and that dismissal was entered in the office in vacation; and the cause would have been, notwithstanding the direction, out of Court; and the direction would have informed the Court that something else was to be done, not in the cause, but in consequence of the reversal of the decree. Eubank v. Ralls' ex'or, 4 Leigh 308; Fawkes v. Davison, 8 Leigh 554.
    The last cases cited shew that the proceeding by motion is proper.
    
      Robinson, for the appellee.
    I shall attempt to maintain three propositions. 1st. A party who has paid money has no absolute right to have that money restored to him. 2d. If it appears to the Appellate Court that money has been paid, that Court is not bound absolutely to order restitution ; but has a discretion on the subject. 3d. If the Appellate Court does not order restitution, the Court below has no authority to compel restitution.
    rpjle case 0p Alden v. Lee, 1 Yates R. 160, 207, sustains ^ ^rst an<^ second °f these propositions; and the third is to be deduced from them. Restitution is not ex debito justifies. Baker v. Smith, 4 Yates R. 185; Kirk v. Eaton, 10 Serg. & Rawle 103. The Appellate Court, when applied to for an order of restitution, may exercise its discretion; and we must therefore presume that the discretion has been exercised; and the Court below cannot do that which the Appellate Court did not think ought to be done.
    In this case, if the same facts had been before the Appellate Court which were before the Chancery Court, the Appellate Court ought not to have directed restitution. The payment of the money by the appellants was voluntary, and therefore cannot be reclaimed by any legal process. The appeal was awarded on the 9th of November 1837; and the appellants were executors, who of course were not bound to give security on the appeal; and therefore it operated as a supersedeas, if they chose. The first execution on which a payment was made, was issued in January 1838; and the executors might have protected themselves from the payment, by delivering the process to the sheriff. Not having done this, and paying with a full knowledge of all the facts of the case, that payment was voluntary; and they are not entitled to recover back the money. Mayor of Richmond v. Judah, 5 Leigh 305; Lee v. Stuart, 2 Leigh 76 ; Davis v. Newman, 2 Rob. R. 664; Wilson v. Ray, 37 Eng. C. L. R. 50; Knibbs v. Hall, 1 Esp. R. 84; Follam v. Downe, 6 Id. 26, in note. If indeed it could be shewn that the payment was necessary to prevent the sale of property, the party paying might recover back the money: but here there were the means to prevent the sale.
    
      Again: There is no proof that Josiah Riddick received the money; but, on the contrary, the proof is that, as to one sum paid, it was received by Swann, and as to the other, there is no legal proof that the sheriff paid it to Riddick, or any other person. His return on the execution is, that he paid the money to the plaintiff’s attorney; but that return is not evidence; and the receipt should have been produced. As to the costs, it does not appear that they have been paid. Now this right of restitution is on the principle of the action for money had and received, which certainly would not lie against Riddick. I refer the Court to Isom v. Johns, 2 Munf. 272; Eubank v. Ralls, 4 Leigh 308. If then all the facts had been before this Court, when the cause was decided here, restitution of the money paid by the appellants could not have been awarded.
    When the cause went back it was proper to revive it in order to make a decree for costs, according to the directions of this Court, but not for purposes not embraced in these directions. And here lies the distinction between this case and the cases of Branch v. Burnley & als. 1 Call 147, and Stanard v. Brownlow, 3 Munf. 229. In these cases the decree of this Court directed restitution. The mode of proceeding is, that where the money is paid to the plaintiff, there is at once an order for restitution; but where it is paid to any other person there must be a scire facias, which is always based on a record, and is intended to carry out the decree. When therefore the decree of this Court does not direct restitution, there is nothing on which the proceeding can be based. In this case the cause was ended; and the decree not having directed restitution, the Court below could do nothing more.
    If the appellants are entitled to recover, it must be in view of all the circumstances of the case; and this, whether upon motion for restitution, or by action for money had and received. Green v. Stone, 1 Har. & John. 425. This case shews that there is not an absolute right to recover back the money paid because the judgment is reversed; but that it depends upon the qUegt¡on whether ex equo et bono it should be repaid.
    Although forms of writs for the restitution of land may be found in the books, Lillies Entries, 634, 5, we shall search in vain for the form of a writ for the restitution of money not held in kind. Where money is to be restored, it must be by judgment or decree. How is the writ to be carried out? The officer may shew the writ, but how is he to restore the money? When one man has money, which ex equo et bono belongs to another, it may be recovered by due course of law. If the party entitled has a judgment or decree, he may have a scire facias upon it, on which there may be a judgment or decree for the repayment. The cases of Branch v. Burnley and Stanard v. Brownlow, pursue this course. But when it is no part of the judgment or decree that the money shall be restored, it must be recovered by a new suit.
    If such a proceeding may be had one month after the judgment, there is no limitation to it. Therefore where the judgment does not provide for the proceeding, it is most judicious to hold that the recovery shall be by another action, in which the party called upon to repay the money may set up any proper defence.
    
      Stanard, for the appellant.
    It is not necessary for us to maintain the proposition, that in all cases money which has been paid under a judgment or decree afterwards reversed, may be recovered back in the mode adopted in this case. We say, that where the payment of money has been coerced, and afterwards the judgment or decree is reversed on the merits, and the bill is dismissed with costs, there the money may be recovered in the mode pursued in this case. The writ of restitution is confined to cases where the money has been coerced by colour of a judgment or decree. The right to restitution results from the fact of reversal, not from the form: and the proper pro- , ceeding is by the same court.
    If the propositions be correct that the matter rests in the discretion of the Appellate Court, and that unless that Court directs the restitution the Court below cannot, it would follow, that it is the duty of the Appellate Court to enquire into the facts upon which the propriety of exercising the discretion depends. But the statute requires this Court to decide upon the case as it was at the time of the decree appealed from. Nothing subsequent to the decree, not even a matter of record, can be brought before this Court to affect its judgment. It is impossible, therefore, for this Court to give a judgment upon such matters, though it may instruct or advise.
    The cases cited by the counsel on the other side are from Pennsylvania, where the Supreme Court, like the Court of King’s Bench, has original jurisdiction. And all of them recognize the authority of the Court to award restitution. In Alden v. Lee, the judgment was reversed for a merely formal error. In Baker v. Smith, the judgment was not assailed; but it was an application to set aside an execution for irregularity. And in Kirk v. Eaton the money was ordered to be brought into Court; which could only have been done on the ground that the Court had power to award restitution. But under our system, the cases of Branch v. Burnley & als. 1 Call 147, and Stanard v. Brownlow, 3 Munf. 229, can only be sustained upon the ground that the Court below had authority to act in the case. Here, this Court has no authority to award as matter of judgment of the Court, a judgment upon matters arising posterior to the judgment from which the appeal is taken, and not involved therein.
    
      It is said, that if the Appellate Court does not direct restitution, the Court below is to presume that the Appellate Court acted on the question and refused to make ^ or¿er ■ and therefore where the cause is ended the Court below has no power to make the order. If this be so in a case which is ended by the decree, why should it not be so in a cause which is sent back to be further proceeded in. The Court acts in this, as well as the other; and then, according to this doctrine, it must be presumed that the Court has done all that it thought ought to be done; and the Court below can do nothing more than is directed in the decree of the Appellate Court. But if the doctrine as contended for be true, and the whole case is decided by the Appellate Court, so that the Court below cannot act, then it equally follows, that an action for money had and received would not lie, because the Appellate Court had already considered and decided the question. But at common law money paid under a judgment which is afterwards reversed, cannot be recovered back. 1 Bac. Abr. title Assumpsit, 261: Mead v. Pollard, 1 Ld. Ray. R. 742. This question was made by counsel in Isom v. Johns, 2 Munf. 272; and we have found no case opposed to these authorities except that of Clarke v. Pinney, 6 Cow. R. 297. So that if the counsel on the other side is right, and these authorities are right, there is no remedy for the injury.
   Baldwin, J.

delivered the opinion of the Court.

A judgment or decree when reversed is a mere nullity, and the party aggrieved has a right to be restored to what he has lost by reason of such erroneous decision. He is consequently entitled to such appropriate remedies as the law gives to one whose money or property is withheld by another, against his better right. But the Court whose judgment or decree is reversed and annulled, having by its own act occasioned the wrong, possesses an inherent and summary jurisdiction to afford the redress, without reference to the pecu- ,. liar nature of the controversy which it had erroneously determined. This is unquestionably true, and such is the settled practice where the same Court abrogates its own erroneous decision; as in the case of a judgment reversed upon a writ of error coram vobis, or an interlocutory decree reversed upon a rehearing, or a final decree upon a bill of review. The principle is the same where the reversal, instead of being the act of the same Court, is performed for it by an appellate forum; and in truth the judgment or decree of the latter is remitted to, entered upon the record of, and becomes both in form and effect the judgment or decree of, the former Court.

The power of a Court to repair the injury occasioned by its own wrongful adjudication, is not derived from a mandate of the appellate forum, made upon rendering the judgment or decree of reversal, but is substantially the same which it exercises when its own process has been abused, or used without authority, by its suitors or ministerial officers; as for example, where a writ of habere facias possessionem has been sued out improperly, and the defendant therein turned out of possession, the Court may award a writ of restitution. And so it may where its process has been misapplied by its own authority erroneously exercised, as is made manifest by a reversal of the judgment or decree on which it issued, whether accomplished by its own jurisdiction, or that of a higher appellate tribunal.

The mandate of the Appellate Court for restitution is, properly speaking, no part of the judgment or decree of reversal, but rather supplemental thereto. It declares the legal consequence of the reversal, but it gives no specific relief, and awards no process from the Appellate Court. It is not pronounced as part of the judgment or decree which the Court below ought to have rendered; for a correct decision by that Court would have prevented, instead of occasioning, the loss that calls for restitution. When a judgment or decree for the defendant is reversed, then the Appellate Court, procee(jjng t0 ren(jer such judgment or decree as the ^'ourt below ought to have rendered, gives to the plaintiff the relief to which he was entitled; but when a judgment or decree for the plaintiff is reversed, then the Appellate Court, in proceeding to render such judgment or decree as the Court below ought to have rendered, dismisses, in appropriate language, the plaintiff’s action or suit. In the latter case, there is no adjudication in the Appellate Court of the question of restitution, but the mandate for it follows as a declaration or designation of the legal effect of the adjudicated reversal and dismissal.

In truth, the question of restitution is not presented to the Appellate Court for adjudication by the record from the Court below, where it does not and cannot arise until after a reversal of the judgment or decree. The record therefore is not prepared with a view to a decision of that question in either Court; and the occurrence of such a question does not appear from the record, unless it be casually or incidentally,' for the merits of the controversy determined by the erroneous judgment or decree, can in no wise depend upon the process resorted to for the purpose of compelling its performance.

That the mandate for restitution is merely declaratory or directory, is obvious from the consideration, that it is never refused upon a reversal on the merits, unless for the want of sufficient evidence to shew that the erroneous judgment or decree has been actually enforced; and then the refusal is never entered on the record, but the whole matter silently referred to the cognizance of the Court below.

In the English practice, as indicated by the formal entries, the mandate for restitution is appended, as a matter of course, to the reversal of a judgment at law for the plaintiff, and expresses that the defendant “ be restored to all things which he hath lost by occasion of the said judgment;” without specifying the thing itself, or the time when, or by what mode of proceeding it is to be restored. And the process of restitution does not issue as a matter of course, but must be applied for in the Court to which the cause is remanded, or in which it is retained ; is awarded by such Court; and is adapted to the evidence of the loss. For example, if the erroneous judgment was for money, and “ the plaintiff has had execution, and the money has been levied and paid, and the judgment is afterwards reversed there, because it appears on the record that the money is paid, the party shall have a writ of restitution without a scire facias; for there is a certainty of what is lost: otherwise where it was levied, but not paid ; for there must then be a scire facias, suggesting the matter of fact, to wit, the sum levied,” &c.

With us, however, the formal mandate for restitution, (which is in substance and effect that of the law itself,) is seldom appended to the reversal, and never without the application of the party aggrieved: and then it may be in general terms, or more or less special, according to the evidence of the loss which the record may happen to contain; but is usually conditional upon its appearing to the Court below, that the erroneous judgment or decree has been enforced. And, indeed, the essential nature of the mandate subjects it to such a condition, whatever may be its terms; for it cannot be conceived as the duty of the Court below to yield restitution where there has been no loss, or where it has been already made; or that the Appellate Court, without the direct and certain means of information possessed by the Inferior Court, has undertaken collaterally, incidentally and without enquiry, upon merely casual evidence, to determine conclusively the question of loss.

Our accustomed omission of a mandate for restitution cannot, therefore, where there has been a reversal upon the merits, be treated as resulting in the monstrous perversion of justice, that there shall be no restoration to what has been lost by occasion of the erroneous judgment or decree; nor in ousting the Court below of its inherent and salutary jurisdiction of correcting the misapplication of its own process, and so driving the party aggrieved to a new and perhaps unproductive action, it may be in another and distant forum.

Where the restitution is sought at law, resort must of course be had to the formal legal process already mentioned; but where it is sought in equity, such formalities need not be adopted further than may be deemed expedient; and redress may be awarded by a decretal order, founded upon a rule to shew cause, or upon motion after notice to the adverse party.

In the present case, the evidence is sufficient to indicate that the appellant was entitled to redress, at least to some extent, and to what extent was a proper subject for enquiry before a commissioner.

The Court is therefore of opinion, that the decretal order of the Chancellor overruling the appellant’s motion for restitution, is erroneous: And it is decreed and ordered that the same be reversed and annulled with costs. And that the cause be remanded to the Chancery Court, to be there proceeded in according to the principles above declared.  