
    [Lancaster,
    May 30, 1825.]
    RANCK and another against BECKER.
    IN ERROR.
    The court on reversing a judgment and execution will not suspend the award of restitution, for the purpose of directing an issue to try the merits.
    But if land of the defendant has been sold, bound as well by the judgment reversed as by subsequent judgments, the court in awarding restitution of the money levied by the plaintilf, wifi order it to be brought into court, and paid first to the subsequent judgment creditors and the residue to the defendant.
    
      Buchanan, for the plaintiff in error and defendant below,
    had moved for an order of restitution, of the money levied by execution on the judgment obtained by Becker against Duffy security of Share, in this suit, in dlugust, 1818.
    
      Hopkins, for the defendant in error,
    submitted the following facts in answer, and prayed the court to suspend the award of restitution till the fact of Share’s having notice or not of the appointment of referees or their meeting, be tried upon an issue directed.
    1. Fact. That Share had notice both of the appointment of the referees and of their meeting, as appears by the testimony given on the trial of the facts on the scire facias issued on this judgment which is contained in the bill of exceptions taken by Share, by the charge of the court and the verdict of the jury, all remaining on record though reversed on an informality in the mode of trial.
    2d Fact. That Banck acted as his agent in the appointment of the men, as he admitted the award to be against him, and gave security for the payment of it.
    3d Fact. He solicited James Duffy to enter bail for him on the award, and represented to him that his land was bound by the judgment, and was worth far more than sufficient to satisfy the judgment and previous lien; and that he, Duffy, would run no risk in bailing him, to stay the execution: — upon the faith of which he did bail him, as he well knew Share’s real estate to be worth much more than the award, and the other judgments which bound it.
    4th Fact. That Duffy was sued on the bail he entered for Share on the award to April 1st, 1818, No. 63, on which judgment was entered on the 24th of August, 1818, scire facias issued, and an application made to open the judgment overruled.
    5th Fact. That by the report of the referees in the scire facias issued on this judgment, the fact of Share’s adopting the award in this cause as his, and his getting Share to enter bail for him, is fully established.
    6th Fact. That Share’s real estate, bound by this judgment, has been sold by his other creditors, the amount of this judgment ordered by the court to be paid to Becker without opposition, and the money paid over to the wards of the plaintiff, whose money it was before this writ of error issued, and without any notice of it, which payment, if allowed to stand, secures Duffy according to the plighted faith of Share, that he was secured by the lien of the award on his (Share’s) land.
    7th Fact. That Henry Share’s real or personal estate has been sold by the sheriff, and he is insolvent.
    
      Buchanan contended, that the plaintiff in error was entitled to restitution of course and as a matter of right. 2 Tid’s Prac. 936, 1137, 1138. 2 Salk. 588. 2 Tid’s Prac. 402, gives the form of the writ. 2 Saund. 69. 2 Serg. & Rawle, 57. This court will have enough to do, if in every case of restitution, they inquire into the merits of the reversed judgment, and exercise their discretion.
    
      Hopkins, contra.
    Restitution is in the sound discretion of the court, and great injustice will be done unless they exercise it. He relied on the case of Kirk v. Eaton, for the use of Coleman, and referred to 16 Johns. 4. 15 Johns. 395. 2 Dall. 205. Madd. Ch. 109.
   The opinion of the court was delivered by

Tilghman, C. J.

This is a motion by the plaintiffs in error, for restitution of the money levied on an execution issued on a judgment which has been reversed. The fact is, that there has been a reversal of two judgments, — the original judgment for Becker against Ranch and Share, and a judgment on the scire facias issued on the original judgment. Restitution is always granted on the reversal of a judgment, unless there be something peculiar in the case. The reasons offered against restitution in this case, are not satisfactory. They seem calculated only to show, that the judgments which have been reversed were just, and that on a second trial, Becker will again obtain judgment against the present plaintiffs in error. But, to suspend restitution on this ground, would involve the court in endless difficulties. It may as well be alleged, in every other case in which a judgment is reversed, with an award of a venire de novo, that in all probability there will be the same verdict, and then we shall be called on to investigate the merits of the cause. To avoid all embarrassment of this kind, the general rule must be, that on the reversal of a judgment, the plaintiff in error is entitled to restitution. But there are cases in which restitution would work such manifest injustice, that it would be the duty of this court to guard it by certain restrictions. An instance of this kind occurred, in the case of Kirk (in error) v. Eaton, for the use of Coleman. There, Eaton had obtained a judgment against Kirk, and also a second judgment in a scire facias on the original judgment, on which an execution had been issued, and levied on the land of the defendant. The judgment on the sci. fa. was reversed, but the original judgment remained in force. Kirk was insolvent, and asked for restitution. Now, in that case, what would have been the situation of Coleman, for whose use the suit was brought, if restitution had been granted. He would have lost the fruits of his original judgment, by which the land of Kirk was bound, because the purchaser under the execution would have held the land, notwithstanding the reversal of the judgment on the scire facias. This would have been flagrant injustice, to prevent which, the court ordered, that instead of making restitution to the insolvent debtor, the money should be brought into coui’t, to await the event of a trial on an issue, on the plea of payment on the scire facias, and then, as much as should be found to be due on the original judgment, was to be paid to Coleman, and the balance restored to Kirk. So, in the present case, it is understood, that Share, on whose land the execution was levied, is now insolvent, and that the land was bound by several judgments, subsequent in date, to the judgment of Becker. Now, the judgment of Becker being removed, by reversal, justice requires that the younger judgments, which were a lien, should be paid out of the money raised by Becker’s execution. But the money will be lost, if it goes into the hands of Share, therefore it becomes the duty of the court to protect the judgment creditors. This can only be done by ordering restitution, on certain conditions, — that is to say, the Court of Common Pleas, who are to carry our order for restitution into effect, must direct the restored money to be brought into court, after which it is to be applied, first, to the discharge of all liens on the land of Share, according to their legal priority, and the balance, if any, paid to Share himself. This will do justice to all parties, and will be such a restitution as the nature of the case demands.  