Gay v. Smith, 36 N.H. 435

Gay v. Smith

36 N.H. 435 | N.H. | 1858

Sawyer, J.

Upon the reversal of a judgment for error, restitution is to be awarded to the plaintiff in error of all which has been taken from him by virtue of the judgment, and applied in satisfaction of it. In real actions the award of restitution is specific, that the plaintiff in error be restored to the tenements, with the appurtenances, together with the issues and profits received, colore judidi prcedicti. 13 Co. 21; Rast. Ent. 308; Cummings & ux. v. Noyes, 10 Mass. 483.

If satisfaction of the judgment has been obtained by an extent upon real estate, the land, and not its value, is to be restored; but if there has been a sale of the property levied upon, the restitution is to be of the amount of money received from the sale, which has been applied in satisfaction of the judgment and officers’ fees. Dyer 363, pl. 24; 5 Co. 90, b ; 8 Co. 96, b, 143 ; Roll. Abr. 778; Bac. Abr., Execution, Q; 1 M. & S. 425 ; Pangburn v. Ramsey, 11 Johns. 141.

Under our statute, any overplus arising from the sale is held by the officer for the use of the debtor. The writ of restitution is issued without a sdre facias, whenever the record shows the amount applied in satisfaction of the judgment; and when this does not thus appear, a scire facias is to issue, or, according to *437our practice, inquiry may be made by the court into the amount so applied, upon motion supported by affidavits. Tidd’s Practice 936, 1137-38; 2 Salk. 587 ; Saffon v. Stevens, 2 Wend. 158 ; Eames v. Stevens, 26 N. H. (6 Foster) 117. But the inquiry can go no farther than to ascertain the amount which has been applied in satisfaction of the judgment, and officers’ fees, which, for this purpose, are to be regarded as incident to the judgment. We are not aware of any authority for extending the restitution beyond this ; including, however, interest upon that amount from-the time of its receipt. Whether an action will lie for the damages occasioned by a sale of the property at an undervalue, is unnecessary to be decided. Turner v. Feldgate, T. Raym. 73; Westerne v. Greswick, 4 Mod. 161; 5 Com. Dig. 725. If the defendant in error is to be assessed in damages on that account, he has the right to have them assessed by a jury, and this cannot be done here, in conformity with any practice of which we are aware.

Motion denied.