
    [Chambersburg,
    October 18, 1825.]
    DUNCAN against KIRKPATRICK and another, Trustees of DEWALT KEIFER.
    IN ERROR.
    Assumpsit does not lie to recover money ordered to be restored on reversal of the judgment of an inferior court; though it seems it would if there were a reversal without order of restitution.
    An express promise to pay by a stranger, would maintain assumpsit.
    Error to the Court of Common Pleas of-county, in an action of assumpsit, in which Moses Kirkpatrick and Frederick Kasper were plaintiffs below and defendants in error, and Matthew Duncan defendant below and plaintiff in error, and in which case a verdict and judgment were rendered in favour of the plaintiffs below for the sum of two thousand nine hundred and seventy-six dollars and eighty-nine cents. The declaration was in assumpsit setting forth the particulars of the case, and issues were joined on non assumpsit, and the statute of limitations.
    The suit was brought by the assignees of Dewalt Keifer against Duncan, to recover a sum of money which the defendant received out of the estate of Keifer, on an execution obtained by him contrary to law; and which was set aside by the Supreme Court on a writ of error, and the money now claimed ordered to be refunded. The material facts were that Duncan obtained a judgment against Keifer, in November, 1808, for seven hundred and sixty-eight pounds two shillings, and issued a fieri facias to January term, 1810, on which a levy was made on a tract of land which was condemned and sold by the sheriff on a venditioni ; of the money thus raised, two thousand one hundred and thirty-four dollars and two cents were paid to Duncan, as plaintiff in the execution, in full of his debt, interest, and costs, on the 16th of JLpril, 1810. A writ of error issued on this judgment and execution from the Supreme Court, in September, 1810, and in the Supreme Court the judgment was affirmed, and the execution set aside. In October, 1815, the Supreme Court awarded restitution, on motion of the plaintiffs in error.
    The defendant requested the court below to instruct the jury, among other things, that an action of assumpsit could not be maintained: but the court charged the jury that the action was maintainable, and that on the implied assumption raised by the law from the receipt of the money, without any express promise.
    Several other points were made by the defendant in the court 'below, and errors now assigned in the answers of the court; but as they are not touched upon in the opinion of the court, it is not thought necessary to mention them.
    
      Chambers and MlCullech, for the plaintiff in error,
    now contended, that the construction of the court below was erroneous; that the action was not maintainable, inasmuch as the law implied an assumption from the order of the Supreme Court that restitution should be made. The act of the 11th of March, 1S09, sect. 4, Purd. Dig. 330, imposes on the Court of Common Pleas the duty of carrying into execution and effect the judgments and orders of the Supreme Court, in causes removed by writ of error, upon the record’s being remitted, and the Court of Common Pleas had thereby all the necessary powers for that purpose. The judgment of restitution is a common law judgment, on which a writ of restitution in the nature of an execution lies. A precedent of such a writ is given in 2 Sell. Prac. 421, 422. No action lies on a judgment of reversal; much less can it be considered as raising an implied assumption. Assumpsit does not lie, even on an express. promise to pay a debt due by judgment. Anon. Cowp. 128. Where one has a security of a higher nature, he must found his action thereon. 1 Chitt. Pl. 95. Debt lies on a record, but indebitatus assumpsit is confined to a parol agreement. Selw. N. P. 56, (by Wheat.) In Mead v. Death and another, 1 Lord Raym. 942, an order made at the Quarter Sessions for the removal of a pauper, and payment of costs, on which the costs were paid, was after-wards quashed in the King’s Beneh on certiorari; on which the parties who had paid, brought indebitatus assumpsit against the defendants who had received it. And Tracy, Baron, held, that indebitatus assumpsit would not lie: and he compared it to the ease where money is paid upon a judgment, and afterwards the judgment is reversed for error, indebitatus assumpsit will not lie for the money: and the plaintiff was nonsuit.
    
      Crawford and Dunlop, contra.
    The act of assembly does not point out the manner in which the order of the court is to be carried into execution. In 2 Tid’s Prac. 936, 937, it is said, that when a court sets aside its own execution and orders the money to be restored, it enforces the order by attachment. In chancery, a decree is enforced by sequestration. 2 P. Wms. 621, 622. Even if the plaintiffs might have had a writ of restitution or attachment, it does not follow that an action will not lie. If the plaintiffs have a right to the money, they have a right of action. If it were a complete judgment, we should have a right to an execution, in which we should obtain debt, interest, and costs: but if the judgment is not complete, indebitatus assumpsit lies upon it. Here it does not appear what was the precise sum to be restored, nor to whom it was to be restored. It is, moreover, a mere order of restitution; not a judgment: it does not bind real estate. In Newdigate v. Davy, 1 Lord Raym. 942, Treby, C. J., held, that indebitatus assumpsit lay to recover back money paid under an order of the high commissioners, as being paid under a void authority. Linden v. Hooper, Cowp. 419, cites the case of Feltham v. Terry, decided 13 Geo. 3, where it was determined that an. action at law lies for money paid on a distress on a conviction which was afterwards quashed. In 1 Esp. N. P. 18, (Am. Ed.) it is said, indebitatus assumpsit lies to recover money where the judgment is reversed; though it is true the cases cited do not support the position. In 2 Day, 152, the point is not decided, but it is not questioned that such action lies on reversal of a judgment. They also cited, 1 Burr. 46. 2 Burr. 1008. Cro. Jac. 699. 3 Caines, 22, 29. 1 Caines, 47. 12 Johns. 227: and the doctrine in 3 Bl. Com. 159, that every man is under an obligation to perform what is ordered by law: and contended, that the defendant had in conscience no right to retain the money, and indebitatus assumpsit lies in every case to compel the defendant to refund money which in equity and conscience he ought not to retain.
   The opinion of the court was delivered by

Gibson, J.

In this case, as frequently happens in others, we are presented with a long list of superfluous points; and, as regards all but one, I shall merely say that the errors assigned are not sustained. The main question is, whether -.ssumpsit will lie for money which has been ordered to be refunded, on the reversal of the judgment of an inferior court. It is said in elementary books, that assumpsit is the proper action where money has been received under a judgment which is reversed; but this, I apprehend, must be restrained to cases of reversal without an order of restitution. At the common law, courts of law have a power originally incident to all courts, to carry their own decisions into effect; and where the judgment is affirmed, the execution issues from the court of error for the recovery of the thing in controversy, just as it would have done if the cause had remained below; and, on the other hand, where the judgment is reversed, a writ goes, not as a matter of course, but on the special order of the court to restore the plaintiff in error to whatever he had lost in consequence of the erroneous judgment. By an act of assembly of this state, it is made the duty of the Supreme Court to remit the record with its judgment thereon written, to the court below, whose duty it then becomes to carry such judgment into execution. Now an order of restitution, where one is made, is not merely collateral to the judgment of reversal, but a part of the judgment itself. In this respect, the judgment, when entered in form, is not only that the judgment of the court below be reversed, but that “it is considered that the defendant be restored to all things which he has lost on occasion of the judgment aforesaid;” and the writ of restitution which is issued in pursuance of it, and in which the sheriff is commanded to levy the money of the chattels of the plaintiff, or to arrest his person, is strictly an execution. In the case before us, then, the question is narrowed to an inquiry whether the plaintiff can maintain assumpsit, on an express or implied promise of the defendant to pay the amount of a judgment which had been rendered against him: and it is clear and incontrovertible law, that such an action is not maintainable, even though the promise be made on the additional consideration of a stay of execution; and this, because the plaintiff would otherwise be permitted to turn his judgment into a simple contract debt. But it seems to be agreed, that such a promise would be a sufficient ground for an action, if made by a stranger. Had the plaintiff procured a reversal of the judgment without an order of restitution, the money obtained from him might have been recovered back by indebitatus assumpsit; but as he has obtained a judgment for it in a court of competent jurisdiction, the simple contract debt which would otherwise exist, is merged; and he cannot recover.

Judgment reversed.  