
    Garret H. Conover vs. William Scott.
    To a writ of scire facias directed to a defendant to shew canse why money received by virtue of a judgment in the Supreme Court in his favor, which had been reversed in the Court of Appeals, should not be restored to the-plaintiff, the defendant cannot set up, by way of set-off, the original cause of action upon which the judgment in the Supreme Court had been obtained.
    A writ of scire facias quare restitutionem non, was sued out by Garret H. Conover against William Scott, returnable to the term of September, 1828; and upon the return of the scire facias, a declaration in the following words was filed, viz:
    New Jersey Supreme Court. Of the Term of September, in the year of our Lord eighteen hundred and twenty-eight-New Jersey, ss. The state of New Jersey to the sheriff of the county of Monmouth, greeting: Whereas William Scott, lately in our Supreme Court of Judicature, before the-justices thereof, at Trenton, by the judgment of the said court, in a plea of covenant broken, recovered against Garret H. Conover, the sum of four thousand seven hundred and seventy dollars and ninety-five cents, for his damages, besides his costs of suit, which were taxed at one hundred and ten dollars and thirty-one cents, whereof the said Garret was convicted, as appears to us, of record; and afterwards the said Garret EL Conover brought our writ for correcting error of and upon the record and proceedings aforesaid, against the said William Scott, returnable before the Governor and Council, in our Court of Appeals in the last resort; and thereupon, afterwards, to wit, in the special term of January, in the year of our Lord eighteen hundred and twenty-eight, before our said Governor *and Council, in our said [*401 Court of Appeals, it was considered that the judgment aforesaid, for divers errors in the record and proceedings aforesaid, should be reversed, annulled, and altogether held for nothing; and that the said Garret II. Conover should be restored to all things which he had lost on occasion of that judgment, as by the inspection of the record and proceedings thereof, now remaining in our Supreme Court, also appears to us of record. And now, on behalf of the said Garret H. Conover, in our said court, we have been informed that the said William Scott hath had his execution of the damages and costs aforesaid, and is yet possessed thereof; wherefore the said Garret hath besought us to provide him a proper remedy in this behalf; and we being willing that what is just in this behalf should be done, command you that by honest and lawful men of your bailiwick, you make known to the said William Scott, that he be and appear before our Justices of our said Supreme Court, at Trenton, on the first Tuesday of September next, to show if he hath and knoweth of anything to say for himself, why the said Garret H. Conover ought not to have restitution of the damages aforesaid ; and further to do and receive what our said court shall consider in this behalf, and have you then there this writ.
    Opon the return of this writ, the counsel of the parties agreed upon the following state of the case, viz.:
    That judgment was rendered in favor of the said William Scott against the said Garret IT. Conover, in the Supreme Court of New Jersey, in a plea of covenant broken for four thousand seveii hundred and seventy dollars and ninety-five cents of damages, with costs of suit, taxed at one hundred and ten dollars and thirty-one cents, as stated in the declaration in scire facias ; that on the said judgment an execution, commonly called a fieri facias do bonis et terris, issued out of said court, directed to the sheriff of the county of Monmouth ; by virtue of which Richard Lloyd, Esq., then sheriff of Monmouth, levied on the real and personal estate of the said Garret H. Conover, and under said levy and execution, he sold at public vendue the said personal estate for one hundred and ninety-eight dollars and seventy-one cents, on the seventh of December, eighteen hundred and twenty-four ; that said sheriff, under said execution, sold to Garret I. Conover, the real estate in exhibit as stated therein, for *402] two thousand five hundred *and one dollars and fifty cents; and also the real estate in exhibit B. as stated therein to the said William Scott, for two thousand one hundred and thirty dollars ; for the latter sum no claim is made. That on a writ of error removing the said .judgment and proceedings into the Court of Appeals, the said judgment, in the special term of January, eighteen hundred and twenty-eight, was reversed, and restitution adjudged as stated in the declaration on scire facias; and the record thereof was remitted to this court; that the proceeds of said sales of the personal estate at the time of sale and the proceeds of said sales of the real estate at the dates of the said deeds, went into the hands of the said William Scott.
    It is further admitted, that the said Garret H. Conover is insolvent, and that the said Garret, after the said judgment was recovered in the said action of covenant, in the Supreme Court, and after the execution issued and was levied, but before the said sales under it, applied to the said William Scott to deliver him a deed for the premises in dispute in the said action of covenant; but did not pay or offer to pay him any further'sum of money; but the said William Scott refused to deliver said deed, and the said William Scott, at the same time, professed that he had the deed executed, and was ready and willing to deliver the same on the payment of the balance of the consideration money.
    
      It is further admitted that the record of the judgment and proceedings in the said action of covenant in the said Supreme Court; and the record of the judgment and proceedings in said action in error in the Court of Appeals, and the state of the case in said records set forth, be a part of this state of the case — which state of the case was as follows : Garret H. Conover
    Survivor of David Gordon, dec. I In Covenant. vs. f State of the Case, &c. William Scott.
    The Declaration is founded on an Article of Agreement, in the words following : “ An Article of Agreement, made, concluded and fully agreed upon, by and between William Scott, of Freehold, in the county of Monmouth, and state of New Jersey, of the one part, and Garret H. Conover and David Gordon, of the same place, witnesseth : That William Scott, for and in consideration of the just and full sum of five thousand one hundred *and twenty-five dollars, cur- [*403 rent bank notes of the state of New Jersey or New York, of each an equal proportion, to be paid in manner following, that is to say, two thousand one hundred and twenty-five dollars, on the first day of April, in the year eighteen hundred and sixteen, the remaining three thousand dollars to be paid in three equal annual payments, the first to commence on the first day of April, in the year eighteen hundred and sixteen, with interest on the whole to be paid annually. For the above consideration, the said William Scott hath granted, bargained and sold, and by these presents doth absolutely grant, bargain and sell, all those two lots of land, situate, lying and being in Middletown Point, with all the improvements thereon, containing eighteen or nineteen acres, together'with all the property contained in an inventory dated April the 1st, 1815, amounting to one hundred and seventy-five dollars and fifty-nine cents. It is further agreed between the parties, that upon the said Garret H. Conover and David Gordon paying the above payment, and securing the payment of the remainder by mortgaging the premises, the said William Scott to give a good and sufficient title for the aforesaid lots of land, and deliver the property mentioned in this agreement to the said Garret H. Conover and David Gordon, on the first day of April ensuing. For the true performance of all and singular the above agreement, the parties bind themselves to each other in the sum of one hundred dollars.
    In witness whereof they have hereunto set their hands and seals December 8, 1815.
    It is to be understood that a small lot adjoining the house of William Little, and now in his possession, supposed to be enclosed with pailing, supposed to contain one-quarter of an acre, together with a small alley about twelve feet wide — - the length of the pailed lot is not included in the above agreement.”
    On the 8th of December, 1815, the plaintiff and defendant, together with David Gordon, entered into the agreement set forth in the plaintiff’s declaration, under their respective hands and seals, bearing date as _ aforesaid. At the time of the execution of the said agreement, Garret PI. Conover paid to the plaintiff ten dollars, part of the purchase money therein mentioned, and on the first day of *404] April, 1816, entered into possession of *the premises therein mentioned, except the Robert’s lot, with the said David Gordon, and the said Garret and David held and enjoyed the samp until the death of the said David Gordon, and the said Garret still continues in the possession thereof, except the Robert’s lot aforesaid.
    The plaintiff, on the first day of April, 1816, delivered to the defendants, Garret and David, possession of the property contained in an inventory dated 1st April, 1815, amounting to $175.59, pursuant to the articles of agreement, and took a receipt for the same.
    The defendants, Gordon and Conover, did not pay the said sum of $2,125, to the plaintiff on the 1st of April, 1816, pursuant to the said agreement, but did pay to the plaintiff in part payment thereof, and which was accepted by the plaintiff as part payment thereof, the following sums at the times therein mentioned, viz :
    'The before mentioned sum of §10, on the 8th
    December, 1815........................................ § 10 00
    April 8, 1816 ............................................. 732 50
    23, “ 780 00
    May 14, “ 100 00
    July 10, " .220 00
    Nov. 8, “ 80 25
    Sept. 4, 1817 ............................................. 25 00
    Dec. 6, “ 10 00
    Aug. 15, 1818............................................. 63 00
    ■Sept. 31,1818 ............................................. 48 25
    April 21, 1819, book account against plaintiff'...... 4 14
    §2073 14
    On the first April, 1816, the defendants did not tender to the plaintiff a mortgage on the premises to secure the payment of the residue of the money mentioned in the agreement, nor did they, or either of them, make any payment thereon other than those above, nor have they, or either of them, since offered to execute any mortgage on the premises.
    The plaintiff did not, on the 1st April, 1816, execute any •deed to the defendants conveying to them the premises in fee, nor did he offer to execute and deliver a deed to them, nor was he required so to do, but, on the 4th May, 1818, did sign, seal and acknowledge in due form of law, a deed for the promises, with full covenants of *seizin and war- [*405 rantee; which said deed he did afterwards on the same day tender to the defendants, and request them to pay the sum remaining due on the first payment in the said article of .agreement mentioned, and to mortgage the premises to him, to secure the remainder in performance of the said agreement, which they refused to do.
    
      Previous to the said agreement, to wit, on the 27th March, 1807, Zachariah Olavenger, being the owner of the premises, did, together with his wife Elsey,' mortgage the said premises, amongst others to Lewis Abrahams and Lewis Gorden, to secure the payment of three thousand dollars, which mortgage was duly acknowledged and recorded pursuant to law; which mortgage, together with securities for the moneys due thereon, were, on the 5th April, 1817? assigned to William Scott, the plaintiff, (pro ut the several assignments), and the plaintiff hath kept said mortgage on foot ever since to protect his title.
    At the time of the execution of the said articles of agreement, one Matthew Boberts was in possession of three acres of lot No. 2, in said articles mentioned, holding and claiming title under a deed executed to him by the said Zachariah Olavenger, then being the owner of the equity of redemption, subject to the said mortgrge. After the said mortgage, to wit: on the 13th April, 1808, the said Matthew Puoberts entered into possession of the said lot, and continued in possession thereof until the 15th February, 1819, when the plaintiff recovered possession thereof, by virtue of a writ of habere facias possessionem, issued on a judgment in ejectment, founded on the said mortgage (pro ut the exemplification of the said judgment and execution). And the said plaintiff has continued in possession of the said lot .ever since y but is willing and ready to .deliver fhe possession thereof to to the defendants when they comply with said contract.
    On the 29th day of April, 1820, Matthew Boberts and Elizabeth, his wife, sold and conveyed, by deed of bargain and sale, to William Scott, the said lot of land of three acres, part of lot No. 2, called the Bobert’s lot.
    On the 29th of April, 1823, William Scott, by his deed of bargain and sale of that date, executed and acknowledged in due form of law, conveyed the premises contained in the said article of agreement, with full covenant of warrantee, *406] &c., to the said *Garret EL Conover and David Gordon, which said deed he did afterwards, to wit, on the same clay, tender to the defendant, Garret H. Conover, and request him to pay him the sum remaining due on the first payment in the said articles of agreement mentioned, and to mortgage the premises to him to secure the remainder, in performance of the said agreement; and at the same time offered him, the defendant, the possession of the Eobert’s lot; all of which he refused to do, and Eoberts still is in possession thereof, and is willing to give it up to defendant at any time. If the court should be of opinion that judgment on the above state of the case should be given for the plaintiff, their judgment is to be entered for the plaintiff with damages to the amount of balance of the purchase money, with interest and costs as on a cognovit, provided the court shall be of opinion that in this suit upon the above state of the case, that is legally the measure of damages ; if not, the court are to settle the principles upon which damages should be recovered interlocutory ; judgment to be entered for the plaintiff upon such principles so settled by the court. If the court shall be of opinion that judgment is to be rendered for the defendants upon the above state of the case, then such judgment is to be entered accordingly, with costs of suit. And it is further agreed, that either party may turn this case into a special verdict, and bring a writ of error within one term after the entry of judgment.
    The Supreme Court adjudged that the plaintiff, Wm. Scott, ought to recover the balance of the consideration money mentioned in the foregoing state of the case and article of agreement, according to the value of the bank notes mentioned therein at the several times of payment therein limited, deducting therefrom the annual lawful interest of the value of the Eobert’s lot, in the said state of the case mentioned, from the 1st of April, 1816, to the 29th of April, 1823, with lawful interest thereon.
    
      The jury on the writ of inquiry awarded to Scott, the plaintiff, $4,770.95, with costs, for which final judgment was rendered.
    The Court of Appeals, after argument, reversed the judgment of the Supreme Court.
    If the Supreme Court shall be of opinion that the plaintiff, Garret H. Conover, is entitled to have restitution for the said sums of money, that-judgment be rendered accordingly and *407] with interest *from the respective dates of recovering the same, provided the court shall be of opinion that interest should be allowed.
    But if the court should be of opinion that the said William Scott has a lawful claim against the said Garret H. Conover, upon the facts contained in the state of the case, set forth in the record of the judgment and proceedings in the said action of covenant as aforesaid, or for the use and occupation of the "premises from 1st April, 1816, to 1st April, 1828; and if he has a lawful claim for use and occupation, and that the same is a legal subject of set-off, and in this action of scire facias, whether a deduction ought to be made therefrom of the purchase money paid under said article; and that such claims, or both or either of them ought to be allowed to him as -an off-set against the said demand of the said G. H. Conover above set forth, in this scire facias, then that such set-off be made and allowed to him accordingly, to be hereafter ascertained.
    
      Wood, for plaintiff in scire facias.
    
      Wall, for defendant.
   The Chief Justice delivered the opinion of the court.

Upon the facts set forth in the foregoing state of the case, I am of opinion that neither of the claims of William Scott, the defendant in scire facias, can be allowed to him as an offset against the demand of Garret H. Conover in that writ. Such set-off is not admissible, either under the statute or at common law.

In respect to the first claim, there would seem some incongruity, if this court were now to decide that upon the facts contained in the state of the case set forth in the record of the judgment and proceedings in the action of covenant,” .Scott had a lawful claim against Conover, since the Court of Appeals have reversed the judgment of this court, rendered in favor of Scott, because, in their opinion, upon those facts ho was not legally entitled to recover. But on this subject it is unnecessary, and therefore it is not intended to express any opinion; for if Scott has a lawful claim against Conover, upon those facts, such claim cannot become the subject of a set-off against the demand of the present writ.

The judgment of the Court of Appeals resolves the question before us. It is not only that the judgment complained of be reversed, hut that the plaintiff in error “ be restored to all things which he hath lost on occasion of that judgment.” The latter clause is a part of the regular usual judgment of the appellate court when *the judgment [*408 below is set aside. 1 Lil. Entr. 227, 242, 244; Herne pl. 472; Arch. pr. forms. 234. And the design is to place the parties as nearly as practicable, in statu quo ante helium, as they were at the commencement of the suit in which the .erroneous judgment has been rendered. If the fact appears on the record, that the money mentioned in the judgment has been levied and paid, an execution for restitution may forthwith issue on the reversal, without intermediate process. Otherwise a writ of scire facias quare restitutionem non is to be previously sued out. 1 A.rch. pr. 237. The rule that the execution may in the former case promptly issue, is a very strong argument, that no off-set founded on the original cause of action can be set up. No instance has been cited, nor have I found one, in which a set-off of this mature has been made or attempted. And I should regret to believe it admissible on principle or by precedent. For it would seem to me it must equally apply to reversals here on certiorari, and the evil would be incalculable, to have-the original cause of action set up here by way of set-off, under every notice or scire facias for restitution.

The second claim for use and occupation must be excluded on the same principles.

If the insolvency of Conover or any other of the circumstances mentioned in the state of the case, can entitle Scott to any other relief than may be obtained by the institution of a new suit at law, it must be through the intervention of a court of equity.

I am of opinion, therefore, that according to the stipulation contained in the state of the case, judgment should be rendered that Conover have restitution of the sums of money therein mentioned; And interest should be allowed on those-sums from the time they went into the hands of Scott. The allowance of interest is the uniform course of this court upon restitution, and without it the plaintiff in error would be very far from being restored to all things which he had lost' on occasion of the judgment.  