Restitution was a remedy well known to the •common law. Its object Avas to restore to an appellant the •specific thing, or its equivalent, of which he had been deprived by the enforcement of the judgment against him during the -pendency of his appeal. It was not created by statute, but was exercised by the appellate tribunal as incidental to its power to correct errors, and hence the court not only reversed the erroneous judgment but restored to the aggrieved party that which he had lost in consequence thereof. It was usually a part of the judgment of reversal which directed “ that the defendant be restored to all things which he has lost on occasion ■of the judgment aforesaid.”
A writ of restitution was thereupon issued, provided the .amount that the appellant had lost, or paid under compulsion, appeared of record, as by the return of an execution satisfied. Othei-wise process in the nature of an order to show cause was first issued, known as a scire facias qua/re restitutionem habere non debet. (Tomlin’s Law Dict. title Restitution; 2 Till. Abr. 472; Rolle Abr. 778; Westerne v. Creswick, 4 Mod. 161; *367 Wilkinson's Case, Cro. Eliz. 465 ; Goodyere v. Ince, Cro. Jac. 246; Manning's Case, 4 Coke, 94; 2 Tidds. Pk. 1033; 1 Burrill Pk. 292.)
In this state the practice is now regulated by statute and almost every conceivable case is provided for. (Code Civ. Pro. §§ 445,1005,1216,1292,1323,2142, 2263 and 3058.) Section 1323 seems especially adapted to the facts set forth in the complaint, as it provides that “where a final judgment or order is reversed or modified upon appeal, the appellate court * * * may make or compel restitution of property, or of a right, lost by means of the erroneous judgment or order.” Tins is a part of section 330 of the Code of Procedure, under which it was held that the power conferred was cumulative and did not take away the common-law rights of a successful appellant.
(Lott
v.
Swescy,
The statutory remedy is exercised by the entry of a judgment or order in the action in which the erroneous judgment or order was rendered or made. We think that the remedies provided by statute are not exclusive and that they were enacted in recognition of the right of restitution as it existed at common law, to furnish additional means of enforcing that right.
We have before us an effort to procure restitution by an independent action in the nature of
indebitatus
assumpsit, based upon the theory that the law will imply a promise from the conduct of the defendants and the circumstances of the case. It has been repeatedly held that such an action will lie to recover back money paid on a judgment pending an appeal which resulted in a reversal. The subject was carefully examined in
Clark
v.
Pinney
(
The right of the plaintiffs to recover could hardly be questioned if the money had absolutely belonged to them when it was paid by the sheriff to the defendants, but inasmuch as they only had a lien upon it and had not then completed their title, it is claimed that no action will lie for their relief. In taking this position the defendants lose sight of the fact that a lien is property in the broad sense of that word, and although it has no physical existence it exists by operation of law so effectively as to have pecuniary value, and to be capable of being bought and sold. They also ignore the proceedings that were in progress to convert the lien into a title to the fund. This makes the successful prosecution of the appeal a barren victory and enables the party in fault to retain the fruits of his own wrong.
While the erroneous order was a protection to the sheriff, who acted upon it while it was in force, it is no protection to the defendants, because it was subsequently reversed on appeal, and became, as to them, the same as if it had never been made.
*369
When they accepted the money that was paid over in consequence of the order that they procured, they knew that if the order should he reversed and their motion denied, they would no longer be entitled to it, and could not in fairness retain it. They also knew that if, in the meantime, the plaintiffs perfected judgment and issued execution, their right to the money, if not paid over-, would be complete upon a reversal of the order. As they acted with knowledge of all the facts, it would be inequitable for them to retain money received under such circumstances, and we see no reason why the law should not infer a promise of restitution the same as if the money had been collected under an execution. In either case the inference rests upon the fact that money was received by those who knew at the time that it might ultimately be decided that they were not entitled to it. But to whom did the iinplied promise run ? Obviously to those who would have been entitled to the money upon the reversal of the order, provided it had not been paid to the defendants. It was so held in
Camerton
v.
McCarkle
(15 Grat. 177), which is precisely in point. The law implies the promise for the benefit of the injured party, and if the situation were the same as it was when the money Avas paid, repayment to the sheriff would be required, because he would be entitled to possession of the fund under the restored attachment.
(Pach
v. Gilbert,
The suggestion that the plaintiffs should have procured a stay of proceedings is not entitled to much weight, because a stay by order is not a matter of right, while a stay by undertaking upon appealing from a judgment is a matter of right, yet the omission to give an undertaking does not prevent a recovery upon a reversal of the judgment.
.We think that the judgments rendered by the courts below should be reversed and the demurrer overruled, with costs in all courts, with leave to the defendants to answer over in twenty days upon payment of costs.
All concur.
Judgment reversed.